SW v R

Evidence bearing on the applicant's state of mind 23Both the applicant and BW gave evidence that they were heavy users of drugs such as Valium, Panadeine Forte and Panamax. The applicant explained that she relied on the drugs to treat ongoing pain from a fall she had suffered in 1999 as well as anxiety problems dating back to 1992. She said that from 2005 to 2007, she was taking about 10 Panadeine Forte each day. Later in her evidence she said that, in the eight-week period at Hawks Nest, she would take eight to 10 Panamax, six to 15 Valium, two to six Voltaren Rapid, and eight to 12 Panadeine Forte on a daily basis. The applicant said that the drugs made her feel like she was in a "dream-like state", as if she "wasn't really there". She also gave evidence that the drugs slowed her down. In cross-examination, the applicant denied that she was lying about her drug intake so as to give the impression of "being so zonked" that she failed to notice Ebony's weight loss. 24Professor Graham Starmer gave evidence for the applicant. He agreed that the statement "I wasn't really there, felt spacey and dream-like, as if things were not real" (said by the applicant in evidence in chief) was consistent with a description by a person who might be using eight to 10 Panamax, six to 15 Valium, and eight to 12 Panadeine Forte per day. Professor Starmer said that simple tasks such as making a purchase would be relatively resistant to the effects of the drugs, although tasks involving judgment would be more affected. He conceded that diazepam, the active constituent of Valium, might affect a person's memory, but added that this had to be offset against the tolerance that the person may have developed. Professor Starmer cited fatigue, drowsiness, confusion and depression as other possible side effects of diazepam. He cited nausea, vomiting, constipation, dizziness, drowsiness and impaired mental and physical abilities as possible adverse reactions to the codeine component in Panadeine Forte. Professor Starmer again added that long-term use of either drug would lead to the build-up of a tolerance, with the result that the person would not suffer the same effects unless the dosage were increased. He gave evidence that a person under the influence of these drugs in sufficient quantities would still be able to perform simple or routine tasks to a competent standard, but might face difficulties in performing unusual or difficult tasks or tasks involving the exercise of choice. Professor Starmer said that a person such as the applicant, who took the drugs at different times throughout the day, would be less affected than a person who took the drugs all at once. 25The applicant gave evidence about her perception of Ebony's physical condition after the move to Hawks Nest. She said that she remembered Ebony being only "a bit thinner" than she was in 2005 and 2006. The applicant added that at no point prior to Ebony's death did she notice a distinct change in Ebony's appearance or conditioning. The applicant said that she had seen and was shocked by the autopsy photos of Ebony, although she "didn't see her [Ebony] as being like that" at any time before her death. Rather, the applicant said, she perceived Ebony to be the same "chubby six-year-old child" she was some 20 months earlier. The applicant said that at no time in the period between March 2006 and Ebony's death did she ever think there was any need for Ebony to see a doctor. 26The applicant also gave evidence about her psychological state at Matraville and Hawks Next. She said that from 2005, she felt very depressed and was distressed by the involvement of DOCS in the family's affairs. The applicant's depression continued after the move to Hawks Nest. She said that she did not feel appreciated and that she felt nothing she did was worthwhile. The applicant said that these feelings persisted up to the date of Ebony's death. 27The applicant gave evidence that two weeks before Ebony died, she had told BW that she "was concerned about her with the vomiting and diarrhoea and also about her seeing a doctor". According to the applicant, BW said in reply that Ebony had been through that before, that she would be fine, and that there was no need for her to see a doctor. The applicant agreed with BW's assessment. The applicant said that although Ebony's vomiting and diarrhoea continued in the two weeks before her death, she did not consider taking Ebony to a doctor because in her view the condition was insufficiently serious. The applicant said that sometime during this period, BW had said to her, as she was taking Ebony to bed, that "if it [the vomiting and diarrhoea] kept up she might die". The applicant told BW "not to be silly and that she would be fine, she would come good". BW denied in his evidence that these conversations took place. 28The applicant gave evidence that on Friday, 2 November 2007, the day before Ebony was found dead, she woke Ebony at about 4.00am and guided her by the hand to the lounge room. The applicant said that she lifted Ebony up and placed her on the lounge before going to the kitchen to heat Weetbix and muesli with which to feed Ebony. When the applicant came back to feed the child, Ebony indicated that she wanted to sit on the floor, so the applicant helped her move from the lounge to the floor. The applicant started to feed her, but Ebony had only a few teaspoons before pushing the bowl away. According to the applicant, Ebony was up for about an hour and a half to two hours. For most of this time she was lying down. The applicant said that she put Ebony back to bed sometime between 5.30 and 6.00am. 29The applicant said that she woke Ebony up again at about 6.00pm on the Friday. Again she held her hand as they walked down the hallway to the lounge room. The applicant placed Ebony on the floor and attempted to feed her soft food and some soft drink. At about 7.30pm, the applicant helped Ebony up, held her hand and walked her to bed. 30The Crown argued that the expert evidence had called into question the applicant's account of the events on the Friday night. In his evidence, Dr O'Loughlin doubted that early on the Friday morning Ebony would have been able to walk, even if someone were holding her hand. Dr O'Loughlin very much doubted Ebony would be able to sit unsupported because the muscles around her trunk, spine and chest would have been incapable of supporting her weight. He conceded that it was possible, if Ebony were conscious, for her to swallow soft food. However, it was Dr O'Loughlin's opinion that Ebony was probably comatose in the days leading up to her death, and that only her vital functions, such as heartbeat and respiration, would have been active in the 24 hours before her death. Dr Dimitra Tzioumi, a specialist paediatrician at Sydney Children's Hospital in Randwick who saw Ebony in 2002, gave evidence that it "was not possible medically" that Ebony appeared well on the Friday evening. 31Finally, BW said in his evidence that the applicant had said to him, shortly after the discovery of Ebony's dead body, "We have to get rid of the body". The applicant denied having said this. 32In the summing-up, the trial judge gave directions with respect to the state of mind that the jury would have to be satisfied of in order to find BW and the applicant guilty of murder. His Honour correctly identified for the jury that a prerequisite to a murder conviction was that each of the accused had either an intention to kill the deceased or was recklessly indifferent to human life, in that they foresaw that Ebony's death was a probable consequence of their acts or failure to act but nevertheless persisted in their course of conduct. His Honour emphasised that each of the accused denied having had the relevant state of mind at the relevant time. 33The following extract of the summing-up provides a useful summary of the argument mounted by the applicant about her state of mind: "So Mr Stewart [counsel for the applicant] then isolated and identified for you the single issue in the trial of his client, whether the Crown was able to prove beyond reasonable doubt that [SW] realised that by her omission to act [Ebony] would probably die and he then presented a number of arguments to you as to why you would not find that this had been proved to the required standard, that is beyond reasonable doubt. He referred to the Crown's argument 'Who in their right mind would feed a child with vomiting and diarrhoea, Weetbix and muesli?' Mr Stewart said this points to the issue of the state of mind of [SW] in the days leading up to [Ebony's] death. If she was trying to get rid of her, why would she bother to feed her such things? He said that a person might if they are negligent. Rather than an attempt to get rid of the child, Mr Stewart submitted that it was just an inappropriate response. He submitted that [SW] had issues and problems. She found it very difficult to cope with the responsibility of care of her children. Reference was made to [Ebony] being very thin at the time of the move from Matraville and her experience in vomiting and diarrhoea at Hawks Nest. Mr Stewart then referred you to the history of problems that [Ebony] had experienced throughout her life. He submitted that there was a history of [SW] failing to cope and falling down in the care of her daughter. He also referred to what he submitted was a coincidence of the observations of [SW] failing to cope and falling down in the care of her daughter. He also referred to what he submitted was a coincidence of the observations of [SW] herself at the same time as doctors were noticing problems with [Ebony], for example, when Dr Ktenas saw [Ebony] at the age of 12 months he also noted that [SW] looked thin. Mr Stewart also referred to the evidence of the police officer in charge of the case and of the handyman who both remarked about the difference in appearance of [SW] between when they saw her in 2007 and when they saw her in the courtroom. They both said in effect that she looked healthier now, notwithstanding, Mr Stewart said, she was in the dock under the stress of being on trial for murder. Mr Stewart said there was no single explanation for why his client did not see the dire condition that he child was in. He said the explanation lay in a combination of factors. He referred to her drug use, her depression, the removal of [BW], the chronic pain that [SW] was in, the relative social isolation in which she was living, the fact that she had not seen her mother for over a decade and her being in a relationship with a man who was addicted to Valium. Mr Stewart submitted that you should have regard to all of the those things that were going on in her life and their cumulative effect which produced a situation in which she could not cope well and could not fully appreciate what was happening with [Ebony]." 34The trial judge gave the following directions in respect of the applicant's testimony about her state of mind: "I think it is appropriate that I make a comment to you about that submission, ladies and gentlemen. You should bear in mind that whilst you had evidence from a number of witnesses about these difficulties that [SW] was experiencing, there is no evidence from anyone other than [SW] herself that these difficulties had an effect upon her ability to appreciate what was occurring with [Ebony], that her physical condition was being adversely affected by inadequate nutrition and that her decline reached a stage where she was badly in need of nourishment and/or medical attention. None of the doctors or any of the other witnesses gave evidence that any of these difficulties, either on their own or in combination, would have a bearing upon [SW's] capacity to understand the physical condition of the child. Mr Stewart's submission was that these matters were relevant to his client's state of mind at the time. They are matters that you may take into account. However, as I said, you should bear in mind that the evidence that her state of mind was such that she did not see the decline of [Ebony] came from [SW] alone."

