R v Craig

Supreme Court of NSW|2024-08-12|Before: Adams J, Gleeson CJ

"The Family"

In 1985, Ms EM was living at Kiama. During a trip to Sydney, she met Alfio Nicolosi, a self-styled religious leader who was later known as Alexander Wilon. After a lengthy conversation, she stayed that night at his residence in Bondi. They kept in touch and she moved into his residence in December 1985. While she lived there, she saw people visiting and being given spiritual guidance by Mr Wilon. Among the visitors to Mr Wilon's residence in Bondi was Ms Craig, the first time being November 1986. Ms Craig met Mr Wilon through a friend from New Zealand, Ms HJ.
Mr Wilon began talking about moving to the country. In December 1986, Mr Wilon (then aged 35) and EM (then aged 19) moved to a property at 322 Claytons Road, Porters Retreat, approximately 40 minutes from Oberon. On the property, there were two dwellings. One was known as the main house or main cottage, in which Mr Wilon lived and where he had a room with a bed and a desk, known as "Papa's Room". The room was used for compulsory meditation and prayer by the group, and Mr Wilon slept there. The second cottage was used for cooking and preparing food. Also living at the property from December 1986 were Ms Craig, Tillie, Ms HJ, Mr YR and Mr DB. Ms Craig came and went from the property and was not there full time. The group was known as "The Family" or "The Community of Eden". Other people visited the property throughout 1987, including Ms JT and her sons DT and JT, Ms SF, and Ms CF (the wife of PF) and her daughters MF and SF.
Ms Craig and Tillie moved to the farm around December 1986. The Family were told that Ms Craig was a victim of domestic abuse at the hands of Mr Stanhope.
Mr Wilon received money from members of The Family and controlled what it was spent on. Mr Wilon directed his "followers" to call him "Master Wilon". Life at the property became more regimented and controlled by Mr Wilon as time went on. Mr Wilon and his followers engaged in meditation four times each day for approximately 30 to 60 minutes at a time. These meditation sessions differed. Sometimes a meditation was played, other times Mr Wilon would just talk, or he would relay what his "guide" "Monet" would say to him. Mr Wilon used crystals and would "read" his followers' minds and tell them what to do.
Followers had to do as they were told by Mr Wilon. For example, they had to attend the meditations in "Papa's Room", eat at specific times and follow strict routines. Members of The Family were not permitted to question Mr Wilon or each other, or to speak out. The members of The Family were isolated and kept very separate from society; they were not allowed to interact with outsiders. Mr Wilon "disciplined" the followers for perceived failures to comply with his rules, directions or desires, and they were the subject of physical violence by him, which included beatings with fists and pieces of plastic pipe. Some of the beatings were prolonged. He also beat the dogs that were kept at the property.
Mr Wilon engaged in sexual activity with the women at the property, as well as with a young man who lived there. Occasionally, he would involve multiple sexual partners. Sexual activity involved "Master Wilon" telling members of the group to go into "Papa's Room", where he would engage in sexual activity with them. On several occasions, he travelled to Sydney and took women from the community, stayed at a hotel and had sex with them there. From time to time, Mr Wilon would have sex with Ms Craig. YR said that at one point Mr Wilon suggested that YR, Ms Craig and Tillie become a family. YR said, "I really don't want to". Mr Wilon stared at him and said, "If you don't like it, you can get out". YR left The Family at that point.
Followers of Mr Wilon, including YR, said that Mr Wilon controlled their actions and thoughts with techniques of fear, reprisals and negative reinforcement. YR said he reached the stage that he believed everything Mr Wilon said, wanted and did was totally right. YR said that Mr Wilon told his followers that "your ego must be completely destroyed" and that his followers must humble themselves before him.
EM was a devout follower of Mr Wilon and was the subject of a number of Wilon's physical assaults. If told to do something, EM had to comply otherwise she may be beaten. Sometimes he hit her with his fists, other times with a stick. On one occasion, Mr Wilon kicked her and then a dog started biting her. Leftover portions of 12-15mm thick, black plastic irrigation tubing were lying around at different locations at the property and were used to punish members. Mr Wilon cut off lengths of this tubing for this purpose. Mr Wilon effectively made EM his second in charge, and this meant that if someone else did something wrong, she would be punished.
At some point prior to the death of Tillie, Mr Wilon wrote a manifesto, titled "The Community of Eden", which outlined the rules and principles by which The Family lived. He distributed this document to members of The Family. There were consequences for not adhering to the rules such as being expelled from the community and, after moving to the country, physical punishment. The manifesto discouraged mourning or funeral ceremonies following a death and espoused immediate cremation of the body.
Under the influence of Mr Wilon, members of The Family were required to physically discipline the children. In particular, Mr Wilon's orders to discipline the children were directed at the mothers of the children. The mothers faced discipline as well if their child misbehaved. The children were smacked, hit with the black irrigation piping, and hit with a long scrubbing brush.
Mr Wilon also personally disciplined Tillie and verbally abused her. Almost daily, he dragged Tillie into the bathroom and hit her with a long wooden back brush, sometimes many times. He would demand that she stop crying and would hit her more if she did not stop. On one occasion, during a prayer meeting, Mr Wilon hit Tillie in the face with the back of his hand because she did not look at him when told to do so. Tillie sustained a black eye. Tillie had bruises on her buttocks and also on her arms from being dragged by Mr Wilon. YR witnessed Mr Wilon chastising Tillie and saying, "look at the ego in her, look at the evil in her". He also witnessed Mr Wilon saying, "this child needs discipline, she is spoilt and her ego is too strong".
On occasion, Mr Wilon also disciplined MF and SF, the daughters of CE, by smacking them in the bathroom. On one particular occasion, Mr Wilon hit MF severely and caused welts to appear on her body.

Death of Tillie

On 7 July 1987, Mr Wilon had gone to Bathurst, while EM, Ms Craig and Tillie remained at the property. Children were required to do chores on the property, regardless of their age. Tillie was required to sweep the pathway between the cottages. EM was in the kitchen in the second cottage and could see out of the window and hear Ms Craig with Tillie.
Unhappy at Tillie's sweeping, Ms Craig began yelling at Tillie and hitting her on the legs and, at some stage, on the back, with a length of the black plastic irrigation tubing that had been left nearby by Mr Wilon for the purpose of discipline. At first, Tillie was just standing there. At some point, EM heard Tillie crying.
EM went to the main house which was 15-20 metres away, passing Ms Craig and Tillie on the path as she went. She did not intervene, and continued walking to the main house, where she remained for a short time. EM then went back into the second cottage to continue her chores, again passing Tillie and Ms Craig on the path. She again saw Ms Craig hitting Tillie, who was now lying face down on the ground. Ms Craig was hitting Tillie on her back and legs while she was on the ground.
EM had never witnessed Ms Craig hit Tillie before.
After a short time, Ms Craig came inside and said words to the effect, "She's stopped breathing". EM and Ms Craig went outside to where Tillie was lying on the ground. Ms Craig picked Tillie up and it appeared Tillie made a noise. Ms Craig said, "Oh no". The noise was air from Tillie's lungs. She was unresponsive and was not moving or breathing. Ms Craig said, "Oh no, no she's gone". Ms Craig picked Tillie up and tried to resuscitate her.
Ms Craig and EM went over to the main house and Ms Craig laid Tillie in the empty bathtub. They undressed Tillie and inspected her body. There was no visible bleeding. Ms Craig and EM went into "Papa's Room" and prayed and meditated. Neither EM nor Ms Craig called for emergency services or assistance. They waited there for between 30 minutes and two hours.
Tillie died during the act of Ms Craig hitting her with a length of irrigation tubing. It is not known which blow caused Tillie's death, or precisely how Tillie died. The act was excessive discipline. It was unlawful and dangerous. There was no intention on the part of Ms Craig to cause grievous bodily harm or death to Tillie.

