R v LN; R v AW

REMARKS ON SENTENCE

1. JOHNSON J: On 13 June 2014, a three-year old boy named Joseph left relatives in Sydney to reside with his mother and stepfather at Oberon. On 3 August 2014 (some 51 days later), Joseph was transferred by emergency helicopter to Westmead Children's Hospital where he died three days later from injuries sustained in Oberon.
2. Joseph's mother, LN, and stepfather, AW, stood trial for his murder between 27 February 2017 and 18 April 2017. A jury found each of them guilty of the murder of Joseph. Following the verdicts of the jury, the Court convicted each Offender of the crime of murder.
3. The Offenders are referred to by use of initials because publication of their names would tend to identify their daughter, Joseph's half-sister, who is entitled to protection against identification under s.15A Children (Criminal Proceedings) Act 1987. That daughter (who is now four-and-a-half years old) will be referred to as Mary, which is not her real name. Joseph (or Joey) is the real name of the little boy who died. Publication of his first name will not tend to identify his half-sister. Further, it would not properly serve his memory to refer to him by an artificial name. I will refer to him as Joseph, being the name used by his extended family in Sydney. The evidence revealed that they cared for Joseph and loved him in a manner which was absent from his Oberon family (the Offenders).

Penalty for Murder

1. The maximum penalty for the crime of murder is imprisonment for life: s.19A(1) Crimes Act 1900. A person sentenced to imprisonment for life for murder is to serve that sentence for the term of the person's natural life: s.19A(2) Crimes Act 1900. If a life sentence is imposed, the Court cannot fix a non-parole period: R v Harris (2000) 50 NSWLR 409; [2000] NSWCCA 469 at 429 [122].
2. A Court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the Court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met by the imposition of that sentence: s.61(1) Crimes (Sentencing Procedure) Act 1999. The burden of proving that a case falls within s.61(1) rests on the Crown and the standard of proof is beyond reasonable doubt: R v Merritt (2004) 59 NSWLR 557; [2004] NSWCCA 19 at 557 [35].
3. If the Court does not impose a sentence of imprisonment for life, the Court may impose a sentence of imprisonment for a specified term: s.21(1) Crimes (Sentencing Procedure) Act 1999. A standard non-parole period of 25 years applies as the victim in this case was a child under 18 years of age: ss.54A-54B Crimes (Sentencing Procedure) Act 1999.

Facts of Offences

1. The starting point for the Court is to make findings of fact for the purpose of determining sentences for the offences. The primary constraint is that the view of the facts adopted by me, for the purposes of sentencing, must be consistent with the verdicts of the jury: R v Isaacs (1997) 41 NSWLR 374 at 377-378. The Court may not take a matter into account on sentence, in a way that is adverse to the interests of either Offender, unless those facts have been established beyond reasonable doubt. On the other hand, if there are matters which either Offender relies upon to reduce penalty, it is enough if those matters are proved by the Offender on the balance of probabilities: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at 281 [27]-[28].
2. The indictment charged each Offender with the murder of Joseph at Oberon on or about 3 August 2014.
3. In approaching the task of fact finding in this case, it is necessary to keep in mind the way in which the Crown put its case against each Offender at trial.
4. The Crown put its case against LN on the basis that she committed a voluntary act on or about 3 August 2014, accompanied by an intention to kill or to inflict grievous bodily harm with that act causing the death of Joseph. Also before the jury was evidence of a series of assaults by LN (and AW) upon Joseph in the period when he was living with them at Oberon. This evidence was before the jury for a number of purposes, including LN's tendency to inflict violence on Joseph between June and August 2014 and to have a particular state of mind, namely a preoccupation with killing him or wanting to kill him in that period: R v LN; R v AW (No. 1) [2017] NSWSC 119.
5. The Crown put its case against AW on the basis of extended joint criminal enterprise. The Crown alleged that LN inflicted fatal injuries upon Joseph on or about 3 August 2014 and that, from the time that Joseph came to live at Oberon on 13 June 2014, each of LN and AW had engaged in a joint criminal enterprise to assault the child and that AW foresaw the possibility that LN, during the course of that joint criminal enterprise, might commit a voluntary act causing Joseph's death whilst having the requisite intent to murder, namely an intent to kill or to inflict grievous bodily harm.
6. As the way in which the case against AW was left to the jury bears upon sentencing for his offence, it is appropriate to set out what the jury found established beyond reasonable doubt, in his case.
7. To return the verdict of murder in AW's case, the jury was satisfied beyond reasonable doubt of each of the following matters: 1. that there was in existence a joint criminal enterprise (an agreement) between LN and AW which had as its object the commission of assaults upon Joseph by the parties to the agreement; 2. that AW was party to that agreement; 3. that AW participated in the joint criminal enterprise; 4. that LN, as a party to the joint criminal enterprise, inflicted harm to Joseph: 1. by a deliberate act, 2. with the intention (at least) to cause grievous bodily harm, and 3. that this act caused, or substantially contributed to, the death of Joseph; and 1. that AW contemplated the possible intentional infliction of (at least) grievous bodily harm (really serious bodily injury) by LN upon Joseph during the course of the joint criminal enterprise and that, with that awareness, he continued to participate in the agreed criminal enterprise.
8. Aspects of these directions were considered and explained in R v LN; R v AW (No. 9) [2017] NSWSC 376. The factual components of AW's offence will become clearer with the narrative of what occurred in the Oberon house between 13 June and 3 August 2014.
9. Joseph was born to LN in April 2011. His father, who was not AW, died of natural causes on 20 December 2010. LN could not cope with Joseph and, when he was about three months old, he commenced to live with LN's mother and her extended family in a suburb of Sydney. That family included Joseph's uncle (RH) and aunty (PH), who both gave evidence in the trial. Each of them impressed as caring persons who loved Joseph, as he lived as a member of a large extended family including several cousins.
10. The evidence of each of RH and PH, LN's brother and sister, was that Joseph was a happy child whilst living with the extended family in Sydney. RH said that Joseph had no difficulty with running or walking, he could use a personal computer, he loved to use an Xbox, he could speak English and he was an active and affectionate child. PH confirmed those aspects. Apart from the oral evidence of RH and PH, there was in evidence a video of Joseph and other children at a choir function in May 2013 in which he seemed to be moving about and enjoying that particular activity. There were also photographs of Joseph with members of his extended family which provided illustrations of the life he was leading with the family in Sydney.
11. Joseph was leading a happy and fulfilling life with the family in Sydney before they agreed, after some hesitation, that Joseph would once again live with his mother at Oberon. Although the family were concerned about Joseph leaving to live in Oberon, the view was taken that his mother now said she wished to raise him in a household where she lived with her partner, AW, and their own one-year old daughter. There had been limited contact between Joseph and LN and AW before 13 June 2014. In a practical sense, Joseph was going to live in Oberon with a mother he hardly knew and a stepfather who was almost a stranger to him. RH made clear to LN that she should let them know if there were any problems. Despite the events which followed, LN and AW did not contact RH to seek his assistance, which would have been provided immediately if sought.
12. This factual narrative will refer to various incidents of violence by LN and/or AW against Joseph as disclosed in the evidence before the jury. It will be necessary to consider what use can be made of this evidence for the purpose of determining sentences, with competing submissions being made in this respect by the Crown and counsel for the Offenders.
13. As at June 2014, LN and AW and their daughter were living in a relatively modest cottage in Oberon where they had moved in December 2013. By June 2014, LN was 40 years old and AW was 45 years of age. FN, who had been living with them in Oberon since April 2014, was 22 years old. FN was LN's eldest son.
14. Evidence at the trial concerning events in the Oberon house between 13 June and 3 August 2014 came largely from FN, who gave evidence for the Crown, and from various recorded interviews with police given by LN and AW in August and September 2014.
15. The evidence of FN indicated that the early part of the period of Joseph's life in Oberon did not involve any acts of violence by LN and/or AW towards Joseph. However, by 21 June 2014, photographs which were tendered in evidence (Exhibit W) showed Joseph with a bruise to the side of his head and with his head having been shaved. Joseph had a full head of hair when he was living with his extended family in Sydney.
16. On 30 June 2014, LN and AW took Joseph to the Child and Family Health Clinic in Oberon. AW told the nurse, Sarah Martin, that he thought that Joseph had rickets. Ms Martin noted that Joseph had visible sores on his face, arms and ankles which had been treated with a red substance. Ms Martin said that Joseph presented as a very sad, scared little boy who, at one stage, was curled up on his mother's lap.
17. On 2 July 2014, Joseph was taken to the Bathurst Hospital Dental Service where he was seen by a dental therapist, Jennifer James. With the exception of his face, Joseph was completely covered in clothing. He had a graze that ran down the centre of his forehead, nose and chin. AW told Ms James that Joseph had received this injury after a fall whilst running on the carpet. AW said that Joseph was not a fast runner and had something wrong with his feet. Joseph was found to have significant dental decay for which he received dental treatment on 7 July 2014. Ms James told LN and AW to take Joseph to the Emergency Department of the hospital to have his face looked at. They attended Bathurst Hospital that day where he was examined. Katrina Holland also observed Joseph at the Dental Clinic on 2 July 2014. She observed a spatula shaped mark on his face.
18. On 10 July 2014, AW took Joseph to a hearing test. AW told the nurse, Alana Benson, that Joseph did not walk because he had rickets. AW later told police that he learned of rickets by way of a Google search and not as a result of any diagnosis by a health professional. Joseph had left middle ear fluid and the nurse recommended some gentle exercises to clear the fluid. Ms Benson observed that Joseph was covered in a very large coat.
19. FN described a number of incidents of violence being used against Joseph by LN and/or AW. In their respective interviews with police, LN and AW largely admitted that they had assaulted Joseph in the various ways described by FN.
20. I should note that, for understandable reasons, there was no attempt at trial by LN and AW to rely upon the defence of lawful correction under s.61AA Crimes Act 1900 with respect to acts of violence against Joseph. What was done to Joseph by LN and AW was far removed from any concept of lawful correction. It constituted unlawful violence against a three-year old boy.
21. It is appropriate to recount parts of FN's evidence at the trial (utilising the summary in the summing up ("SU") to the jury at pages 47-55). FN gave evidence concerning events in the Oberon house between 13 June and 3 August 2014. He said that everything was Okay to begin with but that LN and AW had struck Joseph thereafter. FN said that neither he nor LN nor AW had a job at the time so the days were usually occupied with all of them being in the house with the children.
22. FN described occasions when AW used a wooden spoon on Joseph to smack him.
23. FN said that LN had complained that Joseph kept staring at her and she became angry on one occasion, grabbing the boy by the shoulders and yelling "I wish I never had you" whilst shaking him aggressively with his head flopping back and forth.
24. FN described how LN and AW had taped shut Joseph's eyes with duct tape as "they got sick of him staring". AW taped the boy's eyes whilst LN sat back nearby having a cigarette.
25. FN described two incidents where Joseph was placed in an Esky for the purpose of an ice bath intended by LN and AW to bring bruises to the surface. FN said this happened twice, with AW placing Joseph in a large Esky in which a bag of ice was placed followed by Joseph who had no clothes on. FN said that Joseph was in the Esky for more than five minutes with AW sitting on top of the large Esky whilst the child was inside. LN was present sitting nearby in a chair when this occurred. FN described Joseph giving "an ear piercing scream". When Joseph got out of the Esky, he was curled up.
26. FN described another occasion when AW struck Joseph with a wooden spoon on his bare bottom. He referred to another incident where LN and AW placed Joseph in a blanket strapped up with duct tape for the purpose of him not picking his sores.
27. FN said that in the last week before 3 August 2014, there was something amiss with Joseph's eyesight, with the boy not actually looking at him.
28. FN described another incident where LN kicked Joseph in the torso, with the boy then lying on the floor.
29. He described an occasion when LN fed Joseph using a syringe or eye dropper. LN placed Joseph in a baby bouncer to sleep although the baby bouncer was too small for him.
30. An important event occurred on 28 July 2014, when an outsider came to the Oberon house and saw Joseph. His evidence provides a snapshot of how Joseph appeared and acted some five-to-six days before the fatal injuries were inflicted. David Whitley, an electrician, attended the Oberon house to check the wiring. He observed a boy (Joseph) whom he thought was autistic and who was "just staring at the ceiling" and was looking with a "fixed gaze" and "no expression". He described the child as sitting with "a blank stare". This evidence is of considerable importance because it provides an identifiable date when Joseph was clearly affected by his experiences in the Oberon house as a result of the assaults upon him by both LN and AW. This evidence assists an understanding as to his compromised physical and psychological state at that time, which is relevant to his capacity to resist any further assaults upon him committed after that date.
31. On the afternoon of 2 August 2014, FN saw LN burst into tears and cradle Joseph. She was feeding him formula through a syringe.
32. In her interviews with police between 3 August and 15 September 2014, LN said the following about Joseph in the period 13 June to 3 August 2014 (using the summary at SU55-74): 1. Joseph was running around the house and was constantly tripping over; 2. Joseph would clamp his jaw together and not open his mouth, with AW at one point using a nail file to open his mouth; 3. LN said at one point, "I had so many thoughts about killing Joey because I loved him, but I just didn't connect with him …" - when asked why she did not take him back to the extended family in Sydney, LN said, "Because my dad had dementia and it was enough on mum's plate"; 4. LN said that she had smacked Joseph quite a lot because sometimes he would not eat and that most of the injuries were caused by her because she would get angry and smack him with a wooden spoon or with her hand; 5. LN said that Joseph was given a solution of salt and water which he drank and "that was to punish him for not drinking"; 6. LN said that, on the night of 2 August 2014, Joseph was sitting on the floor on his own and "he refused to eat so we just kept pumping a lot of fluids into him"; 7. LN said that one night Joseph "was pissing [her] off because he kept dragging his feet and he wouldn't drink and he wouldn't eat, he wouldn't do anything, so when he tripped, I kicked him"; 8. LN said that since Joseph came to live at Oberon, she thought that he looked "just like his father" and she had "wanted to kill his father" because he had an affair with another woman, but that "he died from cancer - it got to him before I did"; 9. LN said that Joseph "just pushed my buttons too many times" - she said "I wanted to kill him … Don't get me wrong, I did love that boy … but there was part of me that hated him … because he looked like his father because he is his father's child, whatever the case may be, I don't know"; 10. LN said that there was an occasion where she "was … really pissed off that he ended up in … a catatonic state … he never blinked … that happened I think four days before the incident [on 3 August 2014]"; 11. LN said that AW "was always putting Mercurochrome on that kid like he was painting him red"; 12. LN described jamming Joseph's head in a wardrobe door - she said this occurred two nights before 3 August 2014 - she said she was angry when she slammed Joseph's head in the door, he had been awake all night and she had punched him in the head after she had jammed his head in the door - "It was just frustrating [her]"; 13. LN said that she had thoughts about killing Joseph because "In some way ways I hated [Joseph]"; and 14. LN said that she and AW discussed reducing the swelling or bruising to Joseph's body before they took him to the paediatrician because the "shit would hit the fan" if he presented to hospital with those bruises.
33. In interviews with police between 3 August and 17 September 2014, AW referred to events with Joseph in the period 13 June to 3 August 2014 (using the summary at SU76-86): 1. on the morning of 3 August 2014, Joseph had two cups of milk and two waters, but nothing else to eat; 2. when Joseph walked he would "do his puppet thing" so that AW thought there was something wrong with his legs and, after a Google search, he thought he had rickets; 3. AW said he had struck Joseph with a wooden spoon and had picked him up and shaken him; 4. AW described the use of the Esky for ice baths in a manner which was largely consistent with the account given by FN (at [31] above) apart from a denial by AW that he sat on the lid of the Esky whilst Joseph was inside; 5. AW said that the Esky ice bath was used to try and ice out the blackness or bruising so that it would not have been obvious when Joseph was taken to the paediatrician; 6. AW confirmed that LN could see the Esky ice baths occurring, with Joseph being quiet on the first occasion and making some noise the second time; 7. AW said that LN had told him that she had thoughts of killing Joseph; 8. AW described the use of horse liniment oil on Joseph on one occasion and the insertion of a plastic ball in his mouth which was covered by duct tape; 9. AW said that salt was given to Joseph; 10. AW said that he had hit Joseph on the legs, hands and other parts of the body; 11. AW described the use of a blanket taped up - "We just wrapped him up in the blanket like a newborn, you wrap a newborn type of thing so they can't get out and hurt themselves during the night"; and 12. when asked why he did not hit his daughter, Mary, in the same way he hit Joseph, AW said "I don't know, I can't explain it, but she doesn't like push my buttons".
34. There was a significant dispute at the trial concerning what happened on 3 August 2014. It was the Crown case that LN assaulted Joseph in a serious fashion accompanied by an intention to kill him (given her admitted thoughts to this effect) or, at least, an intention to inflict grievous bodily harm. The Crown was not able to identify a particular act on LN's part or a particular time when that act was committed. It was the Crown case, however, that the act was committed most likely on the night of 2-3 August 2014 in the Oberon house when LN attacked Joseph yet again in a fit of anger. I am satisfied that AW was in the Oberon house at the time of the fatal attack, although the evidence does not permit a finding as to whether he was actually present in the room at the time. Of course, his presence is not required for him to be found guilty of murder.
35. I am satisfied on the evidence that Joseph was in a very poor state of health on 2-3 August 2014. I am satisfied to the requisite standard that he was attacked by LN in the Oberon house during the night of 2-3 August or on the morning of 3 August 2014. The act or acts of LN involved the use of considerable force including severe acceleration/deceleration movements with consequent fatal injuries to the child. Given the treatment of Joseph by LN and AW over the previous weeks, the child's capacity to resist was significantly reduced because of the physical and psychological trauma which he had suffered. He was exceedingly vulnerable.
36. LN and AW did not give evidence at the trial. It was the case of LN and AW at the trial (as expressed in their police interviews) that Joseph and Mary accompanied them to the park opposite the Oberon house with their two dogs, "Kaos" and "Havoc" on the morning of Sunday, 3 August 2014. It was said that Joseph was tripped by a long rope tied between the two dogs whilst he was running in the park.
37. Evidence was given by two young men who were in the nearby skate park and observed events in the park. They saw only one child in the park and the description of the child who tripped fitted Mary and not Joseph. I am satisfied that there was only one child in the park at the time and that child was Mary.
38. Further, at 12.37 pm on 3 August 2014, a photograph of Mary in the park was taken using LN's mobile phone (Exhibit EX). Joseph was not in this photograph - only one child was depicted. Some 17 minutes later, a "000" call was made by LN for assistance because of injuries said to have been sustained by Joseph.
39. In light of the jury's verdict, I am satisfied (as was the jury) that Joseph was not injured in any accident in the park. I am satisfied that Joseph was not in the park at that time. To the extent that the evidence of FN may have suggested that he had gone to the park with LN and AW, I consider that part of his evidence to be mistaken.
40. The Crown argued at trial that the park tripping incident was a ruse by LN and AW to provide cover or an explanation for Joseph's (by then) severe and terminal injuries. There were some curious features to this incident which supported the Crown argument. For the first time, FN was asked by AW to carry out some domestic chores rather than FN accompanying them to the park. It was odd that FN was so instructed with the consequence that he did not go to the nearby park as well. I am satisfied, to the criminal standard, that Joseph had been attacked by LN, with the fatal injuries being inflicted before LN, AW, Mary and the two dogs set out for the park that morning.
41. There is further support in the evidence for the Crown contention that the dog tripping explanation for Joseph's injuries was fake. Evidence was given at the trial by Senior Constable Christopher Nocente concerning an incident in the Centrelink office at Bathurst on 26 August 2014. Senior Constable Nocente was off-duty and was in that office wearing civilian clothes. He overhead a man and a woman speaking to each other. There was no dispute at trial that these persons were LN and AW. LN was speaking on the telephone to her brother, RH, about what had happened to Joseph. She recounted the dog tripping story to RH as an explanation for Joseph's fatal injuries. As it happens, a lawful telephone intercept warrant was operative so that the recording of the telephone conversation overheard by Senior Constable Nocente was played to the jury (Exhibits BA and BB). At the conclusion of the telephone conversation, Senior Constable Nocente heard AW say to LN "You've got to stick with that" and his evidence to this effect was not challenged. This was a further piece of evidence which supported the Crown case that the dog tripping story was a ruse contrived by LN and AW in an effort to explain away the terrible (and fatal) injuries to Joseph inflicted by LN on the evening or early morning of 2-3 August 2014.
42. At the trial, emergency personnel gave evidence of the injuries observed on Joseph at the Oberon house and his emergency helicopter transfer to Westmead Children's Hospital in the early afternoon on Sunday, 3 August 2014.
43. Joseph never recovered consciousness and he died at the hospital on 6 August 2014.
44. Joseph died of hypoxic ischaemic encephalopathy due to out-of-hospital cardiac arrest following blunt force cranio-spinal injury.
45. Dr Isabella Brouwer, forensic pathologist, and Dr Michael Rodriguez, neuropathologist, gave evidence at the trial concerning Joseph's injuries. Injuries which were related to Joseph's death included bilateral subdural haemorrhages, a contusion to the surface of the brain, retinal haemorrhages through the full extent of both eyes with bilateral retinal detachment and extradural, subdural and subarachnoid haemorrhages in all the layers surrounding the spinal cord.
46. It was the medical evidence at the trial that these injuries, including the eye injuries, may be explained by substantial acceleration/deceleration forces such as the head moving backwards and forwards quickly.
47. There were many non-fatal injuries observed on Joseph as well. I am satisfied that all of these injuries resulted from the various acts of violence carried out by LN, AW or both of them. These injuries included abrasions to the neck, symmetrical abrasions to each side of the temple (caused by LN slamming the wardrobe closed on the boy's head), bruising and abrasions to the face and scalp, bruising to the legs and buttocks, and abrasions to the shoulder.
48. On 15 September 2014, LN was arrested and charged with the murder of Joseph.
49. On 17 September 2014, AW was arrested and charged with the murder of Joseph.
50. Each of LN and AW have remained in custody since their dates of arrest in September 2014.

