R v Merritt

CATCHWORDS : CRIMINAL LAW - applicant charged with 3 counts of murder - pleas of guilty - 3 sentences of life imprisonment - whether sentences manifestly excessive - whether subjective circumstances enabled or required trial judge to impose lesser sentences - relevant principles concerning the application of s 61(1) Crimes (Sentencing Procedure Act) 1999. Crimes Act 1900 - s 19A, 431B LEGISLATION CITED : Crimes Amendment (Mandatory Life Sentences) Act 1996 Crimes (Sentencing Procedure) Act 1999 - s 21, 21A, 22(1), 44, 61, 61(1), 61(3), Criminal Appeal Act 1912 - s 6(3) House v The Queen (1936) 55 CLR 499 Ibbs v The Queen (1987) 163 CLR 447 Olbrich v The Queen (1999) 199 CLR 270 Pearce v The Queen (1998) 194 CLR 610 Regina v Cheatham NSWSC, Grove J, 6 July 2001 Regina v Cheatham [2001] NSWSC 580 R v Cheatham [2002] NSWCCA 360 Regina v Cocking [1999] NSWCCA 311 Regina v Cikos [2001] NSWSC 35 Regina v Fraser [2004] NSWSC 53 Regina v Folbigg [2003] NSWSC 895 Regina v Garforth, Unreported, NSWCCA 23/05/94 Regina v Harris (2000) 50 NSWLR 409 Regina v Hill [2003] NSWCCA 128 Regina v Israil [2002] NSWCCA 255 Regina v Kalajzich (1997) 94 A Crim R 41 Regina v Kelly (1993) 30 NSWLR 64 CASES CITED : Regina v Khouzame [2000] NSWCCA 505 Regina v Miles [2002] NSWCCA 276 Regina v Monroe (2003) 56 NSWLR 652 Regina v Morgan (1993) 70 A Crim R 368 Regina v O'Donoghue (1988) 34 A Crim R 397 Regina v Oliver (1980) 7 A Crim R 174 Regina v Park NSWSC Sperling J, 3 August 2000 Regina v Park [2003] NSWCCA 142 Regina v Penisini [2003] NSWSC 892 Regina v Petrinovic [1999] NSWSC 1131 Regina v Salameh NSWCCA 9 June 1994 Regina v Thomson and Houlton (2000) 49 NSWLR 383 Regina v Twala NSWCCA 4 November 1994 Regina v Vachalec [1981] 1 NSWLR 351 Regina v Velevski NSWSC, Dunford J, 26 September 1997 Regina v Visconti [1982] 2 NSWLR 104 Skinner v The Queen (1913) 16 CLR 336 Veen (No. 2) v The Queen (1988) 164 CLR 465 PARTIES : Regina Craig Andrew Merritt FILE NUMBER(S) : CCA 60262/03 COUNSEL : G Smith SC (Crown) T Game SC SOLICITORS : C K Smith (Crown) S E O'Connor

LOWER COURT Supreme Court JURISDICTION : LOWER COURT 70010/02 FILE NUMBER(S) : LOWER COURT Greg James J JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60262/03

TOBIAS JA WOOD CJ at CL HIDDEN J

Andrew Merritt pleaded guilty to three counts of murder. The three victims were his children, by different relationships. He seeks leave to appeal against the sentences of life imprisonment which were imposed on each count. The issue on appeal is whether his Honour erred in concluding that he should impose a life sentence, pursuant to s 61 of the Crimes (Sentencing Procedure) Act 1999, in relation to each offence, and in concluding that there were no "subjective circumstances" which enabled, or required him, to impose any lesser sentence. HELD , per Wood CJ at CL (Tobias JA and Hidden J agreeing), granting leave to appeal and setting aside the sentences below: 1) Given its legislative history, and the course of the common law, section 61(1) of the Crimes (Sentencing Procedure) Act 1999 should be given a purposive application: Veen (No. 2) v The Queen (1988) 164 CLR 465 at 476; Regina v Harris (2000) 50 NSWLR 409; Regina v Miles [2002] NSWCCA 276 considered [46-51]. (a) The primary focus of the legislation is the extremity of the offender's culpability. The section should be interpreted as requiring a sentence of life imprisonment if the culpability is so extreme that the community's interest in any combination of "retribution, punishment, community protection and deterrence" could only be met through the imposition of a life sentence: [42], [52]-[54] 2) The sentences were manifestly excessive. This case called for determinant sentences, albeit substantial sentences, not life sentences. [73], [77] (a) Having regard to the desirability for consistency and predictability in sentencing, it was appropriate for reference to be made to the general sentencing patterns concerning offences of murder committed by a parent of his or her children, reflected in: R v Velevski NSWSC, Dunford J, 26 September 1997; Regina v Park NSWSC Sperling J, 3 August 2000; Regina v Cikos [2001] NSWSC 35; Regina v Cheatham [2001] NSWSC 580; Regina v Folbigg [2003] NSWSC 895; Regina v Fraser [2004] NSWSC 53. [63]-[65], [67] (b) The sentencing judge placed undue significance on the inability of the applicant to explain his offences, and gave insufficient weight to his depressed state of mind at the time of their commission. [73] The mental state of the offender is always of considerable relevance for the assessment of the degree of objective culpability involved in his or her offence, even though that state may not have been of the nature, or of the degree, that would have provided a defence or excuse at law: Regina v Israil [2002] NSWCCA 255 per Spigelman CJ at [23]; Regina v Hill [2003] NSWCCA 128, Regina v Cheatham NSWSC, Grove J, 6 July 2001; Regina v Fraser [2004] NSWSC 53, Howie J. [55]-[56] (c) The applicant's gravely serious objective criminality was tempered by the particular circumstances in which the crimes occurred, in particular his condition of depression. [71]-[72] (d) The applicant's subjective circumstances were favourable: he was young, had a relatively minor prior criminal record, he demonstrated significant remorse and contrition, he pleaded guilty at the earliest opportunity, and he had favourable prospects of rehabilitation, and it was accepted that he did not present as an ongoing danger to the community. [74]-[75]

(e) The sentences should be significant and partially cumulative upon the other. A concurrent sentencing order would not reflect the total criminality. [77], [79]

(f) A 25% reduction in sentence for the early pleas would not be appropriate, as it would result in a sentencing order that would be inadequate to reflect the very grave objective criminality involved, or the interests of the public: Regina v Thomson and Houlton (2000) 49 NSWLR 383 at [157] and [158]. [76]

3. The term of sentence in each case should be one of imprisonment for 24 years, with an effective overall accumulation of 10 years, amounting to a total sentence of imprisonment for 34 years, with an effective non-parole period of 27 years. [77], [80]

HELD , per Tobias JA, adding comment to Wood CJ at CL's interpretation of s61(1) of the Crimes (Sentencing Procedure) Act 1999:

1. It would be a rare case where the total absence of one or more of the s 61(1) indicia of community interest ("retribution, punishment, community protection and deterrence") will still permit the relevant degree of satisfaction to be attained by the court for a life sentence to be mandated. It is only where the significance of those indicia, taken in combination, leads inevitably to the conclusion that the level of culpability is so extreme that the community interest can only be met through the imposition of a sentence of imprisonment for life, that such a sentence must be imposed. [6]-[7] - 2 - IN THE COURT OF CRIMINAL APPEAL 60262/03

TOBIAS JA WOOD CJ at CL HIDDEN J

Wednesday 3 March 2004 Regina v Craig Andrew Merritt Judgment 1 TOBIAS JA: I agree with the orders proposed by Wood CJ at CL and with his Honour's reasons. I only wish to add a comment with respect to his Honour's interpretation of s 61(1) of the Crimes (Sentencing Procedure) Act 1999. 2 In [42] of his judgment his Honour sets out four possible interpretations of the section. In adopting the third of those possibilities his Honour said: (at [52]) "…I can see no reason why the section should not apply, if the culpability is so extreme that any combination of the stated indicia would lead to the view that the only sentence that can be fixed is one of imprisonment for life" 3 In the application of this test, it is possible (as his Honour illustrates in [53] of his judgment) that one or more of the statutory indicia may be of less significance than the other or others or that one or more of them may be inapplicable. This is so in the present case due to the absence of any finding by the trial judge of future dangerousness or need for future community protection. 4 Notwithstanding the absence of one or more of the statutory indicia, the presence and level of significance of the other or others may still lead to the conclusion that the level of culpability is so extreme that the community interest can only be met through the imposition of a sentence of imprisonment for life. 5 Obviously, the absence of any one or more of those indicia will make it more difficult for a trial judge to reach the state of satisfaction required by the section before such a sentence is mandated (subject always to s 61(3)). This is particularly so as the trial judge must be satisfied beyond reasonable doubt that the level of culpability is so extreme as to require the imposition of that sentence. 6 It would, I tend to think, be a rare case where the total absence of one or more of the indicia will still permit the relevant degree of satisfaction to be attained. On the other hand, as his Honour observes in [53] of his judgment, absence of the need for personal, as distinct from general, deterrence, is unlikely to influence the decision to any significant degree. 7 As his Honour also observes, it is the combination of the statutory indicia established on the evidence to which regard must be had. It is only where the significance of those indicia, taken in combination, leads inevitably to the conclusion that the level of culpability is so extreme that the community interest can only be met through the imposition of a sentence of imprisonment for life, that such a sentence must be imposed. 8 WOOD CJ at CL: On 12 April 2002, the applicant pleaded guilty to three counts of murder. The offences were committed in the early hours of 2 September 2001, and the three victims were the applicant's children, Jackson, Taylah and Mikaylah. The applicant was, at the time of those offences, aged 30 years. 9 On 4 December 2002 Greg James J sentenced the applicant to life imprisonment on each count, to date from 2 September 2001. The applicant seeks leave to appeal against those sentences. 10 By reason of the nature of the offences of which the applicant stood convicted, it was necessary for his Honour to have regard to section 19A of the Crimes Act 1900 (NSW), and sections 21 and 61 of the Crimes (Sentencing Procedure) Act 1999. 11 S 19A of the Crimes Act provides: " 19A Punishment for murder (1) A person who commits the crime of murder is liable to imprisonment for life. (2) A person sentenced to imprisonment for life for the crime of murder is to serve that sentence for the term of the person's natural life. (3) Nothing in this section affects the operation of section 21 (1) of the Crimes (Sentencing Procedure) Act 1999 (which authorises the passing of a lesser sentence than imprisonment for life)..." 12 Section 21 of the Crimes (Sentencing Procedure) Act relevantly provides: " 21 General power to reduce penalties (1) If by any provision of an Act an offender is made liable to imprisonment for life, a court may nevertheless impose a sentence of imprisonment for a specified term. … (4) The power conferred on a court by this section is not limited by any other provision of this Part. (5) This section does not limit any discretion that the court has, apart from this section, in relation to the imposition of penalties." 13 Section 61 of the last mentioned Act provides: " 61 Mandatory life sentences for certain offences (1) 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 through the imposition of that sentence. … (3) Nothing in subsection (1) affects section 21 (1)." 14 Additionally, in sentencing the applicant it was necessary for his Honour to give consideration to two further provisions of the Crimes (Sentencing Procedure) Act, which are of general application, namely s 21A and s 22(1). 15 S 21A of the Act, at the relevant time, provided: "(1) In determining the sentence to be imposed on an offender, a court must impose a sentence of a severity that is appropriate in all the circumstances of the case. (2) For that purpose, the court must take into account such of the following matters as are relevant and known to the court: (a) the nature and circumstances of the case, (b) if the offence forms part of a course of conduct consisting of a series of criminal acts - that course of conduct, (c) the personal circumstances of any victim of the offence, including: i) the age of the victim (particularly if the victim is very old or very young), and ii) any physical or mental disability of the victim, and iii) any vulnerability of the victim arising because of the nature of the victim's occupation, (d) any injury, loss or damage resulting from the offence, (e) the degree to which the offender has shown contrition for the offence: i) by taking action to make reparation for any injury, loss or damage resulting from the offence, or ii) in any other manner. (f) the need to deter the offender or other persons from committing an offence of the same or a similar character, (g) the need to protect the community from the offender, (h) the need to ensure that the offender is adequately punished for the offence; (i) the character, antecedents, cultural background, age, means and physical or mental condition of the offender, (j) the prospect of rehabilitation of the offender. … (4) The matters to be taken into account by a court under this section are in addition to any other matters that are required or permitted to be taken into account by the court under this Act or any other law…" 16 S 22(1) of the Act provides: "(1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account: (a) the fact that the offender has pleaded guilty, and (b) when the offender pleaded guilty or indicated an intention to plead guilty, and may accordingly impose a lesser penalty than it would otherwise have imposed." 17 In his remarks on sentence, after referring to s 61(1) of the Crimes (Sentencing Procedure) Act 1999, his Honour found: "57 Objectively speaking, these killings constitute criminality of the highest order and that criminality does not appear to be mitigated in any significant way by any subjective feature of the offender. These killings meet the criteria set out in s.61(1). True it is that he might have been depressed and suffering from feelings of self-doubt and frustration. True it is also that the offender may have ingested a substantial quantity of alcohol. But those matters provide no mitigating reason for his acting in the way he did to deprive his children of their lives. These are plainly crimes in the worst class of case ( Ibbs v. The Queen (1987) 163 CLR 447 at 451-452) such that their particular features are of very great heinousness. I can see no facts mitigating the objective seriousness of the killings when applying the test set out in Regina v. Twala (CCA, unreported 4 November 1994). 58 In such cases, it is to be expected that the maximum penalty will be imposed ( Harris (supra [100]) and this because the level of culpability is so extreme as to displace the effect of mitigating subjective features ( Harris (supra [103]-[105])."

... for crimes of this culpability applying the principles in Pearce (supra) and the totality principle, determinate sentences, even if partly concurrent, would be expected to give a total sentence of very great length, even approaching the expected period of custody involved in the life sentence although accompanied by a non-parole period." 19 His Honour concluded: "66 I have closely examined the numerous cases to which I have been referred and the views of other judges expressed in them. I have, however, concluded that the application of principle and law requires I hold that these are crimes in which "the appalling objective circumstances completely overwhelm whatever subjective circumstances there may be which include the prospects of rehabilitation" ( Miles (supra) at [203]), so that I am required on each charge to sentence the offender to life imprisonment." 20 It is now submitted that his Honour erred in concluding that he should impose a life sentence, pursuant to s 61 of the Act, in relation to each offence, and in concluding that there were no "subjective circumstances" which enabled, or required him, to impose any lesser sentence.

Facts 21 The circumstances in which the murders occurred were recorded in an agreed statement of facts. They were summarised by his Honour as follows: "6 In each of the counts contained in the indictment and to which the offender has pleaded guilty, he stood charged with the murder of one his natural children. All of the murders were committed on 2 September 2001. Each victim was the child of the offender by a different partner. 7 The deceased were all very young children. At the time of their deaths, the deceased Jackson James Merritt was aged six years, Taylah Pringle was aged 11 months and Mikaylah [Merritt] was aged 11 weeks. 8 The children were staying with the offender overnight at his mother's home. He had custody of the children that weekend. The children were to spend the weekend with the offender and his family for Fathers' Day. 9 On the evening of Friday 31 August 2001, the children were bathed, fed and put into pyjamas. Taylah had fallen asleep by 7.30 pm. The offender put her into his mother's bed where she usually slept. He later put Mikaylah into bed in his sister's room and shortly thereafter put Jackson to bed. Taylah woke up and the offender brought her from the bedroom. There was a disagreement between the offender and his mother as to who would attend to the baby. 10 The offender apparently had consumed an amount of liquor. Accounts as to how much, to an extent, vary. At 12.08 am, he had an acrimonious telephone conversation with his aunt and following that conversation sent her a text message, "Thank you & good bye!". She did not reply to this message. About 1.30 am, he contacted his then current companion, who had been at the house earlier on the prior day, by a text message, "Good Buy (sic)" which was followed, when she did not respond, by a further text message, "Good Buy (sic) from me, my son and my daughters". Later, she received a further text message, "Good bye till next life. I've always loved U and UR sons.". She replied, "I still love you and your kids".

11 She was awakened about 5.30 am after hearing noises in her house. The offender was kneeling at the side of her bed, he was shaking and crying. He said to her, "I love you. I'm sorry and tell my mum that I am sorry.". He left the premises. She phoned the Merritt household later and a police officer spoke to her and she was later told of the death of the children.

12 When the offender's mother and sister, Kylie, woke on 2 September 2001, they discovered that the children were dead in the bed. Some days later, the offender's mother discovered Jackson's "rat tail", which was a feature of the young boy's hairstyle, which the offender had wished him to cut off for some time, had been removed.

13 At about 8.08 am on 2 September 2001, the offender attended Parramatta Police Station and informed the probationary constable then on duty, "I've just put my kids to sleep". When asked what he meant by that, he said, "I mean I've put them to sleep permanently ... if you do not take me I'll walk out the door ... don't leave me here or I'll walk out the door". He was spoken to by senior police to whom he repeated that he had put his children to sleep. The smell of alcohol was noted on his breath. He was taken into custody and seen by a legal aid solicitor.

15 The bodies of the children were discovered lying on the bed in the mother's premises alongside each other dressed in night clothes with no major injuries apparent. Jackson and Taylah were discovered, on post mortem, to have died from mechanical asphyxia consistent with suffocation. A definitive diagnosis was unable to be made in the case of Mikaylah. However, given the circumstances of the discovery and the admissions made by the offender, it is plain that all three children had been suffocated by him." 22 His Honour additionally observed, concerning his relationship with the children, and with their mothers (Jenny Green (Mikaylah), Nicole O'Loughlin (Jackson), and Melanie Pringle (Taylah)): "17 Although the offender had had a tempestuous domestic background with the three mothers of the deceased children, partly explicable, on their accounts, by his emotionalism and possibly by his having problems with drinking and gambling, it seems that, overall, his relations with his former partners were, as far as his access to the children of each of his previous relationships was concerned, reasonably amicable. It appears that the mothers of the deceased children and the various friends and relatives who were aware of the offender's relationship with those children, were all of the view that prior to the killings, the offender had a good and loving relationship with his children. There is no suggestion of any history of aggression towards the children nor of any act of abuse. Nor is there any suggestion that at any time he was otherwise irresponsible in respect of the children.

18 He seemed to be a person who was concerned to have an amicable family relationship, but was unable to maintain a steady relationship with a partner. There had been times at which he had disagreed with his partners and his mother concerning the children, claiming an ability to take care of his children, notwithstanding some criticism of his life choices." 23 Of importance to his Honour, in deciding that the case was one to which s 61(1) applied, was the absence of any apparent reason for the commission of the three murders. It is that aspect upon which the applicant principally concentrated in the appeal, submitting that his Honour failed to pay proper regard to the evidence of Dr Allnutt, a forensic psychiatrist who had examined the applicant, or to certain background events which had occurred on the preceding day, that is, Saturday 1 September. 24 The applicant gave evidence during the sentencing proceedings. As his Honour noted at [39], he: "… claimed to have been happy that evening with all three children. He claimed no memory of any disagreement with his aunt or his then current partner, nor any recollection of how much alcohol he had consumed, nor any discussions with his mother. In evidence, there occurred the following questions and answers:-

'Q. Mr. Merritt, do you know what your state of mind was at the time that you killed your children? A. No.

Q. Can you offer any explanation as to why you killed your children? A. No.

Q. You have been in custody now for some time? A. Yes.

Q. Have you thought about what in fact had happened? A. Yes.

Q. Have you attempted to get some understanding of what your state of mind was at the time? A. Yes.

Q. What do you believe your state of mind was? A. That I was upset. I was just bottling things up all the time.

Q. What were you bottling up? A. Everything, not being able to see my children all the time, losing my job, my car. HIS HONOUR: Q. Sorry, what about the car? What happened about the car? A. I had an accident in my car and lost it.

... Q. The disapproval of your aunt? A. Yes, sorry. ZAHRA: Q. What do you think affected you about that? A. Previously I had spoken to her on the phone and asked her when she would next be in Sydney, if she wanted to see my kids and we ended up having an argument on the phone and that made me feel really bad and I thought, 'What's happening? All I want to try and do is be a good father and - and nothing seems to work'. HIS HONOUR: Q. Was there some discussion concerning being a failure as a father? A. To the point where she - she turned around and she got angry with me or explained to me that it's not good to - to be a father of three children to three different mothers. I should be more like a normal family and have three children to one mother.'" 25 Additionally, his Honour noted that: "40 The offender gave evidence that when he had to take the kids home (from the exercise by him of access):- 'I would think, 'What have I done wrong? Why - why can't I have my children every day? Why can't I be a normal father, be able to see - wake up with my children, go to sleep with my children, more than once a fortnight'." 26 The reference to losing his job was to the loss of his licence and job as a security guard, which had followed upon a conviction for an offence of assault occasioning actual bodily harm. Otherwise his criminal record was short and of a minor nature. 27 His Honour noted, in relation to the applicant's initial presentation to Dr Allnutt, that he had denied any recollection of having any disturbance in mood, unusual thoughts or perceptions, and that he had also denied any thoughts of harming the children. He had no recollection of what had occurred between the time of bathing the children and the following morning. In summary, he had been unable to provide to Dr Allnutt any account of how the offences occurred, or of his motivation. 28 His Honour continued: "28 Dr. Allnutt diagnosed him initially as suffering from a chronic, fluctuating, depressed mood which had its initial onset in late 2000. There was no psychotic disorder nor major depressive disorder. Dr. Allnutt characterised the offender's condition as a chronic adjustment disorder, which is characterised by a fluctuating, depressed mood disturbance with associated difficulties in sleep, appetite, concentration and motivation. There was no evidence that he suffered from either a mental illness or mental disorder. The doctor thought that it was unlikely that he was feigning amnesia, since he accepted, although not remembering it, what it was he had done."

