R v Potter; ex parte A-G

SUPREME COURT OF QUEENSLAND

CITATION: R v Potter; ex parte A-G (Qld) [2008] QCA 91

PARTIES: R v POTTER, Alice Maree (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)

FILE NO/S: CA No 16 of 2008 / SC No 1145 of 2007

DIVISION: Court of Appeal

PROCEEDING: Sentence Appeal by A-G (Qld)

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED ON: 18 April 2008

DELIVERED AT: Brisbane

HEARING DATE: 17 March 2008

JUDGES: Keane JA, Mackenzie AJA and Chesterman J / Separate reasons for judgment of each member of the Court, Keane JA and Mackenzie AJA concurring as to the order made, Chesterman J dissenting

ORDER: Appeal against sentence dismissed

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATION TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – where respondent smothered her five year old daughter – where respondent plead guilty to charge of manslaughter on ground of diminished responsibility – where respondent sentenced to eight years imprisonment – where respondent eligible for parole after three years – whether sentence failed to adequately reflect the gravity of the offence / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATION TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – where defence of diminished responsibility established before Mental Health Court – whether mitigating effect of diminished responsibility is sufficient allowance for all mitigating factors – whether further mitigating factors may be considered / Criminal Code Act 1899 (Qld), s 302(1)(b), s 304A, s 69A(1) / Mental Health Act 2000 (Qld), s 257, s 334 / Penalties and Sentences Act 1992 (Qld) s 159A / R v Auberson; ex parte A-G (Qld) [1996] QCA 321; CA No 248 and 249 of 1996, 3 September 1996, cited / R v Beacham (2006) 163 A Crim R 348; [2006] QCA 268, distinguished / R v Blacklidge, unreported, NSW Court of Criminal Appeal, No 60510 of 1995, 12 December 1995, considered / R v Chard; ex parte A-G (Qld) [2004] QCA 372, considered / R v Cole, unreported, Mullins J, SC No 611 of 1999, 28 June 2001, considered / R v De Voss [1995] QCA 518; CA No 229 of 1995, 24 November 1995, considered / R v DeSalvo (2002) 127 A Crim R 229; [2002] QCA 63, cited / R v Dol, unreported, White J, SC No 379 of 2001, 1 April 2004, considered / R v Dunn [1994] QCA 147; CA No 29 of 1994, 13 May 1994, cited / R v Elliott [2000] QCA 267, cited / R v Engert (1995) 84 A Crim R 67, cited / R v Goeldner, unreported, Douglas J, SC No 465 of 2002, 20 September 2004, considered / R v Goodfellow, unreported, Fryberg J, SC No 219 of 2004, 15 October 2004, considered / R v Green & Haliday; ex parte A-G (Qld) [2003] QCA 259, considered / R v Hall; ex parte A-G (Qld) [2002] QCA 125, considered / R v Hewitt, unreported, Holmes J, SC No 272 of 2005, 20 May 2005, considered / R v Hill, unreported, Atkinson J, 5 September 2001, considered / R v Irvine [1997] QCA 138; CA No 82 of 1997, 8 May 1997, considered / R v Lock, unreported, Mullins J, SC No 479 of 1997, 10 September 2001, considered / R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, cited / R v Milini [2001] QCA 424, distinguished / R v Mills [1986] 1 Qd R 77, considered / R v Neumann; ex parte A-G (Qld) [2007] 1 Qd R 53; [2005] QCA 362, considered / R v Ohlbrecht, unreported, CA No 110 of 1985, considered / R v Ross [1996] QCA 411; CA No 347 of 1996, 25 October 1996, considered / R v Schubring; ex parte A-G (Qld) [2005] 1 Qd R 515; [2004] QCA 418, considered / R v Walsh, unreported, Court of Criminal Appeal, Qld, CA No 85 of 1986, 12 June 1986, considered / R v Ward, unreported, Mullins J, SC No 74 of 1999, 8 December 2000, considered / Re AMP [2007] QMHC 22, cited / The Queen v Kiltie (1974) 9 SASR 453, cited

COUNSEL: D R MacKenzie for the appellant / B G Devereaux SC, with M J Robbins, for the respondent

SOLICITORS: Director of Public Prosecutions (Qld) for the appellant / Legal Aid Queensland for the respondent

KEANE JA: I have had the advantage of reading in draft the reasons of Mackenzie AJA. I agree with his Honour's reasons and with the order proposed by his Honour.

Because of the divergence of views between Mackenzie AJA and Chesterman J, I should state the reasons for my agreement with the analysis of the authorities by Mackenzie AJA and with his Honour's conclusions from that analysis.

In my respectful opinion, one cannot draw from the Queensland decisions discussed by Mackenzie AJA and Chesterman J an indication that a sentence of eight years imprisonment, with some further mitigation for the offender's personal circumstances, is manifestly below the range of sentences open to a sentencing judge in a case of an intentional killing of a child by its mother which must be dealt with as manslaughter by reason of the diminished responsibility of the mother.

While it is true, as Chesterman J observes, that "the starting point for a consideration of the appropriate penalty, and a key element in the circumstances of the case" is that there has been a felonious taking of a human life, it is also the case that the range of degrees of culpability is so wide that no established sentencing tariff can be applied to such cases.¹ That is especially so in the present case.

The human tragedy involved in the killing of a child by its mother in circumstances of diminished responsibility is so extraordinary that I am, with great respect, unable to accept that a killing of this kind should be regarded as of a piece with other cases of manslaughter where the killing was intentional but the offender's criminal responsibility was diminished by reason of the operation of s 304A of the Criminal Code.

The killing of a child by a mother whose capacity to understand or control her actions is diminished has long been recognised as a human tragedy of an extraordinary kind. It is the truly tragic nature of such a killing that has inspired what Aristotle referred to as "terror and pity" in audiences of Euripides' Medea for two and a half thousand years.

It was open to the learned sentencing judge to proceed on the footing that a killing of the kind in question here should not be lumped in together for sentencing purposes with cases involving acts of thuggish brutality as between adults, such as R v Ward,² R v Cole,³ R v Lock,⁴ R v Hill,⁵ R v Goeldner,⁶ R v Hewitt⁷ and R v Beacham.⁸ The facts of these cases are sufficiently set out in the reasons of Chesterman J. In my respectful opinion, it cannot be said that these cases afford a useful analogy with the killing of an infant child by its mother so far as the degree of criminality involved is concerned. The learned sentencing judge did not err in approaching this case on the footing that she was not bound to regard the sentences imposed in R v Ward, R v Cole, R v Lock, R v Hill, R v Goeldner, R v Hewitt and R v Beacham as indicative of the range of sentence appropriate to the criminality of the conduct of the respondent in this case.

I agree with Mackenzie AJA that considerations of deterrence have little relevance in a case such as this, and that the sentence imposed in this case was not manifestly inadequate.

MACKENZIE AJA: The Attorney-General appeals against a sentence of eight years imprisonment for manslaughter, with a date of eligibility for parole after three years of the term. A period of 815 days was declared as time already served prior to sentence. The basis of the plea of guilty was that the respondent was of diminished responsibility at the time of the offence.

