The facts
3 The applicant was born on 10 August 1981 and was 26 years old at the time of the offence. She had three children from three different relationship, Tahlia (born 12 August 2000), Dean Shillingsworth (born 25 February 2005) and Brayden (born 14 April 2007). Brayden was the son of Clifford Connors, with whom the applicant was living in a de facto relationship at the time of the offence.
4 The applicant had been involved in a relationship with Paul Shillingsworth from 2002. Mr Shillingsworth was the father of Dean Shillingsworth. His Honour described the relationship between the applicant and Mr Shillingsworth as "attended by arguments, alcohol and drug abuse and domestic violence."
5 In February 2006 Tahlia made a complaint that a person named Michael Campbell had done something to her. Mr Shillingsworth and the applicant reacted by seriously assaulting Mr Campbell. Mr Shillingsworth was incarcerated and that seemed to have ended the relationship between the applicant and Mr Shillingsworth. The applicant was arrested but she was granted bail after two days.
6 The applicant lived with the children in a refuge at Armidale, but she had an informal arrangement with Mr Shillingsworth's mother, Ms Ann Coffey, for Ms Coffey to look after Dean for a few days at a time. At some point in 2006 it is alleged that the applicant said "I will kill Dean before he goes back with Ann." However, Ms Coffey cared for Dean on subsequent occasions and had full time custody of him in the latter part of 2006 and in 2007.
7 The applicant began a relationship with Clifford Connors in the middle of 2006 although they were not living together. On 14 April 2007 the applicant bore Mr Connors' son, Brayden. The applicant moved to her own premises at Rosemeadow shortly afterwards. Mr Connors came to live there a short time later.
8 In March 2007 the applicant began court proceedings to regain custody of Dean. Ms Coffey opposed this. On 4 June 2007 consent interim orders were made granting Ms Coffey custody, but giving the applicant defined access periods. After the second period of access, the applicant did not return Dean at the agreed time. Ms Coffey began proceedings in the Federal Magistrates Court for a recovery order. That application was listed for hearing on 28 September 2007.
9 In August 2007 Mr Shillingsworth's non-parole period expired. The applicant was later to tell police that in September she received a death threat from Mr Shillingsworth communicated by a third person.
10 There was evidence that the applicant's treatment of the deceased deteriorated. In the two weeks before he died bruises were seen on the deceased's body. There were reports that she would lock him outside to punish him. However his Honour noted that no one saw the applicant punish the deceased with anything more than a slap.
11 On 25 September 2007 the applicant told her caseworker that she wanted to give the deceased back to his grandparents because she was not coping. Unfortunately on 28 September the application for a recovery order was stood over to 11 October. On 3 October the applicant told her case worker that she did not want to go back to court and just wanted her son picked up by police and taken back to his grandparents.
12 On 11 October a recovery order was made ex parte by the Federal Magistrates Court. The applicant telephoned the court to inquire whether or not a recovery order had been made but she was told no information could be given by the court over the phone because of court policy.
13 Shortly afterwards the applicant murdered the deceased. She wrapped his body in plastic bags, placed him into a suitcase, and threw it into a nearby duck pond.
14 The applicant then went to a Ms Daley's home. She was crying and she told Ms Daley that "I had to do it Twilar, I had to do it." She said that she had taken the child to the Campbelltown office of the Department of Community Services and left him there.
15 When the applicant's de facto, Mr Connors, arrived home at 4 pm the applicant was crying. She gave him the same explanation for the absence of the deceased as she had given to Ms Daley.
16 On 17 October a group of children found the suitcase and the body inside it. The forensic pathologist who examined the body was unable to make a definitive finding as to the cause of death, however she said that the bruising on the face and a small (11 mm by 10 mm) laceration on the upper lip were consistent with the type of injuries sustained in suffocation, "possibly due to placement of hand/s over the face."
17 On 20 October 2007 the applicant was arrested. When interviewed by police she said that when she looked at her child all she could see was his father. She said something came over her and she lost control. She said that she picked him up by his shirt and shook him from side to side. She did this for a period of "a few minutes to five minutes." She threw him to the ground and he fell on the back of his head. She realised what she had done and she started trying resuscitation. She performed CPR for about 10 minutes.
18 The sentencing judge found that the evidence did not enable him to conclude beyond reasonable doubt that the applicant had acted with the intention of killing her child. He was influenced in his conclusion by the fact that after rendering the child unconscious the applicant immediately attempted to resuscitate him. His Honour found the offence was unplanned. He concluded that the objective seriousness of the offence was below the middle range of objective seriousness, but only slightly so.
19 The applicant has provided a summary of relevant subjective matters which I adopt for the purpose of the resolution of this appeal.
20 The applicant was born on 10 August 1981 and so was 26 years old at the time of the offence. She was the youngest of 7 children. She was born in Blacktown and grew up in Mt Druitt. She gave a history of being physically abused by her father. Her parents separated when she was 17 years old. She felt she was blamed for the separation and at that age (17 years old) she was kicked out of home. She lived in a number of youth refuges.
21 The applicant met Faron Blair, an indigenous boy from Inverell. She fell pregnant with his child. That child, Tahlia was born on 12 August 2000 when she was just 19 years old. She lived for a short time with her mother and her father, and then travelled to Inverell in the hope that Mr Blair would want to continue the relationship. He apparently did not wish to and the applicant moved to Tamworth where her maternal grandmother lived.
22 In Tamworth the applicant formed a relationship with Paul Shillingsworth who was then in gaol. When he was released in 2004 the applicant and Mr Shillingsworth set up house together in Campbelltown. Her child, Dean Shillingsworth (the deceased) was born 25 February 2005. The applicant told Ms Robilliard that while she was with Mr Shillingsworth she was frequently subjected to extreme physical and emotional abuse. Dr Skinner noted that the applicant reported that there were a number of incidents of domestic violence when the applicant was living with Mr Shillingsworth including his smashing a bottle of bourbon over her head and holding a knife to her head.
23 In September 2006 there was an incident which led to the applicant being charged with maliciously inflicting grievous bodily harm in company. The applicant's daughter Tahlia presented looking distressed and told the applicant "Pop had put his hands down her pants and rubbed her real hard". "Pop" was a reference to a relative of Mr Shillingsworth, Michael Campbell. This led the applicant and Mr Shillingsworth to severely assault Mr Campbell.
24 The applicant and Mr Shillingsworth were both arrested. The applicant was granted bail but Mr Shillingsworth was not. The relationship between the applicant and Mr Shillingsworth effectively finished.
25 Dr Skinner, a psychiatrist who was retained by the Crown was of the opinion that the applicant was not suffering from a psychotic illness at the time of the offence, but suffered from a substance abuse disorder and a severe borderline personality disorder. Another psychiatrist, Dr Nielssen was of the opinion that she suffered from a substance abuse disorder and depression. He believed she had a defence of substantial impairment open to her.
26 The applicant's criminal record was tendered at her sentence hearing. However, the way in which her criminal record was presented contained many repeat entries for a single offence because of the applicant not appearing in court. When these repeat entries are removed the applicant's criminal record in its entirety appears to be as follows: