R v TP

The facts and objective seriousness of the offence

1. Lest, by that preamble, the reader is misled into the belief that I have allowed the tragic and compelling personal circumstances of TP to distract me from the grave objective facts upon which she must now be sentenced, I will now recount the factual background in summary form. The extent of the violence visited on CN is set out in my remarks on sentencing JK and I will not repeat all of the horrendous detail.
2. CN was born in October 2002. She was the natural daughter of the offender and a French national who played no part in her short life. He deserted the offender after the couple had two children, CN and her younger sister NZ. CN was buried around a month after her death on what would have been her 13th birthday.
3. TP met JK in 2007 and commenced a relationship with him in 2009. In 2010 the couple moved with the two little girls to rented premises in a suburb of Newcastle. They lived there for a little over four years, during which time they had two children of their own. In March 2014 the family of six moved to a suburb of Maitland. The evidence shows that there was significant violence, perpetrated by JK, in both of these homes. There are various accounts of the violence which was directed towards TP and the two daughters who were the product of the earlier relationship. The worst of the violence was directed towards CN. However, NZ was also subject to brutal and sustained violence. Neither of JK's natural children was subject to such abuse.
4. Once the family moved to the house near Maitland, the violence in the home escalated. Both girls were slapped and punched by JK. There were times when CN was tied up and beaten with a belt. She suffered dreadful injuries from these beatings. TP was aware of the conduct of JK. The vicious assaults and beatings were frequent over a two to three year period. In spite of the terrible injuries suffered by both CN and NZ, TP did not take them to see a doctor. JK also struck the two little girls with sticks similar to broomsticks leaving the children with marks and bruises on their legs. By 2014 and 2015 JK would sometimes tie CN to a bed and strike her with the wooden slats of the bed frame. She suffered deep bruising and cuts to her body. She was left bruised and bleeding. On other occasions she was thrown against walls causing damage to the gyprock. JK would also slap the children across the face and punch them in the ribs with force.
5. TP knew what was happening to the children and yet did nothing to remove them from the violence. Not only did she know the extent of the violence, she was also aware of the possible consequences. At some stage early in 2015 she said to JK: "You can't. You're going to kill her." She also told him that CN needed treatment in hospital. However JK forbade her from taking the child to hospital. He manipulated her by saying that if she took that action, the doctors would notice old injuries and she would "lose the kids".
6. At one stage, in July 2015, JK punched CN with such force that she lost a tooth and fractured her jaw. TP was aware of those assaults and, while she did not necessarily know that a bone had been fractured in the child's jaw, she certainly was aware of the extent of the swelling that the injury caused. To prevent others from noticing the injuries and to cover up JK's violence, CN was taken out of school for a period of time to allow the injuries to resolve. TP lied to the school about the reason for CN's absence.
7. In February 2015 an assault on TP resulted in her suffering a dislocated finger. TP attended Maitland Hospital and subsequently had follow-up physiotherapy on four occasions. Her actions in seeking treatment for herself demonstrate that she was capable of seeking medical help for the children. Yet she chose not to do so.
8. According to the pathologist who performed a post mortem examination, by September 2015 CN's body, and her general health, were weakened from the years of beatings.
9. The violence directed to CN became even more extreme in the last week of her life. She was slapped so hard and so many times that she became dazed. She was tied to a bed and beaten with the slats of the bed. TP was aware of this. She could hear the sounds of the child being bashed from within a bedroom in the house. So savage were the beatings that TP again warned JK "you're going to kill her". At times during that period CN was unable to walk. She was having difficulties staying awake, she fell when she was in the shower and struck her head on the floor. JK said she was "pretending" and the beatings continued. CN was forced to stand while she was beaten or she was tied to the frame of the bed.
10. TP told JK that CN "needs to see someone" which the parties agree was a reference to her need for medical assistance. CN was unable to play outside with the other children. She kept telling her mother she was weak and TP observed that she was physically worn out from her injuries. The offender admitted to police that she noticed that CN "couldn't get up physically by herself". CN told her: "Mum I can't move." The offender needed to assist CN to go to the toilet and when she did so she noticed an injury to the child's vagina. CN told her that JK had hit her down there as well.
11. On Wednesday, 23 September 2015 - or possibly the evening before - CN's little body gave up and she died.
12. The events of the previous day are described in heart wrenching terms in the agreed statement of facts. It started when the offender heard a glass smash in the kitchen and JK yelling at CN. That happened at about 7 am. CN started to eat, and seemed responsive, but then she vomited and ran to the bathroom. The offender told the police "that's when I saw the extent of her injuries. Her back… There were bruise[s], blood, there was still blood, coming like cuts … deep lacerations." At about 11 am TP and JK attended a house inspection. They went to a local bottle shop at around 11:30 am.
13. The offender said that she gave CN some noodles after the inspection "cause she hadn't really eaten for the last couple of days." At that time she noticed blood had leaked through CN's clothing. The only treatment she was afforded was that TP rubbed salt onto the wounds, presumably to stop the bleeding. She was not taken to a doctor. NZ noticed the scarring and saw that the bruises on her back were "purple".
14. Around 4 pm TP left the home and went to a local bowling club. She spoke to an employee of a local organisation in an attempt to arrange for accommodation for the family. She was at the club until around 6:45 pm. At about 6:30 pm she received a phone call from JK who told her to hurry up and come home. She told the police that when she got home she saw CN lying on the floor in NZ's room. JK was trying to clean vomit from her mouth. The offender could see that CN's eyes were closed but that she was moving and breathing. She told police that she wanted to call for medical assistance but that JK told her "no she's okay … you don't need to call … if you do you're going to lose the girls. You are going to lose everyone." However, in a later statement of the events, TP said that she did not check on CN after she returned from the club. If that is true, it may have been that CN was already dead. NZ said that she had heard JK shouting CN's name several times and breathing consistent with mouth-to-mouth resuscitation.
15. CCTV footage from a local business establishes that that JK left the home some time around 9 pm. He was at a nearby bottle shop at around 9:20 pm. The bottle shop is around 3 km from the family home. The offender had the opportunity to remove CN from the home during JK's absence. She could have called an ambulance or taken her to a hospital. She failed to do either of those things. In fact, as I have noted, she now says she did not even check on her daughter in spite of the events of the preceding days. CN was found dead by her mother at about 5:30 am the following morning.
16. By her plea of guilty, TP admits that her failure to take care of her daughter, and in particular her failure to obtain medical treatment for CN's obviously serious injuries during this critical time, was the cause of her death.
17. A post-mortem examination disclosed a number of injuries detailed in the agreed facts as follows: 1. Multiple abrasions to the face, torso, upper limbs and lower limbs. 2. Multiple linear abrasions extending from mid upper back to buttocks. 3. Multiple areas of diffuse bruising on torso, upper limbs and lower limbs. 4. Multiple bruises to dorsum and soles of both feet. 5. Skeletal injuries: 1. Acute left orbital fracture 2. Old mandibular fracture - In July 2015 the deceased was kept away from school. The school was advised by the offender that she and CN were travelling overseas to attend a family funeral. Immigration records establish that CN did not leave the country. The offender confirmed that CN was kept from school due to a swollen jaw, that injury being caused by an assault upon CN by JK. 3. Multiple bilateral acute and old rib fractures. 4. Old left clavicle fracture. 5. Acute fracture right 1st metacarpal. 6. Undisplaced acute fracture left tibia. 1. Scalp bruising - frontal and occipital. 2. Old cerebral contusions. 3. Mild brain swelling. 4. Vomitus throughout upper and lower airways. 5. Bilateral pulmonary parenchymal haemorrhage. 6. Liver contusions x 2. 7. Serosal haemorrhage of small and lower bowel. 8. Right adrenal haemorrhage. 9. Vaginal injury. 10. Perirectal haemorrhage.
18. At least some, if not many, of these injuries must have been obvious to the offender. The failure to seek medical assistance in the circumstances constitutes gross or criminal negligence. Again that is an admission made by the offender when she entered her plea of guilty to manslaughter.
19. The extent of TP's departure from the standard of care expected of a mother for her 12 year old child is bewildering. It is properly categorised as "gross" or "criminal". It is a very grave example of an offence of manslaughter by criminal negligence. The objective criminality is very high. That assessment is based on the offender's knowledge that her child was at risk not only of serious injury but of death. Assuming CN was still alive, the assessment is also informed by the fact that the offender had the opportunity, when the perpetrator of the violence was out of the house, either to flee with the children to a hospital or other medical facility or simply to call an ambulance. On the version of events she ultimately gave, she did not even check on CN at that time. She did call an ambulance the next morning but by that stage it was too late. CN was dead. The objective criminality is also heightened by the extent of the offender's knowledge of the brutality of the violence visited on her child not only in the hours and days before her death, but also in the years before that.

The violence and abuse suffered by the offender

1. CN was subject to the most brutal violence at the hands of JK. NZ also suffered years of abuse and suffered terrible injuries. TP is not to be sentenced for the suffering of her other child but the evidence in that regard provides a further demonstration of the extent to which the offender had abandoned responsibility for the care and welfare of her children.
2. This lack of care would be inexplicable to an ordinary member of the community. However, there is an explanation in the evidence. The offender asserts, and the Crown does not contest, that she too was subject to brutality at the hands of JK for more than three years. In fact, she was the first of his three victims. When first spoken to by police, TP understated the extent of the violence. Because of her psychiatric conditions, it is difficult to know whether the Court, even now, is fully apprised of the extent of the violence she suffered at the hands of her former partner.
3. There is independent evidence as to the nature of the violence. NZ provided a recorded interview with the police and gave a description of some of the violence suffered by her mother. She said that in 2015 he had "done it three times". However, later in the interview, it seemed that NZ (who was just 10 years old when she made the interview) was saying that the violence was more frequent than that. She said at one stage JK broke TP's finger. NZ said that he had been drinking all weekend, started smashing glasses and she didn't know what happened but her mum's finger was broken. She told police that her stepfather "always says he's gonna hit her." She agreed with the proposition that "Mum tries to get [JK] to stop but he says go away" and "starts hitting her and punching her". She said that he punched her "in her stomach and stuff and pushes her away". She said there were times when she saw JK hurt the offender "the same way he's hurt [me] and CN".
4. NZ said she didn't think that he tied her mother up but "I thought he hit her with the belt or like hit her in the face with something, because she always had bruises on her". She said it always happened at night and she could hear her mum screaming and him "just yelling at her".
5. TP has given a number of accounts of the violence. This included a lengthy interview with police on the day of (or the day after) CN's death. There was also a statement and attached "history" prepared for her previous solicitors. The lawyers for both sides only became aware of this after the plea of guilty was entered. [6] TP also provided histories to the expert witnesses and gave evidence on sentence. There was some cross-examination exposing inconsistencies in the various accounts given by TP. Other inconsistencies emerge from a close reading of the various versions she has provided over time. In addition to the inconsistencies, it is also clear that TP told lies both during the relationship and in the aftermath of CN's death. The Crown's submissions, and the agreed facts, enumerate some of the occasions on which she lied. [7] I have taken into account the inconsistencies and the lies in assessing TP's credibility. Having done so, I am easily satisfied that she has done her best to tell the truth and to provide an accurate account of what happened to her and her children. Some of the inconsistencies and lies are explicable by reference to her psychiatric condition. Others are likely to be the result of the fallibility of human memory.
6. I am satisfied that TP exaggerated some of her evidence and that, in retrospect, she has come to lay the blame entirely on her ex-partner. For example, I did not accept her evidence that she did not go inside the house when JK went out at around 9 pm on 22 September 2015 because he told her to wait outside for him. [8] I do not accept that she was beaten "every day" as she claimed in her evidence. [9] These parts of her evidence are contrary to her earlier versions of events and, I think objectively, very unlikely.
7. However, her inclination, now, to lay all of the blame at JK's feet is understandable given her increased insight into the nature of her psychological condition and the extent to which she had been dominated and manipulated over many years. Further, on one level, JK was entirely to blame. TP played no part in the violence that permeated her home from 2011 until CN's death. This was not a case where the two adults were parties to a joint enterprise to endanger their child. [10] Her actions were, contrary to the cross-examination, almost completely passive. True it is that she took active steps to cover up the violence (for example, by lying to the school and keeping the girls out of the public eye when they had obvious injuries), but there is nothing to suggest that she raised a hand to any of her children or played any part in the violence to which each was subjected. For the most part, I accept the history she has given. Some of that history forms part of the agreed facts. Based on all of the evidence, I am satisfied of the following facts relevant to the history of violence, manipulation and abuse suffered by TP.
8. The first incident of violence in the household occurred in 2011 and was directed towards TP. This involved slapping her to the head a few times. Some months later, when he returned to the house late at night, JK slapped her, dragged her by the hair and kicked her in the stomach. The next day he slapped her while she was driving him to work. Those incidents were the beginning of four years of pervasive domestic violence directed toward the offender. This included hitting TP in the head and body, kicking her, dragging her by the hair, throwing her against walls and punching and slapping her while she was driving in the car. When she was pregnant with her fourth child, JK physically abused her (although I cannot determine how frequently this occurred). He struck her with any item that was handy. He yelled at her and spat at her. He criticised her appearance and forced her to wear clothing that appealed to him including high-heeled shoes even on outings to the shops. She was forced to have "heels" in the car so she could wear them at his whim. JK forced her to have a pregnancy terminated even though this was contrary to her religious beliefs and moral code. He infected the offender with sexually transmitted diseases including chlamydia and the HIV virus. When she was pregnant with her third child she was told that she had HIV. She went to the hospital with the two older girls. They caught the bus home having learned the devastating news.
9. Part of the abuse included psychological manipulation and isolating her from her family. TP was forced to apologise to her ex-partner for upsetting him. She felt she was treated as his slave and was forced to have sex irrespective of her desires. He told her that she would lose the children if the violence in the home was discovered. He convinced her that the violence was her fault because she was a bad mother and was causing the children to dislike him.
10. While I cannot determine the precise frequency of this abuse, I am satisfied that it occurred many times and pervaded the home from late 2011 until September 2015. I am equally satisfied that the abuse had a profound impact on TP's psychology and was the major cause of her failure to protect her children and remove them from the abuse. Those conclusions are supported by the expert evidence tendered by the parties.

