Camilleri v R

The applicant's mental illness and cognitive impairment

1. It is necessary to set out in detail the evidence of the applicant's mental health issues and cognitive impairment. It is appropriate to do so because these conditions are central to the key issues raised in this appeal. They are relevant to the questions raised by the first ground of appeal which concern factors relevant to the objective gravity of the offence. The applicant's mental condition is also relevant to the second ground of appeal, because the diagnoses and legal impact of the conditions explain why an offer to plead guilty to manslaughter was not made in the Local Court and leads to the submission that there should have been a "discount" for the applicant's facilitation of the course of justice. Fundamentally, the impact of her condition on the proper exercise of the sentencing discretion is multifaceted and informs the arguments as to whether the sentence was manifestly excessive and whether a different, less severe, sentence was warranted and ought to have been imposed: Criminal Appeal Act 1912 (NSW), s 6(3).
2. The mental health history was lengthy and complex, and the diagnoses made over many years were inconsistent. The applicant had various conditions or impairments and their interrelationship was complicated. The evidence came before Wilson J in three stages of the curial process. Some of the evidence was tendered on an application for a judge alone trial, resolved by her Honour on 24 July 2020. Other parts of the evidence were tendered in the jury trial, while further material was adduced in the sentence proceedings. The abandonment of the third ground of appeal - which complained of a denial of procedural fairness based on the use evidence tendered in the pre-trial proceedings - and the conduct of the appeal by both parties means there is no issue that the evidence tendered on the judge alone trial application is admissible and relevant to the appeal and the question of sentence.

Summary of applicant's mental health history

1. The applicant's past engagement with mental health services was set out in reports provided by the psychiatrists Dr Furst (dated 10 June 2020) and Professor Greenberg (dated 21 April 2020). Dr Furst's and Professor Greenberg's reports were part of the evidence on the application for a judge alone trial.
2. The histories described in those reports included the following: 1. As a juvenile, the applicant was diagnosed with various conditions including a mild intellectual disability, low intelligence quotient ("IQ"), attention deficit and hyperactive disorder ("ADHD"), developmental delay, attachment disorder, impulsivity and "anger management" issues. She was also treated for depression, anxiety and violent behaviour. 2. As an adult, the applicant was diagnosed by several medical practitioners with a wide array of conditions. She was diagnosed with mood instability, ADHD, intellectual disability, low IQ, obsessive compulsive disorder ("OCD"), poor anger control, impulsive behaviour, anxiety, panic disorder, intermittent explosive disorder, bipolar type II, type II diabetes and bronchial asthma. Histories were taken concerning her anger management issues and aggressive behaviour, difficulty coping with frustration, low level of adaptive functioning and competence for everyday tasks, extreme sensitivity and poor coping skills in negative and stressful environments. She was prescribed mood stabilising, antidepressant and antipsychotic medications. 3. The applicant was admitted to Nepean Hospital for psychiatric treatment three times in 2018. The first admission followed an incident where the applicant assaulted a member of the public. She was diagnosed with an acute manic episode with psychotic features and was treated with a sedative along with mood stabilising, antipsychotic and antidepressant drugs. The second admission followed an incident where the applicant harassed a member of the public. Her mental state examination showed no evidence of psychotic illness, but she was prescribed antipsychotic medication. The third admission followed a similar incident, with no abnormality detected on examination. 4. On 5 April 2019 the applicant was reviewed by the Nepean Blue Mountains Local District Mental Health Service due to her escalating pattern of conduct involving telephoning strangers obsessively. It was noted that between December 2018 and April 2019, that is after the time of the incidents referred to in the preceding paragraph, the applicant was not complying with her prescribed regime of medication but was seeing a naturopath, taking herbal medicicnes and receiving hypnotherapy. A mental health examination found she had no formal thought disorder, hallucinations or delusions. However, she was diagnosed (for the first time) with autism spectrum disorder.

