DOOHAN -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 80 (5 July 2024)

If a person unlawfully kills another person and -

(a) the person intends to cause the death of the person killed or another person; or

(b) the person intends to cause a bodily injury of such a nature as to endanger, or be likely to endanger, the life of the person killed or another person; or

(c) the death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life,

1. Section 279(4) of the Code sets out the penalty for murder as follows:

A person, other than a child, who is guilty of murder must be sentenced to life imprisonment unless -

(a) that sentence would be clearly unjust given the circumstances of the offence and the person; and

(b) the person is unlikely to be a threat to the safety of the community when released from imprisonment,

in which case, subject to subsection (5A), the person is liable to imprisonment for 20 years.

1. Section 279(5A) is irrelevant for present purposes.
2. In the event that an offender is sentenced to life imprisonment, the sentencing judge is required to impose a minimum period of at least 10 years that must be served before the offender becomes eligible for parole, pursuant to s 90(1)(a)(ii) of the Sentencing Act 1995 (WA). There is no maximum non‑parole period. A sentencing judge may order a person who is guilty of murder never be released. In this case, it was not suggested that this option was open.
3. In the present case, the appellant pleaded guilty to murder not on the basis that she intended to cause Anastasia's death but, rather, that she intended to cause a bodily injury of such a nature as to endanger or be likely to endanger Anastasia's life. In the proceedings before Derrick J, the State submitted that the appellant should be sentenced to life imprisonment with an appropriate non‑parole period. It was accepted by the State that it was, in the circumstances of the case, open to the sentencing judge 'to impose a minimum sentence that is at the lower end of minimum sentences imposed for the crime of murder in this State'.[2] It was submitted on behalf of the appellant that it would be clearly unjust for her to be sentenced to life imprisonment, and that, upon release from imprisonment, she was unlikely to be a threat to the safety of the community. In effect, it was submitted that his Honour should sentence the appellant to a finite term of imprisonment less than the statutory maximum of 20 years.
4. His Honour rejected the submissions of the appellant and imposed the sentence set out at [3] above.

1. The facts of the appellant's offending were not in dispute before the sentencing judge or in this court. They are set out in detail in his Honour's careful and comprehensive sentencing remarks, The State of Western Australia v Doohan,[3] and are summarised below.
2. In about early 2016, the appellant, who was then 17 years old, met and formed a relationship with Mr David Hand, who was, at the time, 19 or 20 years old.
3. Shortly after they commenced their relationship, the appellant and Mr Hand decided, together, to have a baby. Anastasia was born on 19 January 2017.
4. In February 2017, after briefly living with the appellant's mother and stepfather, the appellant and Anastasia moved a short distance into a house situated on Brockman Street in Capel (the Brockman Street house). A short time later, Mr Hand and his older brother moved into the Brockman Street house.
5. On or about 20 April 2017, the appellant's mother noticed bruises on Anastasia's face.
6. In early May 2017, the appellant's younger brother visited the Brockman Street house. While there, he observed Anastasia crying and the appellant holding Anastasia. He then observed the appellant holding Anastasia away from her, and violently shaking her until she stopped crying.
7. On 4 May 2017, the appellant's mother noticed bruises on Anastasia's left cheek and what she considered to be an older bruise above the child's left eye.
8. On 10 May 2017, the appellant's mother observed what she thought was a friction burn on Anastasia's neck and another bruise on her face. At the appellant's mother's suggestion, the appellant took Anastasia to the Emergency Department at Bunbury Regional Hospital, where Anastasia was examined. There, the child was found to have bruising and a scratch mark on her right cheek, as well as eczema in her neck folds and nappy rash. The appellant told medical staff that the facial bruise was caused by Anastasia rolling around in her cot and hitting her head on the rails, and that the scratch mark was inflicted by Anastasia herself. It was concluded that the bruising and scratches were accidental, and Anastasia was discharged into the appellant's care. Shortly after Anastasia's discharge from hospital, the Department of Communities contacted the appellant. Officers from the Department liaised with the appellant and Mr Hand to formulate a safety plan for Anastasia.
9. On or about 20 May 2017, the appellant's stepfather noticed a blood clot over Anastasia's eye. Around the same time, the appellant's mother noticed further bruising around Anastasia's neck.
10. On the evening of 25 May 2017, the appellant's mother and stepfather visited the Brockman Street house and noticed that Anastasia was 'not happy'.
11. Anastasia slept through the night of 25 May 2017.
12. On the morning of 26 May 2017, Anastasia woke up at about 6.30 am in her cot, which was set up in the bedroom occupied by the appellant and Mr Hand. The appellant asked Mr Hand to change Anastasia's nappy. After he finished changing Anastasia, he placed her back into the cot. Anastasia then made noises indicating she was hungry. In response, Mr Hand gave her a bottle of baby formula and then returned her to the cot. Shortly after, he went to have a shower. The appellant remained in bed in the room with Anastasia. Mr Hand was in the shower for about 25 minutes to half an hour.
13. While Mr Hand was in the shower, unbeknown to him, the appellant took hold of Anastasia and vigorously shook her while applying force to her body. By doing so the appellant inflicted serious injuries to Anastasia's head, brain, eyes and spine. The head and neck injuries were later determined to be the cause of the child's death.[4]
14. When Mr Hand returned to the bedroom, Anastasia had been returned to her cot. The appellant asked him to take Anastasia out of her cot and to bring her over to her so that she could say good morning to her. The appellant said to Mr Hand that she wanted to give Anastasia 'a mummy kiss'.
15. As he took Anastasia out of the cot, Mr Hand noticed that she was 'floppy', and that she was not breathing and was unresponsive. Mr Hand performed CPR on Anastasia while the appellant rang triple zero. At around 8.10 am, paramedics arrived at the Brockman Street house. Anastasia was taken to the Bunbury Regional Hospital, and later transferred to Princess Margaret Hospital (PMH). At PMH, Anastasia was assessed as having suffered a catastrophic brain injury and no brain activity could be detected. On 28 May 2017, treatment was ceased, and Anastasia was declared deceased at 2.45 pm.

1. Following her death, multiple post‑mortem reports were conducted to determine Anastasia's cause of death and the extent of her injuries.
2. The post‑mortem findings of forensic pathologist, Dr Judith McCreath, and the neuropathological findings of Dr Vicki Fabian, a neuropathologist, were reviewed by a forensic paediatrician, Dr Louise Houliston. Dr Houliston found that Anastasia had sustained multiple traumatic injuries to her soft tissues, bones, brain, eyes and spine, and that these injuries were indicative of inflicted injury.
3. In around March 2019, Dr Andrew Baker, a forensic pathologist based in the United States of America, reviewed various CT scans and X-rays taken of Anastasia. Dr Baker's review revealed injuries that were sustained by Anastasia prior to the events on 26 May 2017. These injuries included fractures to her right femur and tibia, as well as fractures to her left femur and tibia, possible subtle fractures to her second and third ribs, and soft tissue swelling around Anastasia's left elbow without a discernible associated fracture. In a supplementary report prepared by Dr Baker, he concluded it was highly likely that the right and left distal tibia fractures occurred several days to possibly several weeks before 26 May 2017.
4. In or around May 2019, Dr Houliston was asked by the Office of the Director of Public Prosecutions for Western Australia whether vigorous shaking of Anastasia in an effort to stop her crying would have caused the injuries sustained by her. In a letter to the DPP dated 2 May 2019, Dr Houliston said, in summary, that the traumatic head and spinal injuries could have been caused by Anastasia being shaken. In a supplementary report prepared by Dr Fabian, she confirmed that her neuropathological findings were consistent with 'Shak[en] Baby Syndrome'.[5]

1. The sentencing judge was not provided with a victim impact statement from Mr Hand. However, each of Mr Hand's parents, Anastasia's paternal grandparents, submitted a victim impact statement on behalf of themselves, Mr Hand and his siblings. In the sentencing proceedings, it was accepted that the portions of the impact statements dealing with the impact of the offending on Mr Hand and his siblings were admissible under s 24(1) of the Sentencing Act.[6]
2. The sentencing judge found that the victim impact statements revealed that the effect of the offending on Mr Hand had been 'extreme'.[7] For some time after Anastasia's death, he felt responsible for causing it because he believed that she must have 'drowned on her milk'. He had changed from being a bright, confident and cheerful young man to a man who had lapsed in and out of depression, who was dependent on medication and drugs, and who had tried to take his own life on several occasions prior to the appellant's sentencing. Mr Hand's parents and siblings had all suffered, and continue to suffer, emotional trauma, not only as the result of Anastasia's death, but also from having to observe and attempt to deal with the terrible impact her death had on Mr Hand.
3. His Honour summarised the victim impact statements as follows:[8]

In summary, and unsurprisingly, it is clear from the victim impact statements that your conduct in causing Anastasia's death has had an extremely significant and adverse impact on [Mr Hand's] mental and emotional wellbeing, and a significant and adverse impact on the general wellbeing of [Mr Hand's parents and siblings]. While it is to be sincerely hoped that each of [them] will over time in their own ways be able to come to terms with their terrible loss and grief to a sufficient extent to enable them to progress with their lives, they will no doubt be adversely affected to varying but significant extents by what you have done for the rest of their lives.