Expert evidence

1. A number of reports were prepared by experts to assist the parties with what was expected to be a criminal trial in which TP would assert that her failure to act arose from the fact that she was acting under duress. The previous practice of diagnosing victims of domestic abuse as suffering the condition known as "battered wife syndrome" or "battered woman syndrome" has fallen out of favour. The World Health Organisation "recommends the more precise term 'Intimate Partner Violence'" or "Intimate Partner Extreme Violence'. [11] Rather than diagnosing that condition (if it is a condition rather than a cause), the experts considered whether TP suffered two particular conditions, namely Post-Traumatic Stress Disorder and depression.
2. The prosecution briefed Dr Jonathan Adams, forensic psychiatrist. He was of the opinion that the offender was not "wholly impaired by her psychiatric condition", basing this opinion on the fact that TP repeatedly engaged with support services. I accept that opinion and a concession to that effect is implicit in TP's plea of guilty. However, Dr Adams said this: "In my opinion it is reasonable to suggest that TP's symptoms of PTSD and major depression would have impacted upon her cognitive capacity. It appears to be the case that she was the victim of repeated severe intimate partner violence. In this context, I understand that she felt increasingly powerless, hopeless, and helpless. This would have compounded her judgement, rational decision-making, and consequential thinking. However, ascertaining the degree of her decision-making incapacity is a complex issue." [12]
3. The psychologist Anna Robilliard provided a report in which she said: "I am of the view that [TP] is suffering depression and symptoms of PTSD. Both have been shaped and become deeply entrenched by her exposure to multiple traumas in the context of a profoundly pathological and abusive intimate relationship with JK, from mid-2009 until the death in September 2015." [13]
4. Ms Robilliard said the offender was "coerced into believing she was powerless to protect herself or the children". She saw any "attempt to intervene to try to protect CN, as untenable because it would have been ineffectual." She noted that the offender described herself as "becoming like a robot… I was hit so many times, I became numb." The psychologist noted a number of occasions when she "appeared to be disconnected from reality". She said that the offender "continues to evidence psychopathology consistent with exposure to extreme abuse and trauma".
5. Ms Robilliard's second report concluded: "In my opinion, TP's mental state at the time of her daughter's death was effected by PTSD symptomology and patterns of behaviour consistent with IPV that distorted her perception of the danger her daughter was in when she left the home that afternoon. None of the symptoms of PTSD or IPV that had become entrenched over time by exposure to extreme abuse, perpetrated upon her and her daughters by JK; her distorted perception of reality, her reduced capacity to accurately experience emotions, her learned helplessness and acceptance of blame for being the victim of abuse, would suddenly have corrected in his absence."
6. A more recent report from another forensic psychologist (Anne Lucas) confirmed the diagnoses made by Ms Robilliard. She described the powerlessness and disassociation often associated with cases of Post-Traumatic Stress Disorder. She said "disassociation in cases of PTSD is a term used to describe the mechanism by which an individual alters their consciousness/attention to distance themselves from traumatic situations where they feel they cannot physically escape." She confirmed the diagnoses of Post-Traumatic Stress Disorder and major depressive disorder. She spoke of TP "minimising the evidence of his violence as a strategy to avoid further violence".
7. In addition to the reports of the forensic mental health experts, there are also reports of TP's treating psychologist and psychiatrist. [14] TP gave evidence that she is seeing a psychologist (Thomas Sibbald) every fortnight and a psychiatrist (Dr Hinton) once a month.
8. Mr Sibbald is of the opinion that TP has "severe symptoms consistent with depression", features of a "dissociative disorder" and clinical findings consistent with Post-Traumatic Stress Disorder. He says that she is "a resilient individual" but needs a range of support from a variety of health care professionals. He referred her to a psychiatrist. He said she has some insight into how the events have impacted on her personal psychology.
9. Dr Hinton did not think TP presented as "clinically depressed" when he saw her in 2016. She "was cognitively intact". He said he was unable to provide her with the "level of observation" requested by her "legal team". He thought this request was based on "legal grounds rather than having any clinical rationale". Dr Hinton said TP was "grieving over the death of her 12 year old daughter" and was tearful at times but otherwise able to smile.
10. Based on all of this evidence, and in spite of the reports of Dr Hinton which seem to have been prepared with insufficient access to relevant factual background material, I am satisfied that TP was suffering from Post-Traumatic Stress Disorder and severe depression at the time of CN's death. I am satisfied that these conditions were caused by her exposure to extreme violence at the hands of JK. I am satisfied that these conditions, and the history of violence, abuse and manipulation, caused her to disassociate from the family situation and that she felt powerless and frozen into inaction. I am satisfied that this had a significant impact on her failure to take actions to protect CN.
11. I am fortified in these opinions by the academic articles provided by Ms Manuell in the course of the submissions. [15] Sheehy, Stubbs and Tolmie describe how the "cumulate impact on those who survive [domestic violence] that affects how they see and respond to the world, is a pattern of behaviour rather than an event or events, is hidden, has been culturally minimised, and is more complex than an account of the physical incidents of violence that have taken place." Easteal explains the process whereby the victim acquires "a learned helplessness" and "becomes convinced that her options are negligible, that the batterer is all powerful and her repertoire of responses becomes very limited." Sheehy, Stubbs and Tolmie say that the process deprives the victim of "their very personhood".