Alleged lies and conduct capable of being construed as evidence of consciousness of guilt 35It is necessary to identify the alleged lies and conduct that form the basis of Grounds 1(a) and 1(c) of the appeal. 36The first alleged lie of which the applicant complains was central to the Crown case. The applicant told the ambulance officers who attended the scene that she did not appreciate the seriousness of Ebony's condition. She repeated that claim to the police officers who executed the search warrant at the Hawks Nest property, as well as in the evidence she gave at trial. The Crown argued that it beggared belief that the applicant did not realise that Ebony's condition was rapidly deteriorating and that her death was imminent. 37The second alleged lie of which the applicant complains arose from the account BW and the applicant had given about Ebony's condition on the night before she died. As explained above, the Crown relied on the evidence of Dr O'Loughlin to argue that this account could not be true. 38BW told the police in his interview of 5 November 2007 that, on the evening of 2 November 2007, he saw Ebony in the lounge room sitting up in front of the television. The Crown argued that this was a lie going to consciousness of guilt, as the medical evidence indicated that Ebony would have been physically incapable of having done so. BW conceded at trial that what he told the police was a lie. He said that he was merely repeating what the applicant had told him, that he had no personal knowledge about the matter, and that he had lied in order to protect his wife. In summing up, the trial judge gave an "Edwards direction" (Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193) about the use to which the jury could put the lie: "But I need to give you a legal direction about that particular lie that the Crown says that [BW] told the police and [BW] concedes he told the police. Before you can take a lie into account as evidence of the guilt of the accused, you must be satisfied that it was, in fact, not only a lie but also a deliberate lie. If you are not so satisfied that it was a deliberate lie, well then you cannot use it for this purpose, that is, as evidence of guilt of the accused. If you are, however, satisfied that it was a deliberate lie, then you must also be satisfied that it was a lie that first, relates to an issue that is material or relevant to the offence charged and second, it reveals a knowledge of the offence or some aspect of it and third, that it was told because the accused knew the truth of the matter about which he lied would implicate him in the offence or, to put it another way, because of a realisation of guilt and a fear of the truth. I emphasise that you must be satisfied that what was in his mind was guilt of the offence charged and not some other crime." 39Consistently with BW's evidence, the applicant said that Ebony was sitting up in the lounge room, that she fed Ebony, and that she helped Ebony walk to her bedroom (see above at [28]-[29]). 40The third alleged lie of which the applicant complains related to a soiled nappy containing urine and hard stools which was found by police in a bin at the Hawks Nest home. The applicant said it was the nappy Ebony had been wearing on the night of 2 November 2007, and that she had fitted Ebony with a fresh nappy before putting the child to bed that night. The Crown disputed this account. It was put to the applicant in cross-examination that the hard stools in the nappy were inconsistent with Ebony having eaten very little and having suffered from diarrhoea shortly before her death. The Crown ultimately suggested in closing that the nappy in question had been worn by Ebony for some time before her death. The suggestion was that the applicant had lied because the truth would have implicated her in the offence by disclosing a failure to tend to the child's needs. 41The fourth alleged lie related to the applicant's claim that in the two weeks leading up to Ebony's death she expressed to BW concerns about Ebony's wellbeing (see above at [27]). 42The fifth alleged lie was the applicant's denial that she suggested to BW that they get rid of Ebony's body (see above at [31]). 43In relation to the conduct referred to in Ground 1(c), the applicant complains that his Honour did not give any directions about the fact that Ebony did not appear in family photographs from mid-July 2006 onwards. At trial, the applicant said that Ebony did not figure in the photos because she made a nuisance of herself whenever they were being taken. The Crown suggested that the applicant had taken care not to include Ebony in the photographs because she was aware of Ebony's pitiful state. For the reasons I give below, this conduct could not be attributed to the applicant's consciousness of guilt. 44Also relevant to Ground 1(c) are the allegations that the applicant feigned a suicide attempt after Ebony's death in order to disguise her true state of mind; that the applicant photographed a bull ant in Ebony's room in order to support her false story that bull ants were coming out of the deceased child's nose and mouth; and that the applicant and BW had fled to the South Coast soon after Ebony's death in order to evade the police. 45The trial judge instructed the jury as to the relevance, or lack thereof, of the applicant's alleged lies in view of her concession that she was guilty of manslaughter: "Now, given that [SW] concedes that she is guilty of manslaughter, any lie that you find that she told you is incapable of assisting you in determining whether she is guilty of murder. It really has no value in that task. Any lies that you are satisfied she told, either to the police or in her evidence here and any lies in addition to the one I have mentioned that you are satisfied [BW] told, either to the police or in his evidence here, are only relevant to your assessment of their credibility. That is, your assessment of whether you can believe what they have said." 46The trial judge did not give any such direction in relation to the use of the applicant's post-offence conduct as a basis for choosing between verdicts of murder and manslaughter. The direction was limited in its terms to the alleged lies.

Ground 1(a): His Honour failed to appropriately direct the jury as to how they could use the evidence of the accused alleged lies (sic).

Ground 1(c) His Honour failed to direct the jury as to how they could use the evidence of the conduct capable of being construed as evidencing consciousness of guilt.

Ground 1(d) His Honour failed to direct the jury with respect to the alleged lies told to her husband. 47It is appropriate to deal with these grounds together, as they each invoke the concept of consciousness of guilt reasoning. Counsel below made no relevant objection to the directions of the trial judge that are now complained of in this appeal. Accordingly, the applicant requires leave to appeal for these grounds, pursuant to Rule 4 of the Criminal Appeal Rules. 48The crux of the applicant's submissions on these grounds is as follows. The sole issue in the trial was the applicant's mental state in the period leading up to Ebony's death, and in particular whether the applicant foresaw the probability of Ebony's death. This was because there was no dispute that the applicant was at least guilty of manslaughter. The applicant gave evidence about her mental state. Whether the jury accepted that evidence necessarily rested upon their view of the applicant's credibility. Accordingly, when the trial judge told the jury in the portion of the summing-up extracted at [45] that the only purpose for which they could use the alleged lies was in evaluating the applicant's credibility, the jury might have mistakenly understood that direction to mean that if they took an adverse view of the applicant's credibility on account of the lies, they could thereby conclude that she was guilty of murder. The applicant's complaint is that the jury might have reasoned, quite illogically, that she had the mental state for murder because they did not believe her when she said she did not. The applicant submitted that for the jury so to reason would have amounted to a reversal of the onus of proof. 49What the trial judge was attempting to convey by his direction was that there was no logical process of reasoning by which the jury could find that the lies proved that the applicant was guilty of murder rather than manslaughter. The lies, if proved, could demonstrate the applicant's acknowledgement that she had committed a crime (either the murder or manslaughter of Ebony). But they could not rationally speak to whether she committed that crime with the mental state for murder. The lies were of no probative value on that question. However, while the lies could not be used for this purpose, the jury could consider them in deciding what weight to give the applicant's evidence more generally. 50The applicant also submitted that the manner in which the Crown presented its case gave rise to a significant risk of misunderstanding on the part of the jury as to how they could use the applicant's alleged lies and other post-offence conduct. According to the applicant, that risk made it necessary for his Honour to give an Edwards-type direction in relation to the applicant, despite the Crown's disavowal of any reliance upon consciousness of guilt reasoning in relation to her. The applicant relied on what was said by Gleeson CJ, Gaudron, Gummow and Callinan JJ in Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234 at [16]-[17]: "There may be cases in which the risk of misunderstanding on the part of a jury as to the use to which they may put lies might be such that a judge should give an Edwards-type direction notwithstanding that the prosecutor has not put that a lie has been told out of consciousness of guilt. As a general rule, however, an Edwards-type direction should only be given if the prosecution contends that a lie is evidence of guilt, in the sense that it was told because, in the language of Deane, Dawson and Gaudron JJ in Edwards, 'the accused knew that the truth ... would implicate him in [the commission of] the offence' and if, in fact, the lie in question is capable of bearing that character. (The words in italics are ours and, for the sake of clarity, should be included in the statement of principle.) Moreover, if there is a risk of confusion or doubt as to the way in which the prosecution puts its case, the trial judge should inquire of the prosecution whether it contends that lies may constitute evidence of consciousness of guilt and, if so, he or she should require identification of the lie or lies in issue and the basis on which they are said to be capable of implicating the accused in the commission of the offence charged." 51Counsel for the applicant argued that the Zoneff direction was necessary because of the structure and content of the trial judge's summing-up, together with the Crown's many suggestions that the applicant had lied about various matters. His Honour highlighted for the jury at the outset that the alleged lies told by the applicant could be used only to assess her credibility. However, the applicant's credibility was the central fact in issue, in that she denied being aware of Ebony's deterioration in the period before the child's death. The applicant accordingly argued that when the trial judge proceeded to summarise the Crown case in detail, including the suggestions therein that the applicant had lied about various matters, the jury might have been led to conclude that the applicant was guilty of murder solely because she could not be believed when she denied having foreseen Ebony's probable death. The applicant cited specific portions of the summing-up to support this submission. I have set out some of the relevant extracts below, with emphasis on the particular passages that are said to have undermined the direction: "After referring to that evidence, Mr Crown submitted that you would reject the claim by [SW] that she just did not see the condition of her child being as bad as it was. He referred to the evidence she gave at the end of her cross-examination in which she agreed that anyone who saw the child get into that condition in the last week or weeks of her life would realise that, without medical attention or adequate nourishment, it was a certainty the child would die. ... Given the early history of poor weight gain for [Ebony] and the Department of Community Services taking away baby [BW] for having lost weight, the Crown Prosecutor submitted that you would expect that [SW] would be hyper vigilant to notice any changes in the condition of her child, particularly as to her weight. He referred again to Dr Tzioumi who said that since [Ebony] weighed 20 kilograms in early 2006 she would have put on another 6 kilograms by November 2007 but the evidence was that she lost more than half of her weight. Mr Crown suggested the reason [SW] was saying she did not notice the decline of her child was because that if she did say that she did not notice it, then that would in effect be the end of the matter. ... Generally as to [BW's] police interview and what he said to various ambulance and police officers who came to the house on the day of [Ebony] death, [BW] claims that the things said about [Ebony] were simply things he was repeating from what [SW] had told him. Mr Crown submitted that if that were the case they would have had to have been relayed to him by [SW] at some time between her telling him that [Ebony] had died and him making the 000 call. He submitted that was unlikely and the more likely it was the case of the two accused having got their heads together at an earlier time. ... In relation to the nappy found by police in the rubbish, Mr Crown submitted that you would not accept that it had been worn by [Ebony] on and only on the night of her death, given the extremely minimal intake of food and liquid she had experienced for some weeks. He gave you a number of reasons for you to conclude that the claim by [SW] that she had put this on as a fresh nappy on the Friday night was, he said, 'ridiculous'." 52Grounds 1(c) and 1(d) raise more specific complaints about the directions. 53Under Ground 1(c), the applicant submitted that even if there were no risk that the jury misunderstood his Honour's direction about the lies, the trial judge's direction was limited only to the spoken lies and did not extend to evidence of conduct (including statements other than lies)which, on one view, might have suggested the applicant's consciousness of guilt for murder: see DJF v R [2011] NSWCCA 6 at [44] (Adams J). In the latter category was the allegation that the applicant had said to BW, "we need to get rid of the body", as well as the allegations that the applicant had feigned a suicide attempt and had taken a photo of a bull ant in Ebony's room in order to shore up her claim that she found Ebony with bull ants pouring out of her nose and mouth. The applicant submitted that, as with the alleged lies, there was no logical process of reasoning by which the jury could find that conduct of this kind proved that the applicant was guilty of murder rather than manslaughter. The applicant submitted that his Honour's failure to address the use that could be made of the conduct gave rise to a miscarriage of justice, as the jury may well have used the conduct to reason that the applicant had the mental state for murder. 54Under Ground 1(d), the applicant took issue with the lack of directions about the prosecutor's suggestion that the applicant and BW had "put their heads together" to come up with a false story about their observations of Ebony on the Friday night. The applicant complained that the trial judge made no reference to BW's evidence that the applicant had lied to him about her observations of Ebony on the Friday night. The jury apparently accepted BW's explanation that he had presented the applicant's account to the police as his own in order to protect his wife. The applicant said that it was misleading in the circumstances for his Honour not to give an Edwards-type direction in relation to the suggested collusion between the applicant and BW. According to the applicant, such a direction was necessary in order to focus the jury's mind on the possibility that the applicant might have lied to BW not out of consciousness of guilt, but out of a concern that DOCS would take custody of her children if it were discovered that Ebony had died under the applicant's care. 55The Crown argued on the appeal that the jury must have found the applicant guilty of murder on the basis of evidence other than her testimony, such as inferences drawn from the post-mortem photographs of Ebony and expert evidence regarding Ebony's deteriorating physical condition in the lead-up to her death. 56The Crown submitted that an Edwards-type direction should not have been given, as the giving of the direction would have misleadingly suggested to the jury that consciousness of guilt reasoning was available in relation the applicant. The Crown submitted that there was never any suggestion at trial, or in the trial judge's summing-up, that the alleged lies or post-offence conduct could be used to discriminate between verdicts of murder or manslaughter. The Crown placed particular reliance on his Honour's direction to the jury that "any lie that you find that she [the applicant] told you is incapable of assisting you in determining whether she is guilty of murder. It really has no value in that task." The Crown said that in those circumstances, the effect of an Edwards-type direction would have been to underscore a process of reasoning that was not available to the jury. The Crown argued that trial counsel for the applicant had made a sound tactical decision in not seeking further directions. 57The Crown then submitted that, even if an Edwards-type direction were warranted in the circumstances, the trial judge's directions achieved much the same result, as their effect was to prohibit the jury from using any of the alleged lies as the basis for a conclusion that the applicant had the mental state for murder. 58The Crown conceded that the trial judge did not specifically direct the jury that they could not differentiate between verdicts of murder and manslaughter on the basis of the applicant's post-offence conduct. However, the Crown submitted that this was of no moment. This was because the jury would have inferred, from the direction his Honour had given about the spoken lies, that the post-offence conduct similarly did not cast any light upon the applicant's mental state at the time of the offence. 59As to Ground 1(d), the Crown submitted that the suggestion of collusion between the applicant and BW did not result in a miscarriage of justice. The Crown argued that the suggestion of collusion needed to be seen in the light of its context. At the time the Crown made that suggestion, the applicant had not yet conceded that she was guilty of manslaughter. Accordingly, the fact of collusion was probative of whether she was guilty in a general sense, although it could not properly be used to discriminate between verdicts of murder and manslaughter. However, the alleged collusion ceased to be relevant to the applicant's case once she accepted responsibility for manslaughter. So much was accepted by the prosecutor. The trial judge made plain to the jury that the applicant's lies could not be used to discriminate between verdicts of murder and manslaughter. The Crown argued that even if this direction did not by its terms encompass the collusive conduct, the jury would have surmised that the direction applied equally to such conduct because of the interrelationship between the alleged collusion and the resulting lies about Ebony's behaviour on the Friday night. 60Finally, the Crown submitted that even if the applicant had demonstrated some error that warranted a grant of leave under Rule 4, the Court ought to dismiss the appeal. The Crown argued that no substantial miscarriage of justice had occurred, as the trial judge had expressly precluded the jury from using any of the applicant's alleged lies to discriminate between verdicts of murder and manslaughter. The Crown argued that this direction extended, at least by implication, to the applicant's post-offence conduct and alleged collusion.

Conclusion on Grounds 1(a), 1(c) and 1(d) 61It is difficult to accept the proposition that the trial judge's summing-up invited the jury to invert the onus of proof. The jury would have reached a conclusion as to the applicant's mental state from the circumstances as a whole, not just the applicant's evidence. They had before them Dr O'Loughlin's evidence to the effect that Ebony's life-threatening condition in the period before her death would have been obvious to anyone who saw her. They also had before them the autopsy photos, which showed what Ebony would have looked like shortly before her death. On the basis of this evidence alone, it was open to the jury to find beyond reasonable doubt that the applicant had foreseen that Ebony's death was a probable consequence of her continuing failure to provide the child with sufficient nourishment and care. It would be unreal to suggest that the jury's rejection of the applicant's evidence was the sole foundation for the finding of guilt. The jury had before them objective evidence that was rationally capable of informing their view of the applicant's mental state at the relevant time. 62There is no merit in the applicant's complaint that his Honour should have told the jury that they could not use the applicant's post-offence conduct or her incriminating statement about burying the body as a basis for distinguishing between verdicts of murder and manslaughter. If there were any real danger that the jury would misuse the statement or the post-offence conduct in its reasoning process, counsel absorbed in the atmosphere of the trial could be expected to have made an application for more specific directions about these aspects of the evidence: R v Tripodina (1988) 35 A Crim R 183 at 191 (Yeldham J). In any case, it is by no means obvious that the jury would have considered this process of reasoning logical unless specifically told otherwise by the trial judge. A moment's reflection would reveal that an attempt by the applicant to conceal Ebony's body could not in any way prove that she was recklessly indifferent to Ebony's life, or that she intended to kill the child, in the days, weeks and months leading up the death. No specific direction to this effect was required. 63I turn now to the suggestion that the applicant deliberately left Ebony out of family photographs from mid-July 2006 onwards because she was aware of the child's pitiful condition. To my mind, this was properly left to the jury as a fact which, if proved, was rationally capable of satisfying the jury that the applicant had the mental state for murder. The deliberate exclusion of Ebony from the photographs could be taken to suggest that the applicant was aware of the child's parlous state for a considerable period of time before her death. The applicant's awareness of Ebony's condition might have implied some realisation on her part that Ebony's death was probable if she did not tend to the child's needs. Accordingly, his Honour was not required to tell the jury that the applicant's deliberate exclusion of Ebony from the photographs, if proved, could not be used to distinguish between verdicts of murder and manslaughter. To the contrary, the fact could logically be used for that purpose. 64Nor am I persuaded that his Honour erred in failing to give a Zoneff or Edwards-typedirection in relation to the applicant's alleged lies. His Honour forbade the jury from using the lies as a basis for distinguishing between verdicts of murder and manslaughter. There was therefore no risk of misunderstanding on the part of the jury about the significance of the alleged lies, this being the necessary trigger for a Zoneff direction. The lies were taken out of play as evidence that might assist in discriminating between verdicts of murder and manslaughter. 65There is no reason to think that the trial judge's summation of the Crown case would have led the jury to forget or second-guess his Honour's direction about the lies. The direction forbidding use of the lies for the purpose of finding the applicant guilty of murder was emphatic in its terms. His Honour was not obliged to repeat it, even when he traversed the Crown case in the summing-up. Moreover, trial counsel did not seek any redirection. This provides added reason to think that the atmosphere of the trial was such that his Honour's traversal of the Crown case did not leave the jury with the impression that the lies could be used to discriminate between verdicts of murder and manslaughter. 66The applicant has failed to show either an arguable case that his Honour erred in law, or that her conviction is a miscarriage of justice: Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297 at [72] (McHugh J). Accordingly, Rule 4 applies in relation to Grounds 1(a), 1(c) and 1(d) and I would refuse leave to raise these grounds.

Ground 1(b) His Honour erred in his comment as to the lack of alleged corroboration (and therefore her lack of credibility) as to the applicant's claimed state of mind during the time of the child's deteriorating health leading up to her death. 67The trial judge's comment about the lack of independent evidence to support the applicant's claimed state of mind in the lead-up to Ebony's death is set out at [34] of this judgment. 68The applicant's submissions on this ground of appeal are as follows. The applicant's state of mind in the period leading up to Ebony's death was the critical fact in issue. Accordingly, for the trial judge to lay emphasis on the lack of corroboration was, in effect, to cast the onus of proof upon her rather than the Crown. The applicant said that the trial judge's observation would have prompted the jury to ask, "Has she demonstrated that she should be believed?" 69The Crown submitted that the trial judge's comment on the issue of corroboration was unobjectionable in the context of the trial. The Crown said that although various witnesses had given evidence that the applicant was experiencing personal difficulties in the period leading up to Ebony's death, none of these witnesses went so far as to suggest that those difficulties would have impaired the applicant's ability to notice a marked deterioration in Ebony's condition. Moreover, Professor Starmer had conceded in cross-examination that neither the combination nor quantity of the drugs that the applicant claimed to have taken would have diminished her ability to notice deterioration in Ebony's physical state. The Crown said that the observation as to corroboration was appropriate because, without it, the jury might have uncritically equated the applicant's difficult life circumstances and drug intake with a diminution in her ability to perceive obvious changes in Ebony's physical condition.

Conclusion on Ground 1(b) 70In my view, the applicant's submissions on this ground ignore the entirety of the evidence led at trial. From first to last, the onus remained on the Crown to prove the elements of the offence beyond reasonable doubt. The trial judge gave the usual directions to this effect. However, the photographs of Ebony and the evidence of Drs Nadesan and O'Loughlin amounted to powerful evidence contradicting the applicant's assertions. The jury were entitled to ask themselves whether they should accept the applicant's evidence about her claimed state of mind because the independent evidence regarding Ebony's condition provided a firm basis on which to infer that the applicant must have appreciated Ebony's dire condition shortly before her death. 71Against this background, it was not improper for the trial judge to mention the lack of corroboration. I agree with the Crown submission that the trial judge's comment about the want of corroboration was not inappropriate in light of the other evidence led at trial. That trial counsel raised no objection at the time also inclines me to the view that his Honour's comment did not give rise to a miscarriage of justice, bearing in mind the atmosphere of the trial. 72For these reasons, I am of the view that the applicant should be refused leave to raise this ground of appeal.