The appellant's personal circumstances and antecedents

1. The appellant was 18 years and 6 months of age at the time of the commission of the offence. At the time of sentencing, she was 20 years old. The appellant is the older of two children born of her parents, and has two younger half‑siblings and two step‑siblings from her mother's later relationship with her stepfather.
2. The appellant's biological father was an aggressive and violent man. Up to the age of 4 years, the appellant was exposed to significant domestic violence perpetrated by her father against her mother, as well as other acts of violence carried out by him. The appellant and her brother were subjected to verbal and physical abuse by their father. As will be seen, this abuse has had a seriously adverse ongoing effect upon the appellant. The appellant's mother left that relationship when the appellant was about 4 years old, taking both children with her.
3. When the appellant was 7 years old, her mother entered into a relationship with the appellant's stepfather. The appellant did not have a good relationship with her stepfather. As a result, her relationship with her mother and stepfather deteriorated to the point where, at the age of 14, she went to live with her maternal grandmother, with whom she stayed for about three years. Either at the end of her time living with her grandmother or shortly after in 2016, the appellant met and began her relationship with Mr Hand. The appellant's maternal grandmother has been her major source of familial support, although since her incarceration she has been receiving visits from her mother and stepfather. Mr Hand has severed all contact with the appellant. With the exception of her maternal grandmother, the appellant's current support system is 'minimal, inconsistent and fragile'.[9]
4. His Honour accepted that from her very early years, the appellant had been exposed to significant trauma, and that, for a good portion of her later childhood, she lacked the parental stability, love and support that is ordinarily associated with normal family life. His Honour stated, '[the appellant] had a poor start in life'.[10] His Honour accepted that her poor upbringing was a mitigatory factor.
5. For the purposes of sentencing, his Honour had the benefit of three reports prepared in relation to the appellant. These were:

(a) a neuropsychological report prepared by Dr Mandy Vidovich, a clinical neuropsychologist, dated 23 August 2019;

(b) a psychiatric report by Dr Gosia Wojnarowska, a consultant forensic psychiatrist, dated 24 August 2019; and

(c) a psychological report by Ms Helen Fowler, a clinical psychologist, dated 30 August 2019.

1. These reports revealed that at 5 years of age, the appellant was seen by a paediatrician for various reasons, including tantrums and hyperactivity. At the age of 8, she was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD). The appellant has been inconsistently medicated for ADHD throughout her life.
2. Throughout her young life, the appellant has exhibited hyperactivity, impulsivity, anger management problems and aggression towards family members. She has also engaged in some relatively significant self‑harming behaviour which led to her hospitalisation at the ages of 10 or 11 and 15.[11]
3. His Honour found, on the basis of the opinion of Ms Fowler, that at some point as a young child, the appellant was exposed or subjected to some form of sexual conduct by an unidentified person. His Honour was unable to be any more specific than this. His Honour was clear that the perpetrator of this conduct was not the appellant's mother, stepfather or any other member of her immediate family.[12]
4. The appellant struggled throughout her schooling, which she completed at the end of year 11. She has only a limited history of employment.
5. Very quickly after the appellant commenced her relationship with Mr Hand, they made the decision to have a baby together. His Honour found that when that decision was made, the appellant was 'an emotionally immature young woman who had an immature and fantasised concept of what it would be like to be a mother'.[13] His Honour found that the appellant was focused on what she believed a baby would give to her and had no concept of the responsibilities that would accompany being a mother. Accordingly, after Anastasia was born, the appellant quickly became frustrated, angry and resentful, which led to her becoming easily angry at Anastasia and failing to form any real, loving bond with her. His Honour found that at the time of Anastasia's birth, the appellant was 'from an emotional and psychological perspective hopelessly ill‑equipped to deal with the demands of motherhood'.[14]
6. The appellant was a cannabis user from the age of 15 or 16 years. She used the drug during her pregnancy and after Anastasia's birth.
7. The appellant did not suffer from any physical health issues, nor did she suffer from a major psychiatric disorder or autism spectrum disorder. The appellant had no specific deficits in her cognitive functioning and is not intellectually disabled. Her intelligence was assessed as being in the low average to average range.[15]
8. Both Dr Wojnarowska and Ms Fowler formed the opinion that the appellant satisfied the diagnostic criteria for Narcissistic Personality Disorder (NPD) and Histrionic Personality Disorder (HPD). NPD is evidenced by a grandiose sense of importance, a lack of empathy, remorse or guilt, a lack of concern for others and a sense of entitlement. HPD is evidenced by factors including excessive attention seeking, craving stimulation, egocentrism, excessive emotionality and persistent manipulative behaviours. Dr Wojnarowska considered that the appellant's narcissism was most likely compensatory in nature, and was based on, or derived from, an underlying sense of insecurity and weakness, rather than from genuine feelings of self‑confidence and high self‑esteem.[16]
9. Dr Wojnarowska also considered that the appellant met the diagnostic criteria for Dissocial Personality Disorder (DPD). DPD is characterised by a callous lack of concern for the feelings of others, a lack of capacity for empathy, incapacity to experience guilt and a marked proneness to blame others or to offer plausible rationalisation for the behaviour that brings the person into conflict with society.
10. Both Dr Wojnarowska and Ms Fowler were of the opinion that the appellant demonstrated some features of psychopathy. However, the appellant did not reach the overall threshold for psychopathy, partly by reason of the absence of an antisocial lifestyle.
11. His Honour accepted the opinions of Dr Wojnarowska and Ms Fowler to the effect that there was a causal relationship between the appellant's upbringing, ADHD, personality disorders and the commission of the offence.
12. Based on the opinions of Dr Wojnarowska and Ms Fowler, and all of the other information before him, his Honour said that he was satisfied of the following four matters:[17]