29 In a later report, his Honour noted, Dr Allnutt had been informed by the applicant that he still had no memory of the offence, or recollection of any high emotion between himself and his mother, or between himself and his aunt, in the early hours of the morning. Dr Allnutt noted that he was not manifesting any significant disturbances suggestive of any underlying neurological disease, or of a psychosis. However, he had reported having had suicidal thoughts and being depressed in mood, and gave the impression of not caring about the outcome of the sentencing proceedings, accepting that whether in or out of gaol, he would be punished for the rest of his life. 30 His Honour summarised the effect of Dr Allnutt's opinion in the following paragraphs:

"31 Dr. Allnutt noted that the offence appeared to have no explanation. He referred to the most striking feature of the case as the contradiction between the offender's admission of guilt from the outset, his voluntarily handing himself into the police, pleading guilty and a desiring acceptance of even the most severe punishment, and, on the other hand, his absence of any account of what he had done to commit the offence.

32 Dr. Allnutt hypothesised that there was a genuine inability to recall the crime by reason of psychogenic amnesia arising out of the emotional response to an extreme stress arising from the crime. As I understand it, that is, he feels guilty and deserving of the maximum penalty so adopts a psychological mechanism of choosing a severe punishment rather than seeking to remember, admit or justify his behaviour.

33 Dr. Allnutt postulated that it was possible that he had feelings of unworthiness and frustration as a father on the day of the offence and says:- 'Having regard to the text messages, I believe it would be reasonable to conclude that, at the material time of the offence, he had developed both homicidal and suicidal thoughts in the context of a depressed and irritable mood; and an emotional state of mind'.

34 Dr. Allnutt pointed to the presence, at the material time, of depressive symptoms and feelings of anger and frustration. He said:- 'It is also possible that the offence itself was triggered by a transient, yet pessimistic and despairing perception of his circumstances and possible alcohol consumption.'

35 He said:- 'Overall, notwithstanding that Mr. Merritt has committed an horrific crime, in my view, he can be regarded as falling into a low risk group of offenders for future re-offending.'" 31 In his evidence during the sentencing proceedings, Dr Allnutt confirmed those views, and observed that he had no doubt that the appellant was telling the truth when he said that he could not talk about the killings. As his Honour also noted at [42]: "When asked about the ability of a person suffering from such a depressed mood to control their actions when evidencing increased irritability, he pointed out that "you do not lose your ability to control your actions, but you may be more likely to respond impulsively to something". He referred to the ingestion of alcohol as tending to aggravate negative emotions and the offender seeing matters in more negative terms and behaving in a more impulsive way." 32 His Honour further noted that: "43 The doctor was cross-examined by the Crown concerning the doctor having spoken to the offender now a number of times over a lengthy period of time and having made enquiries amongst the offender's friends and family. The following question and answer were given in evidence:-

'Q. None of them could shed any light upon what led him to commit these acts? A. No. HIS HONOUR: Q. And I gather, Dr. Allnutt, you can't either? A. I am very limited in the ability that I can shed light in this case, your Honour. Q. You have referred to matters that might, in combination, potentially have produced such a depressive mood as might have been one of the factors responsible? A. That's correct. Q. That is about as far as you can go? A. Yes, that's correct.'"

33 It was upon this basis that his Honour found at [44] that he was: "left, therefore, with very little information on which to attempt to draw any conclusion as to why the offender acted in the way in which he did to commit these abominable crimes."

34 He did however accept, as was conceded by the Crown, that there was no evidence "as would affirmatively establish future dangerousness" on the applicant's part, that he should be regarded as having pleaded guilty to the offences "at the earliest possible occasion", and that he had manifested "a high degree of contrition and remorse". He was sentenced upon the basis that he had intended to kill each of the children.

The Relevant Principles Concerning the Application of s 61(1) of the Crimes (Sentencing Procedure) Act 35 Before turning to the applicant's submissions, it is convenient to note that the burden of proving that a case falls within s 61(1) of the Act rests on the Crown, and that, in accordance with the decision in Olbrich v The Queen (1999) 199 CLR 270, the standard of such proof is beyond reasonable doubt. 36 There is an obvious tension between the apparent mandatory requirement to impose a life sentence where a case falls within s 61(1) of the Crimes (Sentencing Procedure) Act, and s 61(3), which preserves the s 21(1) discretion to impose a lesser sentence. That tension was recognised in decisions such as Regina v Petrinovic [1999] NSWSC 1131, and also in Regina v Harris (2000) 50 NSWLR 409. It has been resolved in favour of recognising the continued existence of the discretion, notwithstanding the fact that the s 61(1) criteria are met, where the offender's subjective circumstances justify a lesser sentence than one of life imprisonment. 37 His Honour recognised the two step process, including the discretion, which has been followed in the application of s 61, and which was recognised in Regina v Harris and in Regina v Miles [2002] NSWCCA 276. 38 This Court in Regina v Harris gave consideration to the kind of conduct that would meet the s 61(1) criterion, and to the Crown submission that there were two separate avenues for the imposition of life sentences, namely, that recognised at common law (Ibbs v The Queen (1987) 163 CLR 447), and that arising under s 61.

39 I observed, with the approval of Giles JA and James J: "84 The features required for qualification in the "worst case category" were defined in R v Twala (NSWCCA 4 November 1994, unreported) where it was said:

'in order to characterise any case as being in the worst case category, it must be possible to point to particular features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from the subjective features mitigating the penalty to be imposed)…' 85 "Heinousness" has been described as follows [in R v Arthurell (Hunt CJ at CL, 3 October 1997, unreported) at 11]:

'The adjective 'heinous' which gives the noun 'heinousness' its meaning has been variously defined as meaning atrocious, detestable, hateful, odious, gravely reprehensible and extremely wicked. The test to be satisfied is thus a substantial one'. 86 It was next submitted that the exercise required at common law differed from an assessment of the level of "culpability" under S 61(1) of the Procedure Act, which required a consideration of the reasons for the offending conduct, ie of the circumstances surrounding or causally connected with the offence, such as the background or mental state of the offender.

