R v AS

Supreme Court of NSW|2018-06-15|Before: Fullerton J

Solicitors: Director of Public Prosecutions (Crown) Legal Aid NSW (Offender) File Number(s): 2017/43826

REMARKS ON SENTENCE

HER HONOUR: On 2 March 2018, AS entered a plea of not guilty to murder but guilty to the manslaughter of her daughter, DB, on 20 December 2016. DB was aged 2 years and 8 months at the time of her death.
It was the agreed position of the parties on the arraignment that the matter should be listed for sentence pending the Crown's formal acceptance of the plea of guilty to manslaughter in full satisfaction of the indictment when the facts for sentencing purposes were settled and agreed.
On 15 June 2018, the Crown formally accepted the plea of guilty to manslaughter at the commencement of the sentence proceedings.
On sentence the Crown tendered a bundle of materials comprising: the agreed facts; a statement of Robert Zavone dated 10 January 2017; AS's criminal and custodial histories; and a confidential affidavit by a police officer addressing the nature of the assistance AS had provided to date and her undertaking to give evidence at the forthcoming trial of Mohammed Khazma, her former partner. Mr Khazma has been charged with the murder of DB.

The results of the post-mortem

DB was pronounced deceased shortly after 9.00pm on 20 December 2016, after life support equipment was disengaged following tests which confirmed brain death. A post-mortem was conducted by Dr du Toit-Prinsloo, forensic pathologist. She reported the direct cause of death as the "sequelae of blunt force head and spinal cord injuries".
A neuropathological examination performed by Professor Buckland and reviewed by Dr du Toit-Prinsloo confirmed extensive subdural haemorrhage, patchy subarachnoid haemorrhage and associated neurological consequences. Examination of the spinal cord revealed the presence of nerve root haemorrhages and hypoxic and ischaemic spinal cord changes. A specialist anatomical pathologist, Dr Cherepanoff, found extensive retinal haemorrhage in both eyes.
The examinations performed by all three specialist pathologists supported their further finding that the severity and spread of the haemorrhages in the brain, spinal cord and eyes indicated non-accidental head trauma.
Dr Marks, a specialist paediatrician, examined a range of medical records including the post-mortem examination. She reported that the child's presentation, in particular the severe traumatic brain injury, was typically associated in a child with intense shaking. Evidence of other impact injuries to the child's head raised a high index of suspicion that multiple injuries were inflicted, and on more than one occasion.
The balance of the post-mortem report records a diverse range, spread and severity of soft tissue injuries, inclusive of 45 bruises, varying macroscopically in colour and histological features suggestive of differing ages; 28 bite marks inflicted by a person with adult dentition on the child's scalp, arms, chest, buttocks, legs and feet; and at least 28 healing abrasive wounds or groups of wounds. Thermal injuries, likely inflicted by a cigarette lighter, were identified within the perianal region with further injuries within the anal canal likely to have been the result of the application of blunt force.
It forms no part of the Crown case on sentence that AS was aware of the infliction of the perianal or anal injuries. However, it is at least implicit in the agreed facts, as it is in AS's interview with police upon the death of the child, her affidavit read on sentence, and the history she provided to Ms Lucas, forensic psychologist, and Dr Ellis, forensic psychiatrist, that many of the injuries revealed on autopsy were inflicted by Mr Khazma either in AS's presence, in her hearing, or otherwise with her knowledge.