12. My findings as to the nature and extent of TP's mental state were also confirmed in the course of her evidence, both generally and particularly when she was cross-examined as follows: [16] Q. Why did you then - and I'll - in my word, why did you lie to them? A. I was still scared of [JK]. Q. Too scared of [JK]. But at that time, and I can take you to your document if you need, he was, to your knowledge, arrested for the murder of your daughter and in the cells at Maitland police station? A. Yes, he was but it doesn't - it didn't - that didn't change the fact how I still felt about him. I was still scared of him. Q. What threat did he, in your mind, pose to you at that stage? A. That he was still - he was going to get released, he was going to - I don't know. I was just too scared of him. Q. All right, "he was going to get released". You knew he'd been charged for the murder of your daughter. What, you thought the police would let him go and he'd be a risk to you? A. At that time I honestly can't tell you. I was just still scared of him.
13. The transcript of the proceedings does not do justice to this exchange. While the logic of the Crown Prosecutor's cross-examination was unimpeachable, and his forensic point obvious to everybody else, it was clear in watching her respond to this robust questioning that TP was completely bewildered. She did not understand the point the barrister was trying to make. It emphasised her powerless and state of learned helplessness.

The impact of these findings on the proper exercise of the sentencing discretion

1. The impact of an offender's mental condition has been considered in many cases. There are helpful summaries by Spigelman CJ in Israil v R and McLellan CJ at CL in DPP v De La Rosa. [17] I considered the issue in two recent cases in the Court of Criminal Appeal. [18] In R v Engert, Gleeson CJ emphasised that the existence of such a condition does not result in any automatic result or reduction in sentence. [19] I apply the principles discussed in those cases to the particular circumstances of the present case.
2. Neither counsel drew my attention to any case where the impact of Intimate Partner (Extreme) Violence (or Battered Woman Syndrome) was considered in the context of sentencing. The Crown drew my attention to statements of principle in the New Zealand case of R v Oakes [20] and Crispin J sitting on an appeal from the Northern Territory in R v Lorenz. [21] In Oakes, Hardie Boys J said "a battered woman has no more right to kill or injure than any other person" and observed that "the syndrome is not in itself a defence … or a justification for the commission of a crime". However, his Honour noted "the women's actions, and her culpability for them, must be assessed in the light of contemporary knowledge of its effect on the mind and will". Similarly, in Lorenz, Crispin J noted that the syndrome "does not of itself give rise to any defence" but that "a psychological condition of this kind may be relevant to several defences known to the law." I have already referred to the important observations of King CJ in R v Runjanic and Wilson J in Lavallee v The Queen. [22]
3. The cases are concerned with the criminal liability of an offender. They are not directed to the impact of the condition in sentencing. However, the cases show that the condition, or at least the psychiatric impact of the condition, may be relevant in reducing the crime of murder to manslaughter. This suggests that the impact on the moral culpability of an offender is (or may be) substantial. I have concluded in the circumstances of the present case, the impact of TP's condition on the proper application of the principles of sentencing, the purposes of punishment and the ultimate sentencing outcome is profound. This is so for a number of reasons.
4. First, I am satisfied there is a clear and direct link between the violence directed towards TP and her criminal neglect of CN. This reduces her moral culpability markedly. It does not diminish her moral culpability altogether, and I do not understand either her or Senior Counsel to suggest that it does. However, the impact on the proper punishment to be imposed is significant.
5. Secondly, the weight to be afforded to general deterrence is reduced. As Kirby P (as his Honour then was) put it in Champion: "General deterrence still operates. It is in place for the protection of the community and the victims of offences which the community rightly takes most seriously. But as that principle falls upon a person such as this applicant, it is necessarily a consideration to which less weight can, and therefore should, be given." [23]
6. I accept the submission of Ms Manuell that cases such as the present are very rare, that there is a limited number of people to whom this message is to be sent, and that general deterrence has particular application in relation to offences that are prevalent. Even so, I am constrained to accept the Crown's position that a message must be sent to the community at large that the extreme neglect of a child cannot be tolerated, and that the Courts will impose significant punishment on those who commit such crimes.
7. Third, one of the purposes of punishment is to foster an offender's rehabilitation. TP is still engaging in regular therapy with both a psychologist and a psychiatrist. Experience tells us that the availability of such treatment in gaol is limited. Her therapy and her rehabilitation would be interrupted by the imposition of a full-time custodial sentence.
8. Fourth, a custodial sentence will weigh more heavily upon TP than it would on a person who does not suffer from the severe depression, grief and Post-Traumatic Stress that she still endures. Added to that is the notorious fact, referred to by Ms Robilliard and accepted by the learned Crown Prosecutor, [24] that offenders incarcerated over the death or abuse of children are treated badly in custody by other inmates.
9. None of those matters touch upon the other purposes of punishment identified in s 3A of the Crimes (Sentencing Procedure) Act. The sentence must ensure that TP is adequately punished, that she is made accountable for her actions (or her failure to act), that her conduct is unambiguously denounced and that the harm done to CN is recognised. CN's dignity must be vindicated. This is not a case where the sentence is concerned with the protection of the community. I am satisfied that TP is unlikely ever to offend again.

