R v KJ

1. Ms James pleaded guilty to each of the offences on the indictment and a Form 1 in Central Local Court on 31 March 2015 and is entitled to a discount to reflect the utilitarian value of those pleas. She is also entitled to a discount upon her sentence with respect to her undertaking to assist authorities in the prosecution of her co-accused Kodi Maybir. Mr Maybir has been charged with the murder of the deceased and his trial is scheduled to commence in this Court on 6 October 2015. These matters are referred to later in these remarks.
2. At the time of his death the deceased was aged 7 years and 11 months.

Background

1. Ms James was born in March 1988 and is now 27 years of age. The deceased was born in June 2005 and was Ms James' first child. She has three other children, AB born in December 2007, CB born in April 2009 and KRJ born in March 2014. LAB is the father of Ms James' first three children. AB and CB now live with him in New Zealand. Ms James' co-accused is the father of KJR, who was born following her arrest. That child now lives with Ms James' mother and step-father.
2. For the purposes of the sentencing proceedings, agreed facts were tendered. To the extent that they are critical to my determinations, those facts are as follows.
3. Ms James became involved in a relationship with Kodi Maybir on 18 January 2013. From the commencement of that relationship the deceased became the victim of ongoing neglect, physical and emotional abuse. This was primarily instigated and perpetrated by Mr Maybir but on occasion also by Ms James. This abuse continued until the death of the deceased on 21 May 2013. The cause of his death was initially described by Ms James and Mr Maybir as a head injury caused by a fall from a pogo stick at about 6.30 am on 20 May 2013. Neither Ms James nor Mr Maybir sought medical attention for the deceased even though, by their own accounts, he had been unconscious and non-responsive from the time he sustained the head injury. Ms James awoke the following day and found the deceased dead at approximately 6.10 am. She then called an ambulance.
4. The deceased was found at autopsy to have sustained a large series of injuries suggestive of abuse. In addition, he was found to have sustained recent head injuries, including a fractured skull, an associated subdural haemorrhage, a fracture of the left temporal bone, significant bilateral temporal bruising and a bruise on the bridge of the nose. The injuries were inconsistent with a single fall from a pogo stick.
5. The deceased was found at premises in Mulga Road, Oatley, at which was located a small suburban commercial unit leased to Mr Maybir as a music studio which he operated under the names Seminal Studios and Seventy Seven Records. Mr Maybir was a producer of what was described as Christian hip hop music and he performed under the name of "Kopri". Several other businesses operated from commercial units at the same address.
6. Prior to the commencement of her relationship with Mr Maybir, Ms James and her children had stayed with various members of her family since the breakdown of her relationship with LAB some years earlier. She had permanent custody of the children. Most recently Ms James had been living with her brother and sister-in-law at The Ponds. The children had been well cared for by her before she commenced her relationship with Mr Maybir in January 2013. Ms James regularly took her children to medical practitioners as the need arose.
7. The deceased had been enrolled in grade 2 at Riverstone Public School on 25 June 2012 and was placed in a special education class. He was assessed as having a moderate intellectual disability, finding it difficult to master basic literacy and numeracy skills. He was performing at the level of a five year old. He was described by his teacher as a very quiet, timid, gentle and softly spoken boy with a docile nature who had made several friendships as he settled into school. He had not been involved in any incidents of bullying, was independently able to visit the toilet and he maintained good personal hygiene. His attendance was good, being absent for only four days in six months.
8. On 18 January 2013 Ms James was introduced to Mr Maybir through mutual friends. Their friendship quickly became a relationship and Ms James commenced to adopt some of his extreme religious views. This included Mr Maybir's parenting philosophies. In a recorded interview with police on 4 September 2014 Ms James said that the three children were assaulted throughout the period from January until the death of the deceased and that he received extra punishment as Mr Maybir said that he was the eldest and did not have a disability. Mr Maybir described the deceased as having only behavioural problems. Mr Maybir told Ms James that his assaults upon the deceased were to toughen him up and to give him confidence. This subsequently changed to punishment to the point where the children were getting punished "for anything and everything".
9. Mr Maybir formed the unsupported opinion that all of the children had been abused by Ms James' father. He told her of his concerns and suggested that they stay at the studio to escape her family. Ms James told the police that Mr Maybir had previous experience working with troubled youth and he helped her to recognise that there was something different about her children. This issue of sexual abuse remained a constant theme throughout the following months as Mr Maybir and his beliefs began heavily to influence Ms James.
10. Accordingly, on 24 January 2013 Ms James and her three children moved from her brother's house into the studio at Oatley. It consisted of two main rooms without windows, a kitchenette and an entrance hall. There were no toilets or bathroom facilities. Toilets were located elsewhere in the building and were shared with other occupants. Recording artists were sometimes present and cannabis use was prevalent.
11. The proper care of the children diminished greatly. The deceased attended school only twelve days from then until his death. He did not attend at all after 14 February that year. The extended family was denied access to the children and Ms James refused to tell them where she was living. This was in contrast to the close family ties before then.

Counts 1, 2 and 3

1. On the afternoon of 20 February 2013 the deceased was travelling on a train between Town Hall and Oatley with Ms James. The deceased was required to recite his alphabet, with which he was having difficulty. He was slapped by Ms James several times during the train journey to Oatley on his arm very hard in an aggressive manner. Ms James also slapped her daughter AB when she attempted to help her brother remember his alphabet.

Count 4

1. The incident that gives rise to this charge is recorded on video by Mr Maybir. The deceased was continually punched by his siblings on his chest and face as he stood alone in the middle of a room. He was also punched by Mr Maybir as he moved around the deceased like a boxer, hitting him softly in the stomach and on his back. Ms James was present when this occurred and actively encouraged this behaviour. The deceased was struck a total of 27 times throughout the duration of the recording that lasted three minutes and 35 seconds.

Count 5

1. The incident that gives rise to this charge is recorded on video by Ms James. The deceased was forced to take part in a strenuous and exhausting wrestle with Mr Maybir, during the course of which he was punched on his chest and right biceps, placed in a bear hug, elbowed and thrown onto his back. The deceased became exhausted, out of breath and was wheezing heavily after about 40 seconds into the recording.

Count 6

1. On 29 March 2013, Ms James and her children and Mr Maybir travelled by train to the Bulli Beach Tourist Park. They stayed at the campsite. During their stay there Ms James struck the deceased on his torso, buttocks and upper legs with a spatula over an extended period of about 15 minutes.

Count 7

1. While still at the Bulli Beach Tourist Park, the children went running on the beach. The deceased became tired and it started to rain. As they were all running back to their tent Ms James had to carry the deceased who was falling behind. As she did so Ms James dropped her phone. She became upset and angry and struck the deceased several times across his buttocks with a wooden plank. The plank was a slat of the type used as a mattress support on a bed. The deceased was struck three times with the plank while he was standing. He was struck another eight times while Mr Maybir held his arms and pinned him down on a bed. The deceased was screaming and crying while this was taking place.
2. As a result of these blows, the deceased sustained a series of linear wounds across his buttocks that began to blister and became infected. Ms James did not take him to a doctor for medical attention for his injuries.

Count 8

1. On 20 April 2013, two videos were recorded inside the Bulli Beach Tourist Park cabin by Ms James. The footage runs for three minutes and depicts a form of discipline in which the deceased was required in a repetitive sequence to take off his jacket, put it on a chair, put it back on and so on in a continuous cycle. The process is redolent of a method apparently used for teaching mental discipline to adults in the context of martial arts training. In this case it was used by Ms James as punishment.

Count 9

1. On 19 May 2013 Ms James recorded a video depicting the deceased running on the spot for an extended period of one minute and seventeen seconds. He became breathless and distressed and sounded fearful when spoken to by Ms James.

Count 10

1. Between 24 January 2013 and the date of his death in May that year the appearance of the deceased altered significantly as a result of a number of factors including lack of food and drink, poor hygiene, sub-standard living conditions and multiple punishments and assaults. He was placed in social isolation and his food and water intake was restricted. This was described somewhat tragically as an eating plan in which he was provided with only a bare minimum of sustenance. He was excluded from special treats like chocolate and biscuits and from enjoyable times with the rest of the family. The deceased became gaunt and dehydrated. Ms James imposed this regime upon him as a form of punishment for a regression in his toileting abilities.

Count 11

1. At 6.12 am on 21 May 2013 Ms James called an ambulance and told the telephone operator that the deceased had been playing on a pogo stick the previous morning and had fallen over. She said that he "banged his head pretty hard" and that he had been sleeping and not moving since then. When the ambulance arrived it was apparent that the deceased had died. He showed signs of lividity and rigor mortis, indicating that he had been dead for some time. He had extensive bruising on his limbs and a boggy mass at the rear of his head with coning indicative of trauma.
2. When first interviewed Ms James continued to maintain that the deceased had fallen from a pogo stick. She said that she was in the kitchen when she heard a thud and a scratch. She ran into the room and saw the deceased lying on the floor near the pogo stick. She grabbed him but could see his eyes rolling back. She dabbed water on his face but he did not wake up. She placed him on the kitchen floor and his eyes were still rolling. He was frothing at the mouth. Ms James carried the deceased from the kitchen to the recreational area in the studio and placed him on a leather lounge. He was barely conscious. She tried unsuccessfully to give him Panadol.
3. The deceased's condition did not change for the rest of the morning and into the afternoon. She changed his clothing. He occasionally opened his eyes and moaned. Ms James told police that she "had a feeling something was wrong". She was worried. The deceased remained unresponsive and could not be woken. After lunch she thought that the deceased looked uncomfortable so she placed him in a bed. Mr Maybir asked her if they should call an ambulance and she said, "I don't know". Ms James said that she was confused because this was more or less the first time that Mr Maybir had given her responsibility for decisions about herself or the children.
4. The deceased was still breathing at midnight. The following morning Ms James went to check on the deceased but he was by then cold and motionless. She saw that something was wrong and told Mr Maybir that they had to call an ambulance. She was told by Mr Maybir to tell the ambulance officers that the deceased had fallen from a pogo stick. Ms James told police that she did not call an ambulance earlier because she was prevented by Mr Maybir from doing so. Ms James acknowledged that she was aware that there was a medical centre located below the studio that was open between 7.00 am and 1.00 pm.

Form 1

1. Ms James was charged with two offences on a Form 1 of neglecting AB and CB by failing to provide adequate lodging contrary to the terms of s 228 of the Children and Young Persons (Care and Protection) Act 1998. I have taken these offences into account in the disposition of count 10.

Objective seriousness

1. Ms James pleaded guilty to count 11 on the basis of gross criminal negligence, having caused the death of the deceased by an omission in circumstances where she owed him a personal duty of care, yet failed to carry out that duty to such a high degree that it can be properly characterised as wicked and deserving of punishment: R v Taktak (1998) 14 NSWLR 226; Burns v The Queen [2012] HCA 35; (2012) 246 CLR 334 at [97]. By pleading guilty, Ms James acknowledges that her conduct involved such a falling short of the standard of care that a reasonable person would have exercised and involved such a high risk of death or grievous bodily harm that the doing of the act or the failure to act merited criminal punishment: Burns at [19]. Ms James' relevant omission was her continued failure to respond to the deceased, who was in a situation of risk of serious harm, or to the medical crisis that he faced: R v Wilkinson [1999] NSWCCA 248 at [13]. This is different to reckless indifference to human life and Ms James is not to be sentenced upon the basis that her inaction warranted or fell within that description: R v Johnston [2007] SASC 300 at [66].
2. The Crown submitted that the offence charged as count 11 must be regarded as an offence of the most serious kind. That is because of the advanced age of the deceased who was incapacitated, in circumstances where Ms James knew that he had been the victim of continual violence and cruelty for a period of almost four months before his death, and where the deceased was vulnerable by reason of his intellectual disability: s 21A(2)(l) Crimes (Sentencing Procedure) Act 1999. Moreover, the deceased was Ms James' child and she was in a position of trust which was breached: s 21A(2)(k); see also R v HA [2008] NSWSC 1368 at [42]. A heavy responsibility rests upon a parent to care for a child who is otherwise utterly defenceless: R v Wilkinson at [26]. I observe, however, that the relationship of trust and its breach is inherent in the offence charged as count 11 and it is not appropriate to take account of this factor more than once. There was an extended period of almost 24 hours between the infliction of the deceased's ultimately fatal injuries and the securing of medical attention for his care. Ms James also initially embarked upon a course designed to deceive the police about her conduct in failing to care for the deceased in the circumstances.
3. The Crown also characterised the other offences as serious examples of offences of their kind. The deceased had been the victim of constant abuse, had been physically assaulted whilst defenceless and was intellectually disabled.
4. Ms James, by her counsel, did not dispute the Crown's characterisation of the objective seriousness of the offences. Except for counts 1, 2 and 3, they were all committed in the company of Mr Maybir: s 21A(2)(e). The fact of being "in company" is an element of count 7 and cannot therefore be taken into account in the assessment of the seriousness of that offence. All of the offences were committed in the presence of another child: s 21A(2)(ea). All of the offences (with the exception of counts 1, 2 and 3) were committed in the home of the victim: s 21A(2)(eb). However, the home was also the home of Ms James and care must be taken in attaching undue weight to this factor in the circumstances: see Montero v R [2013] NSWCCA 214 per R A Hulme J at [41] - [55]. The injury and emotional harm caused by the offences was substantial: s 21A(2)(g).
5. The violence used by Ms James is comprehended by all of the offences for which she stands to be sentenced. Sections 21A(2)(b) and 21A(2)(c) do not therefore apply. Section 21A(2)(k) also does not apply in respect of counts 4, 5, 8 and 9 (in addition to count 11), or to the two offences on the Form 1, as the abuse of trust is inherent in those offences as well.
6. In my opinion count 11 is an example of a most serious category of offences of its kind. It transcended simple mistake, mere negligence or a transient error of judgment. The evidence makes it clear that the deceased was profoundly ill and in dire need of critical medical care from the moment that he sustained his injuries. There is no room for doubt that the only proper course at the time was the immediate and urgent summoning of medical or paramedical care. Not only did that not occur, but the deceased was left relevantly unattended for 24 hours during which Ms James and Mr Maybir apparently went about their usual and personal activities as if nothing had happened. To the extent that the situation was distressing and painful for Ms James, which I accept on any available understanding or appreciation of humanity must have been the case, it inexplicably did not translate into the speedy provision of potentially lifesaving assistance to this moribund child. I accept in these circumstances that Ms James' failure to act in a proper way to attend to her son was profound, cruel and selfish.
7. It is not possible, however, to characterise the balance of the offences for which Ms James is to be sentenced as all falling into that category or even the same category. Of the other offences, counts 7 and 4 are in my opinion the most serious. Count 7 involved the beating of the deceased with a timber bed strut, with the associated production of open wounds. This offence is a most serious example of offences of its kind. Count 4 involved the recording of what was a sickening series of assaults upon a silently compliant little boy by his brother and sister in circumstances that must have been confusing and distressing, particularly when his mother was present but did not intervene to protect him. No less confusing for the deceased would have been the regime to which he was subjected in the events that constitute count 8.
8. Care has to be taken with the proper characterisation of the events that constitute the recording that is count 5. I observe that it is very easy to view the rough and tumble of this event as a sinister extension of other cruel behaviour. However, taken in isolation and removed from a possibly unsavoury context, the deceased and Mr Maybir were engaged in conduct that, for better or worse, could pass objectively as acceptable, albeit rough, play activity within the framework of ordinary households. I am not prepared to proceed upon the basis that the extraordinary nature of the deceased's household necessarily converts what is depicted in the video into child abuse properly understood. The deceased's observable inclination to continue to wrestle with Mr Maybir is in my view inconsistent with a child of little resolve or limited capacity unable for those reasons to resist adult pressure to comply despite exhaustion or the infliction of pain.
9. Counts 1, 2 and 3 are examples of no more and no less than behaviour that occurs in Australian society on a regular and reoccurring basis every day of the week. To say so is neither to endorse its use nor to assign to it some undeserved respectability. It is once again important in an attempt to understand Ms James' administration of parental discipline not to characterise the conduct as more than an example of wholly misguided behaviour. It is to be denounced as unacceptable and, in the circumstances as they occurred, unnecessary and terribly unfair. However, and regrettably in the scheme of prevalent parental behaviour, these offences fall below the middle of the range of objective seriousness for offences of this type in my opinion.
10. The same cannot also be said of the events that constitute count 6. These assaults continued over an extended period and involved the use of an implement. This count is in my opinion slightly above the middle of the range of objective seriousness for offences of its type.
11. Count 8 is an example of the recording of what amounted to psychological abuse of the deceased. The video does not reveal that he was in physical pain or discomfort. It does in my opinion portray a little boy whose will to do other than comply with his instructions has been entirely overborne. The recorded material is, however, in the scheme of child abuse material offending the nominated provision of the Crimes Act, at the lowest end of the range of objective seriousness.
12. By way of minor contrast, I consider that the events recorded and forming the basis of count 9 are slightly more serious. This is because of the apparent physical distress occasioned to the deceased by requiring him to continue to run on the spot when both his capacity and willingness to do so have obviously become or are rapidly becoming exhausted.
13. Count 10 is in this case constituted by acts and omissions that in my view make it a serious offence. There does not appear to be any rational or comprehensible basis for withdrawing food or water from a seven year old child. The evidence suggests that on occasion the deceased was considerably and seriously dehydrated and hungry. It strains one's belief in basic humanity that anyone would even contemplate, let alone permit, the infliction of such depredations upon a child, ostensibly as acceptable discipline.