Professor David Greenberg

1. Professor Greenberg was retained by the respondent, initially to provide an opinion as to the applicant's fitness to stand trial and to advise on the issues of substantial impairment and mental illness. He had two consultations with the applicant and had been provided with a large body of material documenting the applicant's mental health history and the circumstances of the killing. His met with the applicant on 8 and 11 April 2020 for 2½ hours on each occasion. His first report dated 21 April 2020 was comprehensive, spanning 88 pages. He provided a supplementary report dated 21 May 2020 when he was invited to review the psychological report of Yiota Zingirlis.
2. Professor Greenberg described the applicant as having a "complex psychiatric presentation with multiple psychiatric diagnoses and other psychological problems." He referred to the "historical diagnostic uncertainty" in the applicant's case and explained the possible reasons for this uncertainty. He posited that the "comorbidity" and absence of any singular diagnosis may explain the past uncertainty concerning the nature and treatment of her condition. He expressed the opinion that the past failure to diagnose autism resulted from the fact that the applicant "does not present with many of the typical autistic spectrum disorder features (Asperger's syndrome)". These matters contributed to the failure of treatment and medication in the past.
3. Professor Greenberg described the applicant "as childlike and naïve in her manner" and said she had "obviously poor self-esteem and was insecure as a person." She spoke rapidly, exhibited mild anxiety and was "loquacious, overinclusive and circumstantial in her thoughts". She "reiterated details of her mother's killing in a concrete matter of fact manner [and] tone without any emotion or any emotional remorse". During the interview she said she "wanted to suffer because she had killed her mother" but Professor Greenberg said there "was no evidence of any emotional component to this statement."
4. Professor Greenberg reported that the applicant denied that she experienced auditory or visual hallucinations, paranoia, grandiosity, delusions, and disorder of thought control during the offence. Professor Greenberg's opinion was that the applicant did not have a psychotic disorder, psychotic symptoms or major mood disorder at the time of the offence. He noted that "disease of the mind" was a legal, rather than a medical concept and that "an intellectual disability per se would be uncommon to qualify for a mental illness defence". He spoke of her "numerous comorbid psychiatric disorders", but stated that it did not support a defence of mental illness based on her suffering from "an intellectual disability and autistic spectrum problem".

Dr Richard Furst

1. Forensic psychiatrist Dr Richard Furst was briefed by the applicant's Legal Aid lawyers to prepare two reports. The first, dated 10 June 2020, was directed to the applicant's fitness to be tried, substantial impairment under s 23A, and whether she was mentally ill at the time she killed her mother. A second report, dated 10 February 2021, was prepared for the sentencing hearing and addressed her risk of re-offending, prognosis, prospects of rehabilitation and whether her mental health may make her incarceration more onerous. Dr Furst reviewed similar material to that considered by Professor Greenberg. He had previously consulted the applicant following an incident involving her grandmother in 2014 and consulted her for the purposes of the homicide case on 15 May 2020 and 21 January 2021.
2. After the interview on 10 February 2014 Dr Furst described the (then 20-year-old) applicant's mood as low and anxious with no indications of acute psychosis or suicidal ideation. Her "patterns of speech and behaviour were consistent with an intellectual disability".
3. At the 15 May 2020 consultation, he described her thinking as "concrete and rigid" and her speech was "somewhat over-inclusive and detailed in her accounts of events, and she was difficult to interrupt." Dr Furst formed the opinion that there was no clear evidence that the applicant had a major mental illness such as schizophrenia or bipolar disorder, even though some of her behaviour was quite bizarre and manic. He diagnosed the applicant with: 1. Autistic spectrum disorder. 2. Obsessive-compulsive disorder. 3. Intellectual disability (mild to borderline impaired range).
4. Dr Furst concluded that the applicant was not suffering from a major mental illness such as schizophrenia, bipolar disorder or delusional ideation about her mother and did not have "a disease of the mind" at the time of the offence.
5. However, Dr Furst believed that the applicant was likely suffering from a substantial impairment by abnormality of the mind, due to her various mental illnesses. He described the "[n]eurological/brain deficits underpinning both autistic spectrum disorder and obsessive compulsive disorder" and referred to the report of Ms Zingirlis where the psychologist described a history and symptoms consistent with Dr Furst's diagnoses: "the history of marked difficulties in forming friendships, deficits in social communication, deficits in social interactions, deficits in social emotional reciprocity, and deficit in maintaining and understanding relationship[s], both intimate and not intimate. Ms Zingirlis also noted that Ms Camilleri presented with rigid and perseverative thinking patterns and difficulty shifting focus. She also presented with abnormalities of attention, hypersensitivity to sounds and synaesthesia. [22] Her symptoms were noted to have impacted on her ability to develop social connections, engage in a formal occupation, [and her contact with the criminal justice system] … and were also thought to be manifesting in her repetitive calling/harassment of male strangers …"

Yiota Zingirlis

1. The applicant's lawyers also retained a forensic psychologist, Ms Yiota Zingirlis, to conduct a document review and psychological assessment of the applicant. Ms Zingirlis met the applicant on 13 December 2019 and 9 January 2020 at Silverwater Women's Correctional Centre.
2. Ms Zingirlis administered the Depression, Anxiety and Stress Scale. The applicant's responses indicated she was experiencing "extremely severe" levels of stress, anxiety and depression.
3. The applicant was administered various cognitive assessments and memory tests. Overall, Ms Zingirlis assessed that the applicant's cognitive functioning as falling within the "Borderline range". This meant that the applicant "experiences great difficulty in keeping up with her peers in situations that require thinking and reasoning abilities".
4. The applicant's "general cognitive ability" fell in the borderline range while her memory was assessed as falling within the "Extremely Low range" for her age. Her delayed memory abilities were in the borderline range. The applicant's ability to recognise emotion was assessed to be in the average range. She had "difficulty attending to instructions" and "became easily distracted by preoccupying thoughts and required consistent redirection". On a test designed to measure mental flexibility and other related matters "her performance was profoundly impaired". Tests for effort suggested the applicant's responses and performance in this testing were genuine and the test results "represent a valid reflection of her cognitive abilities".
5. Ms Zingirlis expressed the opinion that the applicant had many vulnerabilities in her neurodevelopment and met the criteria for: 1. Autism spectrum disorder. 2. Specific learning disorder.
6. However, Ms Zingirlis could not rule out an underlying psychotic illness because the applicant responded well in the past to psychotropic medication and psychiatric admissions (however, both psychiatrists ruled out such an illness).
7. Ms Zingirlis doubted that the applicant could understand (emotionally) moral wrongfulness: "Whilst it appears that [the applicant] has an intellectual understanding of moral wrongfulness, there is a likely disconnect from the emotional understanding, associated empathy and behavioural control. During times of increased distress and intense emotional drive, her ability to understand this concept would likely be further reduced."

Criminal history and future dangerousness

1. The sentencing Judge acknowledged that the applicant's criminal record was limited to one matter of common assault in October 2019, for which she was convicted with no further penalty. That incident occurred when she was in custody and on remand for the killing of her mother. However, there were several incidents which resulted in diversions to the mental health system under s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (since repealed). Wilson J set these out as follows: [23] "90. At trial, the offender's sister told the Court that the offender was physically violent to others, and that police were involved on occasion. She was aware of an incident in which the offender had attacked their aunt, grabbing her by her hair and pulling her down a set of concrete steps. Another incident involved an assault on the witnesses' former mother-in-law, where the offender approached the lady from behind and pulled her hair violently. She had to be physically pulled away by Mrs Camilleri, who prevented the assault from going further. 91. The offender told Professor Greenberg, and medical notes record, that she had assaulted a number of other people in the community. Professor Greenberg drew the following history of assault alleged against the offender from medical and police notes: (1) In September 2012 she assaulted a lady with a baby by grabbing hold of the woman's hair and pulling it; (2) In December 2012, a woman at a supermarket checkout counter was assaulted when the offender, without provocation, walked up to her and pulled her hair; (3) As mentioned earlier, in June 2013, the offender had an argument with a student in her Nova Employment class. When another student sought to calm the situation the offender lunged at her, grabbed her hair and pulled it; (4) In July 2013, the offender pulled the hair of a woman whilst in the waiting room of a doctor's practice. The offender told police that the female had been staring at her and that she 'just saw red'. (5) In September 2013, the offender attended Westmead Hospital Emergency Department after suffering a panic attack. In the waiting room, the offender approached a woman, who she thought was staring at her, and grabbed the woman by the hair. (6) In March 2016, the offender called out to a woman getting off a bus near her St Clair house, asking for help. When the woman approached, the offender grabbed the woman's hair and dragged her to the ground. 92. Professor Greenberg noted the offender's previous criminal charges (although not convictions), including four separate incidents of common assault from December 2013 to February 2018, which seem to have been dealt with pursuant to s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW). 93. Further, before Mrs Camilleri's death the offender became obsessed with telephoning strangers, and frequently threatened those strangers, some with decapitation. 94. Of particular relevance is the offender's campaign of harassment against Natalie Naylor who received over 20 phone calls and 22 messages from the offender in October 2015. Ms Naylor reported that the offender's messages included a number of threats to kill her and her husband, including: 'I will come over to your door with a knife in my hand and slit your throat myself… I will come over to your house with a knife in my hand and I will shred off your head to your neck and I will shred off your head to your neck and you will have no head left… I will fuckin' ram that knife right through your neck and cut off your whole head'. 95. A second victim of this sort of behaviour was Matthew Layfield, who was the unwilling recipient of as many as 100 telephone calls per day in the 12 months before Anzac Day 2019. Having begun to telephone Mr Layfield, the offender managed to match a phone number with his business and began to call numbers associated with it, including Mr Layfield on his work number, and a number of his colleagues and family members. 96. Although the offender typically commenced the calls with an apology for their frequency, she quickly became aggressive and said things to those she called such as "I will stab you and cut your head off with a knife". 97. Mr Layfield, his business colleagues, and his family endured about 12 months of these seriously harassing phone calls, including a call placed to Mr Layfield's wife in which the offender told her that she would cut off her head and flush it down the toilet. These hundreds and hundreds of calls were made despite Mrs Camilleri's constant attempts to stop the offender from placing them."