87 It is not at all clear to me that the assessment whether a case falls within the "worst case category" at common law is any different from that postulated under S 61(1). The decision in Veen (No2) (1987) 164 CLR 465 , permits reference at common law to background material for the purpose of assessing moral culpability, and dangerous propensity and there is long standing precedent for regard to be had to each of the matters specified in S 61(1) when considering sentence." 40 Harris also stands as authority for the principle that where there are multiple killings, that circumstance can be taken into account when assessing the level of the offender's culpability. I observed, in this regard: "94 So far as the present case is concerned, it appears to me to have been permissible for Bell J, without having to depend upon the common law, to have had regard to the other murders when assessing the level of culpability of each in the application of S 61(1) of the Crimes (Sentencing Procedure) Act and in particular, whether the case was one calling for a life sentence in terms of S 61(1), and then whether, in the exercise of her discretion under S 21(1), a lesser sentence of imprisonment for a specified term could be imposed.

95 Particularly was this so in the context of a case where the three killings occurred in quick proximity, and where the last two were similarly motivated and encouraged by the success of the respondent in carrying out and initially escaping both suspicion and detection for the first of those offences." 41 During the hearing of the appeal, a question of statutory interpretation arose as to whether a sentencing judge must be satisfied, before passing a life sentence, of the presence of each of the four indicia referred to in 61(1); that is, that the culpability was so extreme that the community interest in retribution, punishment, community protection and deterrence, could only be met through the imposition of a life sentence. 42 Several possible interpretations of the section exist (subject to s 61(3)):

(a) First, that a life sentence is required, if the culpability is so extreme that the community interest, in any one of the four indicia, is such that it could only be met by such a sentence;

(b) Second, that such a sentence is only required if the culpability is so extreme that the community interest, in each of the four indicia, is such that it could only be met by such a sentence; and

(c) Third, that such a sentence is required if the culpability is so extreme that the community interest, in the combined effect of such of the four indicia as are applicable, could only be met by such a sentence (a construction which would embrace a circumstance where any one or more of those factors may be of itself insufficient, or inapplicable).

(d) Fourth, a variation of the third construction, that such a sentence is only required where the culpability is so extreme that the combined effect of the four indicia, with each contributing to some degree, is such that it could only be met by such a sentence. 43 The drafting of the section is less than perfect in so far as it is by no means clear whether the legislature intended that a distributive or cumulative interpretation should be given to the relevant indicia, cf the cases discussed in Regina v Monroe (2003) 56 NSWLR 652 at 656 to 658. It is further complicated by the circumstance that there is a considerable overlap between each of the four indicia, particularly those of retribution and punishment, and those of community protection and deterrence. 44 It was the applicant's submission that the second of the four interpretations should be adopted; while, in substance, the Crown favoured the third interpretation. 45 The question arose specifically in the absence of any finding in this case, of material pointing to the kind of future dangerousness that would be relevant to the factor of community protection.

46 The legislative history provides some assistance in relation to the question that has arisen. 47 Section 61(1) derived from s 431B of the Crimes Act 1900, which was incorporated into that Act by the enactment of the Crimes Amendment (Mandatory Life Sentences) Act 1996. In his second reading speech on the Crimes Amendment (Mandatory Life Sentences) Bill on 17 April 1996 (at Hansard p. 84-85), the Attorney General, the Hon JW Shaw QC (as he then was) stated, inter alia: "As I said when introducing of the Bill in 1995, the Court of Criminal Appeal in this State has affirmed the imposition of a life sentence when the level of culpability for the offence is so extreme that the community interest in retribution and punishment demands it. This Government agrees with that principle. We would add to this formulation that the community interest in its own protection and deterrence of others is a relevant consideration. These are all well-understood and commonly applied sentencing principles which, given statutory expression, will provide further legislative authority to our courts to impose a punishment commensurate with the crime. It will mandate a life sentence for those offences to which the legislation applies and leave the community in no doubt of the government's intention to remain tough on crime."

48 During his speech, in reply to the debate on the earlier Bill (which for all practical purposes was in the same terms) on 11 October 1995, the Attorney General stated (at Hansard p 1515-1516) inter alia: "It has been said that this bill will make little or no practical difference to the present law with respect to the crime of murder. However, the bill expands upon and codifies a sentencing principle which was articulated by the Chief Justice of New South Wales in the Supreme Court in the matter of Garforth. This principle was outlined in a judgment of the Court of Criminal Appeal of 23 May 1994. In rejecting Garforth's appeal his Honour referred to those offences which demonstrated an extreme degree of culpability, such that the community interest in retribution and punishment can be met only through the imposition of the maximum penalty. The provisions of the Bill add to that formulation of an acknowledged sentencing principle by the inclusion of community protection and deterrence as relevant factors.

The elevation of a common law principle into legislation gives statutory expression to the will of the Parliament, and in that sense it strengthens the application of those principles in appropriate cases. In the absence of legislation, the application of common law principles remains a matter of precedent which is capable of being overruled on appeal to a higher court. Moreover, legislation, as opposed to the common law, is accessible to and therefore capable of being more readily understood by the wider community." 49 That the legislation had the effect of codifying the common law reflects the view of the Law Reform Commission of New South Wales in its Discussion Paper 33 on Sentencing (April 1996) and in its Report 79 on Sentencing. It would be surprising, in view of the terms of the speeches recorded in Hansard, if the legislation was to have the effect of narrowing the common law, as stated in Regina v Garforth (NSWCCA 23/05/94 unreported).

50 That the provision should be given a purposive application, which, in my view, would more properly accord with the third of the possible interpretations, also gains some support in the following observations by Mason CJ, and Brennan, Dawson and Toohey JJ, in Veen (No. 2) v The Queen (1988) 164 CLR 465 at 476: "However, sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions."

51 A purposive application is additionally supported by the acceptance in Regina v Harris and it would seem in Regina v Miles, that the s 61 test broadly accords with the common law approach.

52 In my assessment, the primary focus of the legislation is directed towards how extreme the offender's culpability is. Both Harris and Miles, and the various decisions that have led to life sentences, have emphasised the importance of this factor, and for the need for the court to find features of very great heinousness, along with the absence of any facts mitigating the seriousness of the crime. In these circumstances, I can see no reason why the section should not apply, if the culpability is so extreme that any combination of the stated indicia would lead to the view that the only sentence, that can be passed, is one of imprisonment for life.

53 While in most cases of extreme heinousness each of the relevant elements will be present to some degree, it is unlikely that they will be present to the same degree. For example, that might be so in the case of an offender who has a significant mental condition, which renders him of very great continuing dangerousness, but in whose case, in accordance with established sentencing principle, the element of personal deterrence may be of limited importance.

54 In these circumstances I am not persuaded that the applicant's submission, as to the proper interpretation of the provision, is correct. To the contrary, I would adopt the third of the possible interpretations. It follows that the absence of any finding of future dangerousness would not rule out an application of the section.

55 Before returning to the applicant's challenge to the sentence, I observe that the mental state of the offender is always of considerable relevance for the assessment of the degree of objective culpability involved in his or her offence, even though that state may not have been of the nature, or of the degree, that would have provided a defence or excuse at law. In Regina v Israil [2002] NSWCCA 255, Spigelman CJ observed (at para 23): "23. To the extent that mental illness explains the offence - as her Honour found to be the position in the present case - then an offender's inability to understand the wrongfulness of his actions, or to make reasonable judgments, or to control his or her faculties and emotions, will impact on the level of culpability of the offender, even where the illness does not amount to an excuse at law. As Wood CJ at CL put it in Henry (1999) 46 NSWLR 346, at [254]:

'… the community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive facilities or emotional restraints, and in some instances lacks the ability to make reasoned or ordered judgments. Almost invariably there is a limited appreciation of the wrongfulness of the act, or of its moral culpability, which although falling short of avoiding criminal responsibility does justify special consideration upon sentencing.'" 56 That considerations of this kind have proved decisive in other cases of multiple murder, and have led to determinant sentences being imposed, rather than life sentences, can be seen in decisions such as Regina v Hill [2003] NSWCCA 128, Regina v Cheatham NSWSC, Grove J, 6 July 2001, and Regina v Fraser [2004] NSWSC 53, Howie J. Were the Sentences Manifestly Excessive? 57 The applicant relied upon a number of matters in addition to those noted by his Honour in his summary of the facts, as showing that his level of culpability was reduced below that which would justify life sentences. In particular, attention was drawn to the material which had been placed before his Honour (it would appear somewhat informally) from: (a) Sally-Ann Frary , the partner of the applicant, to the effect that, after Jackson had been picked up from the home of his mother, and taken back to the premises where they lived, on Friday, he had informed the applicant that he had forgotten to buy him a Father's Day present, although he had purchased one for his mother's current partner, Justin;

(b) Sandra Merritt , the applicant's mother, to the effect that:

(i) on the Friday he had remarked that Jackson had been a bit upset about not having a Father's Day present for him, and had asked whether she could take him shopping in the morning; (ii) on the Saturday night, when the question of the absence of a Father's Day present was again mentioned, the applicant seemed upset, to have had tears in his eyes, and to have reminded Jackson that he, and not Justin, was his father; (iii) after the children were put to bed that night, the applicant, who appeared to be a little emotional and teary, had asked her whether he was "a failure"; and that later he had insisted, with a degree of firmness, on changing Taylah's nappy; (iv) the applicant had informed her that his aunt Lyn, with whom he normally had a close relationship, had been "giving him a hard time about having three children to three mothers, and that he should be (more) responsible".

(c) Caroline Cowan , otherwise referred to as "aunty Lyn", to the effect that: (i) she had spoken to the applicant on Saturday 30 June, in the course of which she had indicated that she was not happy about him having had children to different mothers, and had observed that this was "not the way the family unit was supposed to be", and that in response he had been somewhat angry and abusive; (ii) shortly after midnight, on 2 September, she had been phoned by the applicant's mother and had then spoken to both of them about the applicant's apparent distress that she had been visiting Sydney for three weeks, yet had not been over to see his children; and that he had been abusive towards her during the conversation, describing her as a "loser", and as "having taken sides"; (iii) it was after this that she had received the 2.02.34 text message previously mentioned.

(d) Nicole O'Loughlin , the mother of Jackson, to the effect that, following their separation in 1997, there had been a number of disputes between them concerning the applicant's access to Jackson, and concerning some occasions when he had not returned the child, in accordance with the terms of the Family Court orders, or her request.

(e) Melanie Pringle , the mother of Taylah, to the effect that there had been some occasions when he had kept the girl for longer than the agreed period of access, and an occasion when there was a falling out between them, as a result of his complaint that she was a bad mother;

(f) Jennifer Green , the mother of Mikaylah, to the effect that while she had not experienced any problems in relation to the applicant's access to her child, and regarded him as a "good dad", she did recall him becoming very depressed and angry in relation to his custody/access battles concerning Jackson, and him saying "I thought about taking Jackson's life and my life but then I think, why should he suffer because it's not his fault."

(g) Jocelyn Duckett to the effect that the applicant had been showing concern about his relationship with Jackson, that this seemed to be consuming him, that he had spoken of "taking off" with him, that he had seemed to be distraught that he could not be with him, and that, on the occasions when this topic was discussed, he was visibly upset and emotional. 58 In addition to the evidence from Dr Allnutt, which was summarised by his Honour in the passages earlier cited, it was the case that this witness directed himself as to the possible reasons for the applicant's apparently inexplicable behaviour, in killing three children for whom he seemed to have a great deal of love, in so far as he observed in his report of 25 May 2002: "Ultimately his reasoning and motives at the time remain unknown to me. However, there is no evidence to suggest that: the children were unwanted; that there had been a highly aggressive emotive interchange with the children; that the children were innocent bystanders; that the killing was motivated by euthanasia, sexual or physical abuse, an attempt to evade detection, neglect or due to sadistic intent. Revenge as motivation needs to be considered given his report of resentful feelings; but there is relatively little evidence of this. On balance the most likely possible motive is that the homicides were part of a homicide/suicide (that he did not complete) occurring in the context of an unrecognised depression, alcohol consumption and significant emotional stress. It is possible to speculate that just preceding the offence he saw his circumstances in unrealistic despairing terms derived from a depressed emotional and pessimistic state of mind.

In summary, this is an unpredicted and likely spontaneous homicide of three children by their biological father. It was preceded by conflicts about the custody of at least one of the children and depressive symptoms suffered by your client. The weight of the evidence supports the presence, at the material time of the offence, of depressive symptoms, feelings of anger and frustration."

59 In his evidence he confirmed that the applicant had presented with what could be diagnosed as "a chronic adjustment disorder", which was likely to have had its onset in late 2000. He also said that he thought the applicant's understanding of his emotional state, and his appreciation of what he might have been experiencing emotionally, was "limited".

60 The position of this Court, in considering an appeal from such a sentence, is limited by the fact that it is a court of error: Regina v Vachalec [1981] 1 NSWLR 351. It is not sufficient for it to find that some other sentence might possibly have been imposed, or that members of the Court might have themselves imposed a different sentence: Skinner v The Queen (1913) 16 CLR 336 and Regina v O'Donoghue (1988) 34 A Crim R 397. Rather, it must be satisfied that the sentence was wrong, and that some other sentence was warranted and should have been imposed: s 6(3) Criminal Appeal Act, and see Regina v Cocking [1999] NSWCCA 311. 61 This will require it to be satisfied that there was an error of principle, or a mistake of fact or law, such that the sentencing discretion of the trial judge miscarried. In its review, the Court is also bound by findings of fact by the sentencing judge unless they were not open on the evidence, or unless error is shown in the sense referred to in House v The Queen (1936) 55 CLR 499 at 504-505, Regina v Kelly (1993) 30 NSWLR 64 and Regina v Khouzame [2000] NSWCCA 505. 62 Additionally, while it is appropriate for the Court to correct a sentence which is out of line with the commonly accepted pattern: Regina v Visconti [1982] 2 NSWLR 104, there is limited utility in drawing any direct comparison with a sentence imposed upon another offender, simply because the two offenders appear to have similar characteristics, or to have committed similar crimes. What must be considered is whether the sentence is within the appropriate range, and in that respect, other apparently similar cases merely form part of that range: Regina v Morgan (1993) 70 A Crim R 368 and Regina v Salameh NSWCCA 9 June 1994.

