R v NB

Supreme Court of NSW|2022-05-11|Before: Cavanagh J

Judgment

On 23 March 2015, the deceased died as a result of injuries he suffered during the night of 22/23 March 2015 in the home where he was living at the time. I will not identify the deceased in accordance with the wishes of his father.
At the time of his death, the deceased was 20 months old. He died whilst in the care of the offender. The offender was charged with his murder on 8 January 2018 and entered a plea of not guilty to the charge against her. The trial commenced before me sitting as a judge alone in the Supreme Court at Dubbo on 17 January 2022 and was heard over a period of 17 days.
On 22 February 2022, I convicted the offender of the murder of the deceased.
This is the sentencing judgment.
The maximum penalty for the offence of murder is life imprisonment. As the deceased was a child, a standard non-parole period of 25 years is specified by the Table to Part 4, Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW). The maximum term of imprisonment and the standard non-parole period are guideposts to which a Court must have regard when imposing a sentence. [1]

Circumstances of the offending

I have already set out my findings as to the offending in my conviction judgment. [2] It is not necessary that I merely repeat everything I said in my earlier judgment, albeit I am making findings for a different purpose at this time.
However, it is necessary to make further findings for the purposes of sentencing. It is important to observe that, whilst I may make findings of fact favourable to the offender on the balance of probabilities, I must not make any findings of fact adverse to the offender unless I am satisfied beyond a reasonable doubt of those facts. [3] It is also important to observe that I am not restricted in the findings I make for the purposes of sentencing by the terms of my conviction judgment, except that any findings I make for the purposes of sentencing must be consistent with the findings of guilt which I have already made.
The deceased was born on 11 July 2013. Unfortunately, his mother died at some stage after his death but before the trial.
At the time of the death of the deceased, two of his siblings (JE and HK) were residing with the Johnson family. Prior to his death, Mr and Mrs Johnson had agreed to become long-term carers of the deceased and the deceased was due to commence residing with them on 1 April 2015.
In 2014, the deceased was seen by the Johnson family at Church in Dubbo with his mother from time to time. It is only necessary to say that for reasons which are unclear, the Department of Family & Community Services (FACS) assumed responsibility for the deceased in November 2014. He was placed with the offender and her family on 5 November 2014.
From that time on, he was cared for by the offender, Kevin and their family. They lived in a village outside of Dubbo which was made up of perhaps ten houses. The residents of the village all appear to have known each other and some were related.
During the two weekends before his death, he had been taken by the offender to stay with the Johnson family, including JE and HK. He last spent time with the Johnson family on Saturday 21 March 2015. He was returned to the offender that afternoon and driven back to the village where the offender lived. From the time that he returned home on the afternoon of Saturday 21 March 2015 until the triple-0 call was made at 5.17am on Monday 23 March 2015, he remained in the village either at the offender's home or at the next-door neighbour's house (Kevin's brother's house).
During the afternoon of Sunday 22 March 2015, the deceased was taken by the offender and Kevin to the next-door neighbour's house whilst there was a game of rugby league on a big screen which the neighbour had erected in his backyard.
The deceased remained at the neighbour's house for a number of hours during the afternoon and evening of Sunday 22 March 2015. During that time, he was observed by a number of persons, including adults and children, and was seen to be interacting with many different people. He did not behave as if he was in pain or suffering from any injury.
Whilst it was the offender's case at trial that the deceased may have sustained an injury resulting in the perforation of his stomach during his time at the next-door neighbour's house or whilst visiting the Johnsons prior to that, for the reasons set out in my earlier judgment, I did not consider that to be a reasonable possibility. I am satisfied that nothing happened to him at the next-door neighbour's house which caused the substantial injuries from which he was suffering at the time of his death.
He was brought back to the offender's home by the offender and Kevin, sometime between 8.30pm and 9.30pm on 22 March 2015. The only persons in the home during that night were the offender, Kevin and the offender's three children. There is no evidence of any other persons attending at those premises after 8.30pm and during that night.
The offender made a triple-0 call at 5.17am on 23 March 2015. An ambulance was dispatched from Coolah Hospital. The ambulance arrived at the house at 5.57am. When the ambulance officers arrived, the deceased did not have a pulse and was not breathing. The deceased was pronounced dead at Coolah Hospital at 7.30am.
It is likely the deceased was dead before the offender went to his cot at around 5.00am on 23 March 2015.
An autopsy was conducted on the deceased by Professor Timothy Lyons from the Department of Forensic Medicine at Newcastle on 25 March 2015.
Prior to his death, the deceased had suffered from a number of significant injuries, being: 1. Closed head injury with significant sub-scalp and facial bruising; 2. Multiple bruises to the torso; 3. Trochanteric fracture of the left femur; 4. Perianal bruising, fissure and pneumatosis coli of the lower rectal mucosa; and 5. Iatrogenic perforation of the stomach.
Although Professor Lyons originally identified the head injury as the cause of death of the deceased, further investigation, specifically by Dr Issabella Brouwer, identified the cause of death as being the stomach perforation and this was agreed at trial.
The central element of the defence case at trial was that there was a reasonable possibility that the deceased suffered the stomach perforation (which led to his death) before being brought home on the evening of 22 March 2015.
Of course, it was not up to the offender to prove anything but, for the reasons set out in my earlier judgment, I am satisfied that the events which led to the stomach perforation as well as the fracture of the femur and some of the bruising found on the deceased after his death happened in the home during that night.
I am satisfied that the deceased died as a result of a violent assault perpetrated upon him by the offender during the night of 22/23 March 2015.