Aggravating and mitigating factors and other personal circumstances.

1. Because of the prevalence of sentencing appeals emanating from both sides, there is an increasing tendency in sentencing to articulate the reasons for imposing a particular sentence by reference to some kind of check-list, often having at its centrepiece the provision in s 21(2) and (3) of the Crimes (Sentencing Procedure) Act. I will not adopt that practice but should address some matters that are also relevant to the sentencing exercise.
2. I accept that the offending is aggravated by the fact that the victim was vulnerable, both because of her age and because of her fragility after years of abuse. It is also aggravated by the fact that the abuse occurred in the home of the victim. The offender was also in a position of trust but that is an inherent aspect of the duty of care owed by TP to her child. I do not accept the Crown's suggestion that the offence is aggravated by the fact that it was committed in the presence of another child (NZ). It is true that this applied to JK's crime but that fact has little to do with the gravamen of TP's criminality which lies in her failure to act. The neglect of both children has been taken into account in an assessment of the extent to which TP's failures departed from the standard of care to be expected of a parent.
3. TP is now in her mid-30s. Her personal history is set out in the reports. She was born and bred in Newcastle. Her mother was Tongan and her father Italian. There is no evidence of any early childhood trauma but I accept that she was sexually abused when she was about 14 years of age after she fell in with the "wrong crowd". That experience caused her to engage in a number of antisocial activities. However, she did not get in trouble with the law. As an adult, she has travelled, worked and studied. She worked as a nanny in France for a period and has achieved some tertiary education in Australia.
4. More recently, she has lived with her mother and assisted in the care of her autistic cousin. He is violent and unpredictable and needs full time care. Her mother will struggle without TP but there are other family members in the area and this is not the kind of exceptional case where the impact on her mother or her cousin can impact on the sentence to be imposed.
5. TP presents to the Court with a significant amount of family support. However, no character references were tendered on her behalf. She is a religious person, a practicing Catholic. She appears to have lived a useful life until the relationship with JK took its ugly turn. She has three surviving children but they are now in foster care. TP sees them sometimes and her dream is, one day, to be united with them and to be able to play a part in their lives. She spoke tearfully of her separation from her children.
6. As I have said, TP is HIV positive. She needs certain anti-viral drugs to relieve the symptoms of this condition. She also needs ongoing psycho-therapy and counselling to deal with her grief and psychological conditions.
7. I have taken into account the fact that the offender was acting under a form of "duress" in considering the impact of the offender's mental condition. I am careful not to count it twice as a mitigating factor but plainly it is an important consideration in an overall understanding of this case. The offender has one previous conviction and that was a traffic offence that resulted in a small fine. It is irrelevant. The fact that she has no prior convictions and is a person of good character are mitigating features. I reject the suggestion that the history of abuse and neglect (of CN) means that these considerations should be given little weight. I accepted a similar submission to an extent in sentencing JK but the situation here, where the criminality is based on omissions to act and the offender was a victim of the same principal offender, is different. I also accept that the offender is unlikely to re-offend and has good prospects of rehabilitation.
8. TP pleaded guilty on the day her trial was scheduled to commence. The utilitarian value is limited because of the timing but the plea did save a number of days or weeks of court time. She provided information to the police which could have been used (although I am told it was not) in the prosecution of the co-offender. Insofar as it is necessary to put a mathematical figure on the value of her plea and assistance (and it is at least desirable to do so), I would reduce the sentence by a total of 20%. This is comprised of 10% for the plea of guilty and 10% for the assistance. Even though there is evidence that TP was not completely truthful when she first spoke to the police, she provided a statement that states she would be willing to give evidence and then engaged in a recorded interview of over 700 questions that lasted for over 2 hours.