Victim impact statements

1. Wilson J referred to the impact of the homicide on others, observing at [37] "[t]he lives of others have been forever changed, as the Court heard when victim impact statements were given by those whose sufferings have been greatest." There were five victim impact statements presented at the hearing.
2. The first was from Mrs Camilleri's mother and the applicant's grandmother. She said the applicant did not listen when told to take her medication, saying the medicine made her sick. She spoke of her immense grief since her daughter's death and that she still cannot "bear it".
3. The second statement was from the applicant's sister and Mrs Camilleri's eldest daughter, Kristy Torrisi. Ms Torrisi spoke about the "incredible pain" and "absolute loss" her and her family have experienced since the death of her mother. She described her mother as "a beautiful woman inside and out", who "had a heart of gold and always put others before herself". Ms Torrisi stated that she "will never forgive [the applicant]" because she continuously refused help from her family and that "[i]t was [the applicant's] own choices" which "put herself in a situation where she took [their] mothers life". She spoke about the trauma visited upon Child A. Ms Torrisi suffers depression and anxiety and said she is often angry, hurt and lost for words knowing that her "own sister murdered her mother". She is left "feeling so insecure and so unsafe".
4. The third statement was from Mary Hill, the applicant's aunt and Mrs Camilleri's sister. She also spoke about the immense grief, trauma and anxiety that she and her family have experienced. Mrs Hill admired Mrs Camilleri for having "unconditional love for her daughter". However, she said Mrs Camilleri "was blind sighted", and would not listen to Mrs Hill's concerns for her safety, putting the applicant before herself and her family. Since her sister's death, Mrs Hill left work to be the sole carer for her mother and other family members. Mrs Hill said, "until more resources and funding are put towards essential mental health services, there will be more tragic cases that come before the courts like ours".
5. The fourth statement was from the applicant's ex-brother-in-law who gave a statement for himself and on behalf Child A, who was 4 at the time of the offence and 6 at the time of sentence. He detailed the grief and shock he felt when he learnt of Mrs Camilleri's death and that Child A had witnessed it. At the hospital, Child A had blood stains and a large laceration on his face. Since the offence, Child A has suffered emotionally and has been more terrified than usual. Child A loved Mrs Camilleri but now blocks out memories of her, to forget the pain and trauma. Child A fears the applicant and is worried about his family's safety. The applicant's brother-in-law said he feels like he failed Child A because he could not protect him that night.