The Crown case on sentence

The Crown case on sentence is that the offender assaulted the deceased as part of one ongoing episode from when they arrived home that evening until the offender finally put him to bed.
The Crown submits that throughout this episode, including at the time of inflicting the injuries to the deceased, the offender continually intended to at least cause grievous bodily harm to him.
The Crown submits that the deceased was a particularly vulnerable person and depended upon the offender for his safety and protection. He was unable to defend himself.
The Crown submits that, in particular, the fractured femur and stomach perforation must have caused extreme pain to the deceased for some hours prior to his death. The Crown also refers to medical evidence to the effect that if he had received medical intervention at an earlier stage, he likely would have survived.
The Crown submits that the offending falls above the mid-range of offences of the murder of a child and is in the higher range.
The Crown submits that the constellation of injuries occasioned reflects an ongoing assault of a high order, together with a prolonged period of suffering, having a significant effect upon the assessment of objective seriousness.
However, the Crown accepts that the absence of evidence regarding the offender's intention to kill and any planning or premeditation brings this offending below the worst-case category.

The offender's submissions on sentence

The offender expressly maintains her innocence but made submissions in response to the Crown case and on her subjective circumstances. The offender submits that: 1. The stomach perforation appears to have been the result of one blow and there was likely to have been a honeymoon period after the perforation during which time his pain may have been abated; 2. There is no evidence that the offender was aware of how serious and life-threatening this injury was; and 3. The nature of the femur fracture suggests that it was also caused by one blow, although the timing of the injury remains moot having regard to my earlier judgment.
The offender submits that on all the evidence, I would be unable to find that the fracture of the femur occurred when the deceased was conscious. The offender submits that whilst the deceased was vulnerable, and it happened at his home, it would be unusual for an offence of this type not to be committed in the child's home and, further, the fact that there were other children in the home would not be an uncommon factor.
Most significantly, the offender submits that there was no history of any earlier mistreatment of the deceased and that I would accept that the offender cared for the deceased and attended to his needs. The offender submits that the acts of violence must have been impulsive and spontaneous and without pre‑planning; they were out of character and did not indicate an intention to kill.