First, your childhood experiences, particularly the significant trauma that you experienced through no fault of your own as a young child due to the conduct of your father, has impacted adversely in a substantial way on your psychological and emotional development, and is a substantial cause of you developing the personality disorders to which I have already referred.

Second, the combined effect of your emotional immaturity, ADHD and personality disorders rendered you completely ill equipped to deal with the demands of motherhood. More specifically your emotional immaturity, ADHD and personality disorders operating in combination with each other reduced your ability not only to form a genuinely loving bond with Anastasia but also to control you[r] emotions, your frustrations and your anger in the event that Anastasia was not settled or in some other way disrupted or disturbed or aggravated you.

Third, the absence of any genuine bond with Anastasia and your reduced ability to control your emotions, frustrations and anger contributed to you becoming, on the morning of 26 May 2017, excessively frustrated and angry with Anastasia because she was crying or was in some other way unsettled and, in that state of excessive frustration and anger, engaging in the conduct that caused Anastasia's death.

Fourth, the fact that your immaturity, ADHD and personality disorders operating in combination with each other did contribute to you committing your offence in the way that I have found does mitigate or reduce to some limited extent your culpability or moral blameworthiness for committing your offence.

1. The sentencing judge made further significant findings and observations in sentencing the appellant.
2. The sentencing judge emphasised that the findings he made, as set out in [51] above, should not be understood as meaning that the appellant was absolved of any moral blameworthiness for the offence. His Honour found that while the appellant's ability to control her emotions, frustrations and anger was reduced, it was not lost entirely. Further, however frustrated and angry she was at the time she committed the offence, his Honour observed that there was no suggestion that she did not appreciate the wrongfulness of what she did to[18]nastasia.18
3. His Honour accepted that the appellant was a first‑time offender and that her prior good record was a mitigating factor.[19]
4. His Honour found that the appellant's plea of guilty was not entered at the first reasonable opportunity, nor even at a particularly early stage in the proceedings. Nonetheless, it was a mitigatory matter of some significance because it facilitated the course of justice and saved the State from having to prosecute the matter to trial. It also saved witnesses, in particular Mr Hand, from the ordeal of giving evidence at a trial and having to relive the tragic circumstances of Anastasia's death.
5. The sentencing judge found that there were several aggravating features of the offending. First, Anastasia was a completely vulnerable 4‑month‑old infant. Secondly, the appellant was Anastasia's mother, and she had therefore failed in her duty to protect Anastasia from harm. Thirdly, the violence inflicted upon Anastasia was considerable, being forceful enough to cause her death. Fourthly, after the offending, the appellant engaged in a range of conduct that denied her involvement in the offence. Finally, the impact on Mr Hand and his family, as described at [32] ‑ [34] above and detailed in the victim impact statements.
6. His Honour observed that the appellant had failed to demonstrate any genuine remorse for the offence or for the impact that the offence had had on others. However, his Honour recognised that this lack of remorse was the direct result of the personality disorders she suffered.
7. His Honour considered, based on the opinions of Ms Fowler, that the appellant's 'personality style will make psychological intervention challenging'.[20] Ms Fowler was of the opinion that attempting to increase the appellant's ability to empathise would be futile, and that future psychological intervention should focus on assisting the appellant to make decisions which do not place her in a position of responsibility over persons more vulnerable than her.
8. With regard to the appellant's risk of reoffending and the protection of the community generally, it was submitted on the appellant's behalf that, upon release, she was unlikely to be a threat. The sentencing judge accepted that, if the appellant became pregnant in the future, it would be inevitable that child protection authorities would become involved at a very early stage. In these circumstances, the sentencing judge was not satisfied that the appellant's risk of reoffending was 'particularly elevated'.[21]
9. Before his Honour turned to considering the sentence he should impose, he addressed the role general deterrence played in the sentencing outcome. His Honour correctly recognised that the infliction of violence on vulnerable infant children is appalling, and it can have truly tragic and catastrophic consequences, as occurred in the present case. As a result, courts that sentence offenders for offences of the kind committed by the appellant must do what they can to protect vulnerable infant children, and there is a need to impose sentences which are capable of discouraging others from engaging in such behaviour.
10. The sentencing judge was therefore satisfied that general deterrence had a role to play in the sentencing of the appellant, even though her culpability was to some extent reduced due to the causal relationship between her immaturity, ADHD and personality disorders on the one hand, and the commission of the offence on the other.[22]