Subjective circumstances

1. Ms James was born in New Zealand in March 1988 and came to Australia as a young child. She has three siblings. Her parents' relationship was characterised by alcohol abuse and domestic violence on the part of her father which she witnessed. Ms James was herself the physical and emotional victim from time to time of her father's drunken temper. Her mother sometimes took the family to refuges to escape the violence in the home. Ms James' parents separated when she was aged about 11 years and each has entered into a new relationship. She lived between her parents after their separation.
2. Ms James was subjected to a number of indecent sexual assaults as a child at the hands of extended family members. She did not seek counselling with respect to these incidents until she was 24 years of age. Ms James now tends to downplay the significance of these assaults.
3. Ms James was also sexually propositioned by her stepfather after the birth of her third child. She was at that time separated from LAB and residing in her stepfather's home. This incident would appear to have caused her to lose any sense that her mother's home was a safe place for her to live with her children.
4. Ms James was also the victim of violence at the hands of LAB. This started when she was a few months pregnant with the deceased, when she was herself either 16 or 17 years old. This violence continued for five years until her relationship with him came to an end. She was then 21 years of age. LAB returned to New Zealand shortly thereafter. He neither maintained contact with his children nor provided Ms James with any form of financial assistance or support.
5. Ms James was also a victim of violence at the hands of Mr Maybir. She reported to her psychiatrist and gave evidence before me that this involved him placing his hands around her throat, screaming at her, shaking her and spitting at her. Mr Maybir has a history of domestic violence against his former wife.
6. Professor Hayes examined Ms James and identified a level of intellectual functioning in the low average range of intelligence. She has an IQ placing her in the bottom 21 percent of the population. Both Professor Hayes and Dr Furst diagnosed her with a dependent personality disorder. When she met Mr Maybir, Ms James did not attend church and did not appear to hold any religious beliefs. She was studying to become a beauty technician. However, less than a week after entering a relationship with Mr Maybir she moved with her children into Mr Maybir's so-called Christian rap music studio in Oatley. Shortly after that, Ms James began to espouse devout religious beliefs to her family, and often quoted biblical text to them.
7. Mr Maybir had had a close association with evangelical churches throughout his life and participated in children's camps run by Prisons Fellowships Australia, a Christian based organisation promoting religious fellowship with prisoners and their families. He introduced the idea of what are called boot camp techniques into that organisation.
8. Both Professor Hayes and Dr Furst accepted that Ms James very quickly fell under the influence of Mr Maybir to the point that she effectively subjugated herself, and delegated her parental responsibilities for her children, particularly the deceased, to him. The several reasons why it appears that Ms James did so include the following: 1. Her pre-existing dependent personality disorder. 2. The physical, emotional, relationship and sexual dysfunction that she had experienced since early childhood. 3. Her low average intelligence. 4. Mr Maybir's self-aggrandising and self-promotional behaviour, claiming falsely to be a successful rap musician with a big future. 5. Mr Maybir frequently quoted biblical passages that gave him an air of authority. 6. Ms James' relative social isolation prior to meeting Mr Maybir. 7. Mr Maybir's exercise of control over all important aspects of Ms James' life, including but not limited to insisting that she not maintain contact with any person who did not hold his religious beliefs as well as isolating her from her family. 8. Mr Maybir's actions that caused Ms James to question or doubt her own parenting abilities. Her children would appear in all relevant respects to have been properly and adequately cared for by her before meeting Mr Maybir with the assistance of her extended family. They attended school, were given professional medical care when required, and were properly fed and clothed. The deceased's intellectual disability had been the subject of discussion with his teachers and his problems were recognised and were being appropriately addressed. That all changed significantly and for the worse under Mr Maybir's influence. He told her that the children needed to be toughened up mentally. He convinced Ms James that he was the only person who could help her. 9. Mr Maybir convinced Ms James that the deceased did not have an intellectual disability but that he was only in need of correct discipline. 10. Mr Maybir persuaded Ms James that her children had been sexually assaulted by her father and manipulated her with that lie so that she became distant from her previously supportive extended family.
9. Professor Hayes likened the position in which Ms James found herself, under the influence and control of Mr Maybir, to what is referred to as Stockholm Syndrome in which a captive develops a bond with his or her captor. Professor Hayes also likened Ms James' position to members of a cult who become susceptible to loss of independence, unassertive, gullible, possessing a desire for spiritual meaning, all in ignorance of the mechanisms of ongoing manipulation.