Findings on the events which led to the death of the deceased

There were no witnesses to this assault. It happened overnight in the home of the offender where the deceased was staying at the time. Precisely when it happened, how it happened and why it happened, is unclear. However, I am satisfied beyond a reasonable doubt that, during the night of 22/23 March 2015, the offender perpetrated an assault on the deceased that caused: 1. The stomach perforation which ultimately led to his death; 2. The fracture of his femur; and 3. Some of the bruising with which he was discovered to be suffering from on post mortem examination, specifically, bruising to the face and some scratch marks around the neck and face and some bruising to the torso.
For the reasons set out in my earlier judgment, I am unable to be satisfied of the cause of the anal injury. Further, I do not accept that all of the bruising discovered post mortem arose out of events that happened during the night of his death.
The stomach perforation and the fracture of the femur would have been caused by separate blows or acts of violence, although the acts may have occurred around the same time. The bruising and scratch marks to the face and neck are indicative of a struggle between the deceased and the offender which may also have happened around the same time.
The stomach perforation could have only occurred as a result of the application of significant force to the deceased's stomach, that is, a forceful blow to the front part of his body leading to his stomach being crushed against his vertebral column and rupturing. The expert evidence does not permit me to find the exact timing of that injury before he died, that is, in terms of precise hours, but it is likely that it occurred a few hours before his death.
Having regard to the nature of the fracture, being a complex fracture of the left femur with separation of the greater curvature (that is, complete separation of the bone) in an area of bone that was not a weak spot, it must be that this injury arose as a result of a significant impact or force being applied to the deceased. It was not caused accidentally. It did not happen as a result of a mere fall in the bath or someone accidentally treading on the deceased when he was removed from the cot after 5.00am. It did not happen as a result of any treatment of the deceased by the offender after she discovered him unresponsive in the cot at 5.00am.
After his death, the deceased was discovered to have been suffering from 24 separate areas of bruising, abrasions or scratch marks. There was evidence from persons as to the observations of the deceased suffering from some bruising at times prior to the night of his death, albeit all of that evidence points to the bruising being very limited. Mr Johnson had only observed bruises on the deceased's forehead and back. Another witness had observed a bruise on his arm.
The offender told the Police that she had not observed any bruising other than bruises on his forehead. No one who gave evidence observed the sort of bruising that was apparent after his death.
There was evidence that the deceased would sometimes bang his head in frustration and that he did not like having a bath and might react adversely to water being placed on his head. That may account for some bruises, but it is not possible to reconcile Mr Johnson's observations, which I accept, or indeed any other witness's observations, with the existence of the significant bruising observed post mortem. Moreover, as identified in the expert evidence, the multiplicity and multifocality of the bruising and scratch marks around the face and neck is inconsistent with accidental or self-infliction by a 20 month old child.
The presence of hemosiderin on the use of special staining in some sections of the head tends to suggest that those bruises would have occurred much more than hours before the deceased's death. The large bruise on the back of the deceased's head (which would not have been visible because of the deceased's hair) most likely happened well before the night of his death. I am unable to be satisfied as to how that occurred.
It follows that he must have sustained trauma to his head which led to significant bruising to the top and back of his head well before the night of his death. He was not showing the effects of any such trauma in the days before his death. I accept that some of the bruising shown on his body might be consistent with ordinary falls and getting into mischief. Having said that, the number and types of marks on the deceased's body were extensive. I am unable to be satisfied as to how the deceased ended up with such extensive bruising on his body. I remind myself that I must not make any finding adverse to the offender unless I am satisfied of those facts beyond a reasonable doubt.
It is only necessary to say again for the purposes of sentencing that for the reasons set out in my earlier judgment, I am satisfied that the marks and bruises on the deceased's face (which were plain and obvious when he was observed on the hospital bed post mortem) and some other parts of his body were caused by some sort of struggle or assault which involved deliberate insult to those areas, through either slapping, forceful gripping or punching which happened during the night of the deceased's death.
As I understand the Crown's submission, it is that the injuries sustained by the deceased happened as a result of one ongoing episode commencing when he came home and over an indeterminate period of time.
The offender participated in three interviews with the Police. Her statements to the Police over those three interviews do not provide any explanation for the injuries which the deceased suffered. The deceased died prior to being discovered by the offender in his cot around 5.00am. He must have sustained the fracture of the femur between the time he arrived home and his death. In any event, the offender's suggestions of her throwing the deceased to the ground after she removed him from the cot or Kevin accidentally treading on him during attempts at resuscitation are not plausible (Kevin did not say he did this in any event) and could not explain the injuries.