The grounds of appeal list four reasons why it was submitted that the sentence is manifestly inadequate. They are:

(a) the sentence failed to reflect adequately the gravity of the offence generally and in this case;

(b) the sentencing judge incorrectly proceeded on the basis that the offender was not liable to be sentenced on the basis of an intent to kill;

(c) the sentence failed to take sufficiently into account the aspect of general deterrence; and

(d) the sentencing judge gave too much weight to factors going to mitigation.

Grounds (b) and (c) were only pursued in aid of grounds (a) and (d). With respect to (b), it was conceded by counsel for the Attorney-General in the written outline of argument that it was clear from the argument and the sentencing remarks that the sentencing judge was dealing with a case where the killing had been intentional. The only use to which the passage in the reasons upon which the ground was based was put was to suggest that it provided evidence that the learned sentencing judge had placed too much emphasis on the impairment suffered by the respondent as a factor in mitigation. With respect to (c), it was also conceded by him that significant mental disabilities may render an offender an inappropriate vehicle for general deterrence (R v Engert (1995) 84 A Crim R 67 at 71; R v Neumann; ex parte A-G (Qld) [2007] 1 Qd R 53;[2005] QCA 362).

The Mental Health Court Proceedings

Prior to the plea of guilty being entered, the matter had been referred to the Mental Health Court for a determination as to her mental condition at the time of the offence, pursuant to s 257 of the Mental Health Act 2000 (Qld). The Mental Health Court found that, at the time of the offence, the respondent had a substantial impairment of her capacity to know that she ought not do the act which resulted in the death of her daughter. It was held that the defence of diminished responsibility under s 304A of the Criminal Code was established. That had the effect of reducing the original charge of murder to manslaughter. That finding was not challenged; the right of appeal available under s 334 of the Mental Health Act was not exercised by the Crown. The facts of the matter, which are inherently abhorrent and have the potential to generate strong emotions because the killing of a child is involved, have to be viewed in the light of that finding.

Further, the level of sentence imposed has to be viewed in light of the Crown’s acceptance that a plea of guilty of manslaughter on the ground of diminished responsibility was the appropriate resolution of the matter. On the state of the evidence before the Mental Health Court, that was a realistic course to take (Re AMP [2007] QMHC 22). If the case falls into a category where there is no discernible need to protect the public from repetition of similar conduct, a finding of diminished responsibility reduces the moral culpability of the offender and is therefore a mitigating factor in sentencing.

The Facts

The respondent was the mother of the victim, a five year old female child, S, who remained in her care after her marriage to the child’s father had ended. She then commenced a new relationship in approximately 2003 and a son of that relationship, J, was born that year. In 2005, the respondent again became pregnant to her new husband. However, in mid-2005, S made a complaint of sexual interference to the respondent by her husband. The respondent took S to a doctor for medical examination and as a consequence of the medical findings, her husband was charged with rape. The bail conditions required him to leave the family home. Within a short time, the respondent terminated her pregnancy. After staying with her parents for a short time, the respondent, S and J moved to the premises where the offence occurred.

S had some developmental problems and was prone to tantrums. On 18 September 2005, J was put down to sleep by the respondent after she and the two children had returned from shopping. She then told S that she wanted to play a game with her. She then stuck masking tape around S’s mouth while she was lying down on a bed. The girl could still breathe through her nose. The respondent then put a pillow over the child’s face, put her hands and knees on the pillow so that it could not be moved and remained in that position for an estimated 20 minutes until the child was dead from asphyxiation.

Shortly afterwards she phoned her husband and told him that he needed to come around and pick J up as she had done something. When he responded: “I love you” she replied:

“I don’t think you will after you see what I’ve done. Hurry up. Come and get J.”

Her husband then arrived and saw the deceased child lying with a pillow over her face and with tape around her mouth. The respondent said:

“I’ve had enough of S not doing as she was told”.

She then gave an account to him of what had happened. She told him that she was going to ring the police but told him to take J and also to take certain goods from the house. There was some contact with his family and a number of cars arrived and goods were taken from the house. It is not clear from the record that any relevant evidence was removed; at least some items were J’s belongings. After they left, the authorities were called.

At about 2.30 pm the ambulance arrived. The deceased child was found in the bedroom. The respondent said:

“I wrapped the tape around her. I did it around 11.30 am.”

She also said:

“She just won’t do what I tell her. She keeps doing the wrong thing and being naughty.”

She then made comments to the effect that she considered that the child’s grandparents (her own parents) were spoiling her, in contrast to never caring for or helping her. She also complained that after the child came home from her grandparents, she had to deal with her spoilt behaviour. Whatever the accuracy of those perceptions, they must be taken to be what the respondent subjectively believed.

The police arrived shortly after the ambulance. When the respondent was questioned by the police, she repeated the story of how the offence had occurred and admitted that she knew that her conduct was the cause of S’s death and that she would die as a result of what she was doing. She was asked:

“Is that what you wanted?”

She replied:

“I don’t know what I wanted, I just – I was sick of ‘I want, I want, I want’. That child demanding everything and not doing as she is told.”

Later she was asked whether she pulled out of the course of action at any time or tried to help the child. She replied “ No.” She was asked why she did not do so, to which she replied:

“Because I wanted peace.”

She was then asked:

“Did you think that the only way you could get peace was if she died?”

She replied: “Yes”.

The sentencing judge was told that, throughout the interview, the respondent continually indicated that she thought that S was a particularly naughty child, that she was not as advanced socially and intellectually for her age and that while her behaviour was no worse than normal on this occasion, the respondent just snapped. She said that she had thought of harming the child the day before. She talked about being depressed all day and crying on and off. She said that she went in the bedroom, looked at her, and thought:

“I can’t do it.”

She said that she thought the idea had passed. However, it obviously had not, and the offence was committed the following day.

The Sentencing Proceedings

In the sentencing proceedings, the Crown prosecutor conceded that there was no case in the schedules of manslaughter sentences produced to the court that was directly on point. However, he submitted that they supported a range of "around the eight to 10 years mark", with this matter being at the highest end of the range. Counsel then appearing for the respondent submitted that a sentence of six to seven years was appropriate.

During those proceedings, the Crown prosecutor observed that cases in which mothers had killed children and diminished responsibility rather than insanity was a factor were uncommon. The approach therefore had to be to fix a sentence guided not so much by comparable sentences, but by general principle. This reflects the statement often made (e.g. in R v Auberson; ex parte A-G (Qld) [1996] QCA 321) that the circumstances of manslaughter offences vary so much that it is difficult to identify a sentencing pattern. With more particularity for present purposes, in R v Ross [1996] QCA 411, the variety of circumstances in which cases of manslaughter of young children arise was itemised in the following way:

“Cases involving the unlawful killing of a young child range through circumstances from killing in the course of systematic gratuitous abuse, (usually by a defacto), killing because of accumulated frustrations or a single occasion of frustration, to killing by a mother who is mentally disturbed as an aftermath of the birth.”

To that may be added the category of case into which the present one falls.

Ross appears to be a case where a plea of guilty was accepted on the basis that there was no intent to kill or to do grievous bodily harm when the mother suffocated the child. The circumstances of the killing were described as follows:

“… the applicant could not get the child to sleep. After what appeared to have been extended endeavours to settle him down the applicant wrapped the child tightly in a bunny rug to confine his movements and held his face down into a pillow for what may be accepted as an appreciable time, so suffocating him.”

The accused there was sentenced to six years imprisonment with a non-parole period of 18 months. There was, it appears, no major depression or significant post-partum depression, but there was psychological evidence that the applicant suffered from an adjustment disorder with mixed disturbance of emotion and conduct as a consequence of the birth of the child and of the circumstances in which she found herself. The reasons describe a complex web of personal issues in that regard. The sentencing judge dealt with the applicant on the basis that one psychiatrist's report diminished the extent of the applicant's responsibility to a substantial degree but did not provide total justification by any means.

The main thrust of the Crown prosecutor's submissions below was that, once an appropriate head sentence had been imposed, there should be no further mitigation. The plea of guilty was almost inevitable once the finding of diminished responsibility was made and having regard to the extent of the admissions. Having the charge down-graded from murder to manslaughter was mitigation of itself. To reduce the charge and to further mitigate the penalty would give the respondent a double credit. The case was different from spousal slayings which involved two adults. This case was aggravated because the child who was the victim trusted her mother and was especially vulnerable because of the complaint of sexual abuse that she had made. This trust had been betrayed because the appellant lured the child into a position where she could suffocate her with the least resistance. There was an element of premeditation because the respondent admitted to having similar thoughts the previous evening but not going through with them.

The submissions of defence counsel below were, in summary, that it was accepted that it was difficult to understand how a mother could kill her child. However, the respondent was suffering from a major depressive episode, contributed to by the variety of stresses operating on her at the time. This diminished her capacity to know that she ought not to do the acts that resulted in the child's death. He also contested the prosecutor's submission that no benefit should be given for the guilty plea on the ground that the plea of guilty was almost certain and reduction of the charge from murder to manslaughter was sufficient mitigation in itself. He also submitted that there was evidence in the 000 phone call made by the respondent, and elsewhere, that she was remorseful.

In her sentencing reasons, the learned sentencing judge referred to the fact that although the respondent had intended to kill S, the charge of murder had, in effect, been replaced by the charge of manslaughter. This was because of the finding of the Mental Health Court, supported by overwhelming psychiatric evidence, that at the time of the killing her major depressive episode qualified as an abnormality of the mind that substantially impaired her capacity to know that she ought not to do the acts that resulted in S's death. She referred to the factors that contributed to her condition. She said that the sentence must reflect the criminality associated with the offence of manslaughter. In doing so, it was necessary to take into account her personal circumstances and that she was affected by a major depressive disorder that was aggravated by other circumstances at the time of offending. She said that she considered that the range of sentence that was appropriate to the offending was in the vicinity of eight years. She said that such a sentence recognised the seriousness of the act committed and the fact that a defenceless child was killed by the respondent’s own hands. With respect to the date for eligibility for parole, she said that three years recognised her personal circumstances and gave allowance for the fact that she continued to suffer from the major depressive disorder.

The Appeal

In support of the Crown's position that the gravity of the respondent's conduct warranted a sentence of ten years imprisonment, counsel for the Attorney-General relied on the nature and duration of the conduct that led to the child's death. He submitted that there was some deliberation in her actions. Her behaviour in having items removed from the house before the police were called was not consistent with contrition. He submitted that cases of immature mothers killing new-born or young infants in a sudden temper were not comparable because the respondent was an experienced mother. He repeated what had been said by the Crown prosecutor at sentence about the premeditation and special vulnerability of the child.

Counsel for the Attorney-General conceded that there was a dearth of authority in relation to sentencing offenders who killed infants in circumstances where diminished responsibility reduced the offence from murder to manslaughter. His position was not that the Court was being asked to consider a higher range of sentence for manslaughter offences generally, but that the sentence imposed was inadequate by reference to existing authority. He referred to R v Beacham (2006) 163 A Crim R 348; [2006] QCA 268, R v Milini [2001] QCA 424 and R v Schubring; ex parte A-G (Qld) [2005] 1 Qd R 515; [2004] QCA 418, not because they were factually similar but because they were appellate decisions in which evidence that the offenders were of diminished responsibility had some bearing.

Beacham, in which a 12 year sentence of imprisonment was substituted in lieu of 13 years originally imposed, has no resemblance to the present case. It was a planned and particularly violent vigilante-style attack on a person who Beacham had convinced himself had not only sold him contaminated drugs but was a paedophile too. While the offender was held to be of diminished responsibility at the time of the attack, it was a case where, because of the psychiatric evidence, it was necessary to consider whether future protection of society was a relevant factor in sentencing him. The reduction in sentence was made on the ground that the psychiatric evidence did not support the trial judge’s conclusion that the offender would present a future threat of a greater kind than other like offenders.

The principle under consideration in Beacham is succinctly stated by Jerrard JA in para [50] of the judgment, in the following way:

“Consistent with the approach adopted by the High Court in Veen v R [No. 2] and the Court of Appeal in R v Neumann; ex parte A-G (Qld) it was necessary for his Honour to make an assessment not only of how mental impairment affected the level of the applicant’s criminality but also ‘how any impairment should affect the sentencing process.’ In Veen [No. 2] the majority decision includes the following passage:-

‘It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible.’

Referring to the decision in Veen [No. 1] the judgment continues:-

‘But all justices other than Murphy J accepted that, in a case where a verdict of manslaughter is returned on the ground of diminished responsibility, the risk that the offender’s mental abnormality may lead him to kill again is a material factor in determining the sentence to be imposed.’

There is nothing of significance in the evidence in the present case that suggests that similar considerations apply to the respondent. It was conceded by the Attorney-General’s counsel that there was no real prospect of the respondent having unsupervised access to the other child, J.

In R v Milini, the offence of manslaughter was founded on criminal negligence with the result that s 304A had no relevance. The condition that resulted in the finding of diminished responsibility by the Mental Health Tribunal was held to ameliorate the criminal negligence. The original sentence of seven years was reduced to five years suspended after two years. The facts of that case, which were described as “very special”, are quite remote from the present one.

R v Schubring is also of limited value. The court divided on the issue of whether the verdict should be regarded as one based on a failure on the part of the prosecution to exclude provocation as a factor reducing murder to manslaughter or as one based on a finding of diminished responsibility, or perhaps a combination of both. The possibility of lack of intent to kill or do grievous bodily harm was also before the jury which was considering a primary charge of murder. The facts of the matter were that there had been an acrimonious ongoing domestic argument over some hours which culminated in the victim saying that she was leaving the offender. He violently assaulted her and then garrotted her with a dog leash. The majority, who did not treat the verdict as one necessarily based on diminished responsibility, allowed the Attorney-General's appeal against a seven and a half year sentence with a serious violent offence declaration and imposed ten years imprisonment. Williams JA, who treated the verdict as based on diminished responsibility, would not have disturbed the trial judge's sentence. In that case, unlike the present, the criteria for a serious violent offence declaration were well established (R v DeSalvo (2002) 127 A Crim R 229; [2002] QCA 63; R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365).