Disposal of Tillie's body

Mr Wilon returned to Porters Retreat at some point in the afternoon. EM met him and said, "Tillie's dead". EM showed Mr Wilon into the bathroom where Tillie's body lay. Mr Wilon held his hands over the body and prayed in an attempt to resurrect her. While in the bathroom, Mr Wilon also talked about having connected with Tillie's soul that morning and noticed that Tillie's "ego was low" and that her soul was telling him it was about to leave this planet.
Mr Wilon talked to Ms Craig and EM about what to do with Tillie's body. The suggestion was made that they should take Tillie up into the forest and bury her. At Wilon's request, EM assembled shovels, picks and mattocks and they all got into a four-wheel-drive, which Mr Wilon drove. Tillie's body was wrapped in a white sheet. They went up into the forest surrounding the property and there was a clearing where they stopped. At this point, it was decided that Tillie would be cremated instead. They returned to the house with Tillie's body, still wrapped in a white sheet. It was still light.
Mr Wilon took Tillie's body to an area out the back of the garage where there were some 44-gallon drums which were, on occasion, used to burn off other items. Mr Wilon placed Tillie in one of the drums along with wood, old clothes and motor oil. Mr Wilon lit the fire in the drum. Once the flames were lit, Mr Wilon sent EM and Ms Craig away. Mr Wilon stood over the drum whilst it burned and continued to put wood, old clothes and old motor oil on the fire. The fire burned for hours. He burnt the body until there was nothing left. At some point, when EM took food or drink out to Mr Wilon, he talked about "God's laws, not man's laws" applying to The Family at the property, and that he was protecting Ms Craig as a child of God. Mr Wilon also again talked about having connected with Tillie's soul that morning, and her soul was telling him it was about to leave this planet. While Mr Wilon was outside burning the body, EM and Ms Craig did not talk or interact; as was usual, they were not permitted to be social or to "chitchat".
The next day, when the ashes and drum had cooled, Mr Wilon asked EM to get him a sieve and a hammer. EM retrieved a large metal sieve, used for prospecting, and Mr Wilon sent her away again. He then sifted through the ashes, using the sieve to make sure there were no unburnt remains. Some of the ashes blew away and over the ground. Mr Wilon also scattered some of the ashes in the river that runs around the back of the property, called Little River. Mr Wilon directed EM to help him carry the drum and they threw it in the river. The drum sank and has not been found. Mr Wilon disposed of the body within 24 to 30 hours of Ms Craig hitting Tillie.

Following Tillie's death

After Tillie's death, Mr Wilon prohibited his followers from talking about what happened. He said that if anyone asked after Tillie, they were to be told that she was given up for adoption. After a visit to Sydney, when CF returned to Porters Retreat, Ms Craig and Tillie were no longer there. She overheard another resident saying that Tillie had been adopted by a couple somewhere else in NSW. JT was also told that Tillie had been adopted by a couple at the Central Coast. When JT was told this, Ms Craig was still living at the property. During a meditation session at which DT was present, Mr Wilon told the group that Tillie had moved back to New Zealand to live with her father. During another meditation session, Mr Wilon said that Tillie's father "wasn't budging" on custody and that Ms Craig needed to go back to New Zealand to be close to Tillie. A few days later, Ms Craig left the property.
On 1 August 1987, Mr Stanhope came to the property occupied by The Family with PF and another man. Mr Wilon ordered Ms Craig to hide and to ensure she was not seen. Doing as she was told, Ms Craig hid under the bed in Papa's Room. Mr Wilon went running to the gate and was yelling at PF. Mr Stanhope walked past Mr Wilon and into the second cottage, but Tillie was not inside. They came back outside, and Mr Stanhope spoke to Mr Wilon, who told him, "Tillie isn't here and don't come back for her". Mr Wilon would not let them inside the other house. The police arrived and told Mr Stanhope and his companions to leave as they were trespassing. The police went into Papa's Room and had a look around but did not look under the bed or in cupboards and so did not find Ms Craig.
On 6 August 1987, Mr Stanhope obtained an order from the Supreme Court of New South Wales, preventing Ms Craig from removing Tillie from New South Wales. An airport watch was put in place.
On 8 August 1987, Mr Stanhope and PF drove to Porters Retreat. Mr Stanhope spoke to Mr Wilon, who said that Ms Craig was no longer living there. Mr Stanhope planned to camp in the surrounding bush in an attempt to see either Ms Craig or Tillie, but abandoned this idea when his presence roused the dogs and he saw men with rifles. He did not see Ms Craig or Tillie.
Mr Stanhope travelled to Lismore in an attempt to find Tillie. He stayed there for about a month. Before leaving, he spoke to Mr Wilon, who told him that he had met Ms Craig and her new boyfriend in Bondi and that Tillie was not with them.
On 25 September 1987, a court order was made granting care and custody of Tillie to Mr Stanhope.
On one occasion, Mr Wilon was away and called the property on a fax line that had been installed. EM answered the phone, and during the conversation she told Mr Wilon, "Oh I've had lots of thoughts about Tillie". Mr Wilon became angry and upset and said words to the effect, "Imagine if someone was listening in to this line. Thank God I called on the fax line so no-one would hear this."
At some point before 3 November 1987, Ms Craig was expelled from The Family by Mr Wilon.
On 3 November 1987, Ms Craig flew to New Zealand alone. After Ms Craig left for New Zealand, Mr Wilon told EM that Ms Craig would not be able to come back into the country because the police would be looking for her, trying to find Tillie. In the context of that conversation, Mr Wilon told EM that he did this because he was God's servant, they were God's children, and it was his responsibility to protect them.
On 16 November 1987, Ms Craig officially changed her name in New Zealand to Jowelle Tenzing Smith. Her family in New Zealand worried about her because they did not know where she was and could not contact her. She was "missing" for a period of two to three years.
Throughout 1988, Mr Stanhope continued in his attempts to locate Tillie. Articles in the media did not generate any information as to her whereabouts.
Sometime after May 1988, Ms Craig visited family in Auckland. During that visit, she spoke with her niece, BE. She said that Tillie was safe and that she had left her with another family, and not to worry about her as she was safe.
In January 1990, Mr Stanhope enlisted the help of his friend, Ms TZ, to travel with him to New Zealand in an attempt to locate Tillie. On 16 February 1990, TZ met with Ms Craig. She told TZ that she and Tillie left Porters Retreat after an incident with CF and PF's children. She said that she and Tillie travelled to New Zealand and stayed at a resort. She said that during this stay, she gave Tillie to a South African couple who were also holidaying there, having sailed to Sydney and flown to New Zealand. TZ relayed this story to Mr Stanhope.
On one occasion in the 1990s, Ms Craig spoke to Mr Stanhope on the phone. On another occasion, in about 1993, BE asked Ms Craig whether she had told her then-boyfriend about Tillie, and Ms Craig refused to answer the question. In 1995, BE again asked Ms Craig about Tillie, and Ms Craig said that TiIlie was safe and there was no need to worry about her.
Ms Craig's sister, last saw Tillie when she visited New Zealand with Ms Craig in 1986. She attempted to speak to Ms Craig on numerous occasions about Tillie, but she became evasive and distracted, diverting to a different topic.
On 19 May 1997, Ms Craig officially changed her name from Jowelle Tenzing Smith back to Ellen Rachel Craig, though she had resumed using that name some years earlier.

EM approaches police

EM remained at Porters Retreat with Wilon and others until 12 December 2014, when she left the property and The Family. On 12 October 2019, she attended the first day of a workshop for cult survivors run by Cult Information and Family Support. She did not speak about Tillie's death at the course, but realised she had to talk to someone about it. That evening, EM called the police from a public telephone to report the matter.

Arrest of Ms Craig

At 7am on 16 November 2021, Ms Craig was arrested by New Zealand Police. When she was placed under arrest she said, "Oh no. Oh no. Right, so. Oh OK." Ms Craig took part in an official interview. While talking about being naive and "influenced" at the "retreat", she said, "I think something happened ... I don't know. But I was, something was, I was not, I was completely out of my, myself my character ... I completely, I don't know what I was doing." When asked to talk about Tillie she said, "I don't think I can at the moment. I want to say all of these things ... but I just ... I don't ..." When again asked what happened with Tillie, Ms Craig again said, "I can't, I don't, I can't, I, I ... I don't know what happened. I can't tell you ... what happened." Ms Craig confirmed that she had changed her name when she returned to New Zealand and stated that she was "advised to do that ... [by] people at the retreat". She said she did not know why she was advised to change her name; it was not her idea. Ms Craig remembered EM. She described her as Mr Wilon's protegee or lieutenant and said she "did anything and ... she was, ah, like, in charge ..." When asked again what happened to Tillie, and details of the allegations were put to Ms Craig, she remained silent.
Ms Craig was extradited back to Australia. She has been in custody since 16 November 2021.

Proceedings on sentence

The Crown tendered a bundle comprising a Crown Sentence Summary, a Statement of Agreed Facts, two photographs of Tillie, the offender's criminal history (NSW and New Zealand) and custodial history, and a Victim Impact Statement from Tillie's father, Gerard Stanhope, dated 1 August 2024.
Documents tendered on behalf of Ms Craig comprised a letter from Ms Craig dated 5 August 2024, two reports from Dr Katie Seidler, clinical and forensic psychologist, dated 5 April 2023 and 30 July 2024, a manifesto by A Wilon "God and the People of the Community of Eden", extracted Justice Health materials, a document published by the World Health Organisation on Chronic Obstructive Pulmonary Disease (COPD), an extract from "COPD and the risk of poor outcomes in COVID-19: A systematic review and meta-analysis", an extract from a Corrective Services document "Going to Prison" related to SMAP (Special Management and Protection Unit), and extracts and sentencing submissions from the Judicial Commission pertaining to Homicides in NSW 1990-2001.
Defence counsel also sought to tender three additional documents. One was a report from Tore Klevjer, president of Cult Information and Family Support, dated 2 August 2024 and the other two were academic articles about cults in the Unites States of America: Langone & Eisenberg "Children and Cults" and Markowitz & Halperin, "Cults and Children - Abuse of the Young". The Crown objected to these documents on either relevance (the USA academic articles) or lack of expertise (Mr Klevjer's report). It was submitted on behalf of Ms Craig that this material was relevant to establish that she had effectively been brainwashed and this was relied upon as a mitigating factor.
After hearing submissions, I indicated to the parties at the time that I was satisfied that there was sufficient material about the workings of The Family in the Agreed Facts, the manifesto and Dr Seidler's reports to support the finding sought by the offender. On that basis, the tender was rejected.
Ms Craig did not give evidence on sentence and no witnesses were called.

Victim Impact Statement

Mr Stanhope read his Victim Impact Statement to the court. He described his hope that he would find his daughter one day. He also described his feeling of devastation that he was unable to. It was more than 30 years before he became aware that Tillie was already gone and that she had lost her life at the hands of her own mother, "the person she should have been able to trust to protect her the most".
Mr Stanhope described the pain of losing a child as "indescribable" and a wound that never heals. His grief has "pervaded every aspect of [his] life for many years". He described how his hope that he and Ms Craig would work out a way to both be present in their daughter's life faded when it became apparent to him that Ms Craig had no intention of doing so and refused to tell him where in the Blue Mountains they lived. He spent years trying to find them, having moved from Lismore to Sydney in order to do so.
Mr Stanhope eloquently described being haunted by two things. The first of these was when he observed the bruises and scratches on Tillie's body the last time that he saw her. He saw how anxious she was when she soiled her nappy. He described how he insisted on getting a reasonable explanation from Ms Craig about the bruises and scratches when she came to collect Tillie the next day. He gave Ms Craig the benefit of the doubt when she told him that the scratches and bruises were a result of the "playful jumping" of the dogs on the property. He carried Tillie to Ms Craig's van while she was struggling and crying because she did not want to go. He could not have known that this would be the last time he would ever see her. He describes how "to this day I carry a sense of guilt that I didn't listen to what she was trying to tell me in the only way she could".
The second thing that still haunts Mr Stanhope stems from the fact that the day after he last saw Tillie, Ms Craig took her to New Zealand for about six months. Tillie would be killed within a week of them returning to Australia. What still haunts Mr Stanhope is "trying to imagine the sheer terror Tillie must have felt when she realised that her mother was delivering her back into the hell that had been her life six months earlier".
Section 30E(1) of the Sentencing Act provides that when a victim impact statement is tendered in relation to an offence, the court must consider the statement and may make any comment on the statement that the court considers appropriate. Section 30E(3) of the Sentencing Act provides that a victim impact statement of a family victim may be taken into account by a court in connection with the determination of the punishment for the offence on the basis that the harmful impact of a primary victim's death on family victims is an aspect of harm done to the community. The court can only take such a statement into account in this way if the Crown applies for this to occur, and the court considers it to be appropriate. The Crown made such an application in this case.
The Sentencing Act does not explain how the court is to determine when it is "appropriate" to consider the impact of the offence on the deceased's family as harm done to the community and when it is not. On one view, every unlawful death causes harm to the community and to the family of the person killed. Despite this, having heard from Mr Stanhope, it is clear that the circumstances of Tillie's death have had a devastating impact on him and no doubt on friends and family. I am ultimately satisfied that the harm expressed by Mr Stanhope as a parent of a young child is an aspect of the harm done to the community and I have taken it into account in connection with the determination of the appropriate punishment.
It is often observed in sentencing matters involving the death of a person that no sentence of imprisonment can adequately reflect the loss of a dear family member. That is particularly so when the death is of a two-year-old child with her whole life ahead of her. On behalf of the court, I extend my sincere condolences to Mr Stanhope and other extended family members of Tillie Craig.

Additional material about "The Family"

In addition to the material about The Family included in the Agreed Facts, the offender relied upon portions of the manifesto of the Community of Eden including the following passage: "Great importance is placed on checking the abilities of each person to be a good parent. Every potential parent is to satisfy the Servant of the Lord or the member of the Ministry, that they are both able to raise a child with the utmost discipline and care, both physically and emotionally. All members of the community are aware that to have even one child brought up by incapable parents would jeopardise the safety of the community. For this reason, couples welcome the opinion of the servant of the Lord. He is there to safeguard not only their happiness but the happiness of the entire community."
The manifesto also included a section headed "Rules of Conduct for the Members of God's Community of Eden" which included the following rules in relation to children: "C1) You shall not terminate a conception. C2) You shall not assume possession over your children. All children belong to the Lord God. C3) You shall partake in the responsibility for the care, upbringing and discipline of all the children in the community. C4) The Lord God commands you to raise all children to be humble, disciplined, caring and respectful. C5) You shall be fully responsible and accountable for the behaviour of the children."
In addition to this material, the offender went into some detail with Dr Seidler about the circumstances of her joining The Family. She explained that she met some people in Sydney who were "getting in touch with spirit guides" including Mr Wilon. He invited her to join him at a property in the country. Mr Wilon told her to go to New Zealand which she did and then she returned when he directed her to.
Ms Craig described how Mr Wilon was "into punishment" and she witnessed him beating Tillie for discipline. She was aware of this and did nothing to intervene. She said that she was only at the retreat for a few months and got caught up in this "whole thing about talking to God" and that Mr Wilon told them that they needed to be "trained up for this big thing that will happen in the world, and we would need to be in contact with our guides". Mr Wilon was not violent to her but controlled her movements including directing her who to have sex with. She was afraid of him.
She also told Dr Seidler that she considered Mr Wilon's behaviour towards Tillie to be abusive. She did not feel like she could leave the retreat as she had no money and was reliant on Mr Wilon as well as having no idea where she might go if she left.
Dr Seidler also opined that Ms Craig's Schizoid Personality Disorder would have predisposed her to some attraction for Mr Wilon's ideas.

The offender's account of the offence to Dr Seidler

Ms Craig told Dr Seidler that she beat Tillie with a piece of plastic piping, and she continued to assault Tillie until the child was unresponsive and ultimately stopped breathing. She told Dr Seidler that she never expected that Tillie might die as a result of the physical abuse she meted out. She described how she "went into shock" and did not have any feelings when she realised Tillie had died and she was unable to resuscitate her. She denied that she was trying to impress Mr Wilon with her physical abuse of Tillie on the day she died. She felt she was doing what was expected of her given the violence around her as meted out by Mr Wilon.

Objective seriousness

The starting point for assessing the objective seriousness in this matter is that every case of manslaughter involves the unlawful taking of a human life. That is the starting point for the consideration of the appropriate penalty and a key element in assessing the gravity of the conduct. [5]
Tillie died after being continually struck on her legs and body with a piece of plastic irrigation piping. The assault was prolonged. As the Agreed Facts disclose, the witness EM observed portions of the assault from a window, walked from where she was to the main house, remained there for a short time and then returned during which time the assault continued. Tillie was crying. Ms Craig continued to assault Tillie until she was unresponsive and ultimately stopped breathing. She was lying face down on the ground by that time.
The mechanism of how Tillie died will never be known. Her body was burned to destroy the evidence. No post mortem could ever be conducted. Although it was submitted on behalf of Ms Craig that Tillie may have fallen down and hit her head, it seems to me that is pure speculation. But nor is it open to me to find that she was struck on the head as that is not included in the Agreed Facts.
The motive for the killing was that Ms Craig was unhappy with the way in which two-year-old Tillie was sweeping a path. The Agreed Facts do not disclose that Ms Craig was angry, frustrated, provoked or unable to cope with the demands of parenthood. Nor did she describe her offending in that way to Dr Seidler. She had observed Mr Wilon to physically discipline Tillie and knew that he had caused her bruising because she lied about it to Mr Stanhope when he observed them.
There is no suggestion that Mr Wilon was violent to Ms Craig nor that he ever directed Ms Craig to assault Tillie. Mr Wilon was not present when Ms Craig killed Tillie.
After killing her daughter Ms Craig failed to summon any medical assistance. Rather, she either assisted or watched Mr Wilon and EM conceal her crime. She continued to conceal it for over 35 years.
There are a number of aggravating features of the killing: Ms Craig was in a position of trust to Tillie and Tillie was a vulnerable victim. I am careful not to double count these factors, to the extent that they overlap. The offence was committed in the home of the victim and the death was caused by the use of a weapon.
As for mitigating factors, it is to be accepted that the killing was not planned, although very few child killings by parents are. Nor was the assault part of a pattern of behaviour by Ms Craig.
The significant factor relied upon by the offender to reduce the objective seriousness of this offence was the context of the offending. It was submitted that Ms Craig was a young mother who had recently exited a "tumultuous" relationship with Tillie's father. I note that the Agreed Facts record that when Ms Craig took Tillie away from Mr Stanhope, he slapped Ms Craig across the face. Beyond this fact, I am unable to be satisfied on the balance of probabilities that she was the victim of ongoing domestic violence at that time. Although Ms Craig told Dr Seidler that her choices in partners had been poor, she denied ever having been abused in her relationships. Although the Agreed Facts disclose that Mr Wilon told the other residents at the retreat that Ms Craig had been a victim of domestic violence, I am not satisfied that his account can be relied upon.
It was submitted that the objective seriousness was reduced because Ms Craig was under the influence of "Master Wilon" who engaged in "almost daily" violent behaviour towards Tillie and inflicted violence on other children at the property. It was accepted that it cannot be said that Mr Wilon's controlling behaviour directly caused the offence, but it was submitted that the environment of control, violence, abuse and degradation of Ms Craig's parental role were necessary conditions for her actions on 7 July 1987.
Reliance was placed on the fact that Mr Wilon controlled the actions, words thoughts, sexual behaviours, and finances of the group through violence, fear and negative reinforcement. There was also compulsory meditation which involved "mind reading" and the manifesto reinforced notions of hierarchy in the group.
A question arose during the sentence hearing as to whether the context in which the killing occurred was relevant to objective seriousness, moral culpability or both. Although there is a clear distinction between the objective seriousness of an offence and the moral culpability of an offender, some of the circumstances relevant to determining moral culpability may also be relevant to the determination of objective seriousness. One of those factors is motive. [6]
On behalf of the offender, it was submitted that the distinction between matters relevant to objective seriousness and moral culpability can be somewhat "blurred" and that ultimately whether this subjective material is taken into account in the broad assessment of objective seriousness or whether it is compartmentalised into the idea of moral culpability did not "much matter." [7] As I observed at the time, I am not satisfied that is the case. The recent decision in Britton v R [8] is an example of such an approach leading to error.
The importance of the assessment of objective seriousness is to ensure that an adequate sentence is imposed and to ensure that the sentence is proportionate to the gravity of the crime. [9] In this way, if there is a sentencing factor potentially relevant to both objective seriousness and moral culpability, it is important that regard is had to it in the assessment of objective seriousness. That is not to say that there will not be cases where a factor could reduce both the moral culpability and the objective seriousness. But that is not this case. I propose to adopt the position of the parties. I have applied the circumstances that the offence occurred whilst Ms Craig was briefly a member of the cult in my assessment of objective seriousness. I have also had regard to it as part of the process of instinctive synthesis when assessing Ms Craig's subjective case.
The offender's motive was to discipline her child in the context of an environment in which significant corporal punishment was normalised. It was not motivated by a desire to inflict gratuitous cruelty. This is relevant to the finding of objective seriousness. The material before me establishes that members of the cult would follow Mr Wilon's orders and that he wielded complete influence. But it seems to me there is a distinction between being so brainwashed that one willingly adopts the values of the cult as opposed to simply going along with those rules in the absence of any other alternatives.
Ms Craig told Dr Seidler that she did not leave the retreat because she had nowhere else to go; not because of any deep commitment to The Family. Also, she described one of her personality traits as not liking being told what to do and having to compromise, which seems inconsistent with letting Mr Wilon tell her what to do. There is no clear evidence of the level of Ms Craig's commitment to The Family at the relevant time besides what she told Dr Seidler 37 years later.
Another matter relevant to how deeply Ms Craig was influenced by the excessive discipline she saw around her is the limited time that she resided at the retreat. The Agreed Facts show that Ms Craig told Mr Stanhope that she was going to live at the retreat in November 1986. She went to the retreat for a few weeks, but she left Tillie with Mr Stanhope. She collected Tillie from Mr Stanhope on 12 December 1986 and was at the retreat until 26 January 1987, a period of just over six weeks, before Ms Craig took Tillie to visit Mr Stanhope. She flew to New Zealand the following day. She was then in New Zealand for six months. There is nothing to suggest she was violent to Tillie in any way during that time and Mr Wilon was not with her. It would appear that she spent time with her family during that period. She moved back to Sydney on 1 July 1987. She told Dr Seidler that she did so because Mr Wilon told her to. She killed Tillie less than a week later.
Although I accept the material before me about the rules of The Family and the strict compliance by its members, Ms Craig only had Tillie with her at the retreat for about six weeks from late 1986 until early 1987 before she left its daily routines for six months. She then returned to the environment of strict discipline for only six days before she killed Tillie.
Another relevant matter is that Ms Craig's assault went beyond anything Mr Wilon had ever done to Tillie. He may have left her with bruises and scratches, as observed by Mr Stanhope, but Ms Craig told Dr Seidler that she hit Tillie until she was unresponsive. Being under the influence of Mr Wilon may partially explain why she assaulted Tillie when she did, but I am not satisfied it does so fully.
I have carefully considered all of the factors relevant to an assessment of the objective seriousness of the offence. It has often been said that the offence of manslaughter produces the greatest variety of circumstances affecting culpability of any other criminal offence. It follows that a wide range of sentences can be imposed. [10] Although it has been said that placing offending in a manslaughter case on some hypothetical range of manslaughters or types of manslaughters is not obligatory, [11] I consider it helpful to do so in this case.
I have considered the aggravating and mitigating factors and the circumstances of the offending overall. Although Ms Craig assaulted Tillie as an act of discipline in the context of being a member of a "cult" and did not assault her as an act of gratuitous cruelty, this remains a serious case of manslaughter for the reasons I have identified. I would assess it as being above mid-range.

Moral culpability

It was not suggested on behalf of Ms Craig that her moral culpability was reduced by reason of either a mental illness [12] or a deprived childhood. [13] I have already explained that it was not ultimately contended that I would reduce her moral culpability on account of her participation in the cult either.

Section 21B of the Sentencing Act

Before turning to consider Ms Craig's subjective case, it is necessary to consider whether the relevant sentencing patterns and procedures are those as at 1987 or 2024.
Section 21B(1) of the Sentencing Act provides that a court must sentence an offender in accordance with the sentencing patterns and procedures at the time of sentencing. Section 21B came into effect on 18 October 2022 when the Crimes (Sentencing Procedure) Amendment Bill 2022 was enacted. That bill only contained one amendment to the Sentencing Act: the insertion of s 21B.
The transitional provision in Schedule 2 of the Crimes (Sentencing Procedure) Amendment Act 2022 relevantly provides that "these amendments" to the Sentencing Act do not apply to "proceedings that commenced before the commencement of the amendments", namely, 18 October 2022.
The Court Attendance Notice commencing proceedings against Ms Craig was created on 8 December 2020, but she was not arrested until 16 November 2021. Her first court appearance in New South Wales was in May 2022 (following her extradition proceedings). It was not until the following year, in May 2023, that she was committed for trial in the Supreme Court. She was arraigned for the first time in this Court in August 2023.
A factual matter arises as to when the "proceedings" against Ms Craig were commenced: was it the date of charge, the date of arraignment in the Supreme Court or some other date?
The High Court recently confirmed in Stephens v The Queen [14] that a "trial" on indictment commences when an accused person is first arraigned. It has also been held that "criminal proceedings" ordinarily commence when an accused person is arrested and charged: R v Hull. [15] That decision was followed in Allerton v Director of Public Prosecutions [16] in which it was noted that criminal proceedings are instituted when the criminal justice system is put in motion against an accused person. It is from when the charge is laid that a person is subjected to the constraints of the criminal justice system.
R v Hull and Allerton v Director of Public Prosecutions were followed and applied in TJ v R [17] in the context of a transitional provision which provided that certain amendments to the Criminal Procedure Act 1986 (NSW) did not extend to "any proceedings commenced before the commencement of the amendments". In TJ v R, the relevant amending Act affected a number of different "proceedings" from committal through to trial and sentencing. In that context, the Court of Criminal Appeal ("CCA") rejected an argument that because the amendment the subject of argument could only apply to trials then the word "proceedings" should be read as "trials". Rather, the CCA held that the proceedings commenced when the charge was laid given the variety of contexts in which the transitional provision applied.
The meaning of the word "proceedings" in the relevant transitional provision for s 21B was considered in R v Watson (No 3). [18] Walton J applied TJ v R and held that "proceedings" meant when a person is arrested or charged, or an information is laid before a Magistrate. More recently, in R v Bowie [19] Yehia J relied upon a CCA decision concerned with a differently worded transitional provision [20] which used the phrase "proceedings the hearing of which began before the commencement of the amendment" to construe the transitional provision for s 21B. I do not propose to follow that decision given the different statutory language.
I have considered these decisions. To some extent, TJ v R turned on the fact that the relevant transitional provision under consideration applied to a number of amendments applicable to every stage of the criminal proceedings. It was on that basis that the word "proceedings" was construed to mean the date of charge. The transitional provision for s 21B is only applicable to proceedings on sentence, but neither party suggested that the "proceedings" commenced when the sentence proceedings commenced, and I do not consider that to be the relevant date either.
I note that in R v White, Beech Jones CJ at CL sentenced the offender for a manslaughter offence committed in 1988. In noting that s 21B did not apply, his Honour did so by reference to the transitional provision. He noted that s 21B does not apply to "criminal proceedings" (rather "proceedings" per se) that commenced prior to 18 October 2022. [21] I consider it worth noting that his Honour used the form "criminal proceedings," rather than "criminal trial" as being the relevant date.
For these reasons, I am not satisfied that the proceedings were commenced after s 21B was enacted. Accordingly, I am required to sentence Ms Craig in accordance with the sentencing patterns and practices at the time of the offence.

Ms Craig's subjective case

Ms Craig did not give evidence. The subjective material in her case comes almost solely from what she told Dr Seidler. Although that material was not challenged, it is worth noting that most of it has not been confirmed by other evidence.
Ms Craig is 62 years old. She was born in New Zealand as the youngest of five children. She reported being raised in a stable and supportive family environment with her parents no longer alive. She described that even though there was some tension in her parents' relationship, they never separated. There was no family violence and there was absence of violence or corporal punishment as discipline. She described her mother as "just beautiful" and the "most loving kind" and "non-judgmental" person. Despite at one stage describing her father as selfish and cantankerous, she said she had "great" relationship with him and looked up to him.
Ms Craig disclosed an incident when she was 12 years old and one of her brothers, who was intoxicated at the time, got into bed with her and rubbed himself against her "trying to get into (her) pants". The incident had a "huge impact on her". She reported the onset of interpersonal difficulties while she was at school. She "hated" school, did not like authority, was resistant to structure and had few friends. She left school when she was legally able to.
She obtained her first job when she was about 15 years old in a café and also worked in a sauna house, at a service station and in waitressing. She left home for the first time when she was around 15 years of age and was back and forth with her family until she left for Australia when she was 21 years old to pursue a relationship.
In Australia, Ms Craig apparently trained and worked as a youth worker. She had a number of relationships including the one with Mr Stanhope that resulted in the birth of Tillie. She described her relationships as all being short lived and dysfunctional. She suggested that relationships do not work for her because she does not like "being considerate" of others or having to take "others circumstances into consideration". She also does not like being "told what to do".
Following Tillie's death, she returned to New Zealand where she worked as a community development advisor, a coordinator for crime prevention and a coordinator at a women's refuge. Her job at the women's refuge was terminated because she stole from her employer. She has not worked since 2009 due to her poor mental health and drug addiction.
Ms Craig did not go on to have other children. She has been single since 2007.

Good character

At the time of the offending, Ms Craig was a person without a criminal record and stands to be sentenced as a person of prior good character. She was subsequently convicted of fraud in New Zealand in 2009 in relation to stealing from her employer to fund her drug and gambling problems. She was sentenced to 100 hours of community work.

Drug and alcohol history

Ms Craig reported being exposed to alcohol and illicit drugs in her adolescence and has struggled with both substance abuse and gambling throughout her life. She found them to be effective in dealing with emotion avoidance and coping with life. She has incurred serious debt through gambling. She initially used her mother's money to pay for this before resorting to fraud.
She reported first using amphetamines at around the age of 21 years old and though she stopped for a while, used them between 1995 and 1998.
In 2000, Ms Craig was introduced to crystal methamphetamine and reported that she developed a "really bad" dependence on the drug. She told Dr Seidler that she maintained a habitual pattern of smoking crystal methamphetamine ("ice") up until her arrest although her use varied in quantity. She found the drug to be "fun".

Mental health

I have had regard to the two reports prepared by Dr Katie Seidler. Ms Craig reported to Dr Seidler that she has always suffered from feelings of anxiety, and she may have suffered from depressed mood in a cyclical manner over the years. She reported that she considered ending her life when she was caught for fraud offending however did not act on it although she did cut her wrists when the suppression order was lifted over her name. She also reported suffering from a "breakdown" in 2007 that was triggered by a dysfunctional relationship that she was in.
In 2023, Dr Seidler undertook a psychometric assessment to assess Ms Craig's mental health and personality functioning. She used the Personality Assessment Inventory ("PAI"). Ms Craig was assessed by Dr Seidler as likely suffering from Schizoid Personality Disorder and experiencing transient depressive symptomology. Her PAI profile was also suggestive of someone who is not motivated for psychological treatment.
Dr Seidler's subsequent assessment of Ms Craig following her plea to manslaughter reinforced her earlier opinion that she likely suffers from Schizoid Personality Disorder, due to her attraction to mystical and spiritual beliefs and her detached and emotionless experience of trauma in the aftermath of the death of Tillie. She also noted that Ms Craig has had a number of mental health difficulties over the years including periods of anxiety, depressive states and episodes of panic. Her primary coping mechanism is avoidance, which has contributed to her alcohol and drug abuse over the years.

Physical health

Ms Craig has been diagnosed with Chronic Obstructive Pulmonary Disease ("COPD"). She has also sustained a serious wrist injury in custody. She has had some of her teeth removed because she did not look after them properly and she uses dentures. She was diagnosed with Rheumatoid Arthritis in 2001 but she claims that is manageable. I have considered the material relied upon by Ms Craig about her COPD in particular. Although it is a condition that can be treated in custody, it makes her very vulnerable due to the risks of catching any respiratory condition including a cold, influenza or COVID-19. I am satisfied that she will suffer more onerous conditions in custody as a result of having COPD.

Remorse

Ms Craig expressed some remorse to Dr Seidler whose opinion was that "Tillie's death and her involvement in it, were traumatic for her". She opined that Ms Craig now accepts responsibility for her actions and described seemingly genuine, realistic and appropriate remorse and contrition for her behaviour. Ms Craig also told Dr Seidler that she did not come forward earlier for fear of losing family support and she did not want to face the psychological consequences.
Ms Craig also provided a letter to the court dated 5 August 2024 expressing remorse. This letter was not read out in court, so I consider it important to read portions of it out now.
Relevant to the offending, Ms Craig stated: "Something happened to me as a mother when I was at Porters Retreat. I lost focus and I was sidetracked. I felt a sense of detachment from Tillie. I cannot explain it beyond this. I can remember hearing Wilon hit her in the bathroom and hearing her cry and not feeling the distress that I know I should have felt. I feel ashamed about that. I am ashamed that I didn't do anything to stop it. I have thought about her dying and the horror of that day for her. My actions were horrible, terrible, horrific. I have thought about Wilon putting Tillie's body in that 44 gallon drum. I can remember not being able to speak. It was horrific. He put her in there because of my actions. My thoughts have been around who she could have been as a person. I took away her potential. I took away her right to a happy life. She would have been 40 this year. I can only picture her as a baby and a two year oId but that is because of me and what I did. When I was first arrested, nothing seemed real, until I heard a judge in New Zealand say 'the matter of Craig…beating her daughter to death'. At that point, the enormity of what I was facing hit me and I wanted to die. Still, it was all about me: what I was going through, what consequences I was facing. I cut my wrists. I lied to my lawyers because I wanted to avoid dealing with it. I maintained this lie for a long time. I have spent a lot of time thinking about Tillie and what I have done while I have been in gaol and my perspective has changed. I want justice for Tillie through this process. That is frightening to me but I now understand and I am at peace with the purpose of my imprisonment. It is fair to say that I am frightened but also happy that justice is being done. It is not about me, except for the consequences that I deserve to face. Otherwise, it is all about Tillie."
Ms Craig went on in the letter to apologise to Tillie for the bad decisions she made including deferring her parenting responsibilities to Mr Wilon. She stated, "I will never forgive myself for what I have done. All I can try to do is live with it and atone for it however I can".
Ms Craig then went on to apologise to Mr Stanhope in these terms: "I know that Gerard loved Tillie. Tillie loved Gerard, so much. I am sorry for taking her away and for what I put him through. I feel real shame for the way I acted towards him after Tillie died. I recognise that I took away his right to mourn Tillie and for him to know the truth. I am sorry that I did not tell him the truth. I am sorry that he went looking for her and met so many dead ends. It must have been terrible for him to be looking for her with so much hope when she was already gone. I was frightened of Gerard and the consequences of him finding out for me. Still, I recognise that Gerard never gave up. I have had to time to think of his despair and anxiety that must have been caused by not knowing what happened to Tillie. I am sorry that I caused all of that. It was in my power to alleviate it and I never did it. I respect and understand his right to remain angry with me and never to forgive me. I also want to say sorry to Gerard's family for what I did."
Ms Craig then thanked and acknowledged EM for the courage she had in going to the police and apologised to her own family including for lying to them for so long.
The Crown submitted that Ms Craig's expressions of remorse are very recent, after decades of lies. Further, the lies continued long after she returned to New Zealand and was no longer under the influence of Mr Wilon.
Despite the fact that she did not give evidence, I am satisfied that Ms Craig is now genuinely remorseful. It is regrettable that this remorse came so late. Mr Stanhope and other family members spent many years not knowing where Tillie was when Ms Craig had the power to put them out of their misery but did not.
The rationale for taking genuine remorse into account as a mitigating factor is that it is indicative of rehabilitation and the unlikelihood of further offending. [22] It is difficult to see what other relevance it has to the sentencing process. [23] Thus, despite the fact that the genuine remorse is late, I have taken it into account to find that she is unlikely to offend further.