Ground 1: The sentencing Judge erred in her Honour's assessment of the "gravity of the crime"

1. Wilson J commenced the sentencing judgment by citing the High Court's judgment in Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 ("Veen (No 2)") and expressing the opinion that the applicant's offence "must be regarded as one of the most serious instances of manslaughter it is possible for any imagine to conjure." [24] Her Honour's view was reflected in the starting point of the sentence (24 years) which was one year less than the maximum penalty prescribed by s 24 of the Crimes Act 1900 (NSW). The applicant's total sentence is the highest sentence recorded for the 110 manslaughter cases on the Judicial Commission of New South Wales statistical database ("JIRS") in the period of 2018 to date. Her non-parole period is also the highest recorded on that database. In Chandler v R (2023) 103 MVR 392; [2023] NSWCCA 59 ("Chandler") N Adams J interrogated the JIRS records going back to January 2008 and, again, the applicant's total sentence and non-parole period are the highest recorded (of 263 manslaughter cases where a sentence of full-time imprisonment was imposed): at [104]-[105]. The length of the sentence reflects a finding that the case was in the "worst case" category.
2. The submissions under ground 1 encompassed several complaints as to the sentencing Judge's approach to what was described as "The Gravity of the Crime", an expression which derives from a heading in the sentencing judgment immediately above paragraph [31], in which her Honour reiterated her conclusion that "this is as serious an example of manslaughter as it is possible for such a crime to be." The arguments described by Mr Game SC as "doctrinal" are interrelated, but they crystallise in the dual propositions that the diminution in the applicant's moral culpability, resulting from her neurological and psychiatric conditions, means first that it could not reasonably be held that the case was the "worst imaginable", justifying a sentence approaching the maximum penalty available, and second that those psychiatric conditions, in the circumstances of the case, impact on a proper assessment of the seriousness of the offence.
3. The applicant accepted that "the assessment of objective seriousness is classically within the role of the sentencing Judge", [25] and did not dispute Wilson J's description of the crime as one of "extraordinary viciousness and brutality". It is also the case that her Honour correctly identified some significant aggravating features: the offence was committed in the victim's home; in the presence of a very young child; and there was disturbing mutilation of the victim's body, including decapitation of her head and removal of her eyes. However, it was submitted that the assessment of the crime's gravity was not consistent with the fact that the applicant's loss of control was "complete" and with the findings as to the applicant's level of impairment and consequent amelioration of her moral culpability.

Ground 2: The sentencing judge erred in failing to discount the applicant's sentence for her acceptance of responsibility and willingness to facilitate the administration of justice

1. This ground arises because of the prescriptive regime of sentencing discounts under Pt 3 Div 1A of the Crimes (Sentencing Procedure) Act. It is common ground that, under that regime, the applicant was entitled to no more than the 10% discount allowed by the sentencing Judge: see the sentencing judgment at [62]-[68].
2. The provisions operated unfairly in the applicant's case. To place that unfairness and the arguments under this ground of appeal in context, it is worth repeating the uncontested chronology which derives from the prosecution sentence summary and the applicant's written submissions: [34] 4 February 2020 The applicant served a forensic psychiatrist's report (Dr Eagle) stating the opinion that the applicant was not fit to be tried. 27 March 2020 The applicant was committed to stand trial, having raised the issue of her fitness at the committal hearing. 22 April 2020 The prosecution served Professor Greenberg's report, which indicated that the applicant was fit to stand trial and that substantial impairment was an available (partial) defence. 1 May 2020 The applicant sought an adjournment to consider the issue of fitness. 12 May 2020 The applicant made an offer to plead guilty to manslaughter based on substantial impairment. 5 June 2020 The case was adjourned to allow the prosecution to consider the offer. 18 June 2020 The offer was rejected by the prosecution. 19 June 2020 The applicant was arraigned on the charge of murder. 25 June 2020 The applicant served Dr Furst's report, confirming the availability of the defence of substantial impairment, and made a further offer to plead guilty to manslaughter. 10 July 2020 The offer was rejected by the prosecution. 20 July 2020 An application for trial by judge alone was made and refused. 30 November 2020 The trial commenced. 10 December 2020 The jury returned its verdict of not guilty to murder but guilty to manslaughter on the basis of substantial impairment.