Reference was made to a large number of authorities both at first instance and in this Court in relation to the issue of appropriateness of the sentence in this case. Some are less relevant than others. It is convenient to dispose of them first. R v Cole (unreported, Mullins J, SC No 611 of 1999, 28 June 2001) was a sentence imposed at first instance after a trial for murder in which the defences of provocation and diminished responsibility were left to the jury. The sentencing judge was unable to conclude that the jury had rejected the defence of provocation. The offence was the culmination of a very strained relationship between neighbours, involving abuse and harassment to which, the learned sentencing judge considered, the appellant, the victim and their respective associates had all contributed. A sentence of eight years imprisonment was imposed. No early recommendation for parole was made, as might be expected since the matter went to trial.

R v Dol (unreported, White J, SC No 379 of 2001, 1 April 2004) was a first instance sentence of nine years without a serious violent offence declaration, imposed after a trial in which the accused was found guilty of manslaughter on the ground of diminished responsibility. The victim in whose home the offender was living was a man involved in litigation about which he commonly spoke to the accused at great length. On one such occasion, the applicant inflicted a fatal stab wound on the victim, leaving him to die by bleeding to death over a period of perhaps an hour without seeking help. Once again, no non-parole period was fixed.

R v Goeldner (unreported, Douglas J, SC No 465 of 2002, 20 September 2004) was a plea of guilty to manslaughter on the ground of diminished responsibility. The offence occurred in the context of the victim playing music or turning up his television loudly in a nearby unit which annoyed the offender. A knife was used to stab the victim in the throat several times. The sentencing judge imposed a term of eight years imprisonment without any recommendation for parole since he said he had taken into account his plea of guilty in fixing the head sentence.

R v Hewitt (unreported, Holmes J, SC No 272 of 2005, 20 May 2005) was a sentence imposed at first instance on a plea of guilty to manslaughter on the basis of diminished responsibility. The offender had, about midnight, broken into the home of his former lover and killed a man who was with her by punching and kicking him. He was sentenced to nine years imprisonment, taking into account the plea of guilty. The sentencing remarks also refer to the possibility that the offender might serve the full period if he had not at some stage achieved a mental status which allowed confidence as to his release.

The next group of cases involves spousal killings and diminished responsibility. R v Goodfellow (unreported, Fryberg J, SC No 219 of 2004, 15 October 2004) is a first instance sentence where the offender pleaded guilty to manslaughter. The offender hit his wife in the head three times with a pick handle from behind. The reason for doing this was unclear because there was no outward evidence of disharmony in the relationship. A sentence of seven and a half years imprisonment with a serious violent offence declaration was imposed.

R v Lock (unreported, Mullins J, SC No 479 of 1997, 10 September 2001) was a plea of guilty on the ground of diminished responsibility at the commencement of the third trial of the matter. The sentencing judge imposed eight years imprisonment and made no recommendation for early release. A factor in adopting this course was that the offender had been in custody for over four years by that time and issues of the desirability of rehabilitation procedures ordinarily undertaken in prison being completed before he was released into the community seem to have been a factor in the form of the order.

R v Ward (indictment No 74 of 1999; 8 December 2000) was a plea of guilty on the ground of diminished responsibility. The offender and his wife had separated. She had come back to the matrimonial home, apparently by arrangement, where he fatally stabbed her and then attempted to commit suicide. The sentencing judge commented particularly on the degree of deliberation apparent in letters written prior to the offence which showed an intent to do what he ultimately did. A sentence of nine years imprisonment with no recommendation for early release was imposed.

R v Hill (unreported, Atkinson J, 5 September 2001) was a matter that went to trial for murder. The verdict of manslaughter reflected a finding of diminished responsibility. The offender was estranged from her husband. She stabbed him as he lay asleep in bed. There were said to be elements of revenge and possible financial advantage in the killing. She was sentenced to eight years imprisonment without any early recommendation for parole, in accordance with the usual practice where the matter had gone to trial.

The next group of offences are unlawful killings of babies and children where the offender was not suffering from diminished responsibility. The cases of R v Mills [1986] 1 Qd R 77 where Mills was sentenced to 10 years imprisonment after trial and R v Chard; ex parte A-G (Qld) [2004] QCA 372, where seven years imprisonment cumulative on a partially activated suspended sentence requiring him to serve one year for unrelated offences was imposed following a plea of guilty, are ones where there was evidence of abuse on occasions other than the fatal one. In Chard, a range of eight to 10 years was referred to by Williams JA. The sentence actually imposed reflected the appellant’s overall criminality. No recommendation for early parole was made.

The cases of R v Hall; ex parte A-G (Qld) [2002] QCA 125, R v Walsh (unreported, Court of Criminal Appeal, Qld, CA No 85 of 1986, 12 June 1986) and R v Irvine [1997] QCA 138 are instances of baby shaking although Walsh was also aggravated by other physical assaults in addition to the shaking. Irvine was considered to be the least serious of the three. The offender had realised immediately that his conduct had harmed the child and urgently sought medical assistance, as well as having other matters in his favour. The Attorney-General’s appeal against the sentence of five years imprisonment with a recommendation for parole after nine months was dismissed, although it was thought to be at the bottom end of or below the range in fixing a head sentence.

Hall was regarded as a more serious case. On the Attorney-General’s appeal, a sentence of four years imprisonment was set aside and a sentence of six years imprisonment imposed instead. He had a previous conviction for a serious assault on a young child. It was said that, given the circumstances of the offence and his criminal history, a sentence in the range of eight to nine years would ordinarily be called for. However, it had to be discounted for the plea of guilty and other mitigating circumstances including a low level of intelligence. It was considered that taking those factors into account, a sentence of six years imprisonment without any order for early release was appropriate. In the course of discussion Williams JA referred to R v Walsh (unreported, Court of Criminal Appeal, Qld, CA No 85 of 1986, 12 June 1986) and R v Ross, of which mention has been made previously. R v Walsh was a case in which the offender lost control of himself when bathing an 18 month old infant whom he could not stop crying and shook her in a way that caused her head to hit a door. Severe injuries were caused. A sentence of nine years imprisonment was upheld in the Court of Criminal Appeal, but it was observed that the sentence was at the upper end of the range.