1. In deciding to impose life imprisonment, it was not suggested by the appellant that the sentencing judge misconstrued or erroneously applied s 279(4) of the Code, nor was it suggested that his Honour made any error of fact in deciding to impose life imprisonment and in his assessment of the appropriate non‑parole period.
2. His Honour expressly had regard to the combination of factors said to justify the conclusion that it would be clearly unjust to impose life imprisonment upon the appellant.[23] In particular, his Honour had regard to the finding that the appellant's moral culpability was to some extent reduced, due to the causal relationship found to exist between the commission of the offence and the appellant's immaturity, ADHD and personality disorders. However, the sentencing judge did not consider that the appellant's reduced moral culpability, together with the other mitigating factors that were identified, made it clearly unjust to impose life imprisonment. His Honour came to this conclusion having regard to the inherent seriousness of the appellant's conduct, and aggravating factors to which he identified. In arriving at this conclusion, his Honour had regard to the appellant's treatment of Anastasia prior to the offending, and observed that the incident which caused Anastasia's death was not a one‑off, isolated incident of the appellant subjecting Anastasia to excessive physical force.[24]
3. His Honour encapsulated his reasoning for imposing a term of life imprisonment in this way:[25]

In summary, when I take into account the seriousness of your offence as I have assessed it and all the other factors to which I have referred, I am not persuaded that this is a case in which it is clearly unjust given the circumstances of the offence and your circumstances to sentence you to life imprisonment.

1. His Honour did not expressly address the criterion in s 279(4)(b), that is, whether the person found guilty of murder is unlikely to be a threat to the safety of the community when released from imprisonment. However, having regard to the findings referred to at [59] and [60] above, it should be accepted that had his Honour concluded that it would have been clearly unjust to impose life imprisonment, he would have found that the appellant was unlikely to be a threat to the safety of the community when released from imprisonment.

Ground 1 - did his Honour err in imposing life imprisonment? The appellant's submissions

1. On behalf of the appellant, counsel submitted that having regard to all of the circumstances of the case and the personal circumstances of the appellant, his Honour erred in imposing life imprisonment as it was clearly unjust to do so. Counsel for the appellant particularly emphasised the appellant's youth at the time of the commission of the offence, the absence of an intention to kill, the appellant's plea of guilty and the causative effect of the appellant's emotional immaturity, her ADHD and her personality disorders on the commission of the offence.

1. Counsel for the respondent submitted that, notwithstanding all of the factors favourable to the appellant, having regard to the aggravating factors identified by the sentencing judge, life imprisonment was the only appropriate sentence. In other words, the sentencing judge did not err in finding that it would not be plainly unjust for the sentence of life imprisonment to be imposed upon the appellant.

