R v Papanicolaou

Supreme Court of NSW|2022-04-29|Before: Wright J

Introduction

On 19 February 2019, Mrs Marjorie Welsh, a 92 year old lady, died in Balmain Hospital. Her death was the result of injuries sustained on 2 January 2019, approximately 6 weeks earlier, when she was ferociously attacked in her home in Ashbury by the offender, Ms Papanicolaou.
It must be acknowledged that Mrs Welsh's death was a tragedy, a great human tragedy, especially for her family, and for all others affected by this sad matter. These remarks, however, must focus on what happened on 2 January 2019 and the circumstances in which they occurred. They must also necessarily focus on the offender's circumstances. This is not, however, to diminish the importance or value of Mrs Welsh's life or the significance of her death and I shall return to those matters later in these remarks.
On 16 February 2022, the jury found Ms Papanicolaou guilty of the murder of Mrs Welsh. Ms Papanicolaou now stands to be sentenced for that offence.
The maximum sentence for murder is life imprisonment, and there is a standard non-parole period of 20 years imprisonment. [1] The Crown does not contend that a life sentence should be imposed, and I am of the view that such a sentence is not warranted in the present case. Nonetheless, I have taken the maximum sentence and the standard non-parole period into account as legislative guideposts in determining the appropriate sentence in all the circumstances.
For the purpose of determining the sentence, I must make findings of fact as to what occurred. [2] These findings must be consistent with the jury's verdict. The facts I find against the offender must be found beyond reasonable doubt but the facts found in favour of the offender need only be found on the balance of probabilities. Applying these principles, I have reached the following conclusions.

The events of 2 January 2019

Wednesday, 2 January 2019, was not a scheduled day for Ms Papanicolaou to clean for Mrs Welsh and no arrangements had been made between Elizabeth and Ms Papanicolaou for her to do so.
At approximately 9:14 am, Ms Papanicolaou drove into the Canterbury RSL Club and played the poker machines there for about 50 minutes, losing $430 during that period. After a number of withdrawals from her bank account, she was left with only $11 in that account. At around 10:06 am, Ms Papanicolaou left the club, went to her car and then drove the short distance to Peace Park, the park behind Mrs Welsh's house. Whilst in the car, Ms Papanicolaou was upset and called a friend four times but each time the call was unanswered.
After parking in the car park at Peace Park, Ms Papanicolaou crossed the park and climbed over the back fence of Mrs Welsh's property and into the backyard.
At about 10:15 am, Mrs Welsh was in her yard but, when she went back into her house through the back door, Ms Papanicolaou was inside and this is where Mrs Welsh first saw Ms Papanicolaou that day. As it was not a scheduled cleaning day, Mrs Welsh, still with the rollers in her hair, did not expect to see Ms Papanicolaou. Mrs Welsh was totally surprised to see the cleaner in her home.
After a very short while, Ms Papanicolaou began to attack Mrs Welsh by beating her with Mrs Welsh's walking sticks. In the course of this, two of the walking sticks were broken. The offender also hit Mrs Welsh in the head, face, chest and arms with decorative ceramic bowls or plates which had been on display on shelves in Mrs Welsh's kitchen. Ms Papanicolaou stabbed Mrs Welsh in the lower chest and abdomen about six times with a knife taken from the cutlery drawer in the kitchen. During part of the attack, Mrs Welsh was on the floor.
At about 10:39am, although badly injured, Mrs Welsh was able to press the medical alert button on her VitalCall pendant that she wore around her neck. This caused an alarm to sound and an alert to be sent to a monitoring centre.
Hearing the alarm, the offender switched off the power to the VitalCall base station unit which was connected to Mrs Welsh's home telephone and removed the cordless telephone handset.
Ms Papanicolaou took the cordless handset and the bloodied knife and left by climbing back over the back fence and running through Peace Park to where she had parked her car. She drove off quite quickly.
Meanwhile, Mrs Welsh pressed the VitalCall button again and managed to crawl to the back door where she called out for help.
Soon after, a next door neighbour came to help her and police and ambulance officers arrived at Mrs Welsh's house between 10.50 and 10.55 am. Notwithstanding her serious injuries, Mrs Welsh was conscious and lucid and told the attending police and ambulance officers that her attacker was "Hanny … the clearner". Mrs Welsh was eventually taken to hospital.
While in her car, Ms Papanicolaou drove to a location in Canterbury and discarded the knife and cordless telephone. She put these items in a bag of rubbish which was in a bin by the side of the road and tied the top of the rubbish bag. She also disposed of the shirt she was wearing outside a business known as Sydney Tools near her home. This occurred at about 10.55 am. While in her car, Ms Papanicolaou rang her husband and told him that there had been an accident, that the lady had hit her and she hit back. She also said that the lady had accused her of taking her money, had attacked her with a stick which the offender took off her and broke and had come at her with a knife. None of those claims was true.
The offender went home and spoke to her husband but she was upset and left soon after. Her husband rang the police at 11.43 am to alert them.
Ms Papanicolaou prepared and, in some cases, sent text messages to her husband between 11:34am and 2:06pm, including the following: 1. "Please I'm going to die, I think it is better for me, you never believe me anymore please please" [unsent]; 2. "You will not believe me forever… beter I die… please take care the kids. I'm sick with this life… I'm was dream to always happy… I'm relly sorry… sorry deep of my heart…"; 3. "[to her son] … please forgive mummy… I love you so much one day you will understand mummy is not good mummy I'm so sorry… I was so happy when you arrived this world… I'm really sorry"; 4. "[to her daughter] … you're mummy everything… I love you please don't give up with everything… sorry everything what Mum done… really sorry… please study hard, mummy don't have change to study that way mummy becomes cleaner"; and 5. "I'm done, don't take me home please… don't tell anyone…".
The offender was located by police and arrested at Griffin Parade, Illawong shortly after 3.00 pm. She initially lied to the arresting officer by saying she was wearing the same clothing as earlier in the day. However, she then told him where to find the shirt that she had been wearing and, also, where she had disposed of the knife and the telephone. All of these items were later located by the police.
Ms Papanicolaou was eventually taken to Sutherland Police Station.
When Mrs Welsh arrived at hospital, her injuries were observed as being: 1. a 3 centimetre long deep laceration to the lower left chest; 2. multiple deep lacerations to the abdomen, the longest of which was about 8 cm. These were deep through the skin and muscle of the abdominal wall; 3. a large laceration to the left side of the back of the head; and 4. large bruises around both eyes and multiple small lacerations to the face at the lower lip, around the right eye, left cheek and left eyebrow as well as bruising to the nose and swelling to her eyelids.
Later, a CT scan revealed: 1. multiple fractures of the face, including around the eyes, cheekbones and nose; 2. a left pneumothorax; 3. multiple deep bleeding lacerations through the wall of the abdomen which cut through the muscle of the abdomen and through the small intestine; and 4. a haematoma of the abdominal wall.
Police conducted a recorded interview with Mrs Welsh in hospital on 2 January 2019 before she underwent emergency surgery and was admitted to the intensive care unit. In that interview, Mrs Welsh described as "utterly ferocious" the attack on her by the offender.
At Sutherland Police Station, a formal, recorded interview with Ms Papanicolaou was conducted, commencing at about 7.00 pm. In that interview, she also gave a detailed account of what she said occurred. The offender falsely claimed that Mrs Welsh accused her of stealing $50 and that it was the deceased who attacked her with a walking stick. She also said that the ceramic plates had fallen off the table during the struggle and must have just fallen onto Mrs Welsh's face from the table when the table was moved. None of these claims was true.
As to the stab wounds, Ms Papanicolaou said that it was Mrs Welsh who had the knife in her left hand and that the offender had grabbed her from behind. The offender demonstrated that when she grabbed Mrs Welsh's arm, Mrs Welsh was stabbing backwards towards both of them, suggesting that the injuries to Mrs Welsh were caused during that time by Mrs Welsh stabbing herself. None of these claims was true.
As to the cordless telephone, Ms Papanicolaou said she did not know why she took the phone, but she denied it was so that Mrs Welsh could not get help.
Police asked the offender about what she had done that morning before going to Mrs Welsh's home. Ms Papanicolaou did not volunteer that she had been gambling that morning, although she provided a version which commenced when she left her own house that morning. Towards the end of the interview, however, in response to a general question about whether she gambled, she stated that she had been gambling that morning.
The offender had a swollen left ankle. She stated that she believed this injury was caused during the struggle with Mrs Welsh when Mrs Welsh was poking her with the walking stick.
Ms Papanicolaou denied ever discussing finances or the sale of the Box Hill property with Mrs Welsh. She denied having financial problems and denied having any problems with gambling. She denied attending Mrs Welsh's home to ask for or to take money.