Observations of the child and AS on 19 December 2016

Leaving, for the moment, AS's account of the circumstances in which the child sustained fatal head injuries and her knowledge of the sustained physical abuse the child was subjected to over a period of weeks preceding her death, the child was first observed by Mr Khazma's parents unconscious and not breathing when AS arrived at their home at Guildford at 3.25pm on 19 December 2016 with the child in the car. AS was observed to be hysterical and, to all appearances, in a state of severe shock. They described her as "shaking with her eyes wide and crying". The child also had observable and extensive bruising and swelling around her face and extensive bruising on her stomach and arms. Dried blood had coagulated around her nose and mouth. AS told Mr Khazma's parents, inter alia, that: … He bashed her head on the ground … He has been bashing her for the past week … He has been bashing her head and whipping her … He has been hitting me and the baby for a week … He took my phone off me and locked the door … He said he will do the same to me.
On the arrival of police and ambulance, the child was confirmed to be unconscious with no apparent pulse. CPR was commenced. AS repeated to attending police the general nature of what she had told Mr Khazma's parents. She also added: A few days ago he bashed her so badly, I reckon she got brain damaged. She would just stare at us and couldn't move.
AS informed police of Mr Khazma's full name, where she had last seen him, and his identifying appearance. When asked whether she had notified police of his assaults on the child she responded: No. He said I had to say I was responsible for her injuries otherwise he would kill me and my family.
She told ambulance officers that she did not act in defence of her daughter because of Mr Khazma's threats.
After the child was transported by ambulance to Westmead Children's Hospital, AS was attended to by paramedics and taken by separate transport to the hospital. She provided further information to the ambulance officers at that time. She confirmed knowing that her daughter had been assaulted over a period of days. She said she did not intervene because of threats from her partner. She informed the ambulance officers that her daughter had been unconscious that day from midday; that she could not be roused; and that her body was moving and shaking with progressive compromise to her breathing. She told the ambulance officers that she begged her partner to allow her to take the child to the hospital but he refused. She said he said, "You leave and you'll end up exactly the same". She said that by about 3.00pm that day her daughter was purple and that her amateur attempts at administering CPR had failed to rouse her. She told the ambulance officers that she managed to leave the house with her unconscious child on undertaking to her partner that she would say that her child's injuries were "all [her] fault".
AS was escorted from the ambulance by ambulance officers and thereafter she was spoken to by police and social workers. Before being formally interviewed later that afternoon, she said to police: If you look around the house, there's blood everywhere, on all the clothes, from all the nosebleeds, from all the punches she's copped to the mouth. Like her face just cleared up this morning when he bathed her. She was full of blood, all dried blood.
The child's blood was later confirmed on clothing, towels and pillowcases at the Guildford premises, on the kitchen floor, on the lounge room wall above the lounge, in her cot and on the bathroom vanity.
At 4.15pm on 19 December 2016 AS voluntarily participated in an ERISP in which she provided a detailed account of the events of that day and of three prior assaults over the preceding week, each of which resulted in the child losing consciousness. She also described other generalised instances of the infliction of physical harm by Mohammed Khazma of various kinds as having occurred from time to time over the past month and with gathering intensity.
The account of her partner's abusive conduct which follows is agreed to be accurate for sentencing purposes. This account also includes the extent to which AS was aware of the risks to which she was exposing her daughter by failing to remove her from the danger that presented as her partner's violence escalated in severity and regularity, inclusive of her awareness of community and other resources, including family support, which she might have availed herself of to assist her to remove her child from the acute danger that presented because of her domestic circumstances.
The Crown accepts that AS's psychosocial circumstances, including the complexity and chronicity of her undiagnosed and untreated mental ill-health, compounded by the violence and coercion to which she was personally exposed in the domestic relationship with her partner, compromised her capacity to appreciate the extreme risk to her child's safety that was posed by remaining with him and which compromised her capacity to appreciate that risk was likely to escalate. Nonetheless, in the Crown's submission, AS could have, and by her plea she accepts she should have, removed her child and that her failure to do so has resulted in her criminal liability for her child's death.
In the Crown's submission, the relatively short duration of the domestic relationship, being only extant for a period of four weeks before the child died, and the escalating violence within that short period, differentiates AS's circumstances from long-term dysfunctional relationships where emotional or financial dependence upon an abusive partner exposes women and their children to the risk of homelessness and poverty if they leave a violent domestic setting and is often an overwhelming reason why they stay.
In essence, the Crown submits that there would have been little practical difficulty and no obstacle to AS removing herself and the child well before 19 December 2016 when the consequences of the sustained abuse to which the child had been subjected, abuse which ultimately precipitated her death, became obvious.