Nothing that the offender said happened in the bath could account for the stomach perforation or the fractured femur or some of the facial bruising and scratch marks. Her statements as to his behaviour after the bath and on the change table are suggestive of the deceased not suffering from any injuries at that time, except the potential effects of knocking himself around by his asserted conduct in the bath. As is evident from my earlier judgment, I do not accept the offender's version of events. On her version she was seemingly playing with him on the change table after the bath and just before she put him in the cot for the final time without him demonstrating any sort of physical injury or pain response.
However, I am satisfied that the deceased did throw up in his cot after being put to bed for the first time and that he was then given a bath by the offender before being returned to his cot.
One possibility, which would be consistent with the immediate effects of a stomach perforation (that is, perforation of the stomach might result in vomiting), is that the offender punched the deceased in the stomach at some point prior to being put to bed for the first time. The deceased then threw up in his cot. He was then taken to the bath by the offender but must have been in considerable pain. There may have been a struggle in the bath (consistent with the subsequent observations of Child 2). The offender may have done something to the deceased around that time which caused the fracture of the femur and some of the bruising.
Having regard to the observations of Child 2, at least some of the marks to the deceased's face happened as a result of some gripping or slapping occurring whilst he was having a bath. Those marks were not self-inflicted. They were not caused by the deceased thrashing around in the bath (if that occurred).
The offender said that when she got him out of the bath, he fell backwards, hitting the back of his head. That might also be consistent with an inability to stand as a result of the fracture of the femur.
The offender emphasises the absence of any screaming out in pain from the deceased in support of the contention that the fracture of the femur probably occurred when the deceased was unconscious.
I do not accept that submission. There is no evidence which would lead to that finding. The fracture occurred whilst the deceased was alive. As I have found that the deceased was already dead prior to being removed from his cot after 5.00am on 23 March 2015, then it must have occurred at some time prior to then. Further, the deceased was heard to be crying whilst in the bath and the offender was heard to be yelling at him. Dr Currie suggested that children may go quiet after a shocking injury. Again, that would be consistent with the deceased looking up at Child 2 with his face bruised. He had been hurt by the offender in some way by then but had stopped crying and was alone in the bathroom with the offender having gone outside.
The question of precisely when during the night and in what circumstances the offender struck the deceased with such force as to cause the injuries is further complicated by the forensic evidence. Both the sheet in the washing machine and the sheet on the cot at the time of his death were stained with the blood of the deceased. Having said that, as the offender submitted at trial, the evidence does not permit a finding that the blood on the original sheet was not from some earlier time.
I am unable to make any specific findings as to the precise circumstances when the injuries occurred. The evidence does not permit me to find whether the deceased was struck simultaneous blows causing the stomach perforation and fracture of the femur or was thrown against a hard object or struck with such force or pushed or manhandled in such a way and with such force that he suffered a fracture of the femur. The only finding I can make is that the fracture of the femur was not accidental. I am not satisfied that it occurred whilst he was unconscious.
Whilst I have raised the possibility that the offender punched the deceased at some point before placing him into the bath, on that scenario, it must be that I would be accepting the Crown's submission that the assault involved an ongoing attack on the deceased over a period of time, that is, not an instantaneous loss of control but rather a series of insults to the deceased which may have lasted over more than a few minutes. I am unable to be satisfied of that beyond a reasonable doubt and thus I make no such finding.
There is evidence of the offender yelling at the deceased whilst he was in the bath. This is indicative of her being angry with him. The evidence of the last observation of the deceased by Child 2, that is, the deceased just staring at her whilst she was on the toilet, seemingly completely subdued (with the offender no longer being in the bathroom at this time), is particularly compelling.
Prior to this point, the deceased had been heard to be crying and the offender had been heard to be yelling. The observations of the deceased at this time by Child 2 may be consistent with the reaction referred to by Dr Currie of being in shock and going quiet.
Whilst there is a possibility of that such a sequence of events (commencing with a punch whilst on the change table) happened, I cannot be satisfied of these matters beyond a reasonable doubt. I am thus not satisfied that the assault of the deceased occurred over one continuous episode over any lengthy period.
The findings I make are thus as follows: 1. At some point prior to being put back into his cot for the final time, the offender struck a forceful blow to the deceased in the area of his stomach. 2. Having regard to the expert evidence as to the appearance of the bruising in the abdominal area where he was likely to have been struck, that is, being in the shape of finger marks, it is likely that the offender punched the deceased in the stomach with such force that his stomach was perforated. I am satisfied that this is what occurred. He was punched with significant force. 3. I cannot be satisfied beyond a reasonable doubt of the findings urged by the Crown (that he might have been deliberately kicked in the stomach or struck multiple blows in that area). I do not know whether the offender struck the deceased with such a forceful blow to the stomach before he was placed in the bath, during the bath or after the bath but, strike him she did. 4. Regarding the fracture of the femur, I am satisfied that that occurred before he was placed into the cot for the final time. Again, I am unable to make a finding as to precisely how that occurred. It may have been the result of some forceful blow to the hip area or being thrown against a hard surface such as the edge of the bath. He may have been struck a forceful blow in the hip area during the struggle in the bath, perhaps while the offender was trying to get the deceased to do what she wanted him to do. It may have been later but I am unable to be satisfied of that beyond a reasonable doubt. 5. However, he was struck such a blow by the offender, either through a punch or being forced against a hard surface (that is, with such energy as to cause the fracture of the femur). 6. In terms of the bruising, I am unable to be satisfied beyond a reasonable doubt as to the source of all of the bruising discovered post mortem. The Crown did not seek a finding that any particular marks or bruises which, on the evidence, must have predated the night of his death arose from any deliberate hitting by the offender. Having regard to my treatment of the evidence of Child 3 (who gave evidence of observing the offender hit the deceased on the forehead on earlier occasions), I could not be satisfied of the cause of any particular pre-existing bruises beyond a reasonable doubt. 7. However, I am satisfied that the scratch marks and some of the bruising around the face and head happened as a result of the assault. This conclusion is consistent with the observations of Child 2 and the expert evidence to which I referred in my earlier judgment. 8. I am satisfied that the deceased died as a result of a violent assault perpetrated by the offender, during which time he sustained the injuries I have outlined. This assault arose as a result of a loss of control by the offender. Whether this was because the offender had been drinking or she was particularly tired or the deceased was misbehaving is not known. Whatever the explanation for such conduct, it affords no excuse. 9. There is evidence that she could behave aggressively when she had been drinking. At some point, the offender must have punched the deceased in the stomach, grabbed and/or slapped him around the face, and handled him with such force and with such energy that his femur fractured, either by a direct blow to the area of the fracture or by throwing him against a hard surface.
I do not accept that the offender intended to kill the deceased. Nor do I accept that there was any form of planning or pre-meditation to that which occurred.
However, I am satisfied that the offender did intend to hurt the deceased. An adult cannot punch a 20 month old child with such force as to cause a stomach perforation without intending to cause grievous bodily harm. An adult cannot impact such force on a child so as to result in a complete fracture of the femur without intending to cause serious injury to the child.
Nor do I accept the Crown case that the offender must have realised how badly she had hurt the deceased and that in some way the offending is aggravated by her failure to attend to his needs. Whilst the offender must have seen that she had caused injuries to his face, and the scratch marks must have been evident, I am not satisfied that the offender knew that she had injured him so badly that he might die.
Having said that, her state of mind must have been such that she did not care.
I accept the offender's submission that the circumstances of the offending must be viewed as unusual. In many cases involving child murder, there is a pattern of mistreatment leading up to the child's death. I have not made any such finding in this matter. Indeed, I have not found that the violence towards the deceased was perpetrated over any lengthy period, even on the night of his death.
All murders are in the nature of very serious offending. The murder of a child in the home by the person who is trusted with the care of the child is particularly egregious. Again, this is particularly so when the child is so young, so vulnerable and has no means of fighting back.
Having said that, it is my task as part of the instinctive synthesis which is the sentencing process to determine where in the range of these types of offences this particular offending falls.
In making this assessment, I am not in any way minimising or diminishing the significance of the events or the hurt and suffering that the death of the deceased has caused. However, I am comparing the particular circumstances of this offending with other offending of this type, that is, the murder of a child, and determining where within the broad range of this type of offending this particular offence falls. To my mind, the key factors in assessing where within the range this offending falls is that the violence is likely to have occurred over a very short time frame, there was no planning, the offender did not intend to kill the deceased and there is no finding of any prolonged mistreatment of the deceased. Having said that, it must be that the deceased was in very considerable pain for a period after being struck by the offender.
In all of the circumstances I have identified, I am satisfied that the offending falls slightly below the mid-range of offending of this type, being the murder of a child by a person trusted with the child's care.

Subjective circumstances

The offender is currently 45. For the purposes of sentencing, she relies on her own affidavit of 10 May 2022 as well as affidavits from her half-sister of 5 May 2022 and her grandmother, who she described as "Nan", of 8 May 2022. Consistently with not identifying the offender to protect the deceased's identity, I will not identify those persons by name. None of her children, her first husband or Kevin gave evidence on the sentencing hearing.
Whilst the offender relies on her own affidavit, she did not give evidence on the sentencing hearing. She has not expressed any remorse for what she has done. In her affidavit, she expressly maintains her innocence.
She is one of three children, although one of her siblings died very young as a result of cot death. Her parents separated when she was 18 months old. She grew up in Dubbo and, on her own evidence and the evidence of her half-sister and grandmother, had what might be described as a relatively normal upbringing. That is not to say that there was no hardship arising from the separation of her parents and some financial difficulties but, there is no evidence of her childhood being affected by trauma or abuse. She completed Year 12 at school and went on to undertake various forms of employment. This included a period of being a specialist carer with Burnside and caring for troubled teens in their homes on a contractor basis.
She married her first husband on 19 December 1998. They had two children, being persons who I have described as Child 1 and Child 2. They separated in 2007. She subsequently developed a relationship with Kevin and went to live in the village where the events, the subject of these proceedings, occurred. Kevin and the offender had one child, being Child 3.
She had a close relationship with her Nan and her half-sister. They speak of her attributes, the care and assistance that she has provided to them from time to time and their observations of her generally and, in particular, observations of her as a mother.
The offender did not work outside the home after the birth of Child 3 and I accept that whilst living in the village, she cared for her children and tended to their needs.
On the evidence before me, she enjoyed living in the village and had friends and family. Of course, testimonials from close relatives as to her character and personality can only go so far in circumstances in which she has been convicted of the murder of a foster child under her care. Having said that, I am satisfied that the offender was prior thereto a person of good character and that she cared for her children and partner and provided support to her family and friends. Character references suggesting an otherwise good character are relevant to the sentencing process [4] but, in my view, the weight which they can be given in this matter is limited. I am not mandated to give a discount in the sentencing because other persons speak highly of the offender.
Both the offender and her half-sister speak of the consequences on the offender of the death of the deceased and the effects on her, particularly in the immediate period after his death and then leading up to her arrest and subsequent incarceration. Her youngest child was taken out of her care and placed on a temporary basis with a foster carer. Her two oldest children moved in with their father, her first husband, who then later assumed the care of her youngest child as well. I understand they moved to Queensland. She and Kevin were ultimately forced to sell their home in the village at a financial loss.
I accept that the offender has suffered considerably as a result of being charged but I am sentencing on the basis that she did murder the deceased and some of the consequences which befell her must always arise in such circumstances.
I accept that the delay between the events and her being charged and indeed the trial has caused significant anxiety to her. I accept also that her period in custody was rendered more difficult because of the effects of Covid-19. Visits, particularly from her children, were restricted. It is unsurprising that she became depressed, consequent on everything that happened to her after the death of the deceased. It is also unsurprising that the period between the events and her trial has caused her considerable anxiety.
I acknowledge that she maintains her innocence as is her right, but I am sentencing on the basis that contrary to her maintenance of her innocence, she is guilty of the murder of the deceased.
Having said that, as I have already indicated in this judgment, on the evidence before me, the only explanation for the offending is a loss of control which happened over a short period in the home that night. She will be spending a lengthy period in custody. She is unlikely to reoffend and she has good prospects of rehabilitation.
A failure to express remorse does not disentitle the offender to a finding that her prospects of rehabilitation are good. [5]
I also accept that the offender's time in custody thus far has been made more difficult due to the presence of Covid-19. She is entitled to some consideration in the exercise of the sentencing discretion, having regard to that. As we know, the effects of Covid-19 continue to make time in custody more difficult for those serving sentences. There is as yet no indication as to when the restrictions placed on prisoners will come to an end.
Both the delays in the case and the effects of Covid-19 give rise to an entitlement to some leniency but, I do not accept that these factors must result in a significant reduction in the sentence.
The offender also relies on s 22A of the Crimes (Sentencing Procedure) Act as a basis for attracting some leniency. As set out in s 22A, a court may impose a lesser penalty than it would otherwise impose on an offender who was tried on indictment having regard to the degree to which the administration of justice has been facilitated by the defence. Of course, any lesser penalty that is imposed must not be unreasonably disproportionate to the nature and circumstances of the offence.
During oral submissions the Crown accepted that s 22A had some application, particularly having regard to the way in which the trial was conducted. The offender focused on what was described as the central issue, being the timing of the stomach perforation. The offender did not dispute that the fracture of the femur must have occurred in the home overnight, although, it was the offender's case that it may have occurred during the attempts at resuscitation of the deceased after 5.00am.
I accept that the offender is entitled to some reduction having regard to s 22A of the Crimes (Sentencing Procedure) Act. It is not mandatory to specify the amount of any discount [6] but, in the circumstances of this matter, I am satisfied that there should be a 5% discount. I have taken account of that in imposing the sentence.
The offender's time in custody has been made more onerous as a result of the Covid-19 conditions. That may continue for some time yet. I take account of that as special circumstances and I am satisfied that the offender is entitled to a lengthier period on parole than as informed by the statutory ratio. [7]