Mitigating factors

1. Ms James has no previous convictions of any kind. She is a person of good character. I accept that she is unlikely to reoffend, particularly if she is able to address her underlying personality pathology. Ms James has correspondingly good prospects of rehabilitation by reason of her young age and developing maturity, her willingness to engage in counselling and therapy since being incarcerated, the ongoing support of her family and the genuine grief and remorse that she feels and has expressed at the death of the deceased and the loss of her other three children.

Plea of guilty

1. Ms James pleaded guilty to all of the offences at what amounts to the earliest opportunity to do so following negotiations with the DPP. She is in these circumstances in my opinion entitled to a generous discount upon her sentence for the utilitarian value of her pleas. That value is significant in this case if only for the avoidance of the need to call a large number of witnesses to give evidence about particularly distressing matters.

Assistance to authorities

1. Ms James was originally charged with murder on 21 November 2013, together with a series of other offences. The Director initially declined on 27 May 2014 to accept her offer to make an induced statement. The Director maintained that position on 10 July 2014, and declined to accept Ms James' offer to plead guilty to manslaughter. The Director indicated that he was prepared to consider the matter further if Ms James were able to provide a further electronically recorded interview, in order that he could better assess her level of culpability. The Director ultimately accepted her offer to plead guilty to manslaughter, upon the basis of gross criminal negligence, on 4 March 2015. Ms James entered her pleas of guilty to all charges on 31 March 2015.
2. Ms James has offered to assist authorities and to give evidence against Mr Maybir. I have been provided with a summary of that evidence and with a formal undertaking to assist the prosecution at the trial of Mr Maybir. Without descending into the detail of what it is anticipated that Ms James could say, it is apparent that her evidence is likely to be of considerable assistance and of great value in the Crown case against her co-accused. Prior to her offer of assistance, the case against Mr Maybir was circumstantial by reason of the fact that his assaults upon the deceased were not witnessed by any adult, apart from Ms James. It is anticipated that Ms James' evidence of what she saw and heard will render the balance of the circumstantial case against Mr Maybir more convincing.
3. I observe as well that even though Ms James was not a witness to the infliction of the lethal assault upon the deceased, she was present when Mr Maybir carried him into the kitchen in an unresponsive state. Ms James will give evidence that she did not inflict the ultimately fatal injuries upon the deceased.

Special circumstances

1. Before any variation of the statutory ratio of the non-parole to parole periods of any sentence is made, it is necessary that the circumstances are sufficiently special to justify any such variation: R v Fidow [2004] NSWCCA 172 at [22]. The Crown submitted that the necessarily lengthy period of parole in this case would be sufficient for any purpose that such a period is intended to achieve.
2. Ms James submitted that a finding of special circumstances could be made. First, there are multiple offences and so some degree of accumulation is inevitable. Secondly, Ms James is young and she is likely to be considerably more mature upon her eventual release from custody. Thirdly, Ms James has very good prospects of rehabilitation: she is amenable to counselling which is more readily available in the community and she should be monitored and managed while re-establishing herself as a member of society.

Voluntary admission of previously unknown offence

1. Ms James volunteered the fact that she had beaten the deceased with a wooden plank while he was held down by Mr Maybir. I have already indicated that this was a serious example of an offence of its kind. Ms James submitted, however, that her admission of this offence attracted a degree of leniency in accordance with the well-known remarks of Street CJ in R v Ellis (1986) 6 NSWLR 603 at 604. Even though the fact that someone had assaulted the deceased in this way was obvious to police by reason of the scars on his body, the allocation of responsibility for the actual infliction of the wounds was not as easily determined. Ms James took responsibility for this offence in circumstances where her liability might not have been similarly detected.
2. The application of the Ellis principle does not require the quantification or assessment of a specific discount. I consider that Ms James is entitled to a degree of leniency in the determination of a proper sentence in respect of this particular offence.

Victim impact statements

1. The common law requires that I have regard to the effect of crime upon a victim: Porter v R [2008] NSWCCA 145 at [54]. Section 3A(g) of the Crimes (Sentencing Procedure) Act provides that one of the purposes for which a court may impose a sentence on an offender is "to recognise the harm done to the victim of the crime and the community". The Crimes (Sentencing Procedure) Amendment (Family Member Victim Impact Statement) Act 2014 makes it clear that, in applying s 3A(g), a victim impact statement given by a victim may, on the application of the prosecutor and if the court considers it appropriate to do so, be considered and taken into account on the basis that the harmful impact of the primary victim's death on the members of his or her immediate family is an aspect of harm done to the community.
2. Section 28 of the Crimes (Sentencing Procedure) Act provides as follows: "28 When victim impact statements may be received and considered (1) If it considers it appropriate to do so, a court may receive and consider a victim impact statement at any time after it convicts, but before it sentences, an offender. (2) A victim impact statement may also be received and considered by the Supreme Court when it determines an application under Schedule 1 for the determination of a term and a non-parole period for an existing life sentence referred to in that Schedule. (3) If the primary victim has died as a direct result of the offence, a court must receive a victim impact statement given by a family victim and acknowledge its receipt, and may make any comment on it that the court considers appropriate. (4) A victim impact statement given by a family victim may, on the application of the prosecutor and if the court considers it appropriate to do so, be considered and 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 the primary victim's death on the members of the primary victim's immediate family is an aspect of harm done to the community. (4A) Subsection (4) does not affect the application of the law of evidence in proceedings relating to sentencing. (5) A court may make a victim impact statement available to the prosecutor, to the offender or to any other person on such conditions (which must include conditions preventing the offender from retaining copies of the statement) as it considers appropriate. (6) Despite any other provision of this section, a court must not consider or take into account a victim impact statement under this section unless it has been given by or on behalf of the victim to whom it relates or by or on behalf of the prosecutor."
3. I take into account that the attitude of the victim's family towards the offender is not relevant to the proper exercise of my sentencing discretion: R v Paul (2002) 134 A Crim R 174 at [37]; R v Dawes [2004] NSWCCA 363. I have had regard to those victim impact statements to the extent and in the way that I am entitled to do in accordance with authority and the relevant statutory provisions. I accept that the death of the deceased has had a significant effect upon them and upon all those who knew the deceased for the short period of his life.
4. In this case, victim impact statements were read aloud in court on the occasion of the sentencing proceedings by two of the deceased's grandparents. It is understandable that the death of a young child evokes strong emotions and incites the making of powerful and brutally honest statements. I feel the need in this case to comment, however, that a victim impact statement should not be used as the occasion to refer to the offender or any co-accused in offensive or pejorative terms in the way that was adopted in one of the victim impact statements read aloud before me. The maintenance of dignity in the face of grief says more to me about a victim and his or her suffering than a gratuitous explosion of distasteful remarks and venomous adjectives.

The proper sentence

1. It is sadly apparent that the deceased must have suffered considerably in the last months of his life. That suffering was not limited to the consequences of physical abuse, but extended also to the emotional turmoil and undoubted confusion under which he must have laboured as he endured a series of awful indignities at the hands of or in the presence of his mother who failed in her maternal duty to protect him. All of this is compounded in my view by the fact that when the deceased was injured and dying, Ms James failed even then to take the simplest steps to optimise or preserve his small but rapidly diminishing chances of survival.
2. I accept however that when confronted with this awful circumstance, Ms James was herself the victim of a series of occult influences that compromised her ability to respond normally. The evidence adequately suggests that Ms James was unduly and powerfully compromised by the physical and psychological presence of Mr Maybir. These remarks are for important and obvious reasons not the place to evaluate his apparent role in the events that occurred. It is, however, appropriate and permissible to observe that Ms James would in my view have acted differently had it not been for the insidious influence that Mr Maybir was able to exert upon her.
3. That influence is not a complete answer to my sentencing task. That is because it seems to me to be apparent that Ms James, when confronted with a competition between the needs of her dying son on the one hand and her concern about what might be Mr Maybir's attitude or reaction should she have exposed him to the possibility of criminal sanctions on the other hand, she decided to prefer the needs of Mr Maybir rather than those of her son. An inspection of that analysis reveals that in apparently preferring the interests of Mr Maybir, Ms James simultaneously preferred her own interests to those of the deceased. Whereas this case appears to be explicable when Mr Maybir's influence is appreciated and applied, it becomes inexplicable when his influence diminishes. In the period when the deceased lay unconscious and dying, and when Mr Maybir was himself absent from the house, it is difficult to understand why the imperatives of maternal instinct and the incipient loss of her son did not combine to eradicate or calm Ms James' fears or prompt her immediately to summon emergency assistance.
4. This tragic and fateful circumstance is reflected in a passage of transcript of the evidence given by Ms James before me as follows: "MAXWELL QC: If you just look at paragraphs 186 to 187 and just read them to yourself, I just want to ask you something. So is it the case that Mr Maybir went out at around 6pm on the 20th and was away for over three hours? A. Yes. Q. Now at that time you could have sought help for [the deceased], correct? A. Yes, I could have. HIS HONOUR Q. Why didn't you? A. I was worried. I was worried for Kodi's safety rather than the welfare of [the deceased]. Q. But if he had fallen off a pogo stick there wouldn't have been a problem, would there? A. (No verbal response)."
5. I consider that Ms James is entitled to a discount of 40 percent on her sentence for the combined effect of her pleas of guilty and her past and future assistance to authorities. I am mindful that a discount ought not to produce a result that becomes on that account unreasonably disproportionate to the nature and circumstances of the offending. I have also taken account of the remarks of Howie J in R v Sukkar [2006] NSWCCA 92 at [5]. I consider that Ms James is entitled to a 25 percent discount for her early pleas and that the balance of the 40 percent ought to be referable to her past and continuing assistance and her associated undertaking.
6. I am entirely satisfied that Ms James is remorseful. She gave evidence before me in the course of which it was evident in the clearest terms that she both regretted what she had done, and what she had failed to do, and that she would be burdened with the consequences and the associated guilt for the rest of her life.
7. I have no sense that special deterrence has any significant role to play in the formulation of a proper sentence in this case. The reasons for that will be obvious and I take it to be unnecessary to explain my view in any detail.
8. The question of general deterrence is more difficult. At one level of inquiry it seems absurd that there could ever be a need to discourage mothers, or parents more broadly, from killing their young children. Upon closer examination, however, the issue of importance in this particular case is more acutely concerned with deterring inaction or procrastination when action is called for, especially when timidity or fear may be lurking. That is particularly so because children have no appreciation of the extent of their vulnerability and every reason to anticipate that they can rely upon their parents to shield them from harm at all times. I am not confident that sentences often if ever send messages to would-be criminals that are actually received and meaningfully processed, inasmuch as the rationality of that process is usually and inevitably defeated by the irrationality of the acts or omissions causing death. However, I am completely satisfied that courts have a role to speak in the interests of the community and to denounce crimes such as these in clear terms.
9. In R v Foster (No 2) [2001] SASC 154 at [5], Gray J said this: "General deterrence is of particular importance in a case such as this. Persons entrusted with the care of innocent young children must be deterred from abusing their positions of trust and power. The court must extend the full protection of the law to vulnerable children and to the community by imposing sentences which will deter others. Adults must clearly understand that abuses of trust and power which lead to death will result in severe sentences of imprisonment."
10. I accept unequivocally that it is important to sentence in a way that recognises "a need for parents to understand the serious consequences of breaching the trust reposed in them to care for their infant children": Sam v R; R v Sam [2011] NSWCCA 36 at [151]. The sentence that I impose should also make it clear to Ms James that she has breached the most fundamental trust between human beings.
11. I am not convinced that any significant restructuring of the parole to non-parole period ratio is called for in this case. Having said as much, I accept that it is distinctly possible that Ms James' precise needs for psychiatric or psychological care and attention have neither fully materialized nor been accurately identified and care should be exercised when recommitting her to a less supervised life when she is finally released.
12. I am satisfied on the balance of probabilities that Ms James will never reoffend and that her prospects of rehabilitation are correspondingly and by definition beyond doubt.
13. I have already determined that the death of the deceased places the relevant offence in the most serious category of offences of its type. I am also mindful of the principle of sentencing that requires me to sentence Ms James in a way that ensures that the aggregation of the sentences for her numerous offences is a just and appropriate measure of the total criminality involved.

Aggregate sentences and s 10A

1. Section 53A of the Crimes (Sentencing Procedure) Act provides as follows: "53A Aggregate sentences of imprisonment (1) A court may, in sentencing an offender for more than one offence, impose an aggregate sentence of imprisonment with respect to all or any 2 or more of those offences instead of imposing a separate sentence of imprisonment for each. (2) A court that imposes an aggregate sentence of imprisonment under this section on an offender must indicate to the offender, and make a written record of, the following: (a) the fact that an aggregate sentence is being imposed, (b) the sentence that would have been imposed for each offence (after taking into account such matters as are relevant under Part 3 or any other provision of this Act) had separate sentences been imposed instead of an aggregate sentence. (3) Subsection (2) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions. (4) The term, and any non-parole period, set under this Division in relation to an aggregate sentence of imprisonment is not revoked or varied by a later sentence of imprisonment that the same or some other court subsequently imposes in relation to another offence. (5) An aggregate sentence of imprisonment is not invalidated by a failure to comply with this section."
2. The practical problems associated with a traditional approach to sentencing in this case, having regard to the conclusions I have reached concerning the comparative criminality of the various counts, impels me to the conclusion that the provisions of s 53A should be embraced and applied. I recognise that there is a need, in a meaningful way, to acknowledge and underscore the criminality evident in the serious offences committed by Ms James. It is however important to do so, as far as possible, without unnecessarily derogating from the significance of the sentencing process by the imposition of a series of wholly concurrent sentences whose criminality is thereby not practically acknowledged.
3. I therefore propose in this case to impose an aggregate sentence. The indicative sentences of imprisonment for those counts that I consider warrant the imposition of a custodial penalty are respectively as follows:
4. Count 4: imprisonment for a period of 9 months.
5. Count 6: imprisonment for a period of 9 months.
6. Count 7: imprisonment for 12 months with a non-parole period of 9 months.
7. Count 9: imprisonment for a period of 9 months.
8. Count 10: imprisonment for a period of 12 months.
9. Count 11: imprisonment for a period of 12 years.
10. In assessing these indicative sentences I have had specific and particular regard to the requirements of s 53A and to R A Hulme J's informative and helpful remarks concerning the application of that provision in JM v R [2014] NSWCCA 297 at [39] - [40]. For the avoidance of doubt I note that in making these assessments I have specifically taken account, among other things, of relevant matters in Part 3 of the Crimes (Sentencing Procedure) Act including all of the previously mentioned and considered aggravating, mitigating and other factors to which s 21A refers, as well as the 40 percent discount for the combined effect of Ms James' pleas of guilty and her assistance to authorities, as well as the offences on the Form 1. By way of further explication, this means for count 11, by way of example, that I have chosen a starting point, before the application of the combined 40 percent discount, of imprisonment for 20 years.
11. I observe in addition, as will already be apparent, that I do not intend to impose custodial sentences in respect of the offences in counts 1, 2, 3, 5 and 8. I should indicate why I have taken this course.
12. Counts 1, 2 and 3 involve the application of corporal punishment. Such a form of discipline has thankfully, although not entirely, fallen into disuse. Standing alone, I consider that these offences would not, and in the context of the proceedings as a whole do not, warrant a term of imprisonment.
13. Count 5 involved the recording of what I consider upon review to have been rough play. The activity barely qualifies, if it qualifies at all, as child abuse and its recording fails correspondingly to qualify as child abuse material. In different circumstances, uncoloured by the sinister background of abuse evident here, it could pass as an unexceptional home video, of which other benign and happy examples have been tendered in these proceedings. This count does not warrant or justify the imposition of a term of imprisonment.
14. Count 8 depicts the deceased repeatedly taking his jacket off and putting it back on. It would appear to have been intended to operate as some form of psychological punishment or discipline. The deceased was not physically harmed by this process. He makes no complaint or protest about it. It seems to me to be analogous to sending a child to bed without dinner. Without intending either to express, or to appear to be expressing, any view about the appropriateness of the method concerned, I am troubled that the recorded conduct could ever be thought to warrant the imposition of a custodial sentence in Australia today.
15. Section 10A of the Crimes (Sentencing Procedure) Act is in the following terms: "10A Conviction with no other penalty (1) A court that convicts an offender may dispose of the proceedings without imposing any other penalty. (2) Any such action is taken, for the purposes of the Crimes (Local Courts Appeal and Review) Act 2001 and the Criminal Appeal Act 1912, to be a sentence passed by the court on the conviction of the offender."
16. This provision permits a court that convicts an offender to dispose of the proceedings without imposing any other penalty. It is implicit in the terms of the section that a conviction standing alone is itself a penalty. There are clear and obvious reasons why that is so. In the particular circumstances of this case, the offences corresponding to the counts I am now considering would on one view have attracted little, or at least quite different, attention were it not for the events that ultimately and tragically occurred. It is reasonably apparent as well that they would in all probability have remained undetected. Interestingly, the train passengers who witnessed and described what they saw when the deceased was slapped on the arm by Ms James, being the offences covered by counts 1, 2 and 3, were not moved to report the matter to the police or any other apparently interested and responsible authority. That is not so much a poor reflection upon them as much as an indication of their practical, and what amounts to a contextual, view of the seriousness of the conduct.
17. There is also little utility in imposing sentences that would pass without comment if imposed wholly concurrently with one or more of the sentences of imprisonment referable to the most serious counts on the indictment. There can be difficulties of appearance in imposing custodial sentences almost as a matter of form that are wholly concurrent with, and which are therefore subsumed in, sentences of imprisonment imposed for more serious crimes arising out of related events.
18. In short I consider that all of these counts do not warrant and should not attract the imposition of a custodial sentence. There is in addition, having regard to the non-parole period that I intend to impose with respect to the other counts, no utility in doing so.

Orders

1. I make the following orders: 1. Kayla James, on counts 1 to 11 inclusive you are convicted. 2. On counts 4, 6, 7, 9, 10 and 11, I sentence you to an aggregate sentence of 14 years imprisonment commencing on 20 November 2013 and expiring on 19 November 2027 with a non-parole period of 10 years and 6 months expiring on 19 May 2024. 3. I order in respect of counts 1, 2, 3, 5 and 8 that the proceedings in respect of those counts be disposed of without the imposition of a further penalty.
2. The earliest date upon which you will be eligible for release on parole is therefore 20 May 2024.

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: 26 February 2016