1. It will be seen that the applicant was committed for trial at a time when it was thought, based on Dr Eagle's report, that she was not fit to stand trial. Her fitness was raised during the committal hearing in the Local Court. After the committal, Professor Greenberg provided an opinion that she was fit to be tried. A little less than three weeks later, the applicant offered to plead guilty to manslaughter. The prosecution rejected that offer to plead guilty. There was no formal fitness hearing, and the applicant was not found (by a court) to be fit to be tried. Further, while a plea of guilty was offered, no plea was actually entered.
2. The sentencing Judge said at [67]: "The Division makes allowance for a person who was unfit to be tried but was subsequently found fit. Section 25D(5)(a) provides for a discount on sentence of 25% where the person was committed for trial, found fit to be tried and, as soon as reasonably practicable thereafter entered a plea of guilty. This provision does not, however, apply to the offender because she was not found fit to be tried (the issue falling away upon further investigation by medical professionals) and she did not enter a plea, but rather offered a plea to a different charge."
3. The applicant submits that the words "found fit to be tried" in s 25D(5)(a) do not require a formal fitness hearing but may apply to a finding by a qualified psychiatrist. However, she acknowledges that the section requires that a plea of guilty actually be entered. While s 25E allows for the prescriptive gradation of sentencing discounts to be guided by the timing of formal offers to plead guilty when such offers are rejected but later vindicated, it makes no such provision in the case of an offender who had not been found fit to be tried at the time of the committal hearing. The applicant is correct to identify the "inherent unfairness" in this lacuna in the legislation.
4. The sentencing Judge seemed to acknowledge this unfairness when she said at [68]: "As Counsel for the offender submits, the provision appears to be somewhat anomalous in that regard. Since the offender offered to plead guilty to manslaughter as soon as reasonably possible after she received expert advice as to her fitness, the plea was rejected, but the jury subsequently returned a verdict of guilty to that charge, arguably, the legislation should - but does not - provide for a discount on sentence of 25%." [Emphasis added.]

Re-sentencing

1. In exercising the sentencing discretion afresh, I would adopt most of the factual findings made by Wilson J.
2. I have considered the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act. The concepts of adequate punishment, accountability and denunciation are significant given the seriousness of the offence. The sentence must also recognise the harm done to the victim and her family and vindicate her dignity. As will be seen, and as recognised by Wilson J, deterrence is less significant in this sentencing exercise. The protection of the community is a particularly significant matter, but some consideration must also be given to the rehabilitation of a seriously challenged offender who remains quite young.
3. Objectively, the facts were gruesome and brutal and involved a frenzied attack on an innocent victim in her own home and in the presence of a very young child. The mutilation of the victim's body, including her decapitation and the removal of her eyes, made this homicide particularly horrendous. The threats of decapitation and similar threats to others in the past make the incident particularly troubling. The applicant used a large number of knives in the course of the frenzied and unrestrained attack.
4. On the other hand, the offence was spontaneous and the result of the applicant losing control of herself because of her complex psychiatric illness. That loss of self-control continued throughout the incident, at least until her mother was dead, whereupon the applicant mutilated her mother's body in a macabre and inexplicable way, apparently or partly because of her obsession with horror movies, a matter discussed in the psychiatric and psychological reports. Her behaviour of walking into the street with her mother's head and dropping it, as well as asking emergency services personnel whether they could reattach it, demonstrated the extent to which the applicant's conduct was divorced from the real world. Her indifference at that point is likely to be a product of her mental health conditions. I am satisfied that the extent to which the applicant's behaviour was affected by her mental health conditions was significant, even starting from the position that she was "substantially impaired" based on the jury's verdict, and noting the consistent evidence of the two psychiatrists and the psychologist.
5. In many ways, the description of the killing speaks for itself. There were a number of aggravating features and not any by way of mitigation, apart from the lack of planning in the attack and the extent to which the applicant's mental health played the role that it did. The objective criminality is extreme and towards the very top of the range of offences of manslaughter.

