15 On 11 January 2003, her husband telephoned Lifeline threatening suicide, police were called and he received counselling from the Bungarribee Crisis Team at the Blacktown Hospital where he was confined for three days. Subsequently, the respondent's husband visited the house regularly to see the children. At the beginning of February 2003, Jason was transferred from Kings Langley Primary School to Caddie's Creek School, Glenwood because the teachers at his former school were unable to provide what he needed and the latter had a support unit for children with Autism.
16 About Easter 2003, the respondent's husband returned to the family home to assist with the care of Jason although the marriage had not been reconciled, and then in May 2003, she learned that her stepfather had been indecently assaulting their daughter. The respondent had said that she loved her stepfather more than her own father and it was devastating for her to learn what he had done to her daughter. The matter was reported to police and subsequently an apprehended domestic violence order was obtained. She sought counselling for the daughter, but again was forced to wait a long time for an appointment. Her problem was compounded by the fact that her mother continued to live with her stepfather and as a result, the respondent felt a further sense of rejection and lack of support. According to her husband, it was from this event that the respondent deteriorated to the point where, as he said, she "became dead inside". Then on 28 July, the daughter self-harmed.
17 Meanwhile, on 12 June 2003, the respondent's father died and there were disputes with her stepmother in relation to his burial and his estate. About this time her grandmother was taken to hospital seriously ill, and not expected to live, although in fact she subsequently recovered. Then on 27 July 2003 shortly before Jason's death, there was a heated and violent argument between the respondent and her husband, and in the week preceding Jason's death, she and her husband had several discussions about Jason's future concerning how he and they would cope with the onset of puberty.
18 She was at the time, receiving treatment for depression and was taking Deptogran 25 and a supplement named "30 plus" together with other combinations prescribed by a local massage therapist and was receiving vitamin B injections. It appears that during that time, her depression deepened, and in the month prior to Jason's death, she had lost almost 10kgs in weight. She was also working 3 days (about 15 hours) a week and her employer had some months previously had occasion to speak to her about the quality of her work.
19 On 4 August 2003 after rising at 5:10am, the respondent helped her daughter to prepare for school. She discussed with her husband their continuing difficulties with Jason and the bleak future they had with him. At about 8:30am after her husband and daughter had left for work and school respectively, she got Jason's clothes ready for school, took a shower and then attempted to dress Jason for school, but he would not cooperate and ran off to the rumpus room. The respondent followed him and there held his hand, placed her hand over his mouth and nose and held him until he ceased struggling, resulting in his death. She then picked him up and took him to the bed where she laid him down.
20 She telephoned her place of work and reported that she would not be in due to sickness, left money and bank account withdrawal slips and written authorities on the table so that her bank funds would be available for her husband and daughter and then went to the bathroom, took a razor and severely lacerated her wrists. When the bleeding stopped, she cut the wounds again to restore the flow of blood. When found shortly afterwards by her mother, she was near death and when paramedics attended, they were unable to register her blood pressure. She was taken to Blacktown Hospital and only survived because blood transfusions restored her blood level and blood pressure. She had full thickness transverse lacerations to her right wrist and three full thickness transverse laceration to her left wrist, exposing tendons.
21 After being found in the shower at her home, she was spoken to by police first attending the scene, and whilst obviously suffering the effects the attempt on her life, expressed her wish not to survive with the phrase, "I don't want to get warm".
22 She told Professor Greenberg, psychiatrist:
"I don't know why it happened, whatever happened I had no control. My soul had left my body. I was just watching through my eyes. It wasn't me. I knew it was me not having control over myself, it was like being on autopilot. I wish I had my boy back. I love him so much it's not right I should be here. I should be with him. My children mean the world to me. I didn't do it because I didn't want Jason, I didn't hate the trauma he caused. It wasn't about Jason. I never wanted that morning to end my life. It's never that I hate Jason or his disability. I loved him the way he was. It just happened. I never had the experience of loss of control, I never experienced that before, I snapped".
23 She was interviewed twice by police later that day and made full and frank admissions, and pleaded guilty in the Local Court as soon as she was offered the charge of manslaughter. She has expressed remorse and contrition to the police, to all the psychiatrists and to Ms Powers of the Probation and Parole Service who prepared the Pre-Sentence Report, and his Honour was satisfied that her remorse and contrition were genuine.
24 Professor Greenberg saw the respondent on four occasions and had access to other reports. He expressed the view that at the time of Jason's death, the respondent was labouring under such intensive and overwhelming feelings of depression that her actions were substantially impaired and she was deprived the capacity to understand the full significance of her actions and mentally control them. He considered that her mental abnormality arising from the underlying major depression substantially impaired her mental responsibility for the alleged act.
25 Dr Lin, the general practitioner who had been treating the respondent, confirmed that he treated her for ongoing depression which was getting worse despite medication whilst Dr Westmore, another psychiatrist who examined her on 13 August 2003, concluded that at the time of the offence she was suffering from a major depressive illness and that her mental condition deprived her of capacity to control her actions, and was also likely to have impaired her capacity to understand the wrongness of her actions.