Events after 2 January 2019

On 8 January 2019, Mrs Welsh gave another recorded interview to police while she was still in hospital. Her account of the attack on this occasion was more detailed but consistent with what she had said earlier. Mrs Welsh said that she never produced or used a knife during the encounter between the two of them.
Mrs Welsh confirmed that there had been no disputes between Mrs Welsh and Ms Papanicolaou. Indeed, Mrs Welsh said: "when [the son] was born I was, I was very pleased for her because in the latter stages she was, thoroughly enjoying pregnancy and having a child. So, um, I was pleased for her, and I gave her $50.00 for the child. Just put it in an envelope. And she said, 'But Marjorie, I cannot take this. I said, No, it's not for you anyway. I said, It's, it's for [the son]."
Mrs Welsh also recounted that the offender had never asked her for money and, on the day of the attack, she had not accused Ms Papanicolaou of stealing any money from her. When asked whether she could think of any reason why the offender had attacked her, Mrs Welsh said: "It would be a peace to my mind if I could … Uh, there, there's usually logical reasons for most things that happen in this world, I cannot see any logic to this."
Mrs Welsh was suffering from serious injuries at the time of her two interviews in hospital and was receiving medical treatment. This was likely to have adversely affected her ability to recollect the totality of what exactly occurred. She did not recall, for example, being stabbed with the knife and she thought her wounds might have been the result of being stabbed with a walking cane. Nonetheless, it appeared to me that her account of what she could recall was truthful and reliable and I accept it.
Unfortunately, Mrs Welsh's condition subsequently deteriorated and she was transferred to Balmain Hospital, where she died on 19 February 2019 as a result of the injuries inflicted on 2 January 2019.

Other relevant circumstances

In addition to the factual circumstances which I have just identified, there were a number of additional factors which were said to be relevant to assessing the objective seriousness of the offending.
I am satisfied on all of the evidence that the murder was unplanned and impulsive.
There were, however, disputes between the parties as to: 1. whether Ms Papanicolaou's purpose in going to Mrs Welsh's house was to steal; 2. whether the offender intended to kill the deceased or only to cause grievous bodily harm to her; and 3. whether Ms Papanicolaou was suffering from a major depressive disorder at the time of the offending which was causally related to the offending.

The offender's purpose in going to Mrs Welsh's house

The Crown submitted that, notwithstanding that the murder was unplanned and impulsive, I should find that Ms Papanicolaou went to Mrs Welsh's house with the intention of stealing from her.
I accept, as the defence effectively submitted, that Ms Papanicolaou did not go to Mrs Welsh's house on 2 January 2019 for the purpose of committing the offence of murder. The offender did not attempt to disguise herself and she did not take any weapons.
Nonetheless, having regard to the evidence as a whole, I find that: on the morning of 2 January 2019 the offender needed money because of her gambling losses; she knew that Mrs Welsh paid in cash and had more than sufficient money to meet her own needs; the offender was not scheduled to clean for Mrs Welsh that day; Ms Papanicolaou did not park her car in the driveway and go to the front door but chose to gain access to Mrs Welsh's backyard and house by climbing over the back fence; and, there was no reason for Ms Papanicolaou to climb over the back fence, if she had an honest and lawful purpose for going to Mrs Welsh's house. In those circumstances and taking into account what happened when Ms Papanicolaou was discovered by Mrs Welsh and what happened subsequently, I am satisfied beyond reasonable doubt that Ms Papanicolaou went to Mrs Welsh's house with the intention of stealing from her.

Intention to kill or cause grievous bodily harm

The jury's verdict was consistent with the offender, during the attack in which the fatal injuries were inflicted, having either the intention to kill or the intention to inflict only grievous bodily harm. The Crown contended that Ms Papanicolaou intended to kill Mrs Welsh. The defence submitted that I should be satisfied beyond reasonable doubt only that the offender intended to cause grievous bodily harm.
The defence submitted that it should be concluded that there was only an intention to inflict grievous bodily harm because: there was no identifiable motive to kill; there was no planning; there were no utterances consistent with an intention to kill; and, death was not the immediate result of the injuries despite Mrs Welsh's vulnerabilities. This submission should not be accepted.
Notwithstanding the absence of planning and utterances, the nature of the attack, which involved using three different weapons over an extended period of time, and the nature and extent of the injuries, especially the knife wounds to the lower chest and abdomen, forcefully indicate that the offender's intention was to kill the deceased. Such a conclusion is supported by the fact that: 1. when the VitalCall alarm sounded, the offender switched off the power to the VitalCall base station unit and took the cordless telephone handset rather than trying to assist Mrs Welsh; and 2. Ms Papanicolaou did not call 000 or take any other steps to obtain assistance for Mrs Welsh when she left the house after the attack.
Furthermore, the offender went to Mrs Welsh's house with the intention of stealing, knowing that she was vulnerable but also knowing that Mrs Welsh could readily identify her. Ms Papanicolaou's actions during and after the attack were consistent those of a person trying to avoid being identified and detected in the commission of a crime by killing the only person who could identify the perpetrator or by leaving the person to die without assistance.
Having regard to the evidence as a whole and all the relevant circumstances, I am satisfied beyond reasonable doubt that the offender's intention was to kill the deceased.