The fatal assaults causative of death

For sentencing purposes, it is sufficient to detail the events of 19 December 2016, and to refer to the previous ten days to provide context for what occurred on that day.
On the morning of 19 December 2016, AS was lying on the lounge feeling unwell when, after the child had been taken from her bed by her partner, she walked towards her mother. AS said her partner grabbed the child and dragged her back by the hair, reprimanding her by saying, "Did I tell you not to go anywhere without my permission?". When the child looked to the floor he lifted the child's face up and slapped her face resoundingly, after which the child dropped to the ground. AS told police that at that time it was obvious to her that her daughter "wasn't all there" and had been unwell for some days as a result of an assault two or three days earlier when Mr Khazma had kicked the child so that she fell on her face to the floor, after which he grabbed her by the hair and "slammed her head into the wall" resulting in a loss of consciousness. AS told police that the child was unconscious "for a long time" after that assault and it was obvious to her then that "something was not right". She said that while it appeared to her that the child was breathing normally and was able to drink water, her pupils were dilated, her speech was affected, and she could not smile. She told police that from that time, she noted her daughter "woke very slowly … appeared very dopey and didn't register". She said on that occasion she had begged her partner to let her take the child to the hospital but he refused.
She said she and her partner slept most of the following day. When food was prepared for the child and she would not eat, her partner slapped the child and held her upside down over a rubbish bin.
In the very early hours of the morning of 19 December 2016, AS and her partner left the house with the child to go fishing. She told police that was her idea because her partner did not harm the child when they were out of the house. She said the child was left sleeping in the car but when she woke and AS tried to talk to her she could tell that "she wasn't all there". Later that morning the child did take some milk in a bottle but went back to sleep. It was later still that morning that the child approached her mother on the lounge and was first dragged by the hair and then slapped to the face. AS told her partner to stop beating the child, fearing the child was already unwell, to which he replied, "It doesn't matter".
After being slapped to the face and falling to the floor, the child stumbled dizzily to her feet, eventually standing up, but with difficulty, before lapsing again into unconsciousness. AS said she did not see that happen but saw the child being carried by her partner to her cot, unconscious. Upon asking him what happened he said, "She just fell onto her knees and then straight onto her forehead on the floor". Attempts to rouse the child were unsuccessful.
Whilst the child was unconscious and with impaired breathing a tow truck driver arrived at the house around midday. AS's partner dealt with him but as the tow truck driver would not remove the car without AS signing some documents, she also spoke to the tow truck driver without, as is evident, seeking his help in removing the child to a hospital.
On AS's return to the house, the child's condition remained unchanged for some hours. She said at one time her partner held the child around her throat, squeezing her airway, suggesting that by compromising her access to oxygen she may wake. She said he then grabbed the child's shoulders and started to shake her aggressively. As the afternoon progressed and the child's breathing progressively deteriorated, her partner tried a number of different things to rouse her, including biting her toe and massaging her chest, without response.
AS said that at one stage the child started biting on her tongue and grinding her teeth. She said her partner tried to move the child's jaw and when the child stuck out her tongue he bit it. When her partner was in the bathroom AS thought of how to get away but when he re-emerged from the bathroom she did nothing.
Eventually AS said, "I'm taking her to the hospital", and grabbed her bag and keys. Her partner said, "There's nothing we can do … what are you going to do? Don't drop my name, I didn't do anything". She said that he kept repeating that he was sorry. She begged him to let her leave on her promise that she would not attribute any of the child's injuries to him.
Telephone records obtained by police record one successful attempt after 3.00pm to place a telephone call to triple-0 (AS told police earlier attempts had been unsuccessful because her partner intervened before she could speak to an operator). The call to triple-0 at 3pm suggests that the child had stopped breathing by about that time, since it appears to be this that ultimately motivated AS to remove the child. She said that although her partner was begging her not to leave, she left in the car and drove to Mr Khazma's parents' house where she made immediate complaint that Mr Khazma had killed the child.

Other assaults

After this review of the facts directly causative of death, the pattern of physical abuse which preceded the infliction of fatal injuries can be shortly summarised as follows. The first assault was inflicted two weeks before 19 December 2016 when AS's partner slapped the child on the face and bit her on the foot, forcing her to stand for an extended period in the corner on one of her legs with both arms extended over her head. On another occasion he held the child by the throat up against the wall because she was crying. Together with striking the child every day for the week before her death, the child was also whipped with a phone charger, bitten all over her body, punched in the face and stomach, pulled by the hair, held upside down by her legs, and burnt by a cigarette lighter. When AS noticed the burn marks, she asked her partner why he had burnt the child. He said he got carried away and did not realise what he was doing. When she questioned him as to why he assaulted the child at all, he told her not to question his authority. He said he wanted the child to "turn into a pitbull". Over a period of two weeks he also repeatedly referred to the child in deprecating, derogatory and insulting terms.
On one occasion, after her partner and the child were in the shower, AS observed two "smiley" shapes burnt into the child's skin, on the back of her legs and on her back. She said the child was in pain and could not walk. Later, when she changed the child's nappy, it adhered to the burn marks. Those burns subsequently became infected.
She said her partner would not allow the child to sleep and would not allow AS to comfort her. She said the child was only permitted physical affection if her partner gave his approval. If the child refused food, food was forced down her throat.
It is agreed that Mr Khazma's parents met AS and her daughter on five or six occasions and that, during the course of the visits, the child was not ill-treated. The last visit prior to the child's death was on 5 December 2016. On that occasion Mr Khazma had an argument with his father, after which he attacked him with a crowbar or a wheel brace causing head injuries. On one occasion, Mr Khazma's mother observed a number of bruises on the child's leg and also observed two bite marks on her leg. AS told her that her son had bitten the child. This was untrue.
AS's family met Mr Khazma on a number of occasions prior to her moving into the Guildford premises with him four weeks before the child's death. After the move, the level of contact with and support from AS's family lessened considerably. Interrogation of AS's mobile telephone use after moving into the Guildford premises showed that what had been daily contact between AS and her grandmother, the family member with whom she had a close relationship, and with whom she had been living with her two children after the relationship with the children's father irretrievably broke down, reduced dramatically. AS described a complex current relationship with her elderly grandmother.
AS had introduced Mr Khazma to her grandmother after meeting him on Facebook in early November 2016 because she wanted her grandmother's approval of her new relationship. Her uncle, Mr Robert Zavone, whose statement was tendered on the sentence, also met Mr Khazma at his mother's house during a family dinner. To all appearances, he was at that time attentive to AS and the children, quietly spoken and well mannered, although neither AS's grandmother or her uncle approved of her moving in with her new boyfriend at such an early stage of their relationship.
After moving into the Guildford premises, AS informed Dr Ellis that Mr Khazma prevented her from calling her grandmother and that any contact by telephone with her was as a result of him coaching her as to what she could say. Her telephone contact with her uncle ceased altogether until after the child's death.
AS also told Ms Lucas that Mr Khazma had possession of her mobile phone and on those occasions when she was permitted to use it, he would interrogate her as to who she was speaking to and the content of her telephone contact with others by voicemail and text. She also told Dr Ellis that Mr Khazma curated her photo-posting on social media and imposed a curfew on her movements outside the home. She told Ms Lucas that she was permitted to go shopping within a time limit and that she was obliged to comply with her partner's strict instructions as to where she could go when not in his company. There is no evidence as to whether the child was left in Mr Khazma's sole custody during those periods or whether the child was with AS.
AS's five year old son, a biological brother to her deceased daughter, initially lived at the Guildford premises. AS told Dr Ellis and Ms Lucas that Mr Khazma called the boy's father and insisted he remove the boy. I note the boy has since been taken into the care of the State where he remains in out of home foster care.
AS reported to Dr Ellis and Ms Lucas that Mr Khazma also subjected her to physical abuse, inclusive of sexual activity where she allowed him to hurt her. She said that the violence had entered the relationship within a very short period of moving in with him. She said his mistreatment of her made her feel hopeless, tense and afraid. She said she often felt humiliated and disgusted in herself and that she felt frightened, trapped and emotionally numb. She said that between the abuse of her and her daughter, she would attempt to please her partner to prevent further abuse, including by trying to pacify him. She told Ms Lucas that she had thoughts of leaving the relationship, although he threatened to harm her or her grandmother if she did and that these threats were repeated when she tried to intervene to prevent his abuse of her daughter.
She said that on these occasions, Mr Khazma would commence to hit both of them so she retreated and he would eventually desist.