Orders

1. I propose the following orders: 1. Grant leave to appeal. 2. Allow the appeal. 3. Quash the sentence imposed on 12 March 2021 and in lieu thereof the applicant is sentenced to a non-parole period of 12 years commencing on 20 July 2019 and expiring on 19 July 2031, with a balance of term of 4 years and 6 months expiring on 19 January 2036. 4. The applicant will be eligible for release to parole at the expiration of the non-parole period. 5. The applicant is advised that the provisions of the Crimes (High Risk Offenders) Act 2006 (NSW) apply to her case and the Court directs the applicant's legal representative to explain the implications of that statute to the applicant.
2. CAVANAGH J: I have received the judgments of both Adamson JA and Hamill J. I am grateful for their Honours' extensive analyses.
3. It is not necessary that I reiterate the circumstances of the offending, the submissions of the parties or all of the relevant parts of the sentencing judgment. Further, I do not intend to rehash their Honours' analyses but rather state the basis upon which I would allow Ground 1 but not Ground 2 of the appeal.

Ground 1

1. I agree that the applicant's criticisms of the sentencing judgment are largely unwarranted. I also agree with their Honours' analyses in respect of the relationship between objective seriousness or gravity and moral culpability. They are separate but related concepts.
2. To the extent that the applicant submits that the sentencing judge erred in failing to have regard to reduced moral culpability in assessing objective seriousness, that proposition must be rejected. So much is clear from DS v R; DM v R [2022] NSWCCA 156 ("DS and DM").
3. In that case at paragraphs [63] to [96], the Court (per Beech-Jones CJ at CL, N Adams and Cavanagh JJ) undertook a lengthy analysis of the relationship between the two principles, having regard to the submissions of both applicants that there had been an error in failing to have regard to moral culpability whilst assessing objective seriousness.
4. As the Court concluded at [128]: "[128] The principal contention made in support of this ground was that the sentencing judge erred in failing to "take into account [DM's] moral culpability in assessing the objective seriousness of this offence". For the reasons addressed above, the proposition that an assessment of moral culpability informs or is part of the assessment of the objective seriousness of the offence is rejected."
5. However, in a passage to which both Adamson JA and Hamill J refer at [96] of DS and DM, the Court also observed that mental illness may be a relevant factor in assessing both objective seriousness and moral culpability. Whilst objective seriousness and moral culpability are separate but related concepts, a mental illness which contributes to the offending may be a factor relevant to the objective seriousness of the offending. For example, when assessing objective seriousness, a Court might distinguish between a planned or premeditated event and one which arises spontaneously stemming from of a loss of control caused by the mental illness from which the offender was suffering.
6. That much is probably uncontroversial. It is also uncontroversial that the assessment of objective seriousness is a matter within the sentencing judge's discretion.
7. However, the important question which arises on this appeal is the extent to which mental illness is a factor in the exercise of a sentencing discretion, in circumstances whereby the applicant has been acquitted of murder but convicted of manslaughter pursuant to s 23A of the Crimes Act. In other words, to what extent should mental illness be taken account of in the exercise of the sentencing discretion when the applicant has already been convicted of a lesser offence than they might otherwise have been, having regard to that mental illness.

Ground 2

1. Again, it is not necessary that I repeat the analyses undertaken by both Adamson JA and Hamill J with respect to Ground 2 of the appeal.
2. The applicant accepts that she was entitled to no greater discount than 10% for her offer to plead guilty. However, the applicant submits that she should have been entitled to an additional discount under s 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("CSP Act") on the basis of her assistance in facilitating the administration of justice.
3. Section 22A is in the following terms: "Power to reduce penalties for facilitating the administration of justice (1) A court may impose a lesser penalty than it would otherwise impose on an offender who was tried on indictment having regard to the degree to which the administration of justice has been facilitated by the defence (whether by disclosures made pre-trial or during the trial or otherwise). (2) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence."
4. Two things might be said about s 22A, being: 1. firstly, it does not mandate the imposition of a lesser penalty. It merely specifies that "the court may impose a lesser penalty…having regard to the degree to which …". It follows that the Court must have regard to the degree to which the administration of justice has been facilitated but any decision to impose a lesser penalty remains within the discretion of the Court; and 2. secondly, as set out in s 22A(2), any lesser penalty must not be unreasonably disproportionate to the nature and circumstances of the offence.
5. The Court is thus required to assess the extent to which the administration of justice has been facilitated by the applicant and consider whether a lesser penalty should be imposed (having regard to all relevant matters), whilst ensuring that any lesser penalty is not unreasonably disproportionate to the nature and circumstances of the offence.
6. The applicant submits that the sentencing judge erred in determining whether there should be any additional discount for her facilitation of the administration of justice, in that her Honour erred in having regard to s 25F(2) of the CSP Act. That is based on the following passage from the sentencing judgment (at [69]-[70]): "69. In this instance, I am not persuaded that, despite the provision in s 25E(3)(b) the offender should receive a discount on sentence which is greater than that provided by statute. A 10% discount represents a level of discount which is adequate to acknowledge the offender's willingness to plead guilty to manslaughter once the issue of fitness was resolved, and the utilitarian value of the offered plea, but does not offend against the principle embodied by s 25F(2), which provides for a reduced or no discount where it is determined that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence could not be met by a sentence incorporating the discount. It is not strictly necessary to make a finding of that nature here, since the offender will receive the discount mandated by the Division. My conclusion is that no greater discount should be awarded. 70. For the same reason, I do not propose to allow an additional quantified discount on sentence to acknowledge the facilitation of the administration of justice inherent in the efficient conduct of the trial. A reduction in sentence of 10% overall is sufficient."

Resentencing

1. I agree with Hamill J's resentencing. His Honour adopts most of the findings of the sentencing judge. In particular, his Honour pays due regard to the significance of future dangerousness. Of course, having found error, this Court is engaged in the process of resentencing. Whether any additional reduction should be made under s 22A and the extent to which the applicant's mental illness impacts upon both objective seriousness and moral culpability (as well as all of the other relevant sentencing factors) are considered afresh.
2. I thus agree with the orders proposed by Hamill J.

Endnotes

1. Crimes Act 1900 (NSW), s 23A.
2. R v Camilleri [2021] NSWSC 221 at [111] ("Sentencing Judgment").
3. See Tcpt, 30 September 2022, pp 2(30)-3(9)
4. Criminal Appeal Act 1912 (NSW), s 6(3).
5. Applicant's Written Submissions at [7] ("AWS"); Respondent's Written Submissions at [4] ("RWS").
6. Sentencing Judgment at [4].
7. Ibid at [5]-[6].
8. Ibid at [7].
9. Ibid at [8].
10. Ibid at [9].
11. Ibid at [11]-[12].
12. Ibid at [15]-[16].
13. Ibid at [17].
14. Ibid.
15. Ibid at [18]-[22].
16. Ibid at [23]-[24].
17. Ibid at [25]-[26]
18. Ibid at [27].
19. Ibid at [30].
20. Ibid at [29].
21. Ibid at [55].
22. A footnote to the report explained this condition as one in which "one sense (for example, hearing) is simultaneously perceived as if by one or more additional senses such as sight".
23. Sentencing Judgment at [89]-[97].
24. Ibid at [1].
25. AWS at [25], citing Mulato v R [2006] NSWCCA 282 at [37].
26. Tcpt, 4 December 2020, p 265-266.
27. RWS at [67].
28. R v Camilleri [2021] NSWSC 221 at [38], [57] and [85].
29. AWS at [28].
30. Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25.
31. Tcpt, 30 September 2022, p 8.
32. RWS at [72].
33. The reference is to Veen v The Queen (1979) 143 CLR 458.
34. AWS at [33].
35. Tcpt, 17 February 2021, p 9.
36. R v Camilleri [2021] NSWSC 221 at [69]-[70].
37. See Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25D(1) and 25E(2).
38. Sentencing Judgment at [38].
39. R v Warren Scott (No 3) [2021] NSWSC 1646; R v Hong [2021] NSWSC 1487; R v Srsa [2021] NSWSC 924; R v Krey (No 4) [2021] NSWSC 826; Ukropina v R [2016] NSWCCA 277; Catley v R [2014] NSWCCA 249; Pitt v R [2014] NSWCCA 70; R v Stephen Anthony Cavanagh [2010] NSWSC 670.
40. Tabbah v R [2019] NSWCCA 324, Magro v R [2020] NSWCCA 25, Paterson v R [2021] NSWCCA 273 and R v DF [2022] NSWSC 762.