The offender's mental health

In the present case, the defence submitted that Ms Papanicolaou was suffering from a mental illness, namely a major depressive disorder, and that this condition was causally related to the offending. The Crown contended to the contrary.
The jury's verdict involved the rejection of the partial defence of substantial impairment by reason of mental illness. Thus, the jury may have reached its conclusion on three alternate bases. 1. The jury may have rejected that the offender suffered from a major depressive disorder at the time of the killing. 2. The jury may have accepted that she suffered from such a disorder but rejected that this disorder substantially impaired her in the relevant legal sense. 3. The jury may have accepted that she suffered from the disorder and that it did relevantly substantially impair her, but the impairment was not so substantial as to warrant murder being reduced to manslaughter.
Since it is unknown on what basis the jury reached its decision, I am required to determine, on the evidence, the issue of whether Ms Papanicolaou was suffering from a major depressive disorder at the relevant time and whether that was causally related to the offending.
The Crown submitted that Ms Papanicolaou did not suffer from a major depressive disorder at the time of the offending and relied upon various aspects of the evidence given at the trial, including the evidence given by the psychiatrists Dr Martin and Dr Eagle.
Mr Quilter of counsel, who appeared with Mr Brock for Ms Papanicolaou, submitted that she suffered from a major depressive disorder at the time of the offence and that this was causally related to the offending. This submission was said to be supported by the following findings and considerations: 1. Ms Papanicolaou was vulnerable to developing a major depressive disorder because of: her background of trauma, both in her childhood and more recently because of a miscarriage and an ectopic pregnancy; her experience of migration, including the separation from her family; and, the fact she was in the post-natal phase following her son's premature birth in September 2018. 2. According to Dr Eagle, Ms Papanicolaou described experiencing the "typical cognitions of someone who experiences depression in the postnatal period", including feeling guilty about not bonding with her son, losing interest and enjoyment in usual activities and wanting to escape home, feeling worthless or hopeless, showing poor concentration driving and reduced efficiency at work. 3. There was broad agreement between Dr Eagle and Dr Martin that she was suffering from a major depressive disorder while in custody after the commission of the offence. 4. Although Ms Papanicolaou did not report symptoms of depression to health professionals before her arrest this cannot exclude a diagnosis of major depressive disorder because underreporting is known to occur. 5. Ms Papanicolaou purchased anti-anxiety tablets from Chemist Warehouse without telling her husband.
In my view the defence submissions should not be accepted. Both psychiatrists agreed as to what a major depressive disorder involved in terms of symptoms and deterioration in function, including the possibility that symptoms can fluctuate within a short period of time. One significant area of disagreement between the psychiatrists was as to whether the information provided by Ms Papanicolaou to them and to other relevant health professionals at various times was entirely truthful and reliable especially in relation to her symptoms in the latter part of 2018 and the beginning of 2019.
There were records from Ms Papanicolaou's mental health assessments from before and after the birth of her son in September 2018 and when she was arrested and taken into custody. Those records do not provide any substantial support for a conclusion that at those times or in early January 2019 she suffered from a major depressive disorder. While it can be accepted that underreporting of symptoms by persons with mental health issues does occur, there was no particular evidence that established that underreporting of symptoms was likely to have occurred in Ms Papanicolaou's case.
In addition to those records and the information provided to the psychiatrists during their interviews with Ms Papanicolaou, she also gave evidence at the trial concerning her symptoms in the latter part of 2018 and the beginning of 2019. From my observation of her and the way she gave her evidence, I formed the impression that some of her evidence concerning her symptoms in the latter part of 2018 and the beginning of 2019 was more a memorised list of symptoms that might justify a diagnosis of a major depressive disorder, perhaps based on her symptoms suffered when in custody after her arrest and her subsequently acquired understanding of what symptoms were required for such a diagnosis, rather than her recollection of how she actually felt in the latter part of 2018 and early 2019.
Furthermore, there was independent evidence that was relevant to my determination. The evidence of her employers and her husband as to how she appeared and her ability to work and manage her family and personal life during that period, as well as her appearance and conduct at the RSL Club and in the police interview on 2 January 2019, did not provide any substantial support for her account of her symptoms. Indeed, that evidence and the records of her mental health assessments during the latter part of 2018 and early 2019 taken as a whole indicated that she was not experiencing significant mental health symptoms in that period.
Dr Martin was of the view that Ms Papanicolaou was not suffering from a major depressive disorder at the relevant time. The following extract from the evidence of Dr Martin provides a useful summation of his opinion: "...while it is possible that she [Mrs Papanicolaou] had some depressive and/or anxious symptoms prior to the alleged offending, there is minimal evidence of her having had a mental disorder such as major depressive disorder and opinion to the contrary would be highly speculative. Briefly, she was living independently, raising a baby and had restarted work and after mental health screening by clinicians had not been identified in the months preceding the alleged offending or after her arrest with a clinical mental disorder causing significant impairment. She was not receiving treatment." [3]
On the other hand, Dr Eagle was of the view that Ms Papanicolaou suffered from a major depressive disorder. She stated in her evidence: "I think she suffers from a major depressive disorder and I believe that she had experienced symptoms and signs that were consistent with an episode of depression in the period leading up to this alleged incident … on the 2nd of January. … She reported having a depressed or sad mood, most of the time, most days, if not every day during those months leading up to the 2nd of January, particularly in the period after the birth of [her son]. She described not having any appetite and, in fact, as a result of not having any appetite, losing a significant amount of weight. She said she was not sleeping well. She said she felt that she couldn't concentrate adequately. She felt hopeless and trapped. But I think probably what was most consistent was she described the typical cognitions of someone who experiences depression in the postnatal period. So she felt like she was a bad mother. She felt that she couldn't bond with her child. She felt this was different to when the first child was born. She felt guilty about that, even though she felt she couldn't bond. She also described losing her interest and enjoyment in her usual activities and actually wanting to escape the home. She described maladaptive coping mechanisms such as turning to gambling to try to make herself feel better and she described those cognitions of sort of worthlessness and hopelessness that you typically see. She also said that as a result of her poor concentration she wasn't as efficient at work. She wanted to go back to work because she felt it was helpful and she needed the money, but when she was there she was not able to do the work in the same period of time as she had previously and she said she had had a motor vehicle accident as a result of poor attention and I heard her evidence in fact that she said her husband had accused of her having a number of bingles in the car and suggested she was getting dumber I think she said in the evidence." [4]
The specific terms of Dr Eagle's conclusion in this passage, however, require attention. Her conclusion was that Ms Papanicolaou "suffers from a major depressive disorder" referring to the time of Dr Eagle's assessment not the time of the offending. As to Dr Eagle's opinion of the offender's condition at 2 January 2019, the psychiatrist said: "she had experienced symptoms and signs that were consistent with an episode of depression in the period leading up to this alleged incident … on the 2nd of January". Furthermore, if Ms Papanicolaou's account of her symptoms up to and including 2 January 2019 was not reliable, as I have found, the foundation for a conclusion that Ms Papanicolaou was suffering from a major depressive disorder at the time of the offending is significantly undermined.
In reaching my conclusion, I have taken into account that Ms Papanicolaou was vulnerable to developing a major depressive disorder, because of her childhood trauma both as a result of the vehicle accident and sexual abuse, her experience of migration to Australia, her more recent miscarriage and her being in January 2019 in the post-natal phase following her son's premature birth. Nonetheless, as Dr Martin in effect explained, it does not follow from this vulnerability that Ms Papanicolaou did have such a disorder in late 2018 and early 2019.
Similarly, it does not follow from the fact that Ms Papanicolaou suffered from a major depressive disorder while in custody after being arrested that she was suffering from such a disorder at the time of the offending.
Finally, Ms Papanicolaou's purchase of non-prescription anti-anxiety tablets from Chemist Warehouse without telling her husband was consistent with experiencing some mild anxiety but does not, in my view, provide any substantial support for a conclusion that she suffered from a major depressive disorder in late 2018 and early 2019.
Having observed the two psychiatrists and having regard to their opinions and the factual assumptions underlying those opinions, I preferred the evidence of Dr Martin to that of Dr Eagle.
In light of the evidence as a whole, I was not satisfied, on the balance of probabilities, that Ms Papanicolaou suffered from a major depressive disorder in later 2018 and early 2019 or that such a condition contributed to the commission of the offence in a material way.