Sentencing

The purposes of criminal punishment include the protection of society, deterrence of the offender and others who might be tempted to offend, retribution and reform. As observed in Veen v The Queen (No 2), [8] those purposes overlap and none can be considered in isolation when determining what an appropriate sentence is in a particular case. In the process of instinctive synthesis, that is, the sentencing process, I have had regard to the objective seriousness of the offending as well as the offender's subjective circumstances.
In this case, general deterrence is an important factor, although specific deterrence is not. Any sentence must reflect an element of general deterrence. Denunciation of such a crime is also important in the exercise of the sentencing discretion. The killing of a defenceless child even arising from a temporary loss of control and without the intention to kill deserves strong denunciation by this Court.
I have been provided with a number of what are said to be comparable cases. As has often been said, [9] such cases may provide some guidance to a sentencing judge in terms of the principles to be applied but all cases are different. In Hili v The Queen, [10] the Court observed: "Past sentences 'are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence' (emphasis added). When considering past sentences, 'it is only by examination of the whole of the circumstances that have given rise to the sentence that "unifying principles" may be discerned'."
I have regard to those cases as demonstrating a very broad range of sentences that may be available to the Court in respect of the murder of a child. The offender also pointed to the Public Defenders Sentencing Table.
I do not consider it necessary to review each of those cases in this sentencing judgment. A number of cases involve the infliction of pain and injury to a child over a lengthy period prior to the child's ultimate death. See, for example, R v Khazma, [11] R v Lock, Thomas. [12]
The Crown tended to suggest that R v Whiteley [13] presented as somewhat similar, although the offender submits that in Whitley there had been a suspicious prior hospital admission. In Whiteley, the offender killed his 20 month old stepdaughter. There were 13 injuries to the neck and head area and 16 injuries to the trunk. The assault was spontaneous and lasted over several minutes. The offending was found to be above the mid-range of objective seriousness. The offender was sentenced to a period of imprisonment of 35 years with a non-parole period of 24 years.
It is only necessary to say that some facts are similar to the circumstances of the offending in this matter but others are quite different.
I accept the offender's submission that in none of the other cases was the murder committed by a person who had previously presented as a caring person without any criminal history and committed as a spontaneous act arising from a loss of control.

The sentence

[Redacted], I sentence you to a total sentence of 26 years and 6 months. The sentence will commence on 8 May 2019. The total sentence will expire on 7 November 2045.
I fix a non-parole period of 18 years.
The offender will be first eligible for release on 7 May 2037.
As the offender is convicted of a "serious offence", it is a requirement that she be warned of the existence of the Crimes (High Risk Offenders) Act 2006 (NSW) and of its application to the offence. [14] I ask the offender's solicitor to undertake that task on the Court's behalf.

Endnotes

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
R v NB [2022] NSWSC 151.
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 199 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).
Ryan v The Queen (2000) 206 CLR 267; [2001] HCA 21.
BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379 at [84] (Johnson J, Hodgson JA and Rothman J agreeing); citing Alseedi v R [2009] NSWCCA 185 at [65] (Giles JA); and Ali v R [2010] NSWCCA 35 at [48] (Johnson J).
Droudis v The Queen (2020) 103 NSWLR 806; [2020] NSWCCA 322 at [104] (Bathurst CJ, Hoeben CJ and Hamill J).
Crimes (Sentencing Procedure) Act, s 44(2).
(1988) 164 CLR 465; [1988] HCA 14 at 476 (Mason CJ, Brennan, Dawson and Toohey JJ).
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [178] (McClellan CJ).
(2010) 242 CLR 520; [2010] HCA 45 at [54] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
[2019] NSWSC 416.
[2017] NSWSC 715.
[2021] NSWSC 153.
Crimes (High Risk Offenders) Act, s 25C. 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: 28 July 2022

Crimes (Sentencing Procedure Act 1999(NSW)

(2020) 103 NSWLR 806

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Legislation Cited (4)

Cases Cited (21)

Cited By (1)