Subjective Circumstances of the Offenders LN

1. LN was born in June 1974 and was 40 years old at the time of Joseph's death. She has no prior criminal history.
2. LN has four children from her first marriage, born between 1991 and 1997. As mentioned earlier, the eldest son, FN, was residing in the Oberon house at the time of Joseph's death.
3. In early 2010, LN met VS (Joseph's father) and they commenced a relationship. VS died of cancer on 20 December 2010.
4. In about June 2011, LN formed a relationship with AW. Their daughter Mary was born in March 2013. On 23 December 2013, LN, AW and their daughter moved to Oberon.
5. Reports of Dr Stephen Allnutt, forensic psychiatrist, dated 18 January 2017, and Ms Anna Robilliard, forensic psychologist, dated 19 July 2017 were tendered in LN's case on sentence. LN did not give evidence at the trial nor on sentence.
6. According to the reports, LN had occasional employment interspersed with her family commitments concerning her children. Her last period of paid employment prior to June 2014 was work as a security concierge for 12 months when she was in her late 30s.
7. LN informed Dr Allnutt and Ms Robilliard of a somewhat turbulent family history with difficulties in her relationships over a number of years. LN reported a history of domestic violence in her first marriage.
8. It appears that LN consulted a Sydney psychiatrist, Dr John Roberts, in 2011-2013 who treated her for depression and difficulties she was experiencing after the death of Joseph's father, VS. No report of Dr Roberts, the treating psychiatrist, was tendered at the sentencing hearing. Both Dr Allnutt and Ms Robilliard examined LN for the first time when she was in custody on the charge of murder. Accordingly, there is no contemporaneous medical evidence concerning LN's state of mind and her capacity to renew her maternal relationship with Joseph in June 2014. There is no evidence that LN sought any professional opinion at that time despite her ongoing psychiatric treatment and the reasonable expectation that resuming her maternal relationship with Joseph may have had its difficulties.
9. Dr Allnutt examined LN on 30 January 2015 and 21 December 2016 for reasons associated with the trial. He considered that LN manifested symptoms consistent with a persistent depressive disorder with a differential diagnosis of a recurrent depressive disorder. Dr Allnutt was not asked to examine LN again following the jury's verdict in April 2017, so that there is no report from him bearing on sentencing issues. His report did not include any assessment of LN's violence towards Joseph in the period between June and August 2014.
10. Ms Robilliard examined LN on 6 July 2017 and prepared a report expressly for the sentencing hearing. She had access to the medical records of Dr Roberts for this purpose. LN informed Ms Robilliard that, over the period of her relationship with AW, she smoked cannabis on a daily basis as well as consuming alcohol daily and heavily. LN told Ms Robilliard that she was to blame for Joseph's death for "failing as a parent", although LN maintained that Joseph had suffered his fatal injuries in a tripping accident involving the dogs in the park.
11. Ms Robilliard obtained a history from LN of her being exposed to physical, emotional and sexual abuse during her formative years. Ms Robilliard noted that LN's Personality Assessment Inventory profile described a "highly disturbed personality construct and interpersonal adjustment compared to the normal and even the clinical populations profiled in the test manual". Depressive symptoms were said to be prominent in this assessment.
12. Ms Robilliard spoke of the importance of maternal attachment and said that LN "admitted she never developed an appropriate maternal attachment to the infant and he was taken out of her care by FACS and placed with her mother and stepfather" with little contact being had with Joseph thereafter. Ms Robilliard noted that LN's "emotional and psychological condition deteriorated and she made a serious suicide attempt and was treated in the mental health unit, some months after her daughter's birth". Thereafter, LN "was under the care of a psychiatrist and on a psychoactive medication regime" but her treatment was interrupted when she, AW and their daughter moved to Oberon in 2013.
13. Ms Robilliard noted that LN's motivation for retrieving Joseph from the family in Sydney "was confused when [LN] was questioned". Ms Robilliard considered that LN had "a sense of guilt about not having cared for him" and that she had "unrealistic expectations" as to how things would work out. With the child entering a strange household with associated confusion, Ms Robilliard considered that someone with LN's abuse history and psychological and emotional disturbance could have felt rejected, inadequate and unable to meet her child's needs in circumstances where there had been no prior opportunity for the development of an appropriate maternal attachment between her and the child who had been removed from her care within weeks of birth.
14. Against this background, Ms Robilliard raised the possibility of "displaced anger perpetrated on the child" as an explanation for the violence by LN against Joseph. With respect to LN's awareness of AW's abusive treatment of Joseph, Ms Robilliard noted that LN maintained that she was consistently affected by a combination of alcohol and prescription medication which she took in excessive quantities. AW
15. AW was born in July 1969 and was 45 years old at the time of Joseph's death. He has a limited criminal history confined to traffic matters for which he was fined in 2007.
16. No psychiatric or psychological report was tendered on sentence with respect to AW. He did not give evidence at trial or at the sentencing hearing.
17. An affidavit of Ms Carla Velasquez, AW's solicitor, affirmed 11 August 2017 was read in AW's case on sentence. The affidavit annexed a number of documents. These indicated that the Offender had worked satisfactorily in various positions associated with the care of animals including horses and dogs at various times in the 1980s and 1990s. From 2008, AW was working as a stable hand in racing stables. Whilst in this employment, AW was kicked by a horse on 21 September 2010 and suffered a severe knee injury. Reconstructive surgery was undertaken in 2011 with respect to AW's right knee. After that date, AW experienced ongoing difficulties including a limp and pain which required ongoing medication.
18. In the period June-August 2014, AW was unemployed and was on social security benefits.
19. Since AW entered custody on 17 September 2014, he has required ongoing medical assistance for his knee injury, which includes pain medication.
20. Custodial records reveal that AW was assaulted in custody by two other inmates on 25 April 2017, a week after he was found guilty by the jury. It may be taken that this assault flowed from publicity in the media concerning the jury's verdict. It was submitted for AW that this event may be taken into account on sentence as a form of extra curial punishment. It was also submitted that the Court should take into account the fact that AW will likely be in protective custody as a result of the risks to which he is exposed whilst in custody.

Victim Impact Statements

1. The Court received victim impact statements from Joseph's uncle (RH), aunt (PH) and a younger uncle (GH). RH and PH gave evidence at the trial. They are siblings of LN. GH did not give evidence at the trial. He is a young man now 24 years old. Although an uncle to Joseph, he and other younger family members living in the Sydney household acted as older brothers to Joseph when he was living with them.
2. The evidence given by RH and PH before the jury demonstrated the care and love shown by the extended family to Joseph in the years when he lived with them in Sydney. The victim impact statements emphasised further the depth of their connections to Joseph and the terrible consequences for each of RH and PH flowing from his death. It is clear that the effects of Joseph's death upon these family members has been devastating. Each of RH and PH is permanently affected by this loss.
3. As a younger man, GH has been affected in many ways by the loss of Joseph. GH has required psychological assistance to cope with the emotional consequences flowing from Joseph's death.
4. The Crown made application under s.28(4) Crimes (Sentencing Procedure) Act 1999 that the victim impact statements given by the family victims be considered and taken into account by the Court, in connection with the determination of the punishment for the offence of murder, on the basis that the harmful impact flowing from Joseph's death on the members of the family constituted an aspect of harm done to the community.
5. I am satisfied that the contents of the victim impact statements should be taken into account for the purpose of recognising the harm done to victims of crime and the community: s.3A(g) Crimes (Sentencing Procedure) Act 1999. If Joseph had continued to be raised with the extended family in Sydney in 2014, there is every reason to believe that he would have grown into a fine young man and a productive citizen. Both his extended family, including the authors of the victim impact statements, and the community have suffered harm because of the loss of Joseph.
6. As I did at the sentencing hearing, it is appropriate that the Court, on behalf of the community, express publicly its condolences to each member of Joseph's extended family for the loss which they have suffered, and will continue to suffer, arising from these terrible events.
7. There is a further aspect arising from the victim impact statements. It is apparent that the members of Joseph's extended family blame themselves for not doing more to stop Joseph going to Oberon to live with LN and AW, or seeking to intervene in some way whilst he was there so as to protect Joseph and bring him back to Sydney.
8. In my view, the extended family members should not in any way blame themselves for what has happened. It is a measure of their decency and compassion that they have reacted to these events in this way. Each of them provided care, love and support to Joseph whilst he lived with them in Sydney for several years.
9. When LN and AW indicated a desire to have Joseph live with them in Oberon together with their young daughter, Mary, the extended family received assurances from LN and AW that all would be well with Joseph. They were told that if problems arose, LN and AW would get in touch with RH. LN and AW made no contact with the extended family in the period between 13 June and 3 August 2014 to indicate that there were problems with Joseph at Oberon.
10. It is an inexplicable part of the case that LN and AW were regularly abusing this little boy in their home and in their care when it would have been simple enough for them to contact the extended family who would have taken him back to Sydney without delay.
11. The blame in this case falls entirely at the feet of LN and AW who abused Joseph in the short period that he lived with them, and are each criminally responsible for his death in circumstances giving rise to murder. The extended family members should not feel blame or responsibility for what occurred in this case. It was not their fault.

Relevance of Earlier Assaults on Joseph to Punishment for Murder

1. A significant issue at the sentencing hearing involved the use which could be made on sentence for murder of the evidence of earlier assaults upon Joseph by LN and AW.
2. The Crown submitted that, in the circumstances of this case, the Court should have regard to that evidence in determining the objective gravity of the crimes of murder for which LN and AW are to be sentenced. The Crown relied upon Baines v R [2016] NSWCCA 132 at [5]-[7], [127]-[128] and R v Lock [2017] NSWSC 715 at [14].
3. Mr Wilson SC, counsel for LN, submitted that the evidence of earlier assaults did not aggravate the offence of murder, but operated to deny LN the leniency to which she might have been entitled had her offending been isolated: R v JCW (2000) 112 A Crim R 466; [2000] NSWCCA 209; R v Ross [2014] NSWSC 707 at [15] and R v Hill [2014] NSWSC 1010 at [12]. Ms Moen, counsel for AW, adopted this submission with respect to the sentencing of her client.
4. In considering this issue, it is necessary to keep in mind the way in which the Crown put its case against each of LN and AW.
5. There was no issue taken on behalf of either Offender to the admission of the evidence of assaults upon Joseph by LN and AW in the period between 13 June and 3 August 2014. There was an issue as to the use that could be made of this evidence in the trial. In R v LN; R v AW (No. 1), I ruled that the Crown could rely upon this evidence for tendency purposes with respect to LN, but not with respect to AW.
6. In ruling with respect to LN, I noted that the evidence would be before the jury in any event for other purposes and not just as tendency evidence: R v LN; R v AW (No. 1) at [103]. In declining to allow the evidence to be used for tendency purposes against AW, I noted Ms Moen's concession that the evidence of assaults upon Joseph in the period between 13 June and 3 August 2014 was admissible as direct evidence of the existence of the joint criminal enterprise and AW's alleged participation in it during that period: R v LN; R v AW (No. 1) at [108].
7. Accordingly, the evidence of prior assaults by LN and AW upon Joseph was before the jury for different purposes at trial. What use can be made of it on sentence?
8. It is necessary to keep in mind that the relevant events occurred in a relatively short closed period between 13 June and 3 August 2014. The jury accepted that there was a joint criminal enterprise between LN and AW to assault Joseph, a three-year old child in their care in that period. On the evidence, each of LN and AW participated in these assaults, at times in company.
9. There was no controversy at the trial that these assaults had in fact occurred. There was virtually no challenge to the evidence of FN who gave eye witness evidence concerning these acts. In addition, as mentioned earlier, both LN and AW made extensive admissions to police in recorded interviews of their commission of these assaults.
10. This is not a case where there is any controversy that these events occurred. Clearly, the jury was satisfied beyond reasonable doubt that each of LN and AW acted in this way and I am likewise satisfied beyond reasonable doubt that these assaults occurred.
11. There may be cases where prior assaults upon a child in advance of a separate act constituting murder may be confined to the limited use where the ultimate murderous act is not seen to be an isolated one. However, whether this approach ought be taken will depend upon the circumstances of the particular case.
12. Here, each Offender was charged only with the crime of murder. The Crown did not include on the indictment other charges related to particular assaults of Joseph committed by each of them. However, all that evidence was before the jury at the trial. With respect to LN, the evidence was before the jury for tendency and other purposes. With respect to AW, the evidence was before the jury to prove the joint criminal enterprise alleged to exist between AW and LN and AW's participation in that joint criminal enterprise.
13. In these ways, the conduct of LN and AW assaulting Joseph over a period of weeks was inextricably linked to the crime of murder for which each of them was found guilty by the jury. Further, it is clear that the assaults in question were established beyond reasonable doubt at trial.
14. In Baines v R, Basten JA observed at [5]-[6] that it is not an error to assess the seriousness of a specific offence by reference to surrounding circumstances, including other offending which is established beyond reasonable doubt. This is not for the purpose of administering separate punishment for offences which are not charged (or otherwise taken into account on sentence) but it allows (in this case) the sentencing court to have regard to the interrelated conduct of the Offenders which culminated in the murder of a three-year old child.
15. This is especially so in the case of AW where the previous assaults formed part of the elements of the crime of murder charged against him. It applies to LN as well, however, given the close temporal connection and interrelationship between the sustained series of assaults upon the child which culminated in the deliberate act causing death which gave rise to the jury's verdict of guilty of murder. By the time of the final assault causing death, I am satisfied that Joseph had been worn down physically and psychologically by the assaults upon him so as to render him more vulnerable to the final and fatal attack.
16. I find beyond reasonable doubt that each Offender engaged in a course of conduct which consisted of intentional assaults upon Joseph as part of a joint criminal enterprise to act in this way. This culminated in the infliction by LN of fatal injuries on the night of 2 August or the morning of 3 August 2014. Like Latham J in R v Lock at [14], I am satisfied that the commission of these previous assaults affects the assessment of the objective gravity of the offences of murder committed by LN and AW. This approach is supported by decisions of the Court of Criminal Appeal in Einfeld v R (2010) 200 A Crim R 1; [2010] NSWCCA 87 at 36 [146] and Baines v R at [6], [127] and[129].
17. It must be said that there are features of this case which do not appear in other child murder cases to which the Court was taken, with none of these features assisting the present Offenders.
18. In the circumstances of this case, the previous assaults upon Joseph by LN and AW may be taken into account in considering the objective gravity of the crimes of murder and the moral culpability of each Offender. The following factors are relevant to this assessment.
19. Firstly, with respect to LN and AW, each of them assumed custody and control of Joseph from 13 June 2014 for the purpose of caring for him as his mother and stepfather. Each of them were mature persons, with LN having extensive experience of motherhood. They had managed to demonstrate adequate parenting skills with respect to their young daughter, Mary, by that time. However, each of LN and AW demonstrated an abusive and intolerant attitude towards Joseph whilst he was in their care. Each of them abused him in different ways. The abuse was physical, psychological and verbal. It would have had a terrifying effect upon Joseph.
20. The evidence does not permit any explanation, let alone a satisfactory one, as to why LN and AW did not simply contact the extended family in Sydney and indicate that things were not working out with Joseph. It is clear that RH and others would have immediately travelled to Oberon to take Joseph back into their care. LN and AW were not living in a household where there was no alternative but to retain Joseph at Oberon despite whatever problems they were experiencing. There was a simple and direct step which each of them could have taken but which, for no apparent sensible reason, they declined to take.
21. A curious feature is that the Offenders were taking Joseph to various appointments with health professionals at Oberon or Bathurst. However, neither Offender was disclosing the true position about Joseph, and what they were doing to him, to any of these persons. It would have been simple enough to make clear to these health professionals, or to the Offenders' own doctor, that things were not working out and that they needed help for Joseph and themselves. They did no such thing. Rather, the Offenders suppressed the true facts and persisted with the violent and abusive pattern of conduct with Joseph until LN carried out the fatal attack.
22. With respect to LN, the pattern of physical and psychological abuse towards Joseph was accompanied by expressions of dislike or hatred of the young boy. From comments made by LN to police, it appears that she associated Joseph with his deceased father for whom she had developed a strong dislike. This attitude transferred to Joseph with devastating consequences. Rather than nurturing her son, LN punished him as if he was in some way responsible for what she perceived to be the sins of his father. This was a grotesque and cruel feature of LN's conduct towards her son.
23. LN said that she had thoughts of killing Joseph. I have no doubt that her thoughts in that regard played a significant role in the jury being satisfied that LN acted in a manner which was accompanied by an intention to kill the child when she inflicted the fatal injuries.
24. There was ample opportunity for LN to obtain assistance from the various health professionals who were available to her. There was no evidence that she sought assistance in the period between 13 June and 3 August 2014 for her own conduct towards her son.
25. The report of Ms Robilliard refers to psychological dynamics which may have been operating in the mind of LN at that time, but it is clear that she sought no assistance for Joseph for what was happening to him nor any assistance for herself in circumstances where she was abusing him in their home.
26. This pattern of ongoing and escalating abuse of Joseph reached the point where LN slammed his head whilst closing a wardrobe door shortly before the fatal attack. Consistent with the verdict of the jury, LN deliberately and violently attacked Joseph, in a fit of anger, in a manner which caused the fatal injuries to him. Although the Crown was not in a position to link the fatal injuries to earlier injuries which Joseph had suffered as a result of the assaults upon him by LN and AW, it is clear that, by 2-3 August 2014, Joseph was a traumatised and vulnerable young boy who had appeared to Mr Whitley a few days before as a child with significant difficulties.
27. By the time of the fatal attack, Joseph would, in my view, have had no real capacity for resistance to the violent attack which LN made against him. The type of comparison undertaken by some medical witnesses at the trial with the manner in which an ordinary three-year old boy would react to an assault were unhelpful. By the time of the events causing his death, Joseph was not an ordinary or otherwise healthy three-year old boy.
28. AW had himself assaulted Joseph on a number of occasions on his own or in conjunction with LN. It was submitted on his behalf that some of his acts were the product of a misguided approach to the welfare of the child. AW did not give evidence at the trial nor on sentence. My observations of AW during lengthy police interviews does not support the view that he was, in some way, acting in a misguided way with Joseph's welfare in mind. His acts were cruel and unnecessary, and undoubtedly terrified Joseph.
29. As AW himself admitted to police, he was aware, at least in the week prior to 3 August 2014, of LN's thought processes in which she indicated a desire to kill Joseph. It must have been apparent to AW before then that LN was acting out some type of deep-seated grievance towards the little boy whom she clearly was not treating as her own son. All of this was to be contrasted with the way in which LN and AW treated their own daughter, Mary. On the evidence, they were not incapable of caring for a child. However, the evidence demonstrated clearly that they were each unwilling to care for Joseph and went beyond that to a pattern of cruelty perpetrated against him over a period of weeks.
30. It should be noted that an explanation provided for the use of ice baths in an Esky was to seek to reduce or remove visible bruising on Joseph's body. Each of LN and AW expressed concern as to the consequences for them if a paediatrician saw those injuries on the child. There was a level of self-interest and self-protection on the part of LN and AW that led to the use of ice baths.
31. It was against this background of violence towards Joseph that the event occurred of which the jury was satisfied beyond reasonable doubt. The jury accepted that LN committed a violent and fatal attack upon Joseph during the evening or morning of 2-3 August 2014. This was the final step in the pattern of assaults directed to the child by both LN and AW. Whilst AW was engaged in a joint criminal enterprise to assault Joseph and participated in it by his own conduct in the Oberon house, he foresaw the possibility (at least) that without some intervention on his part to protect Joseph or to exercise some control over LN, the attacks upon Joseph by LN may cause his death. The verdict of the jury with respect to AW reflected his criminal involvement in the murder of Joseph.
32. I am satisfied that these various factors may be taken into account in considering the objective gravity of the crime of murder committed by LN and AW and an assessment of the moral culpability of each of them. It would be artificial and not accord with the interests of justice to confine attention to the final homicidal act, with earlier assaults upon Joseph being confined to a subsidiary role as events which indicated that the final homicidal act was not isolated. Such an approach does not accord with an assessment of the objective gravity of the crimes of murder committed by LN and AW, nor of the moral culpability of each of them.

Other Sentencing Factors

1. It was submitted for LN that she had demonstrated a measure of remorse for Joseph's death, but not in a manner which involved her accepting responsibility for her actions so as to satisfy s.21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The Crown submitted that LN had not demonstrated remorse for her crime.
2. It may be said that LN expressed sorrow and regret for her failures as a mother. However, she did not accept that it was her act which caused the death of Joseph. Insofar as remorse or contrition is to be found in a level of insight for an offender's actions, it must be said that LN continues to lack insight into why she acted in the violent manner towards Joseph disclosed in the evidence, let alone in committing an act which caused his death as found by the jury.
3. I do not consider that any element of remorse or contrition arises to be taken into account on sentence of LN.
4. AW has not demonstrated remorse or contrition for his offence.
5. General deterrence remains a very significant factor to be taken into account on sentence in the case of child murder. This is especially so where there is a pattern of mistreatment of the child victim over a period of time which culminated in the murder of the child.
6. It is necessary not to double count against the Offenders the age and vulnerability of Joseph at the time of his death. A standard non-parole period of 25 years applies in this case because Joseph was under the age of 18 years at the time of the offence. However, it is significant that Joseph was only three years old at the time of his death, an age well below the statutory threshold of 18 years.
7. He was a vulnerable young child who depended entirely upon his mother and stepfather for his care and protection. Rather than exercise that care and protection, LN and AW breached the trust which each of them had as parents of Joseph by physically abusing him, with each of them being criminally responsible for his murder. The nature of their relationship with Joseph is a significant aggravating factor on sentence.
8. It was submitted for each Offender that the Court should take into account in their favour on sentence that each of them facilitated the administration of justice in the conduct of the defence at trial: s.22A Crimes (Sentencing Procedure) Act 1999. I note that s.22A is not intended to simply reward the defence where it has complied with mandated procedures. However, there was co-operation during the trial in reducing the number of witnesses and limiting the facts in issue and I take these matters into account in favour of the Offenders on sentence.
9. It was submitted for each Offender that the Court should take into account the protective custody which will likely apply to each or them given the nature or their offences. I referred earlier to evidence concerning AW in this respect. Like Latham J in R v Lock at [27], I accept that each Offender is likely to serve part or all of the sentence to be imposed in some form of protective custody, whether at the request of the Offender or by way of custodial management. There is a measure of speculation involved in predicting what the nature of custodial conditions for each of them will be. The actual custodial conditions will be a function of post-sentence classification for each Offender and the prison where each is to be housed. I take into account the likely more restrictive conditions of custody which will apply to each of them. I take into account, as well, the adverse event which has already affected AW in custody.

Determining Appropriate Sentences

1. The Crown submitted that the level of culpability of LN and AW in this case is, if not the worst case, then close to the worst case so that the community interest in retribution, punishment, community protection and deterrence warranted a life sentence in each case.
2. Mr Wilson SC submitted that the Court should not impose a life sentence upon LN, but should proceed by fixing a determinate sentence. He submitted that, to the extent that it was necessary, LN's offence lay just below the mid-range of objective seriousness for the crime of murder of a child. He submitted that the offence was not premeditated and that the Court should find an intention to cause grievous bodily harm but not an intention to kill. He pointed to other features of the offence which, it was submitted, ought lead to this finding concerning objective seriousness. With respect to LN's moral culpability, Mr Wilson SC pointed to evidence of her background and mental health which he said operated in her favour on that issue.
3. Ms Moen submitted that a life sentence should not be imposed in the case of AW. It was submitted that his liability for murder was secondary, arising from application of the principles of joint criminal enterprise and extended joint criminal enterprise. Whilst AW had assaulted Joseph on a number of occasions in the Oberon house and was aware of many of LN's assaults upon him as well, it was submitted that it was only shortly before 3 August 2014 that he became aware of LN's thought processes concerning a desire to kill Joseph. Having regard to all the circumstances of the case, including AW's lack of prior criminal history, his health issue and his need for protection in custody, it was submitted that the Court should proceed to fix a determinate sentence which would in turn have regard to all these features. Decision
4. It is for the Crown to prove beyond reasonable doubt that this is a case which attracts imposition of a sentence of imprisonment for life in accordance with the statutory criteria in s.61(1) Crimes (Sentencing Procedure) Act 1999 with respect to one or other, or both of the Offenders. It has been said that the primary focus of s.61(1) is directed towards how extreme an offender's culpability is, with the need for the Court to find features of great or very great heinousness, along with the absence of any facts mitigating the seriousness of the crime: R v Merritt at 570 [52].
5. The principles to be applied when s.61(1) is under consideration were set out in Knight v R (2006) 164 A Crim R 126; [2006] NSWCCA 292 at 139-140 [23]. It is the combined effect of the four indicia in s.61(1) which is critical, and the absence of any one or more of the indicia of retribution, punishment, community protection and deterrence may operate to make it more difficult for a sentencing Judge to reach the conclusion that a life sentence is required, although it will not be determinative.
6. I keep in mind that the High Court of Australia has said that a sentencing court should avoid the use of terms such as "worst category" or "worst case" unless the offence in question is so grave as to warrant the imposition of the maximum penalty for the offence: The Queen v Kilic (2016) 91 ALJR 131; [2016] HCA 48 at 137 [18]-[20].
7. With respect to LN, I have taken into account the objective gravity of the offence, LN's moral culpability, her subjective circumstances and lack of prior criminal history, together with the need for general deterrence and other factors to which reference has already been made in these remarks.
8. This was a terrible crime of child murder. Confining attention to factors which bear upon an assessment of the objective seriousness of the offence for the purpose of considering the role of the standard non-parole period as a statutory guidepost, this was an offence which lay very significantly above the mid-range of objective seriousness in the case of LN.
9. Considering more broadly issues bearing on sentence, including her moral culpability, subjective circumstances and other factors relevant to an assessment of whether a life sentence should be imposed for the purpose of s.61(1), I am not satisfied beyond reasonable doubt that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of a life sentence.
10. That said, however, this was an offence of very substantial gravity committed by an offender who was the child's mother, who had chosen to take the young boy into her care, but treated him in a way which was fundamentally inconsistent with that obligation and duty towards the child. Her troubled background and mental health issues do not provide real assistance, particularly in circumstances where her period of resumed motherhood of Joseph was marked by further drug and alcohol abuse inconsistent with the duty which she had chosen to undertake.
11. Having regard to all factors relevant to the determination of sentence, I am satisfied that LN should be sentenced to a head sentence of 44 years' imprisonment with a non-parole period of 33 years to date from 15 September 2014, when she entered custody. I do not find special circumstances so as to warrant variation of the ratio between the non-parole period and the head sentence. In my view, the period of 33 years' imprisonment constitutes the minimum term which the interests of justice require that LN should serve for her crime. A balance of term of 11 years will provide ample opportunity, by way of conditional liberty, in the event that LN is released to parole at the conclusion of the non-parole period.
12. I am conscious that LN will be 73 years old before she is eligible to be considered for parole. The sentence to be imposed may be close to a de facto life sentence in her case. I am well satisfied that this is the appropriate sentencing outcome in this case.
13. I have considered the Crown submission that AW should be sentenced to life imprisonment. AW did not commit the act which caused Joseph's death. However, he was engaged in a joint criminal enterprise with LN to assault Joseph in circumstances of escalating violence. It is appropriate to consider AW's own role in the offence of murder for the purpose of identifying his level of culpability: R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49 at 35 [61]. He became aware that LN had thoughts of killing the child. The family was living in a cottage where AW was well aware of LN's repeated assaults upon Joseph.
14. AW took no step to protect Joseph or to intervene by seeking assistance for LN (or himself). As Joseph's stepfather and carer, AW had his own responsibility (which he chose to assume) to care for and protect Joseph. Instead of that, he himself demonstrated cruelty towards the child which culminated in the entirely predictable death of Joseph at the hands of LN. AW is liable for the murder of Joseph in the manner described earlier in these remarks.
15. Having regard to considerations which relate to objective seriousness for the purpose of the standard non-parole period, I am satisfied that AW's crime lay significantly above the middle of the range of objective seriousness for the crime of child murder. Having regard to other factors relevant to sentence, including his moral culpability, his absence of prior convictions and subjective circumstances and other factors relevant to an assessment under s.61(1) of the Act, I am not satisfied beyond reasonable doubt that the requirements of that section have been met so as to warrant a life sentence of imprisonment for AW. However, the circumstances of the case are such that the Court's sentencing response must involve a lengthy determinate sentence in his case.
16. Having regard to all factors relevant to the determination of sentence, I am satisfied that AW should be sentenced for imprisonment comprising a head sentence of 40 years with a non-parole period of 30 years. I decline to find special circumstances in his case as the parole period component of the sentence will provide ample opportunity by way of conditional liberty, in the event that AW is released to parole at the conclusion of the non-parole period.
17. AW was 45 years old at the time of the offence. He will be 75 years old when he will first become eligible for parole. Once again, I am conscious that this has the capacity to be a de facto life sentence. I am well satisfied, however, that a period of 30 years constitutes the minimum period of imprisonment which the interests of justice require AW to serve in this case.
18. As each Offender has been convicted of a "serious violence offence", it is a requirement that each of them be warned of the existence of the Crimes (High Risk Offenders) Act 2006. I ask that the solicitor for each Offender undertake this task on the Court's behalf.

Orders

1. Would LN please stand.
2. For the crime of murder, I sentence you to imprisonment for a term of 44 years, comprising a non-parole period of 33 years commencing on 15 September 2014 and expiring on 14 September 2047, with a balance of term of 11 years commencing on 15 September 2047 and expiring on 14 September 2058.
3. The earliest date upon which you will be eligible for release on parole is 15 September 2047.
4. Would AW please stand.
5. For the crime of murder, I sentence you to imprisonment for a term of 40 years, comprising a non-parole period of 30 years commencing on 17 September 2014 and expiring on 16 September 2044, with a balance of term of 10 years commencing on 17 September 2044 and expiring on 16 September 2054.
6. The earliest date upon which you will be eligible for release on parole is 17 September 2044.

Amendments 12 October 2017 - Correction to coverpage. 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: 12 October 2017