Ground 2: His Honour failed to direct the jury that before they could convict the appellant upon (sic) murder they had to be satisfied the Crown had proved beyond reasonable doubt that the appellant was not so intoxicated as a result of prescribed drugs she was taking alone and/or in combination with other matters she said were affecting her state of mind as to be able to form the specific intent necessary for murder. In other words, to thereby realise that her child was probably going to die. 73The applicant said that the significance of the evidence regarding the effect of the prescription drugs on her mental state was such that his Honour should have given a specific direction about the relevance of drug-induced intoxication, despite the omission by trial counsel to ask for any redirection on this point. Section 428C(1) of the Crimes Act relevantly provides: "Evidence that a person was intoxicated (whether by reason of self-induced intoxication or otherwise) at the time of the relevant conduct may be taken into account in determining whether the person had the intention to cause the specific result necessary for an offence of specific intent". Section 428C(1) applies to a charge of murder by reckless indifference: R v Grant [2002] NSWCCA 243 at [97]-[98] (Wood CJ at CL, Spigelman CJ and Kirby J agreeing). 74The applicant submitted that a direction on drug-induced intoxication was necessary because her use of prescription and other drugs was one of the factors upon which she relied to explain her failure to perceive changes in Ebony's physical state. The applicant relied upon the following enunciation of principle by Gibbs J in Viro v The Queen [1978] HCA 9; (1978) 141 CLR 88 at [112], quoted with approval by this Court in Bellchambers v R [2008] NSWCCA 235 at [33]: "In a case where there is evidence fit to be considered by a jury that the accused was intoxicated as a result of the consumption of drink or drugs, it is not enough to tell the jury that the Crown must prove beyond reasonable doubt that the accused had in fact formed the requisite special intent. They should also be told that the fact that the accused was intoxicated, whether by drink or drugs or by a combination of both, may be regarded for the purpose of ascertaining whether the special intent in fact existed. It should be explained that evidence that the accused was intoxicated will not in itself entitle him to an acquittal, because a person when intoxicated may form the necessary intent, and one who has formed the intent does not escape responsibility because his intoxication has diminished his power to resist the temptation to carry it out. However, the jury should be told that if, because of the evidence as to the effect of the intoxication or otherwise, they are not satisfied that the accused did in fact have the necessary intent, they must acquit of the crime which involves that intent." 75The Crown accepted that even where the defence does not seek directions on intoxication, a trial judge must give such directions if the evidence raises the reasonable possibility that intoxication had an effect on the accused's mental state at the relevant time: R v Sullivan [2011] NSWCCA 270 at [35] (Blanch J, McClellan CJ at CL and Hislop J agreeing). 76However, the Crown argued on the appeal that the evidence regarding intoxication did not justify a specific direction. To this end, the Crown pointed to various deficiencies in the evidence regarding intoxication. One such deficiency was the long period of time (weeks or months) over which the applicant failed to attend to Ebony's needs. It would have been difficult to argue that intoxication was an operative factor over the entire period in which the applicant might have formed the specific intent for murder. Another deficiency in the evidence was the concession by Professor Starmer that a person who took the drugs in the quantities reported by the applicant would have developed a tolerance to their effects. There was also evidence indicating that the applicant was capable of completing complex tasks in the period leading up to Ebony's death. 77The Crown also observed that the applicant's case was never put to the jury on the basis of intoxication alone, perhaps because of the weaknesses in the evidence regarding intoxication. Rather, the case for the applicant was that a multiplicity of factors, including her use of drugs, had culminated in her inability to cope and resultant failure to notice the fatal deterioration of her child. 78Finally, the Crown submitted that the absence of any application by trial counsel for redirection on the issue of intoxication could be explained by sound tactical considerations. The Crown said that it was more advantageous to the applicant's case to argue that the drugs, in combination with other factors, had impaired her ability to perceive Ebony's deterioration. This was because the evidence did not suggest that intoxication was a discrete factor that operated upon the applicant's mental state.

Conclusion on Ground 2 79To my mind, the implications of the evidence regarding intoxication were fairly brought to the jury's attention by the trial judge's summation of the defence case. His Honour cogently explained the defence case to the jury. According to that case, it was a reasonable possibility that a combination of factors had led to the applicant's failure to perceive Ebony's deterioration in the relevant period. Drug-induced intoxication was one of these factors, but the defence never relied upon it in isolation from the others. 80The Crown is correct to argue that the applicant's defence to murder was never one of drug-induced intoxication as such. It would have been artificial, and perhaps even misleading, for the trial judge to give directions about drug-induced intoxication as a discrete factor that was capable of operating upon her mental state. Having regard to the evidence of Professor Starmer, the evidence suggested, at its highest, that the intake of drugs in combination with other life stressors might have affected the applicant's mental state in some way. But the drugs could not be singled out as having, on their own, a sufficiently distortive effect on the applicant's perceptions. Neither Professor Starmer's evidence, nor that of any other witness, provided a foundation for that conclusion. 81Even if the applicant's use of drugs provided a discrete basis for an argument that she was so intoxicated that there was a reasonable doubt about whether she had formed the mental state for murder, the jury would have needed to be satisfied that she was intoxicated to this degree for the whole of the period during which she failed to provide Ebony with the necessities of life. This is because the Crown needed only to prove that the applicant had the mental state for murder at some point during that period. Even a momentary realisation by the applicant that Ebony's death was probable would have been enough to establish the mental state for murder. Seen in this light, the evidence did not raise a reasonable possibility that drug-induced intoxication alone had prevented the applicant from forming the mental state for murder. 82All of these factors explain why his Honour was not asked to give, and did not give, any directions that isolated and dealt with drug-induced intoxication separately from the other factors on which the applicant relied to raise a reasonable doubt about whether she had the mental state for murder. The evidence did not raise the reasonable possibility that drug-induced intoxication had operated as a discrete influence on the applicant's mental state at the material times. I would therefore refuse leave to raise this ground of appeal.

Sentence Ground: In all the circumstances the sentence imposed was too severe. 83The applicant also seeks leave to raise one ground of appeal against sentence. It is necessary to summarise those parts of the remarks on sentence which are relevant to the appeal. 84The trial judge found that the jury had convicted the applicant of murder on the basis of her reckless indifference to Ebony's life: R v BW & SW (No 3) [2009] NSWSC 1043 at [187], [121]. His Honour found that the applicant had considered not just the probability, but the "dead set certainty", that Ebony was going to die. He was of the view that it would have been no worse if the applicant had actually formed an intention to kill Ebony: BW & SW (No 3) at [187]. His Honour's reasoning on this point was as follows: "Murder by reckless indifference might generally be regarded as less serious than murder with an intention to kill but this is not necessarily so: R v Ainsworth (1994) 76 A Crim R 127 at 139. I have already indicated that in the circumstances of this case there is no real distinction between culpability for murder by either of these states of mind. There was evidence from Dr Nadesan that immediately prior to death Ebony's body would have appeared the same as depicted in the post mortem photographs. SW agreed with a proposition put to her by the Crown Prosecutor that a person seeing Ebony in that state would realise that it was not just a probability but a "dead set certainty" that she was going to die. She would have appeared in a similar state for quite some time before she died. To my mind, for a person to have done nothing in those circumstances is so morally reprehensible that it could be no more serious if the person actually intended to kill the child." 85The trial judge found that the applicant's case fell within the "worst case category": BW & SW (No 3) at [188]. He was of the view that the applicant's criminal offending required the imposition of a life sentence in accordance with s 61(1) of the Crimes (Sentencing Procedure) Act 1999: BW & SW (No 3) at [191]. His Honour was mindful that a sentence of life imprisonment carries with it no possibility for consideration of release on parole: BW & SW (No 3) at [189]. However, because of the "extreme gravity of the offence", he was "not satisfied that any of the subjective features, alone or in combination, are sufficient to displace the prima facie need for the maximum penalty": BW & SW (No 3) at [191]. 86Pre-trial evaluations of the applicant by Dr Olav Nielssen, a psychiatrist, and Ms Duffy, a psychologist, were relied upon at the sentencing hearing. Dr Nielssen assessed the applicant on the basis of her self-reported history. She told him that she was under the control of BW for many years, that she had lost the capacity to act on her own behalf, and that she had little say in the care of the children. She claimed that BW was "unpredictably violent" and had physically abused her on a number of occasions. She told Dr Nielssen that the Matraville home was in a squalid state because, no matter how much she cooked and cleaned, BW would quickly create more mess. The applicant also claimed that BW had forced her to participate in bondage and sadomasochistic sexual acts with paying clients in their home from 1992 to 2004. The applicant told Dr Nielssen about a number of health problems she had experienced throughout her life, including an eating disorder, asthma, irritable bowel syndrome, chronic lower back pain, self-harming behaviour, and anxiety attacks. 87Dr Nielssen concluded that "it was not clear that [the applicant] met the accepted criteria for the diagnosis of any major psychiatric disorder". He was willing to concede, however, that the applicant suffered from a "personality disorder" or "a disabling level of pervasive and maladaptive personality traits". Dr Nielssen wrote in his report: "From the history elicited, it did seem that [the applicant] had developed the learned helplessness of women in abusive relationships. She reported being closely controlled with the threat of violence over many years to the extent that she became completely isolated and had no ready means to leave the relationship, especially as she had the care of three children with various disabilities. Hence it is possible that [the applicant] would be able to raise a defence arising from "battered women's syndrome", which is not a psychiatric diagnosis but a set of circumstances that is recognised in law to arise in women who are subjected to chronic physical abuse to the extent that they are deprived of initiative and a capacity for free will. The combination of her own physical problems and her lack of initiative may have affected her capacity to appreciate the state of her child's health or attending to her needs." 88Dr Nielssen qualified that last sentence in his oral evidence. He said that although the applicant's capacity to appreciate Ebony's physical circumstances was not greatly affected, she had probably become used to the child's poor health. 89The applicant gave Ms Duffy an account of her life history which was largely consistent with the account she gave Dr Nielssen. Ms Duffy assessed the applicant on the basis of the self-reported history and a number of psychometric tests that she had the applicant undergo. Ms Duffy concluded: "It is considered that [the applicant's] dissociation in response to her chronic trauma state arising from her abusive relationship may have blinded her literally (sic) to the plight of her emaciated daughter. Her perceptions may have been distorted to the extent that she believed that [Ebony] would 'come good' as she had done before. Thus it came as a real shock to [the applicant] that her daughter had starved to death literally in front of her eyes and that she had not realised it. Her multiple psychological problems including dissociation may have detached her sufficiently from reality that she did not recognise the extent of her daughter's starvation. It is considered that [the applicant] has a number of severe psychological conditions although she is not mentally ill. She shows evidence of personality disorder and profound depression and anxiety as well as Post Traumatic Stress disorder. Her involvement in [a] psychologically damaging relationship has altered her perceptions and her perspective on a number of issues, and she will require considerable psychotherapy to come to terms with her role in the death of her daughter and recover from the abuse perpetrated on her over so many years." 90The trial judge gave "little weight" to the evidence of Dr Nielssen and Ms Duffy: BW & SW (No 3) at [121]. After identifying a number of discrepancies between the accounts the applicant gave at trial and those she gave Dr Nielssen and Ms Duffy, as well as between their conclusions and the applicant's behaviour, his Honour said: "There is a very real question as to whether SW should be believed in respect of the history she gave to Dr Nielssen and Ms Duffy": BW & SW (No 3) at [118]. His Honour regarded the evidence of Dr Nielssen and Ms Duffy with scepticism for the added reason that they had evaluated the applicant before the trial, and therefore without the benefit of the jury's finding of guilt: BW & SW (No 3) at [118]. The trial judge was also concerned that Ms Duffy, a psychologist, had strayed into psychiatry in formulating her opinion: BW & SW (No 3) at [113]. The trial judge gave little or no weight to the applicant's account of her abusive relationship with BW, again because he had formed a negative view of her credit. 91Nor did the trial judge accept the applicant's evidence about the level of her prescription drug use. He noted that the applicant had told Dr Nielssen that she did not abuse prescription drugs. In addition, although Professor Starmer gave evidence that heavy use of the drugs could impair a person's memory, Dr Nielssen reported that the applicant's "command of detail and her capacity to retrieve information such as dates was remarkable": BW & SW (No 3) at [120]. 92His Honour accepted that Ebony did not figure in family photographs taken after July 2006 because of her increasingly pitiful condition: BW & SW (No 3) at [159]. 93The applicant argued on the appeal that his Honour erred in finding that the applicant's case fell within the worst case category or otherwise warranted the imposition of a life sentence under s 61(1) of the Crimes (Sentencing Procedure) Act. In the alternative, the applicant submitted that his Honour erred in not exercising his residual discretion under s 21(1) of the Act to impose a determinate sentence. 94The applicant sought to establish error in a number of ways. She argued that comparable cases such as R v Folbigg [2003] NSWSC 859 and R v Pfitzner [2009] NSWSC 1267 demonstrated that a sentence of life imprisonment was excessive in her case. The applicant also took issue with the trial judge's rejection of the absence of planning as a mitigating factor, as well as the finding that, in the circumstances of the case, it would have been no more serious an offence if she had actually intended to kill Ebony. The applicant complained that his Honour erred in rejecting the evidence of Dr Nielssen and Ms Duffy, the applicant's evidence about her addiction to prescription medication, and the contention that the applicant was not an "emotionally healthy person" in the period leading up to Ebony's death. The applicant submitted that it was an error to dismiss such evidence out of hand because, absent an intention on the part of the applicant to kill Ebony, there must have been some psychological or psychiatric reason why the applicant failed to care for her child in the relevant period. 95The applicant also argued that the trial judge had attributed insufficient weight to the evidence of her general practitioner, Dr Garondy Novak, who noted in March 2007 that the applicant was in a lot of pain and having trouble coping. She was concerned that the applicant was taking greater than usual doses of prescription medication for her pain and panic attacks. Dr Novak formed the view that the applicant was depressed and referred her to a pain clinic for treatment and psychiatric assistance. The trial judge did not expressly mention Dr Novak's evidence in his judgment on sentence. He instead dealt with the issue of the applicant's depression in the following parenthetical way at [127]: "A number of the medical witnesses called by the prosecution did, however, agree that SW appeared to be depressed. Invariably, however, when this was clarified in re-examination it was said that it was in the nature of her 'having the blues' rather than a matter of clinical depression. I am also not prepared to accept that her 'ability to cope' was impaired in any substantial way because of that aspect, either alone or in combination with any physical health issue." 96The applicant challenged a number of factual findings made by the trial judge. The finding that the applicant deliberately excluded Ebony from the family photographs and kept her out of public view was said to be equivalent to a finding that the applicant intended to kill Ebony, whereas the trial judge sentenced her on the basis of reckless indifference. The applicant said that the finding could not in any event be sustained beyond reasonable doubt. This was because it implied that the applicant had deliberately exposed Ebony to chronic starvation from July 2006 through November 2007, though the evidence did not support an inference that the applicant had the mental state for murder over such a lengthy period. In support of this submission, the applicant pointed to the evidence of John Giavis, who was the last person other than the applicant and BW to see Ebony alive. Mr Giavis was a removalist engaged by the applicant and BW in August 2007 to move the family possessions from Matraville to Hawks Nest. He noted that Ebony was "obviously quite skinny" and looked about three years old. The applicant said it was significant that Mr Giavis' concerns about Ebony's wellbeing, if any, did not impel him to contact the authorities. 97The applicant also challenged the trial judge's finding that the applicant had failed to do all that she could to attend to Ebony's medical, developmental and educational needs for the duration of her life: BW & SW (No 3) at [151]. This finding was said to be inconsistent with evidence that Ebony was a "chubby six-year-old" in April 2006, was vaccinated, and had undergone a hernia operation that calmed her somewhat. The applicant was also critical of the seeming acceptance by his Honour that she had said to BW, "we have to get rid of the body": BW & SW (No 3) at [58], [68]. 98The applicant submitted more generally on the issue of mens rea that his Honour should not have found that the applicant had the mental state for murder for more than a couple of days or weeks before Ebony's death: BW & SW (No 3) at [44], [156] and [159]. 99The respondent maintained that the sentence was not erroneous. 100The Crown said that the applicant's complaints about the trial judge's factual findings were unfounded. According to the Crown, his Honour did not find beyond reasonable doubt that the applicant had suggested to BW that they get rid of the body. To the contrary, the trial judge made note of the applicant's denial that she had done so, and omitted any reference to the disposal of the body in his formal findings of fact: BW & SW (No 3) at [58], [148]-[171]. 101As to the finding that the applicant deliberately kept Ebony from public view and excluded her from family photographs, the Crown submitted that this finding was both open on the evidence and consistent with a mens rea standard of reckless indifference. 102The Crown said that Mr Giavis' evidence did not undermine the trial judge's finding that the applicant exposed Ebony to chronic starvation over many months. The Crown submitted that it was entirely speculative to conclude that Ebony must have been in none too parlous a state because Mr Giavis was not spurred to urgent action upon seeing the child. To this end, the respondent observed that there was no evidence led at trial or in the sentencing proceedings as to whether Mr Giavis took steps to notify the authorities, or his reasons for not doing so. 103On the issue of mens rea, the Crown submitted that it was open to the trial judge to find that the applicant must have realised that Ebony's death was probable for many months before her death. The Crown said that this finding was open on the evidence of Drs Nadesan and O'Loughlin and the post-mortem photographs. 104The Crown said that his Honour was justified in finding that the applicant exhibited such a high degree of reckless indifference to human life that her mental state could not meaningfully be distinguished from an intention to kill. It was said that the horrendousness of the offence and the length of time over which the applicant abdicated her basic parental responsibilities meant that the absence of planning could not be regarded as a mitigating factor. The Crown submitted that the applicant's attention to some of Ebony's needs prior to April 2006 was not inconsistent with a finding that the applicant had neglected the great majority of Ebony's needs throughout her entire life. 105As for evidence of Dr Nielssen and Ms Duffy, the Crown said that it was open for his Honour to give minimal weight to their views because of the unreliability of the applicant's self-reported history and the many inconsistencies between that history and the applicant's evidence at trial and on sentence. 106The Crown said that it was not necessarily the case that the applicant's neglect of Ebony was attributable to some psychological or psychiatric deficit, and the trial judge was not required so to find. The Crown further argued that the finding that the applicant's use of prescription medication did not reduce her culpability was appropriate, as the evidence did not suggest that the drugs diminished her capacity to appreciate Ebony's condition or to take steps to redress it. 107Finally, the Crown sought to distinguish the applicant's case from comparable cases such as Folbigg and Pfitzner by pointing to differences between the applicant's subjective circumstances and the subjective features of those offenders.