1. The current version of s 279 of the Code was introduced in 2008 as a response to the recommendations of the Law Reform Commission of Western Australia entitled 'Final Report: Review of the Law of Homicide', delivered in September 2007.[26] Prior to the introduction of s 279(4), the only penalty available for the now repealed offences of wilful murder and murder was life imprisonment. The introduction of s 279(4), while providing that the presumptive penalty for murder is life imprisonment, gave sentencing judges the discretion to impose a finite sentence of up to 20 years' imprisonment in cases where it would be clearly unjust to impose life imprisonment, and where the offender was not likely to be a threat to the community when released.
2. In the Law Reform Commission's report, a non‑exhaustive list of examples were given in which a sentence of life imprisonment might be unjust. The examples given included cases which would previously have constituted infanticide (under the now repealed s 281A) of the Code) and killings mitigated but not excused by mental impairment. Counsel for the appellant in her oral submissions in this court appeared to suggest that the circumstances in the present case constituted infanticide, but later accepted that the facts and circumstances of the appellant's case would not have invoked the now repealed provision.[27]
3. In Gore v The State of Western Australia,[28] this court said of s 279(4) of the Code:

Under s 279(4) of the Code, life imprisonment 'must' be imposed unless that sentence would be 'clearly unjust'. This statutory language indicates that the imposition of a sentence other than life imprisonment for the offence of murder will be an exceptional course. Whether a sentence is clearly unjust is a matter for the evaluative judgment of the sentencing judge, having regard to all of the circumstances of the case. That judgment is to be made by reference to the principles of sentencing set out in s 6 of the Sentencing Act, and having regard to the circumstances of the offence and the offender. The sentence imposed must be commensurate with the seriousness of the offence.

1. In our view, the sentencing judge did not err in concluding that it was not clearly unjust to impose life imprisonment on the appellant.
2. As his Honour observed, the appellant took the life of a completely vulnerable infant. Anastasia's vulnerability could hardly have been greater. Although the appellant did not intend to kill Anastasia, she violently shook Anastasia, intending to cause her a bodily injury. It was not the first time that she had shaken Anastasia and inflicted excessive physical force on her. The appellant's conduct was not a one‑off, isolated incident in which excessive physical force had been used against Anastasia.
3. While the use of force which caused Anastasia's death was not pre‑planned, the appellant shook her daughter at a time when Mr Hand was in the shower and could do nothing to stop her. Moreover, the appellant did nothing herself to raise the alarm after inflicting what she must have immediately realised were serious injuries. To the contrary, she placed Anastasia back in the cot and asked Mr Hand to pass the child to her when he returned to the room, thereby giving the false impression that she had not yet touched the child. The appellant's offending was objectively extremely serious.
4. The appellant's actions have had a serious and permanent effect on Mr Hand and his family. They are completely bereft, and Mr Hand has been severely psychologically damaged.
5. As found by his Honour, the mitigating circumstances are powerful.
6. The appellant was, at the time of the commission of the offence, barely an adult. She had no prior record of convictions. She pleaded guilty and, on the evidence before the sentencing judge, while psychological intervention would be challenging because of her personality disorders, there is little to suggest that upon her release she will pose a risk to the community generally. His Honour did not find that her risk of committing a further offence would be particularly elevated.
7. The appellant's moral culpability for the offending was reduced to some limited extent as a result of the causal relationship found between the commission of the offence and the appellant's immaturity, ADHD and personality disorders, all of which were consequences of the trauma she had experienced in her infancy and early childhood. Nevertheless, the appellant remained morally culpable for her actions. She was not deprived of the ability to control her emotions, frustrations and anger, nor was she deprived of the ability to appreciate the wrongfulness of what she did. General deterrence was a relevant and important sentencing consideration.
8. Parliament has mandated the imposition of life imprisonment in all cases other than those where the criteria in s 279(4) of the Code are satisfied. This is to recognise the sanctity of human life. Cases in which life imprisonment is not imposed are factually rare.[29]
9. In our view, it was well open for his Honour to find that it would not be clearly unjust to impose life imprisonment upon the appellant. Indeed, in our view, his Honour was correct to so find. The circumstances of the offending were simply too serious to justify anything other than life imprisonment, even when the mitigating circumstances are given full weight and effect. Ground 1 has no reasonable prospect of success.

Ground 2 - was the minimum non‑parole period manifestly excessive? The appellant's submissions

1. Counsel for the appellant submitted that having regard to the mitigating circumstances, the minimum non‑parole period of 13 years was manifestly excessive. Counsel accepted that there was a statutory minimum of 10 years under s 90(1)(a)(ii) of the Sentencing Act. She submitted that the minimum non‑parole period imposed by the sentencing judge should have been at, or closer to, the prescribed minimum.
2. In oral submissions, counsel for the appellant submitted that the fact that the appellant had killed her own child was itself a form of punishment. She also submitted that the impact of the offending on the father of the victim was irrelevant to the imposition of the sentence.[30]
3. The only case said to be comparable and referred to by the appellant was the first instance sentencing in The State of Western Australia v Killeen.[31]

1. On behalf of the respondent, it was noted that the minimum term imposed on the appellant was only three years longer than the statutory minimum of 10 years. The respondent submitted that the mitigating factors in the present case justified the imposition of a lower minimum term than might otherwise have been expected, given the objective seriousness of the offence. It was submitted that the minimum non‑parole period of 13 years was appropriate and was a proper exercise of his Honour's sentencing discretion.

1. Ground 2 alleges implied or inferred error of the kind identified in House v The King.[32] The appellant must demonstrate that the minimum non‑parole period is so unreasonable or plainly unjust that the court must conclude a serious wrong has occurred. The court cannot intervene merely because, had it been exercising the sentencing discretion, it would have imposed a different minimum non‑parole period.
2. Other than in those cases where a sentencing judge imposes life imprisonment with an order that the offender never be released, a sentencing judge is obliged to set a minimum period before the offender is eligible for release on parole of no less than 10 years.[33]
3. It is well established when a sentencing judge is required to set a minimum period before an offender is eligible for release on parole, that period is to be determined by reference to what justice requires having regard to all the circumstances of the case, that is, having regard to all relevant sentencing factors, including the circumstances of the offence, all aggravating and mitigating factors, and the offender's antecedents. A sentencing judge must also take into account all relevant sentencing objectives, including punishment, retribution, and deterrence. An offender's intention at the time of the killing is a very significant matter to be considered, along with all of the other matters just mentioned.[34]
4. We will not repeat what has already been said about the circumstances of the offending, the appellant's personal circumstances, the impact upon Mr Hand, and the sentencing judge's findings as to the aggravating and mitigating circumstances, nor is it necessary to repeat the matters referred to in [72] ‑ [77] above.
5. Without question, the objective circumstances of the offending were very serious even though the appellant did not intend to cause Anastasia's death. The nature and level of the violence inflicted upon Anastasia, her extreme vulnerability, and the appellant's failure to seek immediate assistance, or to even raise the alarm, after inflicting the injuries reflect a substantial degree of criminality. This is evident notwithstanding the causal relationship between the offending and the appellant's immaturity, ADHD, and personality disorders, which reduced her culpability or moral blameworthiness for committing the offence to a limited extent.
6. In their written submissions, the parties did not dwell on the outcomes of comparable cases. The parties' approach to the comparable cases is understandable as there is no case that is sufficiently similar to the facts and circumstances of the present case to afford any real assistance.
7. Since the 2008 amendments, there have been numerous sentencing cases decided by this court in which the length of a minimum non‑parole period for the crime of murder has been challenged. A review of a large number of these cases was undertaken by McLure P in The State of Western Australia v Churchill,[35] and by Buss JA in The State of Western Australia v Stoeski.[36] A consideration of the authorities referred to by their Honours reveals that there is no discernible tariff. This is unsurprising given the very wide variation of the circumstances in which the crime of murder is committed and the personal circumstances of offenders. The most that can be said about the cases is that the minimum non‑parole period imposed in the present case is at the lowest end of the range of sentences examined in Churchill and Stoeski. As a matter of appellate sentencing principle, this does not stand as an insurmountable barrier to ground 2. However, as the minimum non‑parole period cannot be less than 10 years, it is apparent that the period imposed upon the appellant approaches the statutory minimum.
8. The only comparable case which bears any factual similarity to the present case is The State of Western Australia v O'Kane.[37] In O'Kane, the offender was convicted after a belated plea of guilty of the murder of his 4‑month‑old son. At first instance, he was sentenced to life imprisonment with a minimum non‑parole period of 18 years. A State appeal against this period was allowed, and the offender was resentenced to a minimum non‑parole period of 23 years. While O'Kane involved the murder of a 4‑month‑old child by a parent, and to this extent is similar to the present case, the facts and circumstances of the offending in O'Kane were much more serious than the present case. Moreover, the personal circumstances of the offender in O'Kane were unfavourable when compared to the personal circumstances of the appellant. O'Kane is not an apt comparator.
9. We have already characterised the mitigating circumstances of the present case as powerful. In combination, they justify the imposition of a lenient minimum non‑parole period. In our view, the minimum non‑parole period of 13 years imposed by the sentencing judge was appropriately lenient. The sentencing judge carefully considered and weighed all of the relevant circumstances. The crime committed by the appellant was very serious, and any minimum non‑parole period needed to reflect this and properly denounce, punish, and deter such conduct. A further important sentencing consideration was the need to protect vulnerable children and recognise the sanctity of human life. We are far from persuaded that the imposition of a minimum non‑parole period of 13 years was unreasonable or unjust. It reflected a sound exercise of the sentencing discretion. Implied error has not been demonstrated. Ground 2 has no reasonable prospect of success. We would refuse leave to appeal.

1. Finally, we will deal with the submissions made by the appellant's counsel at the appeal hearing, set out at [81] above.
2. Each of the points made by counsel for the appellant are allegations of express error and are not properly part of ground 2, which is an allegation of implied error. Nevertheless, we will briefly deal with these submissions, neither of which has merit.
3. As to the submission that the fact that the appellant killed her own child was in itself a form of punishment, we will take this submission to allege that his Honour erred by failing to take this matter into account as a mitigating factor. This submission cannot be accepted because it was not suggested in the sentencing proceedings that the matter was a mitigating factor, nor does it appear that there was evidence before the sentencing judge capable of establishing that the appellant had experienced any form of additional punishment as a consequence of the loss of her child. In any event, it would be surprising if an offender could claim that the loss of a child by their own deliberate use of violence was a mitigating factor.
4. Then there is the submission that the impact of the offending on Mr Hand, Anastasia's father, was irrelevant. It must be said that the arguments put to this court in support of this submission were confusing. This submission, like the one just dealt with, suffers from the difficulty that it was not put to the sentencing judge. To the contrary, experienced counsel for the appellant at sentencing accepted that the victim impact statements of Anastasia's paternal grandparents were admissible as evidence of the impact of the appellant's offending on Mr Hand, and his siblings, pursuant to s 24(1) of the Sentencing Act.
5. It was not suggested to this court that the victim impact statements did not comply with the statutory requirements of a victim impact statement under s 24(1) of the Sentencing Act. The contents of the victim impact statements were not challenged in the sentencing proceedings or in this court.
6. Further, the contents of the victim impact statements, particularly as to the impact of the offending on Mr Hand, were plainly relevant to the sentence to be imposed upon the appellant. Mr Hand was Anastasia's father and is a victim of the appellant's offending having regard to the definitions in s 23A of the Sentencing Act. As already explained, he was, at the time of the offence, at home in the shower. When he returned to the bedroom, he picked up Anastasia and discovered her parlous state of health. He has been directly, and very adversely, affected by the appellant's actions.
7. Neither of the above submissions has any merit in support of ground 2, nor in the appeal more generally.

1. As neither ground of appeal has succeeded, an extension of time to appeal in this case would be futile. Accordingly, the appellant's application for an extension of time is refused.
2. The orders that we would make are as follows:
   1. The appellant's application for an extension of time to appeal is refused.
   2. Leave to appeal is refused on grounds 1 and 2.
   3. The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] The question of leave to appeal on the grounds of appeal was referred to the hearing of the appeal by Buss P on 28 June 2023.

[2] State's written sentencing submissions, 4 September 2019, par 20.

[3] The State of Western Australia v Doohan [2019] WASCSR 100 [2] - [36] (sentencing remarks).

[4] See sentencing remarks, pars 51 - 53.

[11] Sentencing remarks, pars 104 - 105.

[15] Sentencing remarks, pars 120 - 123.

[16] Sentencing remarks, pars 124 - 126.

[17] Sentencing remarks, pars 135 - 138.

[22] Sentencing remarks, pars 153 - 154.

[24] Sentencing remarks, pars 160 - 161.

[26] This report recommended, in substance, a comprehensive reform of the law relating to homicide, including the repeal of the offences of wilful murder and murder and the introduction of the offence of murder. The report also recommended the repeal of the offence of infanticide and other reforms, including with respect to sentencing for homicide offences. The introduction of what is now s 279 of the Code and the repeal of infanticide were among the measures introduced in the Criminal Law Amendment (Homicide) Act 2008 (WA) designed to implement the report's recommendations.

[28] Gore v The State of Western Australia [2017] WASCA 163 [40].

[29] Since the introduction of s 279(4), there have been two instances where life imprisonment was not imposed. Those cases, which are the subject of suppression orders, are not comparable to the present appeal.

[31] The State of Western Australia v Killeen [2012] WASCSR 84.

[32] House v The King [1936] HCA 40; (1936) 55 CLR 499.

[33] Sentencing Act, s 90(1)(a)(ii).

[34] Atherden v The State of Western Australia [2010] WASCA 33 [30] ‑ [31] (Wheeler JA); Pedersen v The State of Western Australia [2010] WASCA 175 [40] ‑ [46] (Buss JA).

[35] The State of Western Australia v Churchill [2015] WASCA 257 [32] ‑ [33].

[36] The State of Western Australia v Stoeski [2016] WASCA 16 [51], [53] ‑ [141].

[37] The State of Western Australia v O'Kane [2011] WASCA 24.