Objective seriousness

The Crown submitted that the offending in the present case was above the middle of the range of objective seriousness for the offence of murder having regard to various factors including: 1. The offender intended to kill the deceased; 2. While impulsive, the attack was prolonged; and 3. The deceased was particularly vulnerable in that she was 92 years old, alone, in her home, had mobility, sight and hearing problems, and her ability to obtain assistance was intentionally hindered by the offender's interference with the VitalCall equipment, leaving the deceased effectively defenceless and helpless.
The defence submitted in effect that in assessing objective seriousness in all the circumstances, I should take into account, in particular: that the offence was unplanned; that the offender should only be found to have intended to cause grievous bodily harm and not to kill the deceased; and, that Ms Papanicolaou suffered from a major depressive disorder that was causally related to the offending. For the reasons already given, I do not accept that the offender only intended to cause grievous bodily harm. Nor do I accept that she suffered from a major depressive disorder at the relevant time or that this was causally related to her offending.
Taking into account all of the circumstances and the findings, which I have to already mentioned at some length but excluding those matters which are personal to the offender and are not integral to the offending itself, in my view the offending falls within the middle of the range of relative seriousness for the offence of murder.

Aggravating and mitigating factors

The Crown submitted that there were three specific aggravating factors that should be taken into account, namely: 1. The offence involved the use of weapons, the knife, the ceramic bowls or plates, and, to a lesser extent, the walking sticks. [5] 2. The offence was committed in the home of the victim. [6] 3. The victim was vulnerable having regard to her advanced age and her mobility, sight and hearing disabilities. [7]
These aggravating factors are applicable in the present case and I have taken them into account when determining the appropriate sentence but not so as to involve any double counting of those factors in that process.
The defence raised additional matters personal to the offender that were said to be mitigating factors in the present case such as: Ms Papanicolaou not having any significant record of previous convictions, [8] being a person of previous good character, [9] being unlikely to re-offend in the future, [10] having good prospects of rehabilitation, [11] having shown remorse for the offence [12] and having provided assistance to authorities or facilitated the administration of justice. [13] I shall consider these factors as part of the offender's subjective case.

The offender's subjective case

In considering the Ms Papanicolaou's subjective case, it appropriate to start with her background and circumstances, which were not generally in dispute.

Ms Papanicolaou's background and circumstances

Ms Papanicolaou was born and grew up in Central Java. She was one of eight children. Her father ran a tobacco business from the family home which was overcrowded. She completed primary and high school in her local area. At about the age of five or six, her father's business failed which resulted in the family home being sold and they moved to a small house. Ms Papanicolaou described her family circumstances as being "really poor, we can't, … provide the food …". When Ms Papanicolaou was at primary school she was hit by a motor vehicle which caused her to be in a coma for 12 days and, following that incident, she struggled academically. While recovering from that accident, she was sexually abused by her older cousin. At about the age of 16, she was sexually assaulted by her best friend. She described the impact of this event on her as being that she ran away to the river to try to kill herself and she felt dirty, ashamed, scared and disgusted with herself. She was also afraid that she was pregnant.
As an adult, Ms Papanicolaou also experienced traumatic and stressful circumstances. In her early 20s, she suffered a miscarriage. Upon her arrival in Australia after marrying her husband she struggled with English not being her first language. Following the birth of her daughter in 2009, Ms Papanicolaou suffered an ectopic pregnancy which resulted in hospitalisation and the loss of the child, causing her to feel upset, angry and depressed. When she became pregnant in early 2018, there were marriage difficulties between Ms Papanicolaou and her husband as a result of her husband accusing her of infidelity. Her son was eventually born prematurely in September 2018 and was required to remain at hospital for the first two weeks of his life in an incubator. He suffered some jaundice. Ms Papanicolaou experienced feelings of being scared to touch him or to listen to his crying and felt that she was a failure as a mother. As a result of being unable to overcome or resolve these feelings, she turned to gambling because in gambling she found she was able to forget everything and make herself calm. In addition, during 2018 Ms Papanicolaou experienced the stress of having to evict one of the boarders who lived in their house, the stress of dealing with her mother-in-law's dementia and her own mother's illness and some minor car accidents.
Notwithstanding my earlier conclusion that Ms Papanicolaou did not suffer from a major depressive disorder in later 2018 and early 2019, I note that Dr Martin was of the view that it is possible that Ms Papanicolaou had some symptoms of depression or anxiety prior to her offending and Dr Eagle's opinion was that she experienced symptoms and signs that were consistent with an episode of depression in the period leading up to 2 January 2019. In light of that evidence and Ms Papanicolaou's vulnerability to some form of depressive mental illness and the pressures and stressors experienced by her in 2018 and early 2019, I accept that she was experiencing some symptoms of depression and anxiety in that period, even though these were not sufficient to justify a diagnosis of a major depressive disorder.
Ms Papanicolaou's symptoms resulting from her experiences, during childhood and while an adult, and the pressures and stressors in her life in 2018 and early 2019 formed a significant background to her offending, although I am not satisfied that they were directly causally related to the commission of the offence of murder itself. These circumstances are, however, sufficient as to justify the conclusion that her moral culpability should be seen as somewhat less than that of a person who did not experience those deprivations, traumatic events, pressures and symptoms. They also, in my view, establish that Ms Papanicolaou is, to a limited extent, a less suitable vehicle for general deterrence than might otherwise have been the case. I have taken these factors into account when determining the sentence

Good character

Ms Papanicolaou has no prior convictions of any type and she has been a person of good character without any history of violence. She is entitled to some leniency on this account.

Assistance to authorities and disclosure

The defence submitted that Ms Papanicolaou provided both assistance to law enforcement authorities falling within s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and facilitated the administration of justice, including by pre-trial disclosure, within s 22A of that Act. These were said to warrant some mitigation on sentence.
As to assistance by the offender to law enforcement authorities, the defence submitted that "despite her lies", Ms Papanicolaou provided "some assistance" to the police investigation by directing police to the location of the shirt, the knife and the cordless telephone handset. The provision of this information was said to be important, reliable and timely and warranted some mitigation on sentence. It was noted that if a lesser sentence were imposed as a result, the level of the discount was in effect required to be specified by virtue of subs (4) of s 23.
As I understood the Crown's submissions in this regard, it was contended that the matters relied upon by the defence as assistance should not be dealt with under s 23 by way of an express discount but rather should be taken into account, along with other matters that might go to facilitating the administration of justice, as part of the process of instinctive synthesis by which the appropriate sentence is determined.
In deciding whether to impose a lesser sentence under s 23 because of assistance provided by an offender, the Court is required to consider the matters listed in subs (2) of s 23. In respect of those matters, I am of the view that: 1. Ms Papanicolaou's assistance by informing police of the location of the items was not of any particular importance in these proceedings, since the Crown case against her was based on direct evidence from the victim concerning the offender's attack, direct evidence of the wounds and injuries themselves and direct evidence from another witness of the offender climbing over the back fence to enter and leave the deceased's property, and the evidence of the offender's conduct before and after the offending. 2. Although the information as to the location of these items was truthful, the offender's accounts to police of what occurred were not otherwise truthful, complete or reliable. 3. The information which was said to have been of assistance concerned only the location of the three items and thus was very limited in nature and extent. 4. The information as to the three items was provided soon after the offence and allowed them to be retrieved. 5. The offender has not gained any benefit by reason of disclosing the information. 6. The offender will not suffer any harsher custodial conditions, nor will she or her family suffer any danger or risk of injury, as a consequence of providing the information as to the three items. 7. The information did relate to the commission of the offence for which she is being sentenced.
Having regard to these matters and in all the circumstances, I do not accept that a lesser penalty should be imposed under s 23 by way of an express discount on account of her providing to police the information concerning the three items. Nonetheless, it does appear to me that the pre-trial disclosure of this information should be taken into account, as the Crown submitted, along with the other conduct on the offender's behalf which has facilitated the administration of justice as part of the process of instinctive synthesis in determining the appropriate sentence.
As to the facilitation of the administration of justice in addition to the disclosure of the information concerning the three items, I accept that the way in which Ms Papanicolaou's defence was conducted, including the admissions made by the offender, the early identification of the real issues in dispute and the confining of the matters in issue, did facilitate the administration of justice.
Taking all of the relevant matters into account, some degree of mitigation of the sentence is warranted and this will be taken into account as part of the process of instinctive synthesis and reflected in the sentence.

Remorse

The defence submitted that Ms Papanicolaou should be found to be remorseful, despite contesting the charge of murder. The Crown in effect submitted that it was a matter for the Court.
I accept that the offender accepted a form of criminal responsibility for Mrs Welsh's death with her plea of guilty to the manslaughter. It was, in my view, legitimate for the issue of substantial impairment to be raised by Ms Papanicolaou by way of a partial defence. This is not a case where a plea of not guilty demonstrated a lack of remorse.
Indeed, Ms Papanicolaou did not seek to explain or excuse her actions and expressed her remorse at trial where she gave the following evidence: "Q. Are you able to give any explanation as to why you did what you did to Marjorie Welsh? A. WITNESS [Ms Papanicolaou]: I don't know. Every day I asking myself. I don't know. I don't know. Q. And you told the police at the end of the interview words to the effect that you wished you could take back what happened; is that right? A. WITNESS: Yes. I feel sorry with everything, with her daughter, with her family. I wish, I wish, I wish I can pay back. I wish everything never happen, I wish I can go back to that day. I wish I can be everything." [14]
Ms Papanicolaou also said in her affidavit read in the sentence proceedings: "I am sorry for everything. Marjorie Welsh was a beautiful lady. She was always very nice to me. I think about Marjorie and Liz and Marjorie's family every night and I feel so bad for what happened. I wish I could go back to that day and change what happened. I pray to God for forgiveness five times a day."
I accept these expressions of remorse by Ms Papanicolaou as genuine and I have taken them into account in determining the appropriate sentence.

Hardship in custody

Both psychiatrists were of the opinion that Ms Papanicolaou was suffering from a major depressive disorder in custody. Given her vulnerability to which I have referred to earlier, the other evidence concerning her mental condition in custody and the opinions of the psychiatrist, I find that the offender has been suffering from that mental illness while in custody. I also accept that in custody she has suffered some bullying by other inmates, including as a result of English not being her first language, she has not been able to have contact with her family, especially her young children, and the COVID 19 pandemic has made conditions more difficult for her.
This has rendered and will be likely to continue to render the offender's time in custody more onerous than might otherwise be the case, at least to some extent. I have taken this into account in determining the sentence.

Extra-curial punishment

It can be noted that there has been substantial media coverage of this matter. Ms Papanicolaou's evidence and the evidence of Ms Christinson, which I accept, established that on 26 January 2022, shortly after the commencement of the trial, Ms Papanicolaou was quite seriously assaulted by three other inmates as a result of what they understood the news media to be reporting at that time concerning the offending. The offender went into protective custody as a result. Since her conviction, the offender has continued to be fearful of being assaulted again, especially if there is further media coverage.
The defence submitted that this amounted to extra-curial punishment and should be taken into account to mitigate the sentence to be imposed.
The Crown accepted that what occurred in this regard and its consequences did amount to extra curial punishment and some account should be taken of it in determining the sentence.
I have taken these circumstances, which in my view do amount to extra-curial punishment, into account in mitigating, to some extent, the sentence to be imposed.

Prospects of rehabilitation and likelihood of reoffending

In relation to her prospects of rehabilitation and the likelihood of reoffending, it was submitted by the defence that Ms Papanicolaou had good prospects of rehabilitation and was unlikely to re-offend in light of: 1. her lack of previous convictions or history of violence; 2. her productive life in Australia prior to the offending; 3. her being a committed mother of two children; 4. her remorse; 5. her productiveness while in custody, exercising, reading, working and undertaking programs and courses.
The Crown submitted that there was an absence of psychiatric material dealing with the issues of the likelihood of reoffending and rehabilitation but did note that there were other features that were in favour of the offender. The Crown also contended that the offender's gambling issues may detract from the offender's position in this regard.
In my view, the circumstances identified by the defence establish a proper basis for finding that Ms Papanicolaou has good prospects of rehabilitation and is unlikely to reoffend. The lengthy period which the offender will spend in custody is likely to assist to some extent in addressing the gambling issue, especially if there is also a significant period of supervision on parole supported by additional time in the community in which to receive appropriate treatment for her mental health issues including depression and gambling.
On these bases, her good prospects of rehabilitation and the fact that it is unlikely to she will reoffend have been taken into account in the offender's favour in determining the sentence.

Commencement date

Mrs Papanicolaou was arrested on the day of the attack, 2 January 2019, and has been in custody since that time. Both parties submitted and I accept that the sentence should be backdated to commence on that day.
Although Ms Papanicolaou is being sentenced more than 3 years after she was arrested, this was a result to a certain extent of her plea of not guilty. It is not suggested that this delay was caused by any default on the part of the Crown or the defence. In all the circumstances, although such a delay is lengthy, it does not appear to me to justify, in and of itself, a lessening of the sentence in this case.

Special circumstances

In the present case, I accept that, in relation to the structure of the sentence, special circumstances have been established, as the defence contended, so as to justify a variation of the statutory ratio of the non-parole period to the total sentence.
The factors which, when considered in combination, justify the variation in this case include that: 1. this is the offender's first time in custody; 2. her custody will be more onerous as a result of the factors identified earlier; 3. the fact that she is a committed mother whose relationship with her children is adversely affected by her being in custody, especially when access to her is limited because of Covid-19 restrictions or for other reasons; and 4. she would benefit from a significant period of supervision on parole supported by additional time in the community in which to receive appropriate treatment for her mental health issues including depression and gambling.

Victim impact statements

Before concluding my consideration of the factors affecting the appropriate sentence, it is appropriate to refer to the harm to Mrs Welsh and to her family demonstrated by way of the victim impact statements provided by her family.
In her interviews in hospital, Mrs Welsh was able to explain the harm caused to her, in addition to the wounds and injuries she suffered. She explained that she felt that the attack had taken from her the "dream world" she had made, which I understood to be her way of referring to what she had achieved in life. Furthermore, the offending left Mrs Welsh feeling that she could no longer trust anyone.
In addition, the Court received and read victim impact statements from Mrs Welsh's two daughters, including a number of photographs. Those statements made clear that the death of Mrs Welsh in the circumstances I have already described has caused grief, extensive harm and distress to her daughters and their families. Mrs Welsh was a talented, creative woman who had achieved much and given much to others. She enjoyed life and had much to live for. She was taken from her daughters and their families in a way which was unthinkable and inexplicable to them.
The Crown, in its written submissions, applied for the Court to consider the impact of Mrs Welsh's death as disclosed in the victim impact statements when determining an appropriate punishment for the offender.
The use that may be made of victim impact statements is governed by the Crimes (Sentencing Procedure) Act. [15] Victim impact statements may, in certain circumstances, be taken into account in connection with the determination of the punishment for the offence on the basis that the harmful impact of the victim's death on the victim's close family and wider circle is an aspect of harm done to the community.
Courts have said in the past that it seems unthinkable that receiving and taking into account victim impact statements reflects an acceptance by Parliament that some lives are more valuable to the community than others. Rather, they should be seen as an important mechanism for ensuring that the evidence of family victims is placed before the court to give real context, content and texture to the undoubted proposition that every unlawful taking of a human life harms the community in some way. [16]
I accept that a greater sentence cannot be imposed because of the impact on the victim's family. Nonetheless, I consider it appropriate to take into account the victim impact statements that were provided to the Court so as to recognise that the harm done to Mrs Welsh's daughters and family is an aspect of harm done to the community. The punishment for homicide does not vary according to the personal qualities and characteristics of the victim. Rather, the qualities of a particular victim serve, as they do in this case, as a salutary and powerful reminder of the quality of human life itself, and all that is involved in taking it away. [17]

Other cases

Both parties drew my attention to the sentences imposed for murder in a number of cases. I have had regard to those cases. In general terms, in the cases that involved an offender with a mental illness or mental impairment the sentences were significantly less than in the cases involving very significant violence where general deterrence was an important factor in sentencing. Otherwise, the circumstances in each case varied considerably from those in this case. I have used those cases as a yardstick against which to examine the sentence I intend to impose.

Purposes of sentencing

In determining the appropriate sentence, I have taken into account the relevant principles and have considered the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act in light of the facts and circumstances I have already mentioned.
It is sufficient to make the following observations in that regard. The offender must be held accountable for her actions but I have also taken into account the purpose of rehabilitation which, in my view, supports a longer period on parole, as I have explained already.
In determining the sentence, I have been concerned to ensure that the offender is adequately punished for the offence in this case, that her conduct is denounced and that the harm done is recognised. In addition, the sentence must involve some measure of general deterrence, notwithstanding my earlier finding that Ms Papanicolaou is, to an extent, a less suitable vehicle for general deterrence than might otherwise be the case. In this regard, in 2013 Price J made a pertinent comment concerning murder of an older person in their own home. That comment is equally applicable today. His Honour said: "The community interest in the protection of the elderly who remain living in their homes requires that it be made absolutely clear by this Court that our senior citizens are entitled to live their lives without any fear of violence. I give weight to general deterrence in the sentence." [18]

Additional remarks

Before formally announcing the sentence of the Court, it remains to acknowledge the death of Mrs Welsh as a human and personal tragedy, which should not be treated only as the subject of a criminal trial. The evidence in this matter confirmed that she was a loving and caring mother and friend, a forthright, creative and compassionate woman blessed with the wisdom of years and the love of her family. Her unnecessary death in such distressing circumstances has caused grief and sorrow for her family and all others involved.
The Court extends its very sincere sympathy for their loss to Mrs Welsh's family and all those affected by her death.

Sentence

Taking into account all the relevant facts, including the subjective circumstances of the offender, and having regard to the purposes of sentencing and the other applicable principles as well as the statutory guideposts of the maximum penalty and the standard non-parole period, I determine that the appropriate sentence is imprisonment for 22 years, made up of the non-parole period and the balance of the term of imprisonment.
Hanny Papanicolaou, for the murder of Marjorie Jane Welsh you are sentenced to imprisonment for a non-parole period of 15 years commencing on 2 January 2019 and expiring on 1 January 2034 and a balance of term of 7 years expiring on 1 January 2041.
You will not be eligible for release on parole before 1 January 2034.
I am also obliged to tell you of the existence of the Crimes (High Risk Offenders) Act 2006 (NSW), which applies to "serious offences" including the offence for which you have been sentenced.
In summary, this means that the State can apply to the Supreme Court for an order that you continue to receive supervision or be held in detention at the end of your sentence if the court considers you would be a "high risk offender" who poses an unacceptable risk of committing a serious offence.
It is, therefore, in your interests to engage in rehabilitation opportunities that may be offered to you in the course of your sentence.

Endnotes

Crimes Act 1900 (NSW), ss 18, 19A, 21(1); Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A, Pt 4, Div 1A, Item No 1.
GAS v The Queen (2004) 217 CLR 198 at 210-211; 206 ALR 116.
Tcpt, 4 February 2022, pp 433 (45) - 434 (13).
Tcpt, 9 February 2022, pp 682 (38) - 684.
Crimes (Sentencing Procedure) Act, s 21A(2)(c).
Crimes (Sentencing Procedure) Act, s 21A(2)(eb).
Crimes (Sentencing Procedure) Act, s 21A(2)(I).
Crimes (Sentencing Procedure) Act, s 21A(3)(e).
Crimes (Sentencing Procedure) Act, s 21A(3)(f).
Crimes (Sentencing Procedure) Act, s 21A(3)(g).
Crimes (Sentencing Procedure) Act, s 21A(3)(h).
Crimes (Sentencing Procedure) Act, s 21A(3)(i).
Crimes (Sentencing Procedure) Act, ss 21A(3)(m), 22A(1).
Tcpt, 8 February 2022, pp 529(45) - 530(4).
Relevantly s 30E(3) of the Crimes (Sentencing Procedure) Act, which substantially re-enacted provisions previously found in s 28(4) of that Act.
Based on the comments of McCallum J (as her Honour then was) said in R v Halloun [2014] NSWSWC 1705 at [46] in relation to s 28(4) of the Crimes (Sentencing Procedure) Act.
Adapting the words of Street CJ in R v Hill (1981) 3 A Crim R 397 at 402.
R v Kaye [2013] NSWSC 1812 at [33]. 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: 02 June 2022

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