Conclusion on Sentence Ground 108This Court is bound by the trial judge's findings of fact, unless they were not open on the evidence or an error in the sense referred to in House v The King [1936] HCA 40; (1936) 55 CLR 499 can be shown: Hopley v R [2008] NSWCCA 105 at [28]. 109I turn first to the submission that it was an error for his Honour to find that, in the circumstances of the offence, there was no appreciable difference in culpability between an intention to kill and reckless indifference to human life. The trial judge cited R v Ainsworth (1994) 76 A Crim R 127 as authority for the proposition that, "whilst each case has to be considered on its own facts, there is no prima facie presumption that murder resulting from reckless indifference is less culpable than murder involving one of the other categories of malice referred to in the statutory definition of murder" (at 139 (Gleeson CJ)). That statement of principle was accepted by Grove J in R v Holton [2004] NSWCCA 214, although his Honour was careful to draw out its implications. He accepted that there was no prima facie presumption that murder resulting from reckless indifference is less culpable than murder resulting from specific intention, but added that "so to say inheres recognition that murder by reckless indifference is not necessarily as culpable as other forms. Each case must be considered on its own facts" (at [59]). 110The trial judge had careful regard to the facts of the applicant's case. He made a considered judgment that the applicant's awareness of Ebony's life-threatening condition over a period of many months, coupled with her complete failure to take steps to cure it, was morally indistinguishable from an intention to kill. The moral judgment inherent in that finding might be contested. A reasonable person might think that it is always more morally reprehensible to set out upon a deliberate course to kill a child than to consider but disregard the probability, or even the certainty, that a child's death is imminent. But equally so, a reasonable person might think as the trial judge did. Bearing in mind the case law on this subject, which rejects any prima facie presumption that intentional murder is worse than murder by recklessness, it cannot be said that his Honour erred in collapsing the distinction between the two states of mind. 111The applicant challenged various findings of fact made by the trial judge. I have reviewed his Honour's reasons, the evidence at trial, and the evidence on sentence. I am satisfied that the findings of which the applicant complains were open on the evidence and were otherwise untainted by error in the sense referred to in House v The King. In particular, it was open to his Honour to accord minimal weight to the evidence of Dr Nielssen and Ms Duffy, for the reasons he gave. In addition, the post-mortem photographs and the evidence of Drs Nadesan and O'Loughlin provided ample support for his Honour's finding that the applicant was aware of Ebony's deterioration over a period of many months. His Honour's conclusion on this point was not undermined to any significant degree by the evidence of Mr Giavis. Finally, it was not an error for the trial judge to find that the applicant excluded Ebony from family photographs because she was aware of the child's pitiful condition. That finding was not irreconcilable with a mens rea standard of recklessness. 112There remains the question whether the sentence of life imprisonment was too severe. The trial judge considered himself bound by s 61(1) of the Crimes (Sentencing Procedure) Act to impose a life sentence on the applicant. The section provides: "A court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence." 113The assessment whether a case falls within the "worst-case category" at common law is not materially different from the assessment of culpability postulated by s 61(1): R v Merritt [2004] NSWCCA 19; (2004) 59 NSWLR 557 at [87] (Wood CJ at CL, Tobias JA and Hidden J agreeing); R v Harris [2000] NSWCCA 469; (2000) 50 NSWLR 409 at [87]-[88], [90]. Accordingly, it is appropriate to deal jointly with the applicant's submissions as to s 61(1) and the worst-case categorisation of the offence. 114The principles governing the review of life sentences imposed under s 61(1) were set out by Wood CJ at CL in Merritt at [60]-[61]. This Court is a court of error. Accordingly, the relevant question on the appeal is not whether this Court would have decided the question presented by s 61(1) differently. The relevant question is whether the sentence was wrong in law, in that it was not open to the sentencing judge to be satisfied that "the combined effect of such of the four indicia as are applicable, could only be met by [a life sentence]" (Merritt at [42], [54]). 115Much of the applicant's argument on sentence was directed to the trial judge's treatment of the evidence relating to the applicant's psychological dysfunction. An offender's mental state will operate to diminish the culpability of the offence only if it contributed to the commission of the offence: R v Israil [2002] NSWCCA 255 at [23]-[24]; R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [86]-[93]. The trial judge dismissed the applicant's psychological difficulties as a case of "the blues" which did not substantially affect her "ability to cope". He concluded that the applicant's depressed mood and general ill health were not causally connected to her failure to attend to Ebony's needs: BW & SW (No 3) at [127]. This Court is bound by that finding. Accepting it as accurate, the applicant's mental state at the time of the offence did not diminish her level of culpability for the purposes of the assessment required by s 61(1). 116A sentence of life imprisonment may not be required by s 61(1) if that sentence is outside the appropriate range of sentences for the type of crime under consideration. This Court cannot draw analogies between the applicant's case and those of other offenders who have committed similar crimes or have similar subjective features. However, the Court can refer to comparable cases in order to ascertain the parameters of the sentencing range. As Wood CJ at CL explained in Merritt at [62]: "[W]hile it is appropriate for the Court to correct a sentence which is out of line with the commonly accepted pattern: Regina v Visconti [1982] 2 NSWLR 104, there is limited utility in drawing any direct comparison with a sentence imposed upon another offender, simply because the two offenders appear to have similar characteristics, or to have committed similar crimes. What must be considered is whether the sentence is within the appropriate range, and in that respect, other apparently similar cases merely form part of that range: Regina v Morgan (1993) 70 A Crim R 368 and Regina v Salameh NSWCCA 9 June 1994." 117His Honour concluded that reference to sentences imposed for comparable crimes is appropriate "so long as they are understood to form part of an overall sentencing pattern" (at [67]). It is with that caveat in mind that I have considered the cases set out below. I have borne in mind the diminished utility of those cases that predate the increase in the standard non-parole period for murder to 25 years. However, even those cases are of some value when the question is whether life imprisonment fits within the range of appropriate sentences. I have also taken due account of the fact that the sentences in some of these cases were imposed after a plea of guilty.

• R v Lane [2011] NSWSC 289, where the offender was sentenced to an overall term of 18 years imprisonment, with a non-parole period of 13 years and five months, for the intentional murder of her newborn daughter following her discharge from hospital. The sentencing judge found that the offender did not suffer from any mental illness or disorder, although he did accept that the offence could in part be explained by her personality disorder.
• R v Pfitzner [2009] NSWSC 1267, where the offender was sentenced to an overall term of 25 years and six months imprisonment, with a non-parole period of 19 years and two months, for the murder of her two-year-old son, in circumstances where she shook the child for up to five minutes and threw him to the ground. The psychiatrist retained by the Crown concluded that the offender suffered from substance abuse disorder and severe borderline personality disorder, whereas another psychiatrist was of the opinion that she had a defence of substantial impairment open to her. On appeal, the sentence was found to be severe but not excessive: R v Pfitzner [2010] NSWCCA 314 at [46] (McClellan CJ at CL, Hislop and Price JJ agreeing).
• R v PJS [2009] NSWSC 153, where the offender was sentenced, following conviction after trial, to an overall term of 26 years imprisonment, with a non-parole period of 20 years, for the murder of his three-year-old stepdaughter, in circumstances where he assaulted the child repeatedly for a period exceeding 20 minutes. A longer non-parole period would have been imposed but for the fact that PJS was the son of a magistrate and therefore had to serve his entire term in protective custody.
• R v Jalaty [2006] NSWSC675, where the offender was sentenced, following conviction after trial, to an overall term of 20 years, with a non-parole period of 15 years, for the murder of her three-year-old daughter, in circumstances where she administered methadone to the child as part of a deliberate plan to kill her. There was no indication that the offender suffered from depression or any other mental disorder, although the sentencing judge accepted that the applicant's life had been a tumultuous one. The offence was assessed as lying within the middle of the range of objective seriousness.
• R v Folbigg [2003] NSWSC 53, where the offender was sentenced, after trial, to an overall term of 40 years imprisonment, with a non-parole period of 30 years, for the murder of three of her children, the infliction of grievous bodily harm on one of those children, and the manslaughter of another, in circumstances where the offences took place over 10 years. There was evidence that the offender was a depressed and psychologically damaged person who was incapable of bonding effectively with her children. The sentence was reduced on appeal to a maximum of 30 years imprisonment, with a non-parole period of 25 years. The inappropriateness of a life sentence was acknowledged on the appeal: R v Folbigg [2005] NSWCCA 23.
• R v Fraser [2004] NSWSC 53, where the offender was sentenced after trial to an overall term of 32 years, with a non-parole period of 27 years, for the premeditated murder of his three children, aged seven, five and four years, in circumstances where the offender was fearful that he would lose the children as a result of his wife having formed a new relationship. The offender had a longstanding history of psychiatric disturbances and was in a disordered mental state at the time of the killings. On appeal, the sentence was held not to be manifestly excessive. However, the Court observed that the offender's motivation to punish the other parent was a feature of the case which exacerbated his culpability: R v Fraser [2005] NSWCCA 77 at [41]-[42] (Grove J).

1. Leave to appeal conviction refused.
2. Grant leave to appeal against the sentence but refuse that appeal. 138HALL and DAVIES JJ:

PART A 139In relation to the appeal against conviction contained in grounds 1 and 2 we agree with McClellan CJ at CL (as his Honour then was) and have nothing to add. 140In relation to the application for leave to appeal against the sentence imposed by Hulme J contained in ground 3 we regret that we cannot agree with the dismissal of the appeal for the following reasons. 141We agree with McClellan CJ at CL that the ground of appeal as framed, namely that the sentence is too severe, cannot succeed. However, as McClellan CJ at CL has done we have considered the ground as if it asserted that the life sentence imposed was manifestly excessive. 142At the conclusion of the hearing in this Court on 30 November 2012, the Court granted leave for the applicant to file additional submissions in support of the application for leave to appeal against sentence. 143On 6 December 2012, additional submissions were filed on behalf of the applicant and the Crown filed additional submissions in response on 11 December 2012. 144In the additional submissions for the applicant it was stated, for the purposes of clarifying the matters sought to be raised on appeal, that leave was sought to rely upon additional "subgrounds" as particulars to the ground that had originally been relied upon. 145The Crown has not opposed the application for leave to add as particulars of the ground relied upon those set out in paragraph [3] of the additional submissions on behalf of the applicant. In those circumstances, we are of the opinion that leave should be granted to the applicant to rely upon the following additional matters as set out in the additional submissions in the following terms: i. His Honour erred by reference to comparable cases in finding this matter fell into the 'worst case' category. In particular: see Folbigg [2003] NSWSC 859 and Pfitzer [2010] NSWCCA 314. ii. His Honour erred in finding that in the circumstances the offence of murder is no less serious even if it was committed by a reckless indifference rather than an intention to kill [ROS 187-188]. iii. His Honour erred in rejecting the evidence of Dr Nielssen, Ms Duffy and even the contention that the Applicant was not an emotionally healthy person in the time leading up to the death of her daughter."