26 Dr C L Wong, Consultant Psychiatrist, interviewed the respondent on 23 January 2004 on behalf of the Director of Public Prosecutions. He also concluded at the time she was suffering major depression, an abnormality of mind arising from a pre-existing mental condition, caused by the array of traumatic life events impacting on her personality traits which rendered her particularly susceptible to these events. He considered that as a result of her highly moralistic perspective, what took place around the time of the alleged killing, in particular what happened to the daughter, caused her more emotional revulsion than they would otherwise, and concluded that for some time, she had entertained fleeting and rather disorganised thoughts of killing Jason and then herself, but had had adequate control and had no difficulty in readily banishing such thoughts, but because of her severe depression, the adversities which came one after another in quick succession loomed much larger and appeared much more intractable and overwhelming. He was not convinced that her ability to judge the wrongfulness of her actions at the time of the killing was substantially impaired, but rather that she knew it was wrong, but had no control over it at the time.
27 Dr Wilcox, General and Forensic Psychiatrist, who subsequently treated the respondent, also concluded that the respondent was suffering from major depression when she took her son's life.
28 This was not merely a case of a mother killing her severely disabled son, but of a mother suffering from major depression occasioned not only by the need to care for her son and the devotion she gave to that task, but overwhelmed by a number of other stressors all impacting on her at about the same time and in circumstances where her husband (the child's father) was unable to provide the degree of support and assistance which she needed resulting in her spontaneously snapping and almost immediately being so overcome with remorse and regret that she made a genuine attempt to take her own life, and very nearly succeeded. As the learned sentencing judge said:
"This offender was required to educate, feed, toilet, bathe, entertain and love Jason. She loved and cared for (her daughter) and did not neglect her despite the constant demands of raising an autistic child. She constantly lived with the fact that her son had lost his best chance of acquiring greater life skills because of the failure of authorities to provide appropriate intervention during his early formative years. She carried the burden for her husband and supported him through his mental breakdown and general inability to cope with life and Jason in particular. She did all this in an environment of physical and emotional abuse from her husband. She worked outside the family home to help support the family. She assisted others with handicapped children.
Further, the offender lived through her grandmother's illness, her father's illness and subsequent death on 12 June 2003. She suffered considerable conflict with her stepmother both during her father's illness and after his death. She suffered the anguish of losing her home in Ballina and being unable to afford to purchase a home in Sydney. Rather than gaining greater assistance from the authorities by coming to Sydney, she lost the small amount of respite care that she had managed to extract from the relevant government department in Ballina. She suffered the trauma of discovering that her stepfather, a man she loved more than her own father, was sexually abusing her daughter, causing her to self-harm and become promiscuous. She was told that she would have to wait a month for counselling for her daughter. She let her husband return to the family home only to find that his conduct during the social function in the week prior to Jason's death confirmed her worst fears and left her feeling trapped in a relationship that she hated. She endured all of this while suffering a major depressive illness of her own".
29 His Honour appears to have taken the view (ROS 25), acquiesced in by the Crown (T 39), that on the morning of 4 August, the respondent decided to take her own life but did not want to leave her son alive without her, and so killed him before killing herself (the planned suicide theory) rather than killing her son without any pre-meditation when her capacity was substantially impaired and then attempting to take her own life. The view accepted by his Honour appears to have come from statements made by the respondent months after Jason's death to Ms Powers, who prepared the Pre-Sentence Report. It is inconsistent with what she told the police on the day of Jason's death, what she told each of the psychiatrists shortly thereafter and what she has told her treating psychiatrist, Dr Wilcox. I am satisfied that it was not open to his Honour to accept the planned suicide theory and that he was in error in so doing.
30 In his Victim Impact Statement read to the District Court, the respondent's husband referred to what a good mother she had been to Jason over the years, he asked for leniency for her and said that he could see no gain to the community or personal satisfaction in her being sent to prison. It would appear that his Honour took his attitude into account when sentencing the respondent, and in so far as he did so, he was in error, as the attitude of the victim: R v Palu (2002) 134 A Crim R 174 at [37], or in the case of homicide, the victim's family: R v Previtera (1997) 94 A Crim R 76, is not relevant to the proper exercise of the sentencing discretion for the reasons explained in those cases. For the same reasons, the apparent change of attitude of the respondent's husband is not a matter which this Court can take into account in considering the appeal: see also R v Newman [2004] NSWCCA 102 at [79] to [86] and cases there cited.
31 Manslaughter, whatever form it takes, constitutes unlawful homicide. It is always a most serious offence as it involved the taking of another human life and it is the responsibility of the courts to protect and preserve human life and to punish those who unlawfully take it. All human life is to be protected including that of the disabled, the handicapped, the criminal, the derelict and the friendless.
32 In R v Edwards (1996) 90 A Crim R 510 at 517, Gleeson CJ repeated what this Court had said in R v McDonald (12 December 1995) as follows:
"Manslaughter involves the felonious taking of human life. This may involve a wide variety of circumstances, calling for a wide variety of penal consequences. Even so, unlawful homicide, whatever form it takes, has always been recognised by the law as a most serious crime. The protection of human life and personal safety is a primary objective of the system of criminal justice. The value which the community places upon human life is reflected in its expectations of that system.
33 Similarly in R v Troja (CCA - unreported - 6 July 1991) Kirby P observed:
"The starting point is a clear statement that objectively the offence (i.e. manslaughter) is one of the most serious that our community knows….Homicide is properly regarded in any civilised community, including ours, as a most serious crime….So much is incontrovertible….But it should be stated at the beginning of these reasons. Otherwise, there is a risk that the Court may so concentrate on the predicament of the applicant, on her explanation of her offence and her subjective circumstances, as to forget the important part which the law must play in upholding the protection of human life and in punishing those who take it".