Prospects for rehabilitation/Risk of re-offending

Ms Craig has not led a blameworthy life since the commission of this offence. In addition to being convicted of fraud, she has had gambling and illicit drug addictions. Her usage of ice and the fact that she has not worked since 2009 are anti-social factors.
Despite this, I am willing to accept that Ms Craig has reasonable prospects of rehabilitation given the lack of any further offences of violence, her age, and her remorse and insight. Her age upon release will be another factor militating against further criminal activity.

Conditions of custody

Ms Craig submitted that she has been housed in the SMAP due to the nature of her crime. She has contracted COVID multiple times since being incarcerated and also sustained a serious wrist injury. She told Dr Seidler that she feels safe in the gaol now after being placed on protection.
She is employed as a sweeper in the reception area and described to Dr Seidler that she was "really happy and content" to be busy and she enjoys the "simple life" of prisons. She has always been attracted to a "monastic" lifestyle and she believes that gaol provides this for her in a way. Despite this, relationships with other inmates can be stressful. I have already found that Ms Craig's conditions in custody will be more onerous due to her COPD. I propose to take her conditions in custody into account when considering the statutory ratio. [24]

Delay

There has been a delay of 37 years between the commission of the offence and sentence. There are a number of bases upon which delay can be taken into account when sentencing an offender including the uncertain suspense the offender may have been left in, any demonstrated progress of the offender towards rehabilitation during the intervening period and the fact that sentencing for a "stale crime" calls for "a measure of understanding and flexibility of approach". [25]
There is nothing in the material relied upon by the offender to suggest that she has lived in a state of uncertain suspense since killing her daughter. As for her rehabilitation, she has not committed any subsequent offences of violence, only fraud. I have already considered that factor when assessing her prospects of re-offending and rehabilitation.
I am satisfied that the only real significance of delay is that I am required to apply sentencing principles and practices from the late 1980s when sentencing Ms Craig, to the extent that they can be gleaned.

Historical sentencing patterns

The offender relied upon Judicial Commission publications [26] which provided the range of sentences for manslaughter over different time periods. It was submitted that sentences became more severe between 1993 and 2001 and that head sentences for manslaughter involving the death of children in that period ranged from 2 years to 16 years imprisonment and non-parole periods ranged from 8 months to 11 years imprisonment.
The offender relied upon the decision in R v Monroe [27] in which it was noted that as at 2003 the "range" of terms of imprisonment for the manslaughter of young children by persons in position of trust and protection was between 5 and 6 years at the lower end and 10 years towards the higher end.
The difficulty with identifying a "range" of past sentences is, as Simpson J observed in De La Rosa, [28] that the upper range of sentences is the maximum penalty, not the highest sentence imposed in the past. If an offence is objectively more serious than the highest recorded sentence in that time period a higher sentence up to the maximum penalty can be imposed.
As was observed in R v White [29] to some extent, it is a difficult task to establish that there has been an adverse change in sentencing practices for manslaughter offences committed before 12 January 1990 given that the maximum penalty was actually reduced on that date. Further, as the cases I have considered make clear, it is difficult to identify a case with similar objective and subjective factors to the present in any event. Although I am prepared to accept that in general terms, the median sentence for manslaughter was most likely lower in the 1980s, it does not follow that significant sentences were not imposed in appropriate cases during that period.

Comparable cases

The Crown identified nine cases said to be comparable and the offender relied on the schedule of cases from the Public Defenders website on the killing of children by parents. What is striking is that there are no cases remotely similar to this case factually.
In many of the cases put before me the death of the child was likely occasioned by shaking in the context of drug or alcohol use, or a short burst of anger by the offender. [30] Other cases concern parental neglect or negligence in not seeking attention for the child [31] or the offender was not aware that the acts causing death were dangerous. [32]
In other cases the parent suffered from a cognitive impairment [33] or was suffering from post-natal depression. [34] In one case, the parents suffered from fanatical beliefs, [35] although that was a very different case to this one.
Even the three cases which seemed the most similar are markedly different.

R v Byrne [2001] NSWSC 1164

Both parties relied on this case as being comparable. In that case, the offender was the child's mother. The child victim died as a result of hypothermia following a sustained beating with a wooden spoon and being left in a cold bathroom in the middle of winter. Upon realising the gravity of the child's injuries, the offender refrained from taking him to the hospital for fear of the consequences she would face, instead submerging him in an overheated bath which occasioned further injury in the form of burns. The offender pleaded guilty to manslaughter. She told the court that she had been subjected to domestic violence and molested as a child. A psychiatrist diagnosed her with a mild social phobia and a number of personality disorders. She was also assessed by a clinical psychologist as having a very low IQ, in the borderline intellectual functioning range. After a 15% discount for her plea, Ms Byrne received a sentence of imprisonment of 8 years and 6 months with a non-parole period of 6 years. The starting point was 10 years. That sentence was imposed 23 years ago.
The offender in Bryne had a stronger subjective case and the offending was of a different nature.

R v Hoerler [2004] NSWCCA 184; (2004) 147 A Crim R 520

This was a Crown appeal against a sentence of 11 years with a non-parole period of 8 years and 3 months. The offender in that case was the boyfriend of the child's mother. He occasioned severe injuries to the deceased, a seven-month-old baby, including pushing the lower teeth into the roof of the mouth (which must have involved considerable force delivered by a punch), rib fractures, a head injury, and facial injuries consistent with the body being dragged facedown over a surface such as a carpet or a sofa. The deceased died after inhaling his own vomit. This case involved substantial gratuitous cruelty. The offender showed no remorse and there were no mitigating subjective factors. The offender sought at the proceedings on sentence to deflect his own responsibility. The court allowed the Crown appeal and resentenced the offender to 14 years and 4 months with a non-parole period of 10 years and 9 months. That sentence was imposed 20 years ago.
Both the objective and subjective factors were very different in this case, but it demonstrates the type of matter where higher sentences have been imposed for manslaughter involving the death of a child by a caregiver.

R v DF [2022] NSWSC 762

The Crown relied upon this more recent case. The offender was the child's mother. She violently assaulted her child with her hands or fists, causing significant blunt force injuries and then delayed seeking medical advice despite being advised to do so by family members. The sentencing Judge found her experience of custody was likely to be more onerous than the average inmate given her depression, the COVID-19 pandemic and treatment by other inmates. He found the offence to fall well above the mid-range. The offender had no significant criminal record but displayed no remorse. After a 5% discount for her plea, the offender received a sentence of 14 years and 3 months and a non-parole period of 10 years and 8 months. The starting point was 15 years imprisonment.
The offender submitted that DF differs from the present case on the basis of the significant internal injuries in that matter and that the assault occurred in the presence of a younger child. I accept that to be the case.
I have examined all of these decisions and they confirm the broad range of cases covered by the offence of manslaughter, even when confined to parents killing children. I also viewed them in the context that none of them were sentenced in the late 1980s. Neither party was able to identify any relevant cases from that period. I have relied on the principles derived from these later cases.

Special circumstances

Counsel for Ms Craig submitted that a "generous" finding of special circumstances would be appropriate in Ms Craig's case on a number of bases: that this is her first time in custody; historical approaches to the setting of non-parole period citing White, [36] her ongoing chronic health issues that significantly elevate her health risk due to COVID-19 in the confined custodial setting; and her SMAP custodial status that restricts her access to programs and education and limits association with other inmates.
The Crown submitted that I would not find special circumstances on the basis that the statutory non-parole period would provide sufficient time for Ms Craig's supervision in the community.
I am satisfied that I should make a finding of "special circumstances" for the reasons advanced but in particular to reflect the historical practice whereby as at 5 July 1987 the non-parole period was usually fixed at approximately two-thirds of the total sentence. [37] In that regard, Ms Craig has benefited from the fact that s 21B does not apply to these sentence proceedings.
I note that the fact of possible or pending deportation is not a relevant factor in sentencing in New South Wales [38] and I must put the fact that Ms Craig will most likely be deported to New Zealand upon her release at the expiration of her non-parole period to one side.

The purposes of sentencing

The purposes of sentencing as set out in s 3A of the Sentencing Act are: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community.
In each sentencing exercise some of these purposes will be more significant than others. The Crown submitted that the purposes of punishment and accountability loomed large in this matter. The purpose of general deterrence was also said to be important because the community expects parents not to harm their children. As was observed in Hoerler, [39] "the sense of outrage in the community about such a case is so strong that the element of retribution must play a prominent part in the exercise of the sentencing discretion".
It was submitted on behalf of Ms Craig that the utility of both general deterrence and specific deterrence in her case is reduced by virtue of the unusual circumstances that resulted in Tillie's death and that it is highly unlikely that Ms Craig would offend again. I accept this submission insofar as it concerns specific deterrence, but I am satisfied that general deterrence remains important in this case.
I am satisfied that the sentence I impose must reflect the important sentencing purposes of punishment, accountability and denunciation and to recognise the harm done to the community.

Commencement date

The offender was arrested in New Zealand on 16 November 2021 and has been in custody, bail refused, since this date. There is no dispute that I should start the sentence from this date.

Orders

Ellen Craig, but for your plea of guilty I would have imposed a sentence of 12 years imprisonment. Having regard to your early plea of guilty and applying a 25% discount to that sentence, the sentence I impose is reduced accordingly.
For the offence of manslaughter, Ellen Craig I convict you and sentence you to: 1. Imprisonment for a term of 9 years to commence on 16 November 2021 and expire on 15 November 2030. 2. The non-parole period is 6 years to commence on 16 November 2021 and expire on 15 November 2027. You will be eligible for parole on 15 November 2027.
Pursuant to s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), you are advised of the existence of that Act and of its application to the offence of which you have been convicted. Your legal representatives are requested to advise you of the implications of that Act to you.

Endnotes

Crimes (Sentencing Procedure) Act 1999 (NSW) s 25D(3)(b).
Markarian v R (2005) 228 CLR 357; [2005] HCA 25 at [51].
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27] (per Gleeson CJ, Gaudron, Hayne and Callinan JJ).
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [64] (per French CJ, Bell, Keane and Nettle JJ).
R v Blacklidge (Court of Criminal Appeal (NSW), Gleeson CJ, 12 December 1995, unreported).
Tepania v R [2018] NSWCCA 247; (2018) 275 A Crim R 233 at [12]; DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156; Britton v R [2024] NSWCCA 138.
Tcpt, 12 August 2024, p 20.
[2024] NSWCCA 138.
R v Van Ryn [2016] NSWCCA 160 at [134]-[135].
R v Lavender (2005) 222 CLR 67; [2005] HCA 37 at [22] (per Gleeson CJ, McHugh, Gummow and Hayne JJ).
Paterson v R [2021] NSWCCA 273 at [33].
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194.
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.
[2022] HCA 31.
(1989) 16 NSWLR 385 at 390 (per Gleeson CJ, Grove and Studdert JJ agreeing).
(1991) 24 NSWLR 550 at 558.
(2009) 76 NSWLR 167; [2009] NSWCCA 257.
[2022] NSWSC 1693.
[2023] NSWSC 207.
Bektasovski v R [2022] NSWCA 246 at [51].
R v White [2023] NSWSC 611 at [76].
Stojanovski v R [2013] NSWCCA 334 at [41] (per Simpson J, Hoeben CJ at CL and Johnson J agreeing).
Brzozowski v R [2023] NSWCCA 129 at [3] (per Simpson AJA, Rothman and Cavanagh JJ agreeing).
Crimes (Sentencing Procedure) Act 1999 (NSW) s 44(2).
R v Blanco [1999] NSWCCA 121; (1999) 106 A Crim R 303 at [16].
Extract from Research Monograph of the Judicial Commission, Sentenced Homicides in New South Wales 1990-1993, A Legal and Sociological Study; Extract from Research Monograph of the Judicial Commission, Sentenced Homicides in New South Wales 1994-2001.
[2003] NSWSC 1271; 148 A Crim R 478 at [73].
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 at [304].
[2023] NSWSC 611.
R v Wilson [2003] NSWSC 1257; R v GJL [2009] NSWDC 167; R v Mundene [2007] NSWSC 355; R v Monroe [2003] NSWSC 1271; (2003) 149 A Crim R 478.
R v O'Brien [2003] NSWCCA 121; R v HA [2008] NSWSC 1368; R v Thomas Sam; R v Manju Sam (No. 18) [2009] NSWSC 1003.
R v Shepherd [2010] NSWSC 154.
R v Bilton [2000] NSWSC 1113; R v Byrne [2001] NSWSC 1164; R v HA [2008] NSWSC 1368.
R v NLH [2010] NSWSC 662.
R v Mika; R v Sagato [2000] NSWSC 852; (2000) 116 A Crim R 31.
R v White [2023] NSWSC 611 at [74]-[76].
Ibid at [78].
Afful v R [2021] NSWCCA 111 at [51].
At [42]. 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: 22 August 2024

When the Sentencing Act 1989(NSW)

Crimes (Sentencing Procedure) Act 1999(NSW)ss 3A, 21B, 25D(3)(b), 30E, s 25D(3)(b)., s 44(2).

Crimes Act 1900(NSW)s 431A

R v White [2023] NSWSC 611 R v Wilson [2003] NSWSC 1257 Stephens v The Queen (2022) 273 CLR 635; [2022] HCA 31 Stojanovski v R [2013] NSWCCA 334 Tepania v R [2018] NSWCCA 247; (2018) 275 A Crim R 233 The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 TJ v R (2009) 76 NSWLR 167; [2009] NSWCCA 257 Category: Sentence Parties: Rex (Crown) Ellen Rachel Craig (Offender) Representation: Counsel: K Jeffreys (Crown) N Broadbent/D Buchanan (Offender)

At a glance

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Catchwords

Source

Catchwords

Judgment (33 paragraphs)

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Legislation Cited (5)

Cases Cited (46)