PART B 146Section 61 Crimes (Sentencing Procedure) Act 1999 relevantly provides: 61 Mandatory life sentences for certain offences (1) A court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence. 147If it is considered that the case falls within that section there remains a residual discretion under s 21(1) of the Act to impose a determinate sentence where the offender's subjective circumstances justify such a course: R v Merritt at [36]. 148In R v Kalajzich (1997) 94 A Crim R 41 Hunt CJ at CL said at 50-51: "The maximum penalty for murder of penal servitude for life, meaning for the term of the prisoner's natural life, is ... reserved for cases falling within the worst category of cases, but it is not reserved only for those cases where the prisoner is likely to remain a continuing danger to society for the rest of his life or for those cases where there is no chance of rehabilitation; the maximum may be appropriate where the level of culpability is so extreme that the community interest in retribution and punishment can only be met by such a punishment." 149In R v Harris Wood CJ at CL (with whom Giles JA and James J agreed) said: [84] The features required for qualification in the "worst case category" were defined in R v Twala (Court of Criminal Appeal, 4 November 1994, unreported) where it was said (at 7): "... in order to characterise any case as being in the worst case category, it must be possible to point to particular features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from the subjective features mitigating the penalty to be imposed)..." [85] "Heinousness" has been described as follows in R v Arthurell (Hunt CJ at CL, 3 October 1996, unreported) at 11:: "The adjective 'heinous' which gives the noun 'heinousness' its meaning has been variously defined as meaning atrocious, detestable, hateful, odious, gravely reprehensible and extremely wicked. ... The test to be satisfied is thus a substantial one". [86] It was next submitted that the exercise required at common law differed from an assessment of the level of "culpability" under s 61(1) of the Crimes (Sentencing Procedure) Act, which required a consideration of the reasons for the offending conduct, that is, of the circumstances surrounding or causally connected with the offence, such as the background or mental state of the offender. [87] It is not at all clear to me that the assessment whether a case falls within the "worst case category" at common law is any different from that postulated under s 61(1). The decision in Veen v The Queen (No 2) (1987) 164 CLR 465, permits reference at common law to background material for the purpose of assessing moral culpability, and dangerous propensity and there is long standing precedent for regard to be had to each of the matters specified in s 61(1) when considering sentence. [88] Similarly to the view offered by Hunt CJ at CL in R v Kalajzich (1997) 94 A Crim R 41 in relation to the former s 431B(1) of the Crimes Act, I doubt that its successor (s 61(1) of the Crimes (Sentencing Procedure) Act adds anything to the common law. ... 150At [124] his Honour quoted with approval a passage from the Court's judgment in R v Garforth which in turn cited a passage from Hunt J in R v Petroff (Court of Criminal Appeal, 12 November 1991, unreported): "But first we should emphasise that we do not intend to diminish the terrible significance of a sentence of life imprisonment. Nor did Newman J. His Honour quoted the following passage from the judgment of Hunt CJ at CL in R v Petroff (unreported, 12 November 1991): 'The indeterminate nature of a life sentence has long been the subject of criticism by penologists and others concerned with the prison system and the punishment of offenders generally. Such a sentence deprives a prisoner of any fixed goal to aim for, it robs him of any incentive and it is personally destructive of his morale. The life sentence imposes intolerable burdens upon most prisoners because of their incarceration for an indeterminate period, and the result of that imposition has been an increased difficulty in their management by the prison authorities. We acknowledge the force of these sentiments. That is why life imprisonment is to be imposed only in the worst type of case. Nevertheless, there are cases in which such a severe punishment fits the crime. This is one such case." 151In considering this matter we do not lose sight of the fact that this Court is a court of error. In Merritt WoodCJ at CL (with whom Tobias JA and Hidden J agreed) said: [60] The position of this Court, in considering an appeal from such a sentence, is limited by the fact that it is a court of error: Regina v Vachalec [1981] 1 NSWLR 351. It is not sufficient for it to find that some other sentence might possibly have been imposed, or that members of the Court might have themselves imposed a different sentence: Skinner v The Queen (1913) 16 CLR 336 and Regina v O'Donoghue (1988) 34 A Crim R 397. Rather, it must be satisfied that the sentence was wrong, and that some other sentence was warranted and should have been imposed: s 6(3) Criminal Appeal Act, and see Regina v Cocking [1999] NSWCCA 311. [61] This will require it to be satisfied that there was an error of principle, or a mistake of fact or law, such that the sentencing discretion of the trial judge miscarried. In its review, the Court is also bound by findings of fact by the sentencing judge unless they were not open on the evidence, or unless error is shown in the sense referred to in House v The Queen (1936) 55 CLR 499 at 504-505; Regina v Kelly (1993) 30 NSWLR 64 and Regina v Khouzame [2000] NSWCCA 505. [62] Additionally, while it is appropriate for the Court to correct a sentence which is out of line with the commonly accepted pattern: Regina v Visconti [1982] 2 NSWLR 104, there is limited utility in drawing any direct comparison with a sentence imposed upon another offender, simply because the two offenders appear to have similar characteristics, or to have committed similar crimes. What must be considered is whether the sentence is within the appropriate range, and in that respect, other apparently similar cases merely form part of that range: Regina v Morgan (1993) 70 A Crim R 368 and Regina v Salameh NSWCCA 9 June 1994. 152We deal separately below with the medical evidence, in particular the evidence of Dr Nielssen, Consultant Psychiatrist, regarding his findings on examinations conducted on the applicant and the extent to which that evidence was evaluated by the sentencing judge. Before doing so, we turn to the subject of sentencing patterns in cases involving the murder by a parent of a child. 153Merritt was a case where the applicant murdered her three children aged 6 years, 11 months and 11 weeks. The Judge at first instance (Greg James J) imposed life sentences for each of the murders: Regina v Merritt [2002] NSWSC 1159. On appeal Wood CJ at CL first reviewed a number of earlier cases involving the murder of offenders' children. He then went on to say: [65] It is true that these were all cases in which determinant (sic) sentences, including the setting of non-parole periods, were imposed. There has in fact been no decision in this State, so far as I am aware, involving the murder by a parent of his or her children, where life sentences have been imposed, other than the present case. That is a circumstance that can, in my view, properly be taken into account, having regard to the desirability for general consistency and predictability in sentencing. To so hold is not to offend against the principles considered in Veen (No 2) v The Queen (1988) 164 CLR 465 or Regina v Twala (NSWCCA, 4 November 1994 unreported), and see also Regina v Kalajzich (1997) 94 A Crim R 41 at 51, which make it clear that it is an incorrect approach to sentencing to compare the facts of the case at hand with other cases in order to determine whether it does or does not fall within the worst case category, deserving of the maximum sentence. (emphasis added) 154He then went on to say: [66] A brief review of some of the cases where life sentences have, in fact, been imposed for cases of murder, was undertaken by me in the reasons for sentence which I delivered in Regina v Penisini [2003] NSWSC 892. They display somewhat different characteristics, and in particular were either wholly, or in the main, cases of extreme violence, where the offender's psychiatric or emotional state either did not contribute to the offence, or had very limited significance; or where his or her future dangerousness to the community was demonstrably evident. Some were cases of underworld murders, one involved a political killing; all were cases which involved a significant threat to society and a need for a strong element of personal and general deterrence. Little purpose is, accordingly, to be derived by further reference to them. [67] As I have observed, reference to the decisions that I have expressly cited is appropriate, so long as they are understood to form part of an overall sentencing pattern. Ultimately each case must be determined upon its own facts, and by reference to the legislative provisions, which set the available maximum, or which otherwise give direction as to the sentence which is to be imposed. 155Accordingly, it is appropriate to consider other cases to see whether a decision is out of line with the commonly accepted pattern for sentences and it is appropriate to do that when considering if the offence falls within s 61(1) prior to dealing with the final discretion enabling the imposition of a determinate sentence under s 21(1). This is apparent from what appears in Merritt particularly at [69] and the later consideration of the applicant's subjective circumstances at [75]-[76]. 156In Merritt a question of the proper construction of s 61(1) was raised in terms of the four indicia mentioned in that section (retribution, punishment, community protection and deterrence). The four possible interpretations were said at [42] to be these: That a life sentence is required if the culpability is so extreme that the community interest (1) in any one of the four indicia, (2) in each of the four indicia, (3) in the combined effect of such of the four indicia as are applicable, and (4) that the combined effect of the four indicia with each contributing to some degree, is such that it could only be met by such a sentence. 157Wood CJ at CL's conclusion at [54] was that the third of the possible interpretations was correct and that: "[I]t follows that the absence of any finding of future dangerousness would not rule out an application of the section." 158Tobias JA, whilst agreeing with Wood CJ at CL and with his Honour's reasons, said he wished to add a comment with respect to the interpretation of s 61(1): "[4] Notwithstanding the absence of one or more of the statutory indicia, the presence and level of significance of the other or others may still lead to the conclusion that the level of culpability is so extreme that the community interest can only be met through the imposition of a sentence of imprisonment for life. [5] Obviously, the absence of any one or more of those indicia will make it more difficult for a trial judge to reach the state of satisfaction required by the section before such a sentence is mandated (subject always to s 61(3)). This is particularly so as the trial judge must be satisfied beyond reasonable doubt that the level of culpability is so extreme as to require the imposition of that sentence. [6] It would, I tend to think, be a rare case where the total absence of one or more of the indicia will still permit the relevant degree of satisfaction to be attained. On the other hand, as his Honour observes in [53] of his judgment, absence of the need for personal, as distinct from general, deterrence, is unlikely to influence the decision to any significant degree." 159Hidden J agreed with Wood CJ at CL but also with the additional remarks of Tobias JA. 160McClellan CJ at CL, at [117] of his Honour's judgment in the present case, having noted what Wood CJ at CL had said in Merritt concerning sentences in other cases, summarised a number of relevant cases involving the murder of a child or stepchild by a parent. To those, we would add the following: R v RHB [2007] NSWSC 1466. 161The offender had been charged with murdering in 1993 a child of his then partner. The child was then aged 14 months. He was also charged with murdering in 2004 the child of a later partner. That child was aged two at the date of his death. He was tried for both offences at the same time. The jury returned a verdict of manslaughter in respect of the first child but murder in respect of the second. In both cases the injuries were very similar and involved severe head injuries which might have been caused by shaking but could also have been caused by other forces. Hall J considered at length whether it was appropriate to impose a life sentence in respect of the murder conviction. His Honour found that the injuries manifested uncontrolled aggression on the offender's part. He went on to say: "[93] As earlier noted, imprisonment for life is reserved for cases that may properly be described as a worst category. For the benefit of those unfamiliar with the gradations which the law recognises, I observe that premeditated murders committed simply for financial gain or carried out with great cruelty or which involve, not one, but multiple murders are the type of case or cases that may fall within the worst category. The offence in this case on Count 2 did not, as I have stated, on my assessment, fall into that particular category and is to be judged against the appropriate, if not, imprecise, standards of criminality." 162His Honour imposed an overall sentence of 30 years with a non-parole period of 20 years. R v John Walsh [2009] NSWSC 764. 163In this case the offender pleaded guilty to the murder of his wife and his two grandchildren as well as causing grievous bodily harm to his daughter with intent to murder her. McCallum J said that the evidence did not establish any identifiable abnormality of the mind that was causally related to the offences such as to reduce the offender's culpability but she said the circumstances were disturbing enough to suggest that the offender was not in a normal state of mind. 164Her Honour said she found the comparison with other cases ultimately unhelpful for the purpose of determining whether the case before her fell within the worst class of case or the category described in s 61(1). She imposed a life sentence for the murder of the two grandchildren but a sentence of 20 years with a non-parole period of 15 years for the murder of the offender's wife. R v Mehta [2009] NSWSC 814 165The offender pleaded guilty to the murder of his wife and his wife's 9yearold daughter by a previous marriage. The offender had strangled his wife after an argument and the child witnessed the murder. The offender disposed of the bodies by throwing them over a cliff face. There was evidence that his wife's murder was financially motivated. There were few details about the precise acts causing the child's death, however, based on statements made by the offender to a fellow prisoner whilst the offender was in custody, Grove J was satisfied beyond reasonable doubt that he killed her because she had seen him in the act of strangling her mother. 166His Honour noted that whilst the murder of the offender's wife could be characterised as carried out in circumstances of extreme domestic acrimony involving a loss of control that would preclude it from falling into the worst category, there was no evidence which demonstrated that the second murder was carried out in such circumstances of panic and confusion. His Honour assessed the murder of the child as falling within the worst category and imposed a life sentence. A sentence of 30 years was imposed for the murder of the offender's wife. His Honour found that the offender expressed no remorse or contrition for the offending and that there were no subjective features which would displace the need for a life sentence. R v De Gruchy [2000] NSWCCA 51; (2000) 110 A Crim R 271 167The offender was convicted after trial of the murder of his mother, his sister and brother, all killed at the same time. He was sentenced in respect of each murder to concurrent minimum terms of 21 years with an additional term of seven years. He effectively abandoned his application for leave to appeal against sentence with this Court noting that the sentences imposed "were manifestly appropriate for the offences of which the Appellant was convicted" (at [1]). R v Alexander [1999] NSWSC 413 168This was an application for a redetermination of two life sentences previously imposed by Slattery J in 1987 for the murder of a woman and her daughter. The offender rented part of the woman's premises from her. After an argument concerning the rent he strangled her. When in the course of hiding the body he was seen by her three year daughter. He then murdered her by striking her with a piece of wood and stabbing her. Kirby J redetermined the sentence for each offence to a minimum term of 21 years with an additional term of eight years. (We accept that for the purposes of redetermination of sentences matters may be taken into account that post-date the original imposition of the life sentence.) R v Jang [1999] NSWSC 1153 169The offender pleaded guilty on the morning of the commencement of his trial for the murder of his wife and his wife's daughter by a previous marriage. The wife had acted as his sponsor for the purposes of immigration but ultimately she refused to sign the necessary papers to permit the offender being granted permanent residence. He had threatened to kill her and her family if she did not do so. He ultimately argued with his wife about her failure to sign the papers and then killed her by stabbing her. Her daughter came to her aid and he stabbed her also. Bell J sentenced him on each count to a minimum term of 18 years with an additional term of six years. 170An examination of all of the abovementioned cases shows that, even in those involving multiple murders, the only times a life sentence has been imposed were in Walsh and Mehta. Merritt, Folbigg,Fraser,Cikos, Cheatham, Velevski, Park, Alexander and Jang were all cases involving the murder of more than one family member and in Merritt, Folbigg, Fraser, Cikos, Velevski and Park two or more children were murdered by the offender. In none of those cases was it considered appropriate to impose a life sentence. As Wood CJ at CL said in Merritt at [65] that is a circumstance that can be properly be taken into account having regard to the desirability for general consistency and predictability in sentencing. 171It is necessary, however, to examine whether, in the light of the evidence and the Sentencing Judge's findings on the objective seriousness of the offence, it is correct to conclude that the community interest can only be met through the imposition of a life sentence. If the case could not be considered to be in the worst category such a conclusion would not be open.

Submissions on additional Grounds 172In the additional submissions for the applicant it is stated that deterioration in the applicant's care of the deceased child subsequent to mid-2006 is unexplained in the absence of the psychiatric and psychological evidence which, it was contended, had been dismissed by the sentencing judge, being the evidence given respectively by Dr Nielssen and Ms Duffy: Additional Written Submissions on behalf of the applicant at [11]. 173It was further submitted on behalf of the applicant that his Honour had erred in dismissing the evidence of Dr Nielssen and Ms Duffy, and in dismissing the significance of her addiction to prescribed medication: Additional Written Submissions on behalf of the Applicant at [12]. 174It was also submitted on behalf of the applicant that while it was open for his Honour to have reservations regarding the history given by the applicant to Dr Nielssen and Ms Duffy, their evidence should have been given significant weight: Additional Written Submissions on behalf of the applicant at [14]. 175The Crown, in response, submitted that the sentencing judge had given an entirely conventional explanation for placing "little weight" on the reports of Dr Nielssen and Ms Duffy, namely that the applicant had given each of them a history with so many conflicts that the history did not provide a proper basis for substantial weight to be afforded to the opinions that were based upon them: Crown's Further Submissions at [38]. 176The Crown also submitted that: "While there may have been some psychiatric and/or psychological explanation for the offence, it is by no means axiomatic that such an explanation would necessarily mitigate the sentence that was imposed": at [39]. 177The Crown, for reasons developed in its further submissions, submitted that the Court would reject the submission that absence of a finding by the learned sentencing judge that there was a psychiatric and/or psychological "explanation" for the subject offence, the absence of an intention to kill and/or an "associated motive" provided any basis for a finding that his Honour erred in failing to make any such finding of fact or otherwise: Crown's Further Submissions at [44]. 178The Crown also observed that the learned sentencing judge had clearly and at length set out the reasons for attributing little weight to the reports of Dr Nielssen and Ms Duffy: Crown's Further Submissions at [49]. 179The Crown submitted that the reasons given by the sentencing judge were "... perfectly sound and rested in large measure upon the patent and irreconcilable inconsistencies in the histories given by the Applicant, including her own evidence on sentence": Crown's Further Submissions at [50].

Findings by the Sentencing Judge 180In the remarks on sentence, the sentencing judge set out the subjective circumstances of the applicant at [82]-[129]. In those paragraphs his Honour comprehensively detailed relevant factual matters. He, in particular, noted Dr Nielssen's observations, as set out below, at [89] in the Sentencing Remarks. 181His Honour referred to the history given by the applicant to Dr Nielssen, including a history that she had been under the control of her husband, had lost the capacity to act on her own behalf and had little say in the care of the children. She claimed that he had been physically abusive towards her: at [91]. 182The sentencing judge observed that in the concluding paragraph of Dr Nielssen's report, a distinction was made between the applicant's capacity to appreciate the physical circumstances of the child and her ability to respond to the child's needs. That distinction was, in light of Dr Nielssen's reported clinical findings, one of importance. It was a distinction referred to again in Dr Nielssen's oral evidence. In that respect, his Honour observed: "103 In oral evidence the doctor explained the last sentence of that paragraph by saying that he did not think that [the applicant's] capacity to appreciate the physical circumstances of the child were greatly affected other than to say that she probably became used to the child's poor health. He said it was more in her capacity to attend to the child's needs which was very much limited by her husband's control of the situation, both with money and her personal freedom and also her own physical limitations in being able to keep her house clean and [attend to] the child." 183It was the second aspect of the applicant's "capacity" which was potentially of significance in the respects discussed below, not her ability to see or appreciate the deteriorating circumstances of the child which she clearly was able to do. 184The sentencing judge observed that much of what was stated by way of conclusion by Dr Nielssen depended upon whether one accepted the evidence of the applicant as to those matters. Dr Nielssen, it was noted, had conceded that his view of her personality was, to a large degree, dependent upon an acceptance of the history that she had provided. The history, it was observed, could not in itself explain why the applicant would not have noticed a change in the child's appearance from March 2006 to November 2007. 185On the question of the control and abuse by the applicant's husband as recorded in the applicant's history, the sentencing judge relied on matters set out at [106] of the remarks on sentence for doubting the history given as to the husband's physical abuse of the applicant. His Honour noted that Dr Nielssen did not have the benefit of viewing a lengthy recording made on 9 November 2007 when police executed a search warrant at the home. It was obvious on viewing the recording that the applicant's husband was co-operative and compliant, whilst the applicant was, as between the two of them, dominant and assertive. His Honour then referred to the fact that at an early stage the applicant snatched the occupier's notice out of her husband's hands as he was trying to read it. She insisted on making calls in the kitchen as police were endeavouring to have her remain in the living room and that whilst her husband was content for the police to seize whatever they wished, the applicant made a number of demands about what she considered they could, and could not, take. She had even asserted her view that the police should not even look at certain material: at [106]. 186The sentencing judge noted that Dr Nielssen agreed that these were not the types of behaviours usually associated with a person the subject of "battered women's syndrome". Dr Nielssen had been unaware of the applicant's conduct at the time the search warrant was executed or of the fact that she had acted physically towards her husband in times of dispute. 187His Honour stated that there was a very real question as to whether the applicant should be believed in respect of the history she gave to Dr Nielssen and Ms Duffy and the evidence she had given to the Court about her relationship with her husband: [118]. In that paragraph, his Honour set out as 13 dot points matters that could be said to evidence inconsistencies, some of which related to the accounts that had been given by the applicant to Dr Nielssen and Ms Duffy. 188His Honour concluded that there may have been some level of domestic violence in the relationship (at [119]) but that he considered that it was more likely that it was relatively minor and had occurred in years past rather than in more recent times. He could not accept that the level of violence, control and domination by the applicant's husband was anywhere near that which the applicant had claimed. 189His Honour was also not satisfied that the evidence the applicant gave about the level of her use of prescription medication could be accepted (at [120]). 190A further problem, his Honour noted, in accepting the opinions of both Dr Nielssen and Ms Duffy, was that they made their assessments and wrote their reports prior to the trial. They assessed the applicant on the basis of her account of events and not on the basis of the jury's verdict which, his Honour was satisfied beyond reasonable doubt, involved an acceptance that the applicant fully realised the probability of the child dying and deliberately omitted to do anything about it: (at [121]). 191His Honour accordingly noted that Dr Nielssen and Ms Duffy had not taken into consideration the applicant's proven guilt in formulating the opinions they expressed earlier in their reports. His Honour then concluded: "... the various problems I have identified in relation to the reports and evidence of Dr Nielssen and Ms Duffy mean that I can place little weight upon them": (at [121])

The Expert Medical Evidence 192The evidence given at the sentencing hearing by Dr Olav Nielssen, Consultant Psychiatrist, and Ms Anita Duffy, Psychologist, was relied upon in support of the application for leave to appeal. No other consultant psychiatrist gave evidence at the sentence hearing. 193Dr Nielssen conducted a mental state examination of the applicant on two occasions, namely, on 18 March 2008 and 27 June 2008. He provided a report dated 12 August 2008 which was tendered at the sentence hearing (Exhibit S2). He was called to give evidence on 6 August 2009. 194There was also tendered on behalf of the applicant a report written by Ms Duffy dated 27 April 2009, (Exhibit S3). 195Dr Nielssen set out in his report, relