Manslaughter
53As indicated earlier, manslaughter is an unlawful killing. The difference between manslaughter and murder involves the intention of the offender at the time that the offence occurs.
54It is difficult to envisage a duty higher than the one society imposes on a parent towards her or his child. Where, as here, the child is an infant, unable as a matter of practical and legal capacity to operate independently from her parent, that duty is at an even higher level.
55The crime of manslaughter on the basis of gross criminal negligence, in circumstances such as these, involves an omission, by Ms Deaves, that was a substantial cause of the death of the deceased, in circumstances where she owed a personal duty of care towards the deceased and failed to carry out that duty.
56The failure to carry out a duty is punishable where it can properly be characterised as "wicked" and deserving of punishment: R v Taktak (1988) 14 NSWLR 226; Burns v R [2012] HCA 35; (2012) 246 CLR 334. In the latter case, the High Court (Gummow, Hayne, Crennan, Kiefel and Bell JJ), at [97], said:
"[97] Criminal liability does not fasten on the omission to act, save in the case of an omission to do something that a person is under a legal obligation to do. As a general proposition, the law does not impose an obligation on individuals to rescue or otherwise to act to preserve human life. Such an obligation may be imposed by statute or contract or because of the relationship between individuals. The relationships of parent and child, and doctor and patient, are recognised as imposing a duty of this kind. ..."
57There is however a difference between the duty reposed in a medical practitioner and that reposed in a parent. There is a heavy and enduring responsibility that rests upon a parent to care for a child who is otherwise utterly defenceless.
58The duty that is owed and from which criminal responsibility arises is present in the relationship between any parent and a child under the age of 18. Where, as here, the child is wholly dependent upon the parent and incapable, even in the most basic manner, to fend for herself, the culpability involved in breaching the duty of care is serious and the responsibility that rests upon such a parent in those circumstances is a heavy one.
59That factor is, primarily, a factor to be taken into account in determining the criminal culpability of the offender from an objective perspective. It cannot, as well, form the basis for an aggravation of the offence under s 21A(2)(l) of the Sentencing Act. That the provisions of s 21A(2)(l) of the Sentencing Act do not apply to aggravate the offence does not detract from the significance of such a factor in relation to the assessment of objective seriousness of the offence committed.
60While the offender, Ms Deaves, initially gave police a version of events that was exculpatory of her involvement in the death of her daughter and exculpatory of any other person, the later interview, given after the arrest and detaining of the other person involved, was a significant incriminating factor in the charges against her and in the charges laid against another.
61I take into account her plea of guilty. Even though it was a plea entered far later than the earliest opportunity, it has a utilitarian value. That value is at or below the mid range of the discount ordinarily assessed, and is taken into account in the determination of the ultimate sentence, pursuant to the terms of s 22 of the Sentencing Act.
62Further, pursuant to the terms of s 23 of the Sentencing Act, I impose a lesser penalty than I would otherwise impose because of the assistance that Ms Deaves is to give, and has undertaken to give, in the prosecution of another.
63In accordance with the principles prescribed by s 23, I take into account the significance and usefulness of the assistance offered by Ms Deaves; the fact that she is willing to and has undertaken to give evidence against another in relation to the death of her daughter; the completeness and reliability of information provided; its timeliness; the fact that no other benefit (other than the possible reduction in the sentence now being imposed) is gained by Ms Deaves in giving that assistance or providing that undertaking; the fact that the conditions under which Ms Deaves will serve her custody will be more onerous as a consequence of the assistance she is now giving; the risk of injury to her as a result of the assistance; and also the fact that, on the other hand, her assistance relates to the same set of circumstances which give rise to the offence for which she is to be sentenced.
64The Court of Criminal Appeal has provided some guidance to the level of discount that may be granted for the kind of assistance offered by a person in the position of Ms Deaves. In circumstances where the custodial conditions imposed upon Ms Deaves will be more onerous, the Court of Criminal Appeal has indicated that, unless very exceptional circumstances are disclosed, a discount of more than 50 per cent should not be applied for the combined effect of the plea of guilty and assistance: see FS v R [2009] NSWCCA 301; (2009) 198 A Crim R 383 at [21], citing York v R [2005] HCA 60; (2005) 225 CLR 466; R v Gallagher (1991) 23 NSWLR 220; R v Pang [1999] NSWCCA 4; (1999) 105 A Crim R 474; R v M [2005] NSWCCA 224; SZ v R [2007] NSWCCA 19; (2007) 168 A Crim R 249; R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151.
65The "percentage discount" is not a fixed tariff, but operates as a guide in assessing an appropriate range. The discount operates for both the plea of guilty and the assistance. Bearing in mind all of the factors to which I have referred, and Ms Deaves' evidence and demeanour in Court, I assess that a discount of thirty-three and one-third per cent (i.e. one-third) should apply, provided that the sentence does not fall below that which is otherwise appropriate. I also assess the value of future assistance to be 20 per cent. I take account of the principle that, even after discount, the sentence must be appropriate for the offence and offender.
66The difficulty, in a case such as this, is assessing objective culpability. I take into account that, on the Crown case, there is no intention to inflict injury, even of a minor kind.
67I also take account of the circumstances, on the facts agreed before the Court, of Ms Deaves' initial inclination to contact emergency services and the reaction to it. I take that into account to the credit of the offender.
68Nevertheless, this is an extremely serious offence, the nature of which has been described in full. Rightly, society regards this neglect as heinous and worthy of punishment. A sentence other than full time custody would be inappropriate.
69I have taken into account the range of sentences that have been imposed for offences of like kind. It has often been said, by me and others, that manslaughter involves the greatest range of circumstances.
70Sentencing statistics, in the circumstances of manslaughter, are of limited utility. The range of culpability and the range of circumstances that give rise to manslaughter are so varied that any judicial officer must be extremely careful in applying, or relying on, such statistics to assess a range for the offence in question. Circumstances where a parent is criminally responsible for the death of her or his child do not, thankfully, occur so frequently to make it possible to deduce a pattern of sentencing from past cases.
71I have, notwithstanding the limited reliability of statistics in this area, had regard to the cases to which the Crown has referred me. The range is, even in relation to parents who are criminally responsible for the killing of their children, extremely wide. Yet none seem adequately to meet these circumstances.
72Some of those cases relate to misguided and irrational belief in the power of God or religion, in home remedies or in sheer ignorance. The offence becomes a particularly serious one where, as here, it relates to an injury inflicted by another, in circumstances where the parent realises the seriousness of the injury that has been inflicted, and when the age and helplessness of the child are considered.
73As stated, I take account of the circumstance that there is not alleged to be any intention to injure. However, I do not consider that that, in these limited circumstances, is the end of the story. This offence is much more serious than a number that would have been occasioned by an intention to injure or by some other unlawful act. I consider that the objective seriousness of the offence is not in the worst category, requiring the maximum sentence, but it is well above the mid range, and approaching the worst category.
74I take into account the subjective circumstances to which I have referred. In particular, I take into account the psychiatric issues seemingly caused by the early abuse of Ms Deaves, which, it seems, has given rise to her willingness to participate in an abusive relationship. I accept, on the balance of probabilities, the diagnosis of personality disorder probably arising from trauma. It is notorious that childhood abuse has, without significant treatment, life-long effects on self-esteem, self-worth and disempowerment usually as a result of consequential personality disorder or PTSD.
75Nevertheless, a point arises where society must insist upon a parent taking responsibility for a child, notwithstanding the personal psychiatric issues with which that parent is faced. There is no doubt, in my mind, that Ms Deaves felt helpless, in part because of the psychiatric issues to which I have referred. Nevertheless, she had the courage to stand up to abuse in an earlier relationship and should have had the courage to take her child to the hospital.
76I accept that, with the plea of guilty, and in the evidence given in the Court, Ms Deaves has displayed a degree of remorse. I accept that the expression of remorse in this Court tended to centre on the effect of the offence on Ms Deaves herself. However, I consider that that may have been as much a failure of language and expression as it was a true assessment of her feelings. Nevertheless, her explanations for the reasons for her failure to seek medical assistance were inconsistent.
77Notwithstanding that view as to Ms Deaves' remorse, I do not consider her remorse to be at the highest level, because of its expression in terms of the effect on Ms Deaves herself, rather than on the helpless child who depended on her. She has prospects for rehabilitation, which would rise to a reasonable level if her personality disorder were properly treated. General and specific deterrence are necessary, but not overly significant, factors.
78A death such as this is tragic. Society views the taking of human life as a most serious offence.
79I accept that the effect of this on the other family of the deceased is horrific. It is an event which would be difficult to overcome or forget.
80Sentencing is an intuitive process. Its objects are set out in s 3A of the Sentencing Act. Sentencing involves the resolution of conflicting goals: protection of society; deterrence of the offender and of others who might be tempted to offend; retribution; and, reform. These goals overlap and cannot be considered in isolation from each other; often they point in different directions: Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 476. Sentencing is, and must remain, an intuitive process.
81The starting point is the assessment of the gravity of the objective circumstances of the case and an understanding that the offence involves the taking of a human life, wholly dependent upon the offender. As earlier stated, this is a case that approaches the worst category. The maximum sentence imposed by the legislature is 25 years' imprisonment. There is no standard non-parole period.
82In all of the circumstances, and before the discount for the plea of guilty and assistance to which reference has been made, I consider an appropriate starting point, taking into account both objective and subjective circumstances, to be 18 years' imprisonment. I do not find special circumstances and consider the time during which Ms Deaves is eligible for parole to be sufficient.
83One other matter should be the subject of comment, although it bears no significance in the determination of the sentence to be imposed. Between 19 July 2011 and 25 July 2011, the house in which the deceased was then living, and in which she sustained serious and visible injuries, was visited by government officers.
84This Court regularly deals with the determination of the reasonableness or otherwise of the conduct of government officers in the care of children thought to be at risk. Other courts deal daily with disputes as to the custody of children. Removing a child from a parent or parents is never an easy task and I do not underestimate the difficulty that attends decision-making where the best interests of the child may be productive of competing considerations.
85The Court is also aware of the extent to which schools, pre-schools and day care centres are regulated for health and safety concerns with extraordinary particularity, sometimes by the same departments that have responsibility for overseeing the safety of children in their parents' homes.
86There appears to me however to be a dangerous imbalance between the allocation of scarce enough resources that are committed to ensuring compliance with space considerations in community based child care centres, while children who are exposed to grave injury in their own homes are not identified and steps taken to address the risk.
87The foregoing does not diminish the criminal liability of those who inflict injury on children or those who fail to ensure that appropriate medical treatment is afforded children who are injured in this way. Nor is the foregoing intended as a criticism of any particular officer of the government and certainly not of any Minister of Government. It is, perhaps, the result of human nature that it is easier to deal with responsible people than it is to put resources into dealing with irresponsible people. However, it does warrant emphasising that the death of this child could have been avoided by the intervention of departmental officers or by family members.
88What remains is the unavoidable reality that medical attention was not provided to the injured child and criminal responsibility must be attributed in accordance with the law. Nevertheless, responsibility must be taken in part more broadly by society, without diminishing the level of responsibility of those most obviously responsible for the acts or omissions that were a substantial cause of the death of this child.