CN

1. In sentencing JK I was provided with moving testament of what a lovely young girl CN was, how much she is missed, and the devastating grief suffered by her extended family. This was in the form of victims' impact statements. I described their contents in sentencing JK. [25] The Crown asked that this be taken into account in sentencing him and I acceded to that application. [26] No such material was tendered, and no such application was made, in the present case. This highlights, in a stark way, the difficulty in the application of s 28(4) of the Act. [27]
2. The absence of this material does not give rise to an inference that the death of CN did not have, and continue to have, a substantial impact on her surviving family. [28]
3. In sentencing TP, I must always keep in mind that her gross and sustained neglect contributed to or caused the death of an innocent and defenceless child. Every sentencing exercise in homicide cases begins and ends with the reality that human life has been taken away. The law must protect human life and must vindicate the dignity of the victims of crimes such as the present. [29]

Striking a balance: individual justice

1. "If justice is not individual, it is nothing." [30] It is necessary to balance what is, objectively, an extremely grave crime of manslaughter by criminal negligence against the extraordinary subjective case presented by the offender. Striking the correct balance is difficult and complex.
2. On the one hand, I am dealing with a crime of manslaughter carrying a maximum penalty of 25 years imprisonment. The maximum penalty must be kept firmly in mind as must the fact that the case involves the death of a human being. And in this case, the death followed a long period of almost unimaginable suffering. The neglect occurred over a lengthy period and the injuries inflicted at the hands of the co-offender were devastating, a matter well known to TP.
3. On the other hand, the offender is a person whose moral culpability is greatly diminished by the history of abuse that I have documented in the course of this judgment. No punishment I can impose will add to the "personal deterrence" she has experienced both by going through the criminal process and through her grief. On one view, she needs counselling not more punishment.
4. Manslaughter is a crime that can be committed in an enormously diverse range of circumstances and gives rise to a vast array of sentencing outcomes. In some cases, about 6% (of 266 cases) according to the statistics maintained by the NSW Judicial Commission, a sentence other than full time imprisonment was imposed. That percentage increases to 23% for first time offenders who plead guilty but there are only 44 such cases in the database.
5. Neither party drew my attention to any comparable cases. That may be because there is no case that is truly comparable. However, I have considered the sentencing outcomes in a number of other cases involving the death of children (or, in one case, an elderly and infirm woman) as a result of criminal neglect and, in particular, the failure to obtain medical assistance. [31] A summary of those cases is annexed to this judgment. It will be seen that none of these cases have the same features as the present case. In only one of those cases did the offender escape a full time custodial sentence.
6. The Crown Prosecutor submitted that the matter required a full-time custodial sentence. However, he did not urge a sentence of any particular length. Ms Manuell wrote that TP "understands there is a need for punishment to be seen to be done" but submitted in all of the circumstances "the least possible punishment should be imposed." [32] While I am inclined to accept that submission, Ms Manuell would not be drawn on the question of what might lawfully constitute the "least possible punishment". [33] She did not posit any "possible alternative" to a sentence of imprisonment. [34]
7. Having considered all possible alternatives, which essentially comprise a fine, a bond or a community service order, I am satisfied that no penalty other than imprisonment is appropriate. [35] No alternative would satisfy the need for denunciation, adequate punishment and accountability. If the sentence was one of two years or less, I could consider suspending the sentence on conditions or seeking an assessment for an intensive corrections order. However, those options could only apply if the total sentence is one of two years or less. [36] The departure from the standard and duty of care expected of a parent, even one who has been beaten by the same principal offender who killed the child, is so great that the total sentence in this case must exceed two years.
8. Taking into account all of the matters relevant to the appropriate penalty to be imposed on TP in the unique and compelling circumstances of her case, I would commence with a total sentence of five years. I would reduce that by 20% for her plea of guilty and assistance. The total sentence will be four years.
9. I find special circumstances pursuant to the provisions of s 44. Those circumstances include (i) the fact that her counselling and therapy will be disrupted by the imposition of a gaol sentence, (ii) her need for an extended period on parole to allow her to re-establish her life in the community, (iii) the fact that this is her first time in gaol, and (iv) the likelihood that her conditions of incarceration will be particularly onerous. While those matters have some relevance to the total sentence, they have particular weight in assessing the appropriate length of the non-parole period. I have not counted them twice but given them appropriate weight at each stage of the sentencing process. I intend to make a substantial adjustment to the non-parole period, while remaining conscious of the authorities that stress that such an adjustment should not result in a non-parole period that is disproportionate to the gravity of the crime. The non-parole period will be 18 months.
10. TP, I will now formally impose sentence and make a number of recommendations: 1. For the manslaughter of CN, you are convicted. 2. You are sentenced to a non-parole period of 18 months commencing 23 March 2018 and expiring on 22 September 2019. 3. There will be a balance of parole of 2½ years commencing 23 September 2019 and expiring on 22 March 2022. 4. You will become eligible for release to parole at the conclusion of the non-parole period. 5. I am required to advise you that the provisions of the Crimes (High Risk Offenders) Act may apply to you and I will leave it to your lawyer to explain that to you. 6. I recommend to the Department of Corrective Services that your medical and psychological needs be assessed at the first opportunity and that you have access, if possible, to the medication currently prescribed for your medical and psychological conditions. 7. I recommend that those considering your release to parole take into account my opinion that, on the evidence before me, you should be released at the expiration of the non-parole period. 8. I recommend that those responsible for the administration of the Crimes (High Risk Offenders) Act take into account my finding that you do not represent a risk to the community.

R v HA, Unreported Supreme Court (NSW) (Rothman J) 18 December 2008

1. Plea of guilty to manslaughter (by criminal negligence) of the offender's 4½ year old son.
2. The child died of pneumonia and pyelonephritis and the basis of the plea was the failure of the offender to obtain medical treatment. The deceased had severe physical and intellectual disabilities and was malnourished at the time of his death. The child's particular medical condition was difficult to detect but his general weakness and lack of development would have been noticeable.
3. The offender was almost 30 years old when her son died. She had no prior convictions and was a person of good character. At the time of the offence, she had seven children and was pregnant. She was in a "good marriage" and her husband was not abusive. The husband died of a heart attack after the birth of the couple's last child. She received a discount of 35% for her plea and assistance to authorities.
4. Rothman J imposed a 2 year sentence which was wholly suspended under s 12 Crimes (Sentencing Procedure) Act.

R v Wilkinson [1999] NSWCCA 248

1. Convicted (after trial) of manslaughter (by criminal negligence) of a 6 month old baby. In late July 1996 the offender noticed a bruise on the child's ear. Her partner (co-accused Campbell) told her the child had been "kicked by his sister" and later said he had fallen in the shower with the child. The offender later noticed other bruises on the child for which Campbell provided innocent explanations. On 7 August she noticed the child was pale and not normal. The offender wanted to take the child to the doctors but Campbell dissuaded her. On 9 August the child was worse and was not eating or drinking. The offender feared something was really wrong. She and Campbell smoked some cannabis and later that day the child stopped breathing. The sentencing judge (Wood CJ at CL) found the failure to remove the child and to seek medical treatment arose from a concern to protect herself and Campbell from getting into trouble. While she did not know the full extent of the injuries she knew something was "very seriously wrong". His Honour found that she "preferred the interests of herself … to those of the child".
2. The offender was "a 19 year old unmarried mother" of average intelligence. The sentencing judge rejected the expert opinion of Dr White that she suffered a "serious dependant personality disorder" although he accepted her objective criminality was reduced to some extent. The offender showed little remorse.
3. Wood CJ at CL sentenced Wilkinson to 6½ years with a non-parole period of 3½ years.
4. Campbell pleaded guilty and was sentenced (by Newman J) to 5 years 8 months with an effective non-parole period of 3 years. An appeal based on parity was dismissed. Mason P (with whom Simpson J agreed) noted that had Dr White's opinion been accepted, a serious question as to parity would have been raised.

R v Eriksson [2001] NSWSC 781

1. The offender pleaded guilty to manslaughter by criminal negligence based on her failure to obtain medical treatment for her 2 year old son and her failure to remove the child from danger of violence from her de facto (the co-accused, Hill). She was initially charged with murder.
2. Neighbours reported hearing abusive language and sounds of slapping coming from the house. The child suffered a spiral fracture of the tibia on 14 April. After an incident of violence on 18 April 2000, the child had difficulty eating and speaking. Eriksson said she wanted to take the child to a hospital but Hill convinced her she would be blamed for the child's injuries. The child was observed by family members to be in very poor health. When the child went to hospital he was seen to be suffering from multiple injuries and Eriksson falsely claimed the child had fallen down some stairs. The injuries to the child "made it plain" that he was in need of urgent medical treatment.
3. The offender was 23 years old with two prior shoplifting offences. She had been "virtually abandoned" by her parents. She used alcohol excessively. She had a degenerative disease which resulted in her being close to legally blind. She was assessed as being depressed and submissive. Her sentence was to be served in protective custody.
4. Ireland AJ applied a 50% discount for her plea and assistance and found special circumstances. The starting point was 6 years.
5. Sentenced to 3 years with a non-parole period of 18 months.
6. Note: In Hill v R [2003] NSWCCA 16 Meagher JA (in dissent) described the sentence as "inappropriately light". The majority found her to be lacking in credit but used the sentence as the basis for a successful parity argument by Hill.

Hill v R [2003] NSWCCA 16

1. Hill was the co-offender of Eriksson (see above).
2. He pleaded guilty to manslaughter on the first day of his murder trial and the Crown accepted the plea. Eriksson was the chief witness against him. The victim was a 2 year old child who had suffered two major head injuries in separate incidents over the course of about a week. There was a disputed facts hearing in which the Crown alleged that Hill had caused the injuries. The judge was not satisfied beyond reasonable doubt that the offender inflicted the head injuries in the second incident but was satisfied to the criminal standard that he caused multiple injuries to the child in the earlier incident. This included severe brain damage and was "a circumstance of the gravest aggravation". The cause of death was shaking and beating leading to severe brain injury.
3. Ireland J sentenced Hill to 8 years with a non-parole period of 6 years.
4. The CCA (Hulme and Hidden JJ, Meagher J dissenting) overturned the primary judge's factual findings and he was re-sentenced on the basis of criminal negligence. The sentence was reduced to 6 years with a non-parole period of 4 ½ years.

R v O'Brien [2003] NSWCCA 121

1. Convicted (after trial) of manslaughter of a 14 month old child by criminal negligence.
2. The child was severely malnourished. The offender's daughter from a previous marriage saw the child in October and December 1999 and noticed the child was extremely ill - her skin "was saggy with quite a green colouring". She told the offender and her partner that the child needed medical treatment to which the offender said "don't you think I know she looks ill". There was a DOCS and police intervention on 18 January. The child was "very jaundiced, very thin with no skin tone, pale and did not appear attentive." They insisted the child be taken to a doctor. The doctor told the offender to take the child to the emergency ward of the local hospital. Instead, the offender fled to Queensland and took the child to an unregistered naturopath. The naturopath offered to take the child and the offender to hospital. The offender declined the offer. On 8 February the naturopath saw the child again and said "she's dying" and again said the child should be taken to hospital. The child died that night. She was 55% of her expected body weight.
3. The trial was conducted on the basis that the offender acted under duress. The offender said she did not believe (for religious reasons) that the child should be injected with artificial substances. She also said she wanted to take the child to the hospital but her husband talked her out of it. There was evidence of "battered wife syndrome". The offender was convicted and an appeal against the conviction was dismissed.
4. The offender was a person of good character. Dr Nielssen (psychiatrist) said there was no psychiatric disorder but he said the history was consistent with "battered wife syndrome". The offender gave evidence of an abusive relationship although her claim that her life was threatened only emerged in cross-examination and was not communicated to Dr Nielssen. She received a "reasonably generous" discount of 30% for an offer to assist authorities.
5. Judge Garling imposed a sentence of 5 years with a non-parole period of 2 years. This was not disturbed on appeal.

R v George [2004] NSWCCA 247

1. Convicted (after trial) of manslaughter of elderly mother by criminal neglect.
2. The offender was guilty of a gross and wilful failure to provide his mother with proper nutrition, hydration, medication and medical care. On 20 April 2000, the applicant called an ambulance to the premises, where the mother was found in her bedroom covered in vomitus, faeces, urine and body fluids. She weighed just 39 kgs and had open pressure sores that were particularly serious, to the extent that they revealed the hip bone. It was estimated that the deceased had suffered impaired nutrition for approximately 60 days. She was assessed as needing ongoing medical care on 21 September 1998 but was not seen by a doctor until 20 April 2000 when the ambulance was called. She was allowed to suffer over a considerable period of time but the evidence was that she also resisted receiving outside help.
3. The offender was a 60 year old man with few outside social contacts. He had lived his whole life with his mother and sister and had rarely worked. He had no prior offences. He was found to have no remorse and to be in denial of his mother's pain and distress. However, he was assessed as having "a sub-category of Autism known as Asperger's syndrome". This was capable of explaining his lack of concern for his mother's condition.
4. Trial judge (Bellear DCJ) imposed a sentence of 7 years with a non-parole period of 4 years.
5. The CCA allowed the sentence appeal and imposed a sentence of 3 years 6 months with a non-parole period of 2 years.

BW v R [2011] NSWCCA 176

1. Convicted (after trial) of manslaughter by starvation and neglect of a 7 year old child.
2. The offence was in the "worst" case category. The child was autistic and suffered global development delay. She weighed 9 kg at the time of death (against an expected weight of 26 kgs) due to "chronic" starvation. She was kept as a virtual prisoner in her bedroom and the offender (according to the sentencing judge) showed "not a shred of care to his suffering daughter". The photographs tendered were "the most horrific images of a deceased child imaginable".
3. The offender was 46 years old and had no prior offences. He was addicted to prescription drugs but this was not a mitigating feature. The sentencing judge did not find that he was remorseful but accepted that he took some responsibility for the child's death.
4. A sentence of 16 years with a non-parole period of 12 years was not disturbed on appeal.

Endnotes

1. R v JK [2018] NSWSC 250.
2. Transcript (T) 16 March 2018 p 73.
3. R v Runjanjic & Anor (1991) 56 SASR 114 at 118.
4. People (New York) v Torres 488 NYS 2d 358 (1985); State (New Mexico) v Gallegos 719 P 2d 1268 (1986); Lavallee v The Queen (1990) 55 CCC (3d) 97.
5. Lavallee v The Queen (1990) 55 CCC (3d) 97 at [112].
6. T (13 March 2018) pp 1-2.
7. See Ex A, p 3 and MFI 4, p 5.
8. T (15 March 2018) p 49.
9. T (15 March 2018) p 15.
10. Contrast, for example, BW v R [2011] NSWCCA 176.
11. Ex 1, p 19, T (12 March 2018) p 3.
12. Ex E, p 19.
13. Ex 1, p 19.
14. Exhibits 6 and 7.
15. Elizabeth Sheehy, Julie Stubbs and Julia Tolmie, 'Securing Fair Outcomes for Battered Women Charged with Homicide: Analysing Defence Lawyering in R v Falls' (2014) 38(2) Melbourne University Law Review 666 (MFI 2); Dr Patricia Easteal 'Battered Women Who Kill: A Plea of Self-Defence' (Paper presented at the ACI Conference Proceedings: Women and the Law, Canberra, 24-26 September 1991) (MFI 3).
16. T (15 March 2018) p 36.
17. Israil v R [2002] NSWCCA 255 at [21]-[27] and DPP v De La Rosa [2010] NSWCCA 194 at [177]-[178].
18. Luque v R [2017] NSWCCA 226 and Ryan v R [2017] NSWCCA 209
19. R v Engert (1995) 84 A Crim R 67.
20. R v Oakes [1995] 2 NZLR 673.
21. R v Lorenz [1998] ACTSC 81; 146 FLR 369.
22. R v Runjanjic & Anor (1991) 56 SASR 114 at 118; Lavallee v The Queen (1990) 55 CCC (3d) 97.
23. Champion (1992) 64 A Crim R 24; see also R v Letteri (Unreported, New South Wales Court of Criminal Appeal, 18 March 1992) (Badgery-Parker J, with whom Gleeson CJ and Sheller JA agreed)).
24. Ex 1, [47]; T (16 March 2018) p 68.
25. R v JK [2017] NSWSC 250 at [1], [22]-[27].
26. Ibid at [26] and see Crimes (Sentencing Procedure) Act 1999 s 28(4).
27. As to which, see (for example) R v Hines (No 3) [2014] NSWSC 1273 at [77]-[85].
28. Crimes (Sentencing Procedure) Act, s 29(4).
29. Cf Munda v Western Australia [2013] HCA 38 at [54].
30. R v Lattouf, unreported, Court of Criminal Appeal (NSW) 12 December 1996.
31. R v Wilkinson [1999] NSWCCA 248, R v Eriksson [2001] NSWSC 781; Hill v R [2003] NSWCCA 16; R v O'Brien [2003] NSWCCA 121, R v George [2004] NSWCCA 247, R v HA, unreported NSWSC (Rothman J) 18 December 2008 and BW v R [2011] NSWCCA 176.
32. MFI 1, [42].
33. T (16 March 2018) p 73.
34. Crimes (Sentencing Procedure) Act 1999 (NSW), s 5.
35. Ibid.
36. Crimes (Sentencing Procedure) Act 1999 (NSW), ss 7 and 12. 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: 23 March 2018