R v Green & Haliday; ex parte A-G (Qld) [2003] QCA 259 involved an appeal both by the offenders and the Attorney-General against a sentence of six years imprisonment. There was a plea of guilty. The basis of sentencing appeared to be that it was a case where there had been no intent to kill the baby on the part of inexperienced parents who were not coping with their circumstances. No order for release prior to half of the sentence had been made by the sentencing judge, who reduced a nominal head sentence of seven years to six years, to allow for the plea of guilty. The Crown had sought a sentence at the top of a proposed range of five to ten years, with a serious violent offence order. The case was described by de Jersey CJ as a “uniquely awful case” (as this case is in its own way). The death had been caused by the use of a method of restraining an 18 month old child so she would sleep which, combined with pneumonia from which she was suffering, caused her to asphyxiate. The method of restraint was described as “cruel and deliberate” and having been carried out “with full awareness of the distress” of the infant over a period of a few weeks prior to her death. Although Haliday appears not to have pleaded guilty on the grounds of diminished responsibility, Davies JA noted that, at the time of the commission of the offence, she had a post traumatic stress disorder, a major depressive illness with psychotic features, a borderline personality disorder and a depressive personality disorder. He said that the interactive impact of those disorders and other factors significantly impaired her ability to make decisions concerning the child who died. Both appeals were dismissed.

Ross, which is analysed in paragraphs [22] and [23] above is perhaps the case with the most factual similarities to the present case. However, this case, overall, is worse; and the appellant here had to be sentenced on a more serious basis, that she intended to kill but had a substantial deprivation of the capacity to know that she should not do the acts that caused the child’s death. For this reason, appropriate recognition of the reduced level of culpability that a finding of diminished responsibility necessarily implies had to be given. In the absence of evidence that the cause of diminution of responsibility is of a kind that carries with it a significant future risk to the public, a sentence will ordinarily be imposed that recognises the reduction of culpability due to the offender’s reduced mental functioning at the time of the offence. In that sense, a finding of diminished responsibility has a mitigating effect.

Conclusions

Two things can be seen from the analysis of the authorities. The first is that none of the cases are closely similar to this case. However, those which bear some resemblance factually to it do not support a conclusion that a head sentence of eight years imprisonment is beyond a sound exercise of the sentencing discretion. The second is that it is not uncommon for sentencing judges to recognise, in cases where a condition that led to a finding of diminished responsibility is likely to be an enduring one, that release from custody will depend on the course of the illness and of rehabilitation while the offender is in custody. Often, the cases show that allowances are made for mitigating factors in fixing the head sentence rather than in fixing an early date for release on parole. However, there is nothing that mandates that approach. Provided an appropriate head sentence is imposed and there are mitigating circumstances to be allowed for, it is not contrary to principle to make a recommendation for release on parole at a point earlier than half the sentence. But the approach of imposing a head sentence, reduced to allow for mitigating circumstances, with no early recommendation does highlight that a recommendation for release on parole at a particular date does not mean that the offender is necessarily released at that time. In cases of the kind of which the present case is one, the progress of the offender’s illness and rehabilitation will be a major factor in deciding, within the corrections system, the actual date of release.

However, it is not correct in principle to ignore ordinary mainstream mitigating factors which still have to be properly allowed for as well, either by reducing the head sentence, or making a recommendation at less than half the sentence. If the submission made before the sentencing judge, and here, is that imposing a head sentence that recognises the mitigating effect of diminished responsibility is sufficient allowance for all mitigating factors, and that fixing a release eligibility date that is less than half of the sentence on the basis of other mitigating factors involves “double dipping”, I do not agree that the submission is correct. With regard to the recommendation of eligibility for parole actually made, a 25 per cent allowance for the mitigating circumstances which would ordinarily be taken into account by making a recommendation, in a case where there has been a plea of guilty and there are other personal circumstances to be taken into account, is unremarkable. It is, indeed, less than is sometimes allowed.

It is apparent, in my view, from the learned sentencing judge’s sentencing remarks that she differentiated between personal circumstances on the one hand and the fact that the appellant was affected by a major depressive disorder at the relevant time, on the other. She proceeded to fix the head sentence taking into account that the latter had resulted in the respondent suffering from diminished responsibility and then, in fixing a date for eligibility for parole, took into account the other personal circumstances, including, by inference, that her time in prison would be more onerous because she continued to suffer from the major depressive disorder. That approach is not beyond a proper exercise of the sentencing discretion.

With regard to the suggestion that the description of the psychiatric evidence before the Mental Health Court as “overwhelming” involved error or, at least, overstatement, in my view, the statement was only intended to convey that, according to the judge constituting the Mental Health Court, who was uniquely placed to form a view about the matter because she had seen and heard the witnesses, the preponderance of evidence from very experienced psychiatrists was that there was a substantial impairment of the relevant capacity. The description of the evidence before theMental Health Court given by the sentencing judge does not in my view involve any error that might have affected the sentencing process.

When the sentence imposed is viewed in the context of the decisions of this Court and the sentences imposed at first instance to which reference has been made above, the overall sentence imposed in this case does not immediately suggest that it is outside the range of a proper exercise of the sentencing discretion. In Green & Haliday, the moderation traditionally exercised in dealing with Attorney-General’s appeals, which is a well established principle, is referred to by de Jersey CJ. In Auberson, Fitzgerald P and de Jersey J (as he then was) also said the following:

“...it has been noted on a number of occasions that the circumstances of manslaughter offences vary so much that it is difficult to identify a sentencing pattern. Such a consideration emphasises the importance of an appellate court not interfering with a trial judge’s sentencing discretion except where such a course is plainly warranted because the sentence is outside the sound exercise of the sentencing judge’s discretion. Consistently with the approach taken by this Court in relation to appeals by the Attorney-General, we do not think that the level of the present sentence is sufficient to justify this Court’s interference.”

The remarks just quoted were repeated in Ross.

In my view, following the analysis of authority above, it has not been established that the sentence imposed was manifestly inadequate or inappropriate having regard to all of the circumstances of the case. I would dismiss the appeal against sentence.

CHESTERMAN J: The Attorney-General appeals pursuant to s 669A(1) of the Criminal Code against the sentence imposed on the respondent on 13 December 2007. On that day Potter pleaded guilty to one count of manslaughter and was sentenced to eight years’ imprisonment with an order that she be eligible for parole on 18 September 2008. 815 days spent in pre-sentence custody was declared, pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld), to be time already served under the sentence. The effect of the orders was that the respondent could become eligible for parole after having served three years of her eight year sentence.

The respondent was initially charged with the murder of her five year old daughter, Stephanie Brummer, on 18 September 2005. The question of the respondent’s mental condition at the time of the offence was referred to the Mental Health Court which determined on 1 October 2007 that at the time of the homicide the respondent ‘was of diminished responsibility’ so that the charge against her continued as one for manslaughter only.

In giving judgment the Mental Health Court said:

“... The [respondent] was suffering from a major depressive disorder. It occurred in the context of a vulnerable personality and significant psychosocial stressors, which escalated with the allegations of the sexual interference by the [respondent’s] husband and which led to the [respondent’s] immediate separation from the husband and the termination of a planned pregnancy. ... The major depression suffered by the [respondent] in the context of her personality disorder brought about a substantial reduction of the [respondent’s] capacity to know that she ought not to do the act resulting in the death of her daughter. Section 304A of the ... Code has the effect in those circumstances of reducing the charge of murder to one of manslaughter.”

Section 304A provides:

“When a person who unlawfully kills another under circumstances which, but for ... this section, would constitute murder, is at the time of doing the act ... which causes death in such a state of abnormality of mind (whether arising from a condition of arrested or retarded development of mind or inherent causes or induced by disease or injury) as substantially to impair the person’s capacity to understand what the person is doing, or the person’s capacity to control the person’s actions, or the person’s capacity to know that the person ought not to do the act ... the person is guilty of manslaughter only.”

The respondent’s child, Stephanie, was born to her second husband. When that marriage ended the child remained with her mother, the respondent, who married one David Potter in 2003. That marriage, the respondent’s third, produced a son, J, born in the same year, 2003. The respondent was pregnant with a second child in 2005 when she and Potter separated in the middle of that year. The separation came about because the child Stephanie complained that her stepfather had molested her. A medical examination appeared to corroborate the complaint and Potter was charged with rape. He was granted bail, a condition of which was that he live away from the family home.

The respondent and her two young children also left the home, going first to live with her parents with whom the respondent did not get on, and then to a Housing Commission house at Eagleby a few weeks before the homicide on 18 September 2005. At about the same time the respondent terminated her pregnancy.

The deceased child was difficult to manage. She developed more slowly than is normal and was prone to tantrums. At least one psychiatrist thought that her problems were due, wholly or in part, to the sexual abuse to which she had been subjected.

On 18 September 2005, after the respondent and her children returned from shopping, the two year old boy was put to bed. Pretending she was playing a game, the respondent tied masking tape around Stephanie’s mouth and got her to lie on her bed. The girl could still breathe through her nose. The respondent put a pillow over the child’s head, and kept it in place by her weight, her hands and knees on the pillow to prevent the child breathing. She stayed in that position for some 20 minutes smothering the child until she was dead.

Shortly afterwards, the respondent telephoned David Potter and told him that he “needed to come and pick up [his son] as she had done something”. She gave him the address of 31 Que Street, Eagleby. David Potter said: “I love you.” She replied “I don’t think you will after you see what I’ve done. Hurry up. Come and get [the boy].”

He arrived and saw the deceased child, Stephanie, lying with a pillow over her face. The tape around her mouth was crinkled in parts. The respondent said: “I’ve had enough of Stephanie not doing as she was told.” She then described what she had done. The respondent told her husband that she was going to ring the police but first she wanted him to take his son and some items of property from the house. There was some contact with his family; a number of motor vehicles arrived. After they left, the police were called.

At approximately 2.30 pm, ambulance and police officers arrived. The child was found dead in a bedroom. The respondent said: “I wrapped the tape around her. I did it around 11.30 am” and “... She just won’t do what I tell her. She keeps doing the wrong thing and being naughty. Her grandparents gave her a DVD and TV and they never gave me anything. Never cared for and never helped me.”

The respondent was asked: “Do you believe that your actions with the tape and the pillow was the cause of Stephanie dying?” Her answer was: “Yes.” Police then asked: “So being on all fours, her on the bed and you with the pillow over her face, what did you think was going to happen as a result of doing that? What did you think would happen to Stephanie?” her answer was: “She would die.”

The respondent was later asked: “Is that what you wanted?” Her answer was: “I don’t know what I wanted, I just – I was sick of: ‘I want. I want. I want’. That child demanding everything and not doing as she’s told.” Later on the police asked her: “Did you at any point pull out of those actions and try and help her?” She answered: “No.” The police, “Do you – no, why didn’t you?” Her answer was: “Because I wanted peace.” The police asked: “Did you think that the only way you could get peace was if she died?” And she gave an unintelligible answer but the Police then asked: “Is that a yes or no?” Her answer was: “Yes”.

In answer to a further question: “Have you thought of harming Stephanie before today?” She answered: “Yes.” They asked: “How long ago?” She said, “Yesterday.” The respondent talked about being depressed all that day, crying on and off. She looked at the child and thought: “I can’t do it.” When she woke up she thought the desire had passed but obviously it had not. The respondent expressed remorse for her actions.

In passing sentence the learned judge said, having rehearsed the salient facts:

“You intended to kill Stephanie ... and the charge of murder has ... been replaced by the charge of manslaughter, because of the finding of the Mental Health Court supported by overwhelming psychiatric evidence that at the time of the killing your major depressive episode qualified as an abnormality of ... mind that substantially impaired your capacity to know that you ought not to do the act that resulted in your daughter’s death.

...

At the time of the separation you were ... pregnant ... . You were living in a new and isolated environment without a support network and with the perception of having no emotional support from your family and you were finding it difficult to manage the behaviour of Stephanie.

That is why you pleaded guilty to the offence of manslaughter. You acknowledged that you killed your daughter, but the Crown has to proceed on the basis that you were suffering from diminished responsibility. You are still liable, therefore, for the unlawful killing but you are not liable to be sentenced on the basis of the intent to kill because that has been ameliorated by the fact that you were suffering from ... mental illness at the time of the killing.”

Her Honour then went on to note that counsel for the Crown and the respondent had “differing views” about the range of appropriate sentence but indicated that the range “is in the vicinity of eight years.”

It is appropriate to make two comments. The evidence before the Mental Health Court that the respondent was suffering an abnormality of mind which substantially impaired her capacity to know that it was wrong to kill her five year old daughter was not “overwhelming”. Three psychiatrists gave evidence. Two favoured such a finding but one did not. The Court accepted the majority opinion for reasons which were published and which have not been criticised nor appealed. Nevertheless it is not right to call the evidence in support of it “overwhelming”.

The second comment concerns the conundrum posed by her Honour’s remarks that the respondent was not “to be sentenced on the basis of the intent to kill ...”. The respondent was to be sentenced on that basis though because of the established abnormality of mind the charge she faced was manslaughter, not murder. It is not entirely clear what her Honour meant by the remark. She had earlier correctly noted that the respondent had intentionally killed her daughter. It remains a possibility that her Honour misunderstood the basis on which the sentencing discretion had to be approached.

Her Honour also remarked:

“... You were suffering ... a major depressive disorder in the context of a vulnerable personality and significant psycho-social stressors which escalated with the allegations of the sexual interference by your husband that has led to your separation ... and termination of a planned pregnancy ... . You were living in a new and isolated environment without a support network and with ... no emotional support from your family and you were finding it difficult to manage the behaviour of Stephanie.

...

... Counsel have ... differing views about the range of sentence. ... On the one hand I have to ensure that the sentence I impose reflects the criminality that is associated with the offence of manslaughter. On the other hand I must ensure that I take into account your personal circumstances and that you were affected by a major depressive disorder ... aggravated by other circumstances ... . ... I think a sentence of eight years recognises the seriousness of the ... fact that your defenceless child was killed by your own hands. I am proposing to mitigate that sentence by recommending that you be eligible for parole after a period of three years ... (which) recognises your personal circumstances ... you continue to suffer from the major depressive disorder.”

The Attorney-General submits that the sentence of eight years’ imprisonment mitigated with an early eligibility for parole is manifestly inadequate. Two points were pressed: the first was that the sentence fails to reflect the gravity of the homicide and the respondent’s criminal misconduct. The second is that the learned judge gave excessive weight to factors personal to the respondent as going in mitigation of the sentence.