The views of Ms Lucas and Dr Ellis

In the instructing letter from AS's solicitor, Ms Lucas was invited to consider a number of questions. The same questions were submitted to Dr Ellis for his consideration. The questions asked of both experts have provided an insightful structure to their reports which are lengthy and considered, and from which I have drawn extensively both in these sentencing reasons and in seeking to understand the dimension of the tragedy of a child's death by reason of her mother's criminal neglect.
Dr Ellis did not administer any psychological tests but relied on the test results Ms Lucas reported after she had administered a range of psychological and psychometric tests.
The questions formulated by AS's solicitor were principally directed to whether her psychological condition, as assessed on a mental state examination, contributed to: (a) her failure to remove her daughter from the dangers to which she was subject in an abusive relationship; (b) her ability to appreciate the seriousness and the consequences of her inaction; and (c) whether her status as a victim of childhood physical and sexual abuse by her father and stepmother, and physical abuse from multiple sexual partners after she left her father's home at age 16, contributed in any way to her failure to discharge her duty of care to her daughter.
AS was aged 20 when her daughter was born, 22 when her daughter died and almost 24 at the time of these sentence proceedings.
Each of Ms Lucas and Dr Ellis report that AS's presenting psychological status meets the criteria for a diagnosis of post-traumatic stress disorder with dissociative symptoms of depersonalisation they both considered chronic and complex. Ms Lucas reported that the disorder resulted from "prolonged exposure to a severe traumatic stressor, typically developing when no physical escape is possible". She went on to report as follows: … In domestic violence situations and situations of childhood abuse, high levels of control and coercion typically accompany the physical abuse. It is a recognised consequence for some survivors of childhood abuse, especially childhood sexual abuse (in [AS's] case, intrafamilial child sexual assault).
Ms Lucas went on further and reported as follows: 89. Individuals who experience this form of PTSD can present with chronic depression complicated by dissociative symptoms, substance abuse, impulsivity, and self-harm. The characterological changes in survivors of prolonged abuse include deformation of identify formation which has been linked to vulnerability to repeated harm. The complex nature of this presentation results in more diffuse and tenacious symptoms that in 'simple' PTSD. Dissociation develops when individuals supress thoughts and emotional experience to mentally distance themselves from suffering when physical escape is not possible. Disturbances in time, sense, memory and concentration are reported. Chronic hyperarousal and intrusive symptoms of PTSD often merge with depressive symptoms increasing difficulties in focussed attention and concentration. Apathy and helplessness are common consequences leading to inactivity and vulnerability to engaging in relationships or experiences with high risk of further harm. 90. In populations of childhood abuse survivors oscillations in attachment, with the formation of intense, unstable relationships are frequently observed. "Such patients find it very hard to tolerate being alone but are also exceedingly wary of others. They fear abandonment but also further domination and therefore oscillate between pronounced submissiveness and rebellion. They are particularly vulnerable to forming dependent relations with 'idealised caretakers' in which ordinary relational boundaries are not observed" and where the potential for exploitation and entrapment is high. Widescale epidemiologic studies provide evidence of increased risk for repeated harm in adult life for survivors of childhood abuse. 91. [AS's] psychosocial history indicated the presence of traumatic loss of primary childhood attachment (her mother), entrapment in an abusive relationship with her father and step mother, followed by involvement in relationships where intimate partner violence, control and coercion were prominent elements. The cumulative effects of these influences are considered to have resulted in her current psychological presentation and the psychological conditions which would have been relevant at the time of the offence.
In Ms Lucas's opinion, AS also fulfilled the diagnostic requirements for a moderate to severe major depressive disorder. Dr Ellis considered a diagnosis of a personality disorder, which was related to "complex early trauma with borderline and dependent traits", as open. He did not consider that AS presented with a major depressive episode on current review, although her treatment with anti-depressant medication may have served to mask symptoms of a major mood disorder.
Dr Ellis noted Ms Lucas's testing placed AS's formal intelligence measure in the above average range. He also noted an early childhood diagnosis of ADHD was identified but not properly addressed, with treatment withdrawn and then entirely discontinued when, upon the death of AS's mother at age 9, she was housed with her father who was then estranged from her mother. In her father's care she was subject to psychological harm and neglect, inclusive of systemic sexual abuse perpetrated by her father and stepmother. In addition to physical beatings from which she emotionally and psychologically disassociated, she was also subjected to continual psychological abuse where she was told by her father and stepmother that she was "fat and useless". AS told Dr Ellis: They shattered me. I had no one to turn to for help. There was no escape. I knew that what they were doing was wrong but I didn't know how to stop it.
AS gave an account of her father isolating her from her maternal grandmother and extended maternal family members, by telling her (wrongly as it transpired) that they had abandoned her after the death of her mother.
She reported to Dr Lucas that there were multiple occasions when she was kept home from school or "veiled" (by what I assume was a headscarf) to hide her physical injuries.
The sexual abuse was reported to police by AS when she was aged 16. Her father was subsequently charged with various sexual offences, after which she lived with her maternal grandmother. After her father was granted bail she received pressure from a number of paternal family members, from which I draw the overwhelming inference that the charges were ultimately discontinued because AS was unwilling to prosecute them for fear of reprisal.
In her affidavit she said that she felt sufficiently protected by final apprehended violence orders which prevented her father from having any contact with her.
AS reported to Ms Lucas and Dr Ellis a series of relationships from her mid-teens with men who tended to dominate and control her. All relationships, without exception, involved physical abuse. She described moving quickly from one relationship to another, fearing abandonment, and with her low self-esteem being artificially bolstered by the status of being in a new relationship. As is evident from the insights that she has gained in recent times, in part by the information provided for the purposes of these proceedings to both expert witnesses, she has subordinated her own needs and desires to those of others in order to maintain proximity and intimate relationships. She reported to Ms Lucas that at times of being exposed to extreme violence by her male partners she has felt detached, as if she were an outside observer, with feelings of unreality and time moving slowly.
Dr Ellis considered it likely that at the time of her daughter's death, and in the days and weeks preceding it, AS was suffering from symptoms of post-traumatic stress disorder and personality disorder. Not having had any mental health assessment or other treatment or intervention at that time to help her identify the symptoms of these disorders or the destructive patterns of behaviour associated with them compounded her social isolation. Dr Ellis went on to say: … It is likely that she was in a significant state of confused fear and dependence on her partner. She was simultaneously afraid of, and wanting to please her partner. She had a significant capacity to discount negative aspects her partner might display, and focus on preservation of her own safety and a faulty perception of her daughter's safety. Her emotions are likely to have been significantly dyscontrolled with prominent feelings of dread, potential abandonment and self-loathing. It is likely that these emotions were strong and difficult to marshal under her own rational control. It is likely that these emotions would have clouded her ability to think in a sequenced and reflective manner about her actions, or inactions. It is likely that they would have impaired her ability to problem solve and seek the assistance of others. The activation of traumatic memories may lead to "freeze" responses and inaction. The activation of distorted relational patterns may lead to placating an aggressor. It is not likely that she was totally deprived of the ability to know right from wrong or consider the consequences of actions or inactions. It is however likely that she was thinking in more immediate terms, rather than planning or considering the future and the needs of others, particularly her daughter in detail. The particular circumstance of being a victim of sexual and physical abuse by a father figure would likely have been more activating of traumatic memories and dysfunctional relationship patterns in the case where an adult male was abusing a female child. [AS] identified she "saw herself" in her daughter. Her presentation at the time of driving her daughter in a car erratically and being described as "hysterical" and in "obvious distress and crying" when police arrived is consistent with acute emotional dysregulation of PTSD and personality disorder.
Dr Ellis's views coincided with Ms Lucas's opinion that the dissociative nature of AS's PTSD and associated learned helplessness, compounded by difficulties in problem solving and a perception of hopelessness, provides some psychological insight into why, despite an appreciation of the severity of the abuse her daughter was subjected to and its potential consequences, she failed to remove her daughter from the risk of harm. They considered it likely that her minimisation of the level of violence was a strategy to avoid further violence and fear, conditioned from her childhood where reactivity or a response to abuse resulted in further punishment at her father's hand.

Objective seriousness

The unrelenting, systemic, gratuitous and extreme violence to which the child was subjected by AS's partner with her knowledge, without any capacity in the child to defend herself, and in circumstances where she was entitled to expect her mother would protect her, is deserving of the harshest condemnation. AS's failure to protect the child, as it was her legal duty to do, quite apart from her moral obligation to the child, appoints her criminal responsibility for the death of her child by gross neglect of the highest order.
I also accept the Crown's submission that the child's vulnerability by reason of her age, and by being introduced into the relationship her mother had formed with the man who fatally assaulted her - a decision in which the child did not and could not meaningfully participate - increases the objective seriousness of AS's abject failure to protect her daughter and the gross breach of her legal duty in failing to do so.
While I accept the Crown's submission that, objectively speaking, AS had opportunities to remove her daughter from the brutality of the violence that was progressively and repeatedly being inflicted upon her, her underlying subclinical psychiatric and psychological debilities, combined with what I am satisfied was Mr Khazma's abuse, control and coercion of her, effectively compromised her ability to see, with any clarity, the extreme risk he posed to her child's safety; a situation that was only ever going to deteriorate and which, with the sustained assaults to DB's face and head, was almost inevitably going to result in fatal consequences.
While Mr Khazma's repeated acts of physical violence and gratuitous cruelty were stark and numerous, I am well persuaded that despite the objective gravity of AS's criminal neglect of her daughter, her moral culpability for that offending is significantly reduced by her subjective circumstances and the complexity of her psychosocial profile. In short, not only was she the victim of his violence and his determination to render her submissive by the threat of further violence, her exposure to a series of complex and traumatic events in her childhood, inclusive of sexual submission to her father and stepmother, meant her ability to protect her child was incapacitated in direct conformity with her incapacity to protect herself.
That state of affairs does not relieve her of criminal liability; neither does it neutralise the need for the sentence to be imposed to ensure that she is punished for her criminal neglect of her daughter and to denounce the criminal failure of responsibility for her daughter's health and welfare. I also accept that her offending is aggravated by the age of her daughter and her daughter's fragility and dependence, having been exposed to escalating physical abuse over a period of at least two weeks before her death. However, a principled approach to sentencing in the particular circumstances of this case permits me to take into account AS's mental health and prevailing psychiatric vulnerability at the time of her offending in marked reduction of her moral culpability when fixing an appropriate and proportionate sentence. The seminal authority for that principled approach is Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 most recently applied in Yun v R [2017] NSWCCA 317 where mental health causative of criminal offending was treated as impacting on the objective seriousness of the offending.

Subjective circumstances

I accept that AS now appreciates that her failure to act precipitously, or at all, in removing herself and her child from the Guildford premises, coupled with her failure to inform police about her partner's gross mistreatment of her daughter so as to ensure her protection and the provision of urgent medical care, has resulted in the death of her daughter. I also accept that AS's remorse and ongoing grief at the loss of her child is genuine and persisting. The evolving insight into her failure of judgment in starting relationships impulsively (one trigger to placing her daughter in the perilous situation with the man who fatally assaulted her) was, in the view of both experts, likely to render her attempt at clearly articulated expressions of remorse less coherent than might otherwise be expected where a parent acknowledges and accepts criminal liability for a child's death. However, neither of the experts doubt that whilst there may be an outward appearance of detachment or suppressed empathy, AS's commitment to receiving treatment in a therapeutic environment, including, importantly, accepting specialist trauma treatment services in an appropriate non-custodial setting, will ensure that, over time, she is able to address the complexity of her post-traumatic stress disorder. As Dr Ellis opines, she will need to address this in order not to repeat patterns of past engagement with abusive partners and to work on parenting and vocational skills to strengthen pro-social networks of friends and family. He considered that her treatment is likely to be long-term and that she would benefit from psychotropic medication and periodic psychiatric review for at least two years.

Comparable cases

Both counsel drew my attention to a number of decisions in this Court that may be treated as comparable. They include R v PFC [2010] NSWSC 834; R v Smith [2013] NSWSC 796; R v KJ [2015] NSWSC 767; and R v TP [2018] NSWSC 369. I have given consideration to each of them and found them generally instructive as to the range of sentences that have been imposed in circumstances where a child has died and where a parent or carer has been held criminally accountable for their death, although I am unable to discern any pattern which would constrain the sentencing decision in this case. In that regard I am conscious of what this Court has identified in R v Loveridge [2014] NSWCCA 120 at [221]-[222] as the appropriate use to which other sentencing decisions might be put.
What is critical in this sentencing exercise is that the sentence to be imposed not only serves to reflect the harm that has been done to DB as a dependent child and the harm done to the community generally by her death, and to ensure that there is a proper measure of punishment for that criminal wrong, but also to ensure that the sentence to be imposed gives appropriate mitigatory weight to AS's subjective circumstances, including the enduring state of her mental illness that is a product of both the trauma and abuse she suffered as a child and the trauma she suffered at the hands of violent and abusive partners since that time. The Crown concedes that in these circumstances general deterrence, whilst not undeserving of some consideration, is of less significance in the imposition of sentence.
The Crown also concedes that AS's capacity for rational and informed decision-making in December 2016 as a young mother was severely compromised by the violence to which she was subjected, not only by the man who inflicted the fatal injuries on her child and by previous male partners, but also by her father. I do not accept that AS's failure to resist or to take defiant unilateral action when the child's head injuries were manifesting in obvious neurological incapacity was because, as faintly suggested by the Crown, she was prioritising her relationship with her partner over that of her child. To the contrary. I regard the non-exculpatory duress which finds expression in s 21A(3)(d) of the Crimes (Sentencing Procedure) Act 1999 (NSW) as another expression of the mitigatory effect of the seemingly paralysing threat of harm AS was subjected to when she both tried to make contact with emergency services on 19 December 2016 and when she repeatedly pleaded with her partner to allow her to take the child to hospital that day and on previous days. While I do not regard that state of affairs as serving to reduce, by any significant measure, the objective gravity of the gross criminal neglect of the child, despite the predicament in which AS found herself, and her incapacity to fulfil her parental obligations being, in a practical sense, not of her own making (cf Giang v R [2017] NSWCCA 25 at [32]-[33]), I do consider that duress serves to reduce to some degree her moral culpability which, as I have already found, is reduced by reason of her enduring mental health issues.
I also take into account that AS is of prior good character, is unlikely to reoffend and has good prospects of rehabilitation. I do not regard specific deterrence as attracting any weight in the sentencing exercise. I am also satisfied that, by the sentence I will impose, she will have sufficient time under supervision after her release from custody and in the security of the home her extended family have undertaken to provide her to adequately allow for her reintegration into the community and for her to receive much needed psychological assistance in a supportive domestic environment.
Finally, although no less significantly, I propose to allow a combined discount of 50 per cent to reflect what I am satisfied is her early plea of guilty and the notional utilitarian value in that plea and in her willingness to facilitate the administration of justice. This includes her willingness to give evidence against her former partner in his pending trial for murder despite what I accept are her genuine fears and anxieties at that prospect. It also includes the assistance she has already provided to the authorities in the lengthy interview in which she voluntarily participated and in her early nomination of her former partner as the person who inflicted the fatal injuries on her child.
The component of the discount attributed to future assistance is assessed by me as required by s 23(4) of the Crimes (Sentencing Procedure) Act at 15 per cent, while 10 per cent has been allowed for past assistance and 25 per cent for the plea of guilty.
I am also satisfied that upon a finding of special circumstances based generally in the combined weight of AS's subjective circumstances, including, for the reasons set out above, the need for her extended supervision on parole, there should be a variation in the ratio between the non-parole period and the balance of term of the discounted sentence.

Sentencing order:

AS, for the offence of the manslaughter of DB you are sentenced to imprisonment for 3 years to date from 10 February 2017, comprising a non-parole period of 16 months which expired on 9 June 2018 with a balance of term of 20 months expiring on 9 February 2020.

Amendments 10 April 2019 - Publication restriction removed DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 April 2019

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