63 Both before his Honour, and on appeal, the applicant did however place reliance upon a submission that life sentences, for the present offences, would fall outside the commonly accepted pattern of sentencing for cases where a parent has killed his or her children. Attention was drawn to: (a) Regina v Velevski NSWSC, Dunford J, 26 September 1997, where the offender was sentenced following conviction after trial, to a head sentence of 25 years with a minimum term of 19 years, and an additional term of six years, for the murder of his wife, his six-year-old daughter and three-month-old twins, in circumstances involving a considerable degree of planning, and where there were defence wounds to the victims indicative of a struggle;

(b) Regina v Park NSWSC Sperling J, 3 August 2000, where the offender was sentenced, following conviction after trial, to an overall term of 26 years, with a non-parole period of 19 years and 6 months, for the murder of his wife and two children aged 3 years 6 months and 2 years 6 months, in circumstances where he was found to have acted in a highly charged emotional state, where he had disposed of the bodies, and where he attempted to avoid justice. An appeal against leniency was dismissed by majority, although Hidden J, with whom James J agreed, in dismissing the appeal, respectively observed that it would have been "open to the sentencing judge to have imposed a heavier sentence", and that the sentences were "lenient": Regina v Park [2003] NSWCCA 142;

(c) Regina v Cikos [2001] NSWSC 35, where the offender was sentenced, after a plea of guilty, to imprisonment for 21 years with a non parole period of 15 years and 6 months, for the murder of his de facto partner, and his sons, aged four years and eighteen months, in circumstances where he had endured months of aggression, including physical and verbal abuse at the hands of his obsessive and dominant partner, and had reacted to her ultimatum that he kill one of her friends, or be killed himself, and where there was evidence of concealment of the victims;

(d) Regina v Cheatham [2001] NSWSC 580 where the offender was sentenced, after a retrial, to an overall term of 24 years with a non parole period of 16 years, for the murder of his wife and three year old daughter, and for wounding with intent to murder his baby daughter, in circumstances where he had been depressed and suffering from a delusion that he was infected with AIDS and where, after committing the respective offences, he had attempted to kill himself. On appeal this sentence was reduced by majority to 22 years with a non-parole period of 14 years, because of what was considered to have been an inadequate allowance for the need for the sentence to be served on protection: R v Cheatham [2002] NSWCCA 360.

64 To these decisions can now be added two recent decisions at first instance: (a) Regina v Folbigg [2003] NSWSC 895 where, after trial, the offender was sentenced to an overall term of 40 years, with an effective non-parole period of 30 years, for the murder of three of her children, for the malicious infliction of grievous bodily harm to one of those children, and for the manslaughter of a fourth child, in circumstances where the offences, which were unpremeditated, had occurred over a period of ten years, and where there was psychiatric opinion, post conviction, to suggest that she had been a depressed and psychologically damaged person, due to her disturbed and dysfunctional childhood, who had been unable properly to bond with her own children, or to understand her condition.

(b) Regina v Fraser [2004] NSWSC 53, where, after trial, the offender was sentenced to an overall term of 32 years, with a non parole period of 27 years, for the planned murder of his three children, aged seven years, five years and four years, in circumstances where he was in a highly emotional state due to his fears of losing his children and of harm occurring to them as the result of his wife having formed a new relationship, where, after the offences, he had tried to kill himself, and where he had planned a gruesome scene for his wife to discover on entering his unit; but where it was accepted that he had been in a highly disturbed and disordered mental state at the time of the killings, and in the days leading up to them, and that he had a long standing history of psychiatric disturbances.

65 It is true that these were all cases in which determinant sentences, including the setting of non-parole periods, were imposed. There has in fact been no decision in this State, so far as I am aware, involving the murder by a parent of his or her children, where life sentences have been imposed, other than the present case. That is a circumstance that can, in my view, properly be taken into account, having regard to the desirability for general consistency and predictability in sentencing. To so hold is not to offend against the principles considered in Veen (No 2) v The Queen (1988) 164 CLR 465 or Regina v Twala NSWCCA 4 November 1994, and see also Regina v Kalajzich (1997) 94 A Crim R 41 at 51, which make it clear that it is an incorrect approach to sentencing to compare the facts of the case at hand with other cases in order to determine whether it does or does not fall within the worst case category, deserving of the maximum sentence.

66 A brief review of some of the cases where life sentences have, in fact, been imposed for cases of murder, was undertaken by me in the reasons for sentence which I delivered in Regina v Penisini [2003] NSWSC 892. They display somewhat different characteristics, and in particular were either wholly, or in the main, cases of extreme violence, where the offender's psychiatric or emotional state either did not contribute to the offence, or had very limited significance; or where his or her future dangerousness to the community was demonstrably evident. Some were cases of underworld murders, one involved a political killing; all were cases which involved a significant threat to society and a need for a strong element of personal and general deterrence. Little purpose is, accordingly, to be derived by further reference to them.

67 As I have observed, reference to the decisions that I have expressly cited is appropriate, so long as they are understood to form part of an overall sentencing pattern. Ultimately each case must be determined upon its own facts, and by reference to the legislative provisions, which set the available maximum, or which otherwise give direction as to the sentence which is to be imposed.

68 From these provisions is to be discerned the intention of the legislature, and the seriousness with which the community regards the offence. They set the appropriate framework for the sentencing exercise: Regina v Oliver (1980) 7 A Crim R 174. Otherwise, as Howie J observed in Regina v Fraser at [72] "individual sentences do not form some benchmark against which some other sentence is to be evaluated."

69 Obviously, the murder of three very young, vulnerable, innocent, and entirely defenceless children, while they were asleep, by their father, involves the grossest breach of trust imaginable. Left unexplained, or unmitigated by circumstances personal to the offender which might provide some reason for his resort to such extreme violence, or where accompanied by deliberate cruelty and suffering to the children, such a case could properly fall within the ambit of s 61(1) of the Crimes (Sentencing Procedure) Act and, as such, justify life sentences.

70 There can be little doubt, in my view, that the offences arose out of the applicant's frustration and depression concerning the access issues, in particular to a degree of obsession in relation to Jackson, and also out of an awareness of, or concern as to, his inadequacies as a father. To some extent, it would seem that he was also affected by alcohol, although there was no suggestion that he had deliberately set out to drink in order to carry out the offences; rather that he had done so in order to cope with his depressed mood.

71 His decision to kill the children can only be categorised as having been self-centred and extremely selfish. It means that the offences, which obviously involved willed and intentional acts of multiple murder, were gravely serious from an objective point of view. Nevertheless, that objective criminality should, in my view, be regarded as tempered by the following circumstances:

(a) The acts were clearly neither planned nor expected, but spontaneous and impulsive; (b) They did not occur against a background of abuse or violence, and they were unaccompanied by any act or acts that involved the infliction of gratuitous cruelty, or that prolonged the suffering of the children; (c) They were not carried out for the sexual gratification of the applicant; (d) They were committed in circumstances where the applicant was in a state of depression, or at least in a significantly depressed mood, and they involved conduct which was dramatically different from the normal loving relationship which he had with the children, and, indeed, from his own behaviour during the preceding day; (e) There was no attempt to conceal the offences, and the applicant accepted his guilt from the outset; (f) The applicant had no prior history of similar violence towards his, or any other children, and there was no evidence that would suggest any likelihood of him reoffending in a similar manner, particularly having regard to the time that he might properly be expected to remain in custody, before being eligible for release on parole, in the event of appropriate determinant sentences being imposed. 72 Moreover, the case is one in which the senseless, and self destructive, events of 2 September have led to the infliction of considerable punishment upon the applicant, in so far as they resulted in his own loss of children for whom he had a deep and abiding affection. That is not to minimise or to overlook, so far as it is relevant, in accordance with accepted sentencing practice, the fact that the consequences for the innocent mothers of the three children have been even more appalling and undeserved by them.

73 Having regard to the events leading up to the tragic deaths during the early hours of 2 September, to the entirety of Dr Allnutt's evidence, and to the matters just outlined, it appears to me that his Honour placed undue significance on the inability of the applicant to explain himself, and gave insufficient weight to his state of mind, which, Dr Allnutt considered, amounted to a chronic adjustment disorder with a depressed mood. While that condition did not provide a qualified defence, or excuse, for the killings, and while the circumstances of the case do approach those that would attract an application of s 61(1), it is my view that this case called for determinant sentences, albeit substantial sentences, and that, in this respect error has been shown. I would accordingly grant leave to appeal.

74 In these circumstances, it is appropriate for reference to be made to the applicant's subjective circumstances, as well as to a further report from Dr Allnutt, which followed an interview with the applicant on 12 November 2003. While adhering to his earlier opinion, Dr Allnutt offered the following additional observations and opinions: "Your client had a persistent depressive disorder over a lengthy period of time that caused fluctuations in his mood. He felt depressed about his circumstances to the extent that he lost his appetite and lost weight, he had difficulty concentrating because he was preoccupied with his son, he became withdrawn socially and lost interest in activities that he used to enjoy, at times he felt that there was not point in living and when feeling hopeless in this way, he thought about suicide. It is likely that he felt worse on some days and better on others. Overall his limited contact with his son preoccupied his thoughts significantly. The depressive symptoms impacted on his social and occupational functioning to a greater extent than would be expected by someone suffering common stress. He thus suffered a depressive disorder, which was active at the material time of the offence.

People who have depressive symptoms are more prone to have negative and pessimistic thoughts about themselves and their abilities, their future and their environment. They are more likely to imbue their interpretation of events with a more negative flavour. They thus may be more vulnerable to catastrophic reactions when in a highly emotional state. They are thus more vulnerable to impulsive emotional aggression.

In my opinion, your client manifested symptoms of a depressive disorder that would have made him vulnerable to being emotionally aroused and vulnerable to interpreting his circumstance in negative terms when under duress. On an occasion he felt desperate enough [to] consider killing his son as well as himself (a characteristic feature of homicide/suicides which are commonly associated with depressive disorders). There is no evidence that he formulated a particular plan in this regard prior to the actual time of the alleged offence. On the evening of the offences, the argument about bathing the children and his phone call to his aunt strongly suggests that your client was in a heightened emotional state in the time just prior to the offence. It is probable that, feeling upset, he continued to drink to a point of intoxication which aggravated his emotional state (frustration, hurt and anger), further distorted his interpretation of his circumstances and increased his vulnerability to acting in a disinhibited and impulsive manner. His text messages suggest that at some point he was considering suicide.

In relation to sentencing, my opinion from my previous report remains unchanged. Your client does not meet criteria for antisocial personality disorder or psychopathic personality disorder. The circumstances of these offences were significantly contextually influenced. The risk of recurrence is low."

75 Subjectively the applicant's circumstances were favourable. He was aged 31 years at the time of sentencing, his prior record was relatively minor, save for the offence which had led to the loss of his security licence, and he had been in virtually continuous employment, albeit in a number of positions, until recent times. He demonstrated significant remorse and contrition. He pleaded guilty at the earliest opportunity, he has never sought to minimise or justify his criminality, and he has favourable prospects of rehabilitation. He is likely to spend much of his sentence on protection, given the disfavour with which the general prison population views crimes involving children as victims.

76 While some allowance needs to be made for the early pleas, I do not believe that a 25% reduction would be permissible, since such a reduction would result in a sentencing order that would be inadequate to reflect the very grave objective criminality involved, or the interests of the public: Regina v Thomson and Houlton (2000) 49 NSWLR 383 at paras 157 and 158. Rather, the allowance should be in the order of 15%.

77 While I am of the view that determinant sentences should have been passed, I consider that they should be significant sentences. Even though the offences were closely interconnected, I am satisfied, by reference to the totality principle, that they should each be partially cumulative upon the other. Otherwise, if served concurrently, the effective sentencing order would not reflect the total criminality involved in this terrible episode. I do not regard the decision in Pearce v The Queen (1998) 194 CLR 610 as standing in the way of such approach. In my view, the term of the sentence in each case should be one of imprisonment for 24 years, with an effective overall accumulation of 10 years, amounting therefore to a total sentence of imprisonment for 34 years, with an effective non-parole period of 27 years.

78 There are no special circumstances which would, in my view, justify any reduction in the statutory ratio (as it existed pursuant to the terms of s 44 of the Crimes (Sentencing Procedure) Act 1999, which applied to offences committed on 2 September 2001) between the effective head sentence and non-parole period, save for a minor adjustment which is necessary, in relation to the final sentence, by reason of the effect of its accumulation upon the other sentences.

79 It is essential that the applicant's sentences be lengthy, and there is nothing to indicate that he requires any period of supervision, or assistance, to facilitate his re-integration into the community, beyond the seven years, which the sentences proposed would potentially allow, for release on parole.

80 For these reasons I propose the following orders:

1. Grant leave to appeal against the sentences; 2. Set aside the sentences below; 3. In lieu thereof, order that: (a) On the first count of murder, relating to Jackson Merritt, the applicant be sentenced to a term of imprisonment for 24 years, to commence on 2 September 2001, and to expire on 1 September 2025, with a non parole period of 18 years, to commence from 2 September 2001 and to expire on 1 September 2019; (b) On the second count of murder relating to Taylah Pringle, the applicant be sentenced to a term of imprisonment for 24 years, to commence on 2 September 2006, and to expire on 1 September 2030, with a non parole period set of 18 years, to commence on 2 September 2006 and to expire on 1 September 2024; (c) On the third count of murder relating to Mikaylah Merritt, the applicant be sentenced to imprisonment for 24 years, to commence on 2 September 2011 and to expire on 1 September 2035, with a non parole period of 17 years, which is similarly to commence on 2 September 2011 and to expire on 1 September 2028. 81 HIDDEN J: I agree with Wood CJ at CL. I also agree with the additional observations of Tobias JA.

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