Manslaughter, as has been noted in several cases, is an offence the circumstances of which can vary so much that it is difficult, if not impossible, to generalise as to sentence. Cases of manslaughter where the killing has been intentional, but the offender had diminished responsibility by reason of a substantially impaired capacity to know that it was wrong to kill, are a particular class and sentences imposed for manslaughter in other circumstances are of no real assistance in determining what is the appropriate range of penalty for this type of case.

It has been noted in many cases (R v Dunn [1994] QCA 147; The Queen v Kiltie (1974) 9 SASR 453; R v Elliott [2000] QCA 267 at para 11; R v Neumann; ex parte A-G (Qld) [2007] 1 Qd R 53; [2005] QCA 362) that abnormality of mind and/or diminished responsibility operate on sentences as substantial mitigating factors because the mental impairment diminishes the moral culpability of the offender, and because it is not generally appropriate to impose a sentence on such offenders to reflect the need for general deterrence, they being inappropriate “mediums for making an example of to others”.

The operation of s 304A of the Code on an offender who has deliberately killed another so as to reduce a charge from murder, with its mandatory penalty of life imprisonment, to one of manslaughter for which substantially lesser penalties can be, and usually are imposed is itself a substantial mitigation. The offender has the benefit of the lesser discretionary sentencing regime by reason of diminished responsibility.

In R v Blacklidge (unreported, NSW Court of Criminal Appeal, No 60510 of 1995, 12 December 1995) Gleeson CJ said:

“It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability.

At the same time, the courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of a human life. That is a starting point for a consideration of the appropriate penalty, and a key element in the assessment of the gravity of the objective circumstances of the case. ...

When the basis of a finding of manslaughter is diminished responsibility ... what is nevertheless ordinarily involved ... is a conclusion that the taking of human life was the consequence of a deliberate and willed act, performed with intent to kill ... The abnormality of mind substantially impairs the offender’s mental responsibility for ... her act but it does not negate such responsibility. The reduction in the capacity for self-control which results from the abnormality of mind diminishes the responsibility, but it does not excuse the act.”

His Honour then reviewed cases in which terms of 12 years’ imprisonment had been imposed, and went on:

“... The sentences ... imposed proceeded upon a clear recognition that, notwithstanding the diminished responsibility, it was necessary to impose a sentence which reflected the objective seriousness of the case and, in particular, the circumstance of what was involved was the felonious taking of human life with intent to kill or cause grievous bodily harm.”

We were referred to nine cases in which offenders were convicted of manslaughter on the ground of diminished responsibility. The cases (chronologically) are R v Ward (unreported, Mullins J, SC No 74 of 1999, 8 December 2000); R v Cole (unreported, Mullins J, SC No 611 of 1999, 28 June 2001); R v Hill (unreported, Atkinson J, 5 September 2001); R v Lock (unreported, Mullins J, SC No 479 of 1997,8 May 1997); R v Dol (unreported, White J, SC No 379 of 2001, 1 April 2004); R v Goeldner (unreported, Douglas J, SC No 465 of 2002, 20 September 2004); R v Goodfellow (unreported, Fryberg J, SC No 219 of 2004, 15 October 2004); R v Hewitt (unreported, Holmes J, SC No 272 of 2005, 20 May 2005) and R v Beacham (2006) 163 A Crim R 348; [2006] QCA 268.

Ward, Hill, Goeldner, Hewitt and Beacham were cases of manslaughter prosecuted subsequently to a determination by the Mental Health Tribunal (or Court as it became) that each accused was suffering from diminished responsibility. The others went to trial.

Ward stabbed his wife to death and then made a substantial attempt to kill himself. The marriage had turned sour; the wife had found a lover and Ward was deeply depressed and in despair. He was sentenced to nine years’ gaol.

Cole shot his neighbour with a high-powered rifle after a series of abusive and violent disputes between the two households. He believed himself and his family to be threatened by the deceased and his wife. He suffered from an adjustment disorder with anxiety and depression. His IQ fell just within normal range. He defended a charge of murder and was convicted of manslaughter. The trial judge noted that the jury’s verdict might be explicable on the ground of diminished responsibility or by a failure to prove an intent to kill or cause grievous bodily harm. Given that Cole shot his neighbour at close range with a large calibre rifle, the second basis is unlikely. He was imprisoned for eight years.

Lock bludgeoned his wife to death with a hammer, believing it was his only means of preventing her discovering what was in reality a minor financial peccadillo. He suffered from an obsessive compulsive disorder together with an adjustment disorder. After two inconclusive trials on a charge of murder the Crown accepted his plea of guilty to manslaughter on the ground of diminished responsibility. He was gaoled for eight years.

Hill killed her husband with a blunt instrument. Her marriage had failed though that result seems largely to have been her own fault. Her husband attempted to evict her from the home. She could not face the emotional and financial loss of her husband and killed him. She was severely depressed. She attempted to take her own life but was rescued. The sentence in her case was also eight years.

Dol went to trial on a charge of murder but the jury returned a verdict of manslaughter on the ground of diminished responsibility. Extensive psychiatric evidence was led at the trial to establish the defence. Dol suffered from a major depressive disorder that rendered him incapable of work. He killed an acquaintance who had sought his assistance in the conduct of litigation with which he had become obsessed. His obsessive demands on Dol’s attention was more than he could bear and he attacked the other man, cutting his left wrist and stabbing him in the back. He had earlier gagged him with a tea towel, and induced him to swallow a number of sleeping tablets ground and dissolved in coffee. Dol attempted to conceal his involvement and about a year passed before he was suspected, interviewed and confessed. He was sentenced to nine years’ imprisonment. That penalty seems to follow a consensus between counsel for Dol and the prosecution that that was the appropriate sentence. The learned judge was referred to two other cases in the same class about which we were not addressed.

One was R v De Voss [1995] QCA 518 about which it was said:

“A jury returned a verdict of murder but on appeal in the face of uncontradicted and strong psychiatric evidence the Court of Appeal substituted a verdict of diminished responsibility and imposed a sentence of nine years”.

The case was said to suggest “a range of eight to ten years’ imprisonment generally in respect of a verdict of manslaughter due to diminished responsibility.”

The other case was R v Ohlbrecht (unreported, CA No 110 of 1985) in which “an older man who had killed a person with whom he had had a relationship for a great many years” was sentenced to ten years’ imprisonment. The offence was deliberate and pre-planned.

Goeldner pleaded guilty to a charge of manslaughter following the determination of the Mental Health Court. He killed a neighbour who annoyed him by repeatedly playing loud music. The neighbour persistently refused to lessen the volume despite numerous complaints. Goeldner stabbed him three times in the neck with a kitchen knife. He initially sought to conceal his involvement but two days later confessed. Goeldner suffered a congenital physical deformity of the brain which arrested his psycho-social development lessening his intelligence and inhibiting his capacity to form adult relationships. He was sentenced to eight years’ imprisonment.

Goodfellow pleaded guilty to the manslaughter of his wife. The case went to trial on a charge of murder but the jury convicted of the lesser offence “based upon the evidence of diminished responsibility.” Goodfellow hit his wife on the back of the head three times with a pick handle. The offence was said to be completely out of character and inexplicable. He and his wife had been married for many years “without the slightest public indication of any ... disharmony ...”. He was sentenced to a term of seven years and six months’ imprisonment with a declaration that he had been convicted of a serious violent offence. The result was that Goodfellow would have to spend six years in prison before becoming eligible for parole. This equates to a sentence of 12 years’ imprisonment if one notionally ignores the declaration which would automatically follow such a sentence.

Hewitt killed the new man in the life of a woman with whom he had had a relationship. The woman ended it because of Hewitt’s violence. He did not take his rejection well, threatening to kill himself and attacking the woman in her home. That episode resulted in the making of a domestic violence order against him. He seems to have been severely disturbed psychiatrically but the Mental Health Court ruled only that his capacities for moral judgment and self control were substantially impaired. He broke into the house where his former companion and the other man were sleeping and threatened them with a knife. He then attacked the deceased while the woman fled for help. The deceased was punched and kicked to the head and died of brain injuries. He was sentenced to nine years’ imprisonment on the basis that it was “entirely possible ... that (he would) end up serving the full nine years ...”.

Beacham was a different case. He killed a minor drug dealer because he (mistakenly) believed he was a paedophile and because he believed that he had been sold contaminated cannabis. He went to the victim’s house with a co-accused for the avowed purpose of assaulting and robbing him. Beacham overpowered the victim who was a smaller man, bound him hand and foot, kicked him in the head and throat (though not severely) and left him lying face down. He died from asphyxiation. Beacham’s conduct was described as “thuggery and predatory”.

Beacham was charged with felony murder pursuant to s 302(1)(b) of the Criminal Code but the Mental Health Court determined that at the time he was in such a state of abnormality as to substantially impair his capacity to know that what he did was wrong. Accordingly he pleaded guilty to manslaughter on the ground of diminished responsibility. He was sentenced to 13 years’ gaol on the basis that his mental illness had deteriorated and he would constitute a danger to society on his release from prison. The Court of Appeal by majority held that the sentencing judge was not entitled to increase the penalty otherwise appropriate by reference to that risk. A term of imprisonment of 12 years was imposed instead.

Contrary to what was submitted in argument the reduced sentence in Beacham reflects only the gravity of the offence tempered by the offender’s mental abnormality. It does not reflect any additional component imposed for the protection of the community. The sentence was reduced to remove that component.

Another case to which we were referred, R v Milini [2001] QCA 424 is not relevant. It was dealt with on appeal, though not at first instance, on the basis that Milini, who pleaded guilty to manslaughter, was guilty on the basis of criminal negligence, not diminished responsibility reducing what would otherwise have been a case of murder to manslaughter.

To the extent that these cases delineate the range of appropriate penalty for this class of manslaughter they show the range to be between eight years and twelve years. A curiosity of them is that the eight cases in which the homicide was deliberate, where the killing was intentional, all resulted in a lesser penalty than the one in which the killing was a by-product of another criminal enterprise, robbery and assault. Other things being equal, one would expect intentional killing to be regarded as more serious.

Counsel for the Attorney-General submitted that:

“... The manner of the child’s death was barbarous. It took 20 minutes for her to die. The respondent sat astride her daughter to hold the pillow tight to affect the suffocation. The respondent intended to kill. The homicide was premeditated and any resistance was overcome by deception. The respondent’s behaviour after she killed the child, removing personal effects and arranging for her son to be taken by his father occupying some three or four hours before the police were called shows a degree of calculation and an absence of contrition. The child may have been difficult and demanding but the respondent was a mature woman and an experienced mother of three children.”

The submission should be accepted. The circumstances of this case are, I think, more serious than those of the others in which terms of eight and nine years’ imprisonment were imposed. Two factors make it so. The first is that it was a five year old child who was killed. The second is that the manner of her killing involved prolonged cruelty.

Ward, Hill, Hewitt and probably Goodfellow killed adults with whom they had been in a close relationship and who had rejected them. Lock killed his wife to shield her from what he believed to be an unbearable truth. Cole killed a neighbour who was perceived to be a physical threat. Goeldner was also a ‘neighbour’ case though he did not appear to be threatened. He was merely annoyed by persistent loud music. The level of sentence in his case may be explained by the judge’s reliance upon Milini for the proposition that the range was between seven and nine years. As I have noted, Milini is not relevant to the present class of case. In most of the cases (the exceptions are Dol and Hewitt) the killing occurred quickly and involved no prolonged suffering.

The respondent killed her own child who was dependent on her for protection and who was vulnerable by reason of the sexual abuse she had experienced. She died slowly and her death must have been accompanied by agony and terror. The crinkling of the tape indicates her desperate struggle to breathe. The respondent had ample time, 20 minutes, to desist and spare her child’s life. Instead she persisted with terrible determination to end that life.

In my opinion the sentence does not reflect the seriousness of the offence or the manner in which Stephanie was killed. It was at the bottom of the indicated range and was ameliorated by the order made for early eligibility for parole, taking it outside the range. The level of sentence itself indicates error. As well the sentencing remarks show that the learned judge had too little regard to the respondent’s criminality and gave too much emphasis to her personal circumstances, depression and isolation. Those sentencing remarks do not reflect an appropriate appreciation of the basis on which the respondent should have been sentenced. The basis is that described by Gleeson CJ in Blacklidge. The case in my opinion is worse than the others I have discussed, but resulted in the lowest penalty.

It may be true that deterrence, both general and personal, is of less significance in cases where the offender suffers an abnormality of mind or mental illness but punishment and denunciation remain important. In my opinion eight years’ imprisonment with an early recommendation for parole is an insufficient denunciation for the deliberate homicide of a child in horrible circumstances, giving due allowance for abnormality of mind in the mother. It remains the case that she knew she was doing wrong as she smothered her child. It is significant that she did not succumb to grief or remorse but remained composed and saw to the evacuation of her young son and some property

In my opinion the appropriate penalty for this homicide was a term of imprisonment of between ten and twelve years. Because this is an Attorney’s appeal the lesser sentence should be imposed. I would allow the appeal, set aside the sentence imposed on 30 December 2007, and order instead that the respondent be imprisoned for a term of 10 years. That will carry with it a declaration that the respondent has been convicted of a serious violent offence. The 815 days of pre-sentence custody should be declared time already served under the sentence.

Footnotes

1. R v Blacklidge, unreported, NSW Court of Criminal Appeal, No 60510 of 1995, 12 December 1995. ↩

2. Unreported, Mullins J, SC No 74 of 1999, 8 December 2000. ↩

3. Unreported, Mullins J, SC No 611 of 1999, 28 June 2001. ↩

4. Unreported, Mullins J, SC No 479 of 1997, 10 September 2001. ↩

5. Unreported, Atkinson J, 5 September 2001. ↩

6. Unreported, Douglas J, SC No 465 of 2002, 20 September 2004. ↩

7. Unreported, Holmes J, SC No 272 of 2005, 20 May 2005. ↩

8. (2006) 163 A Crim R 348; [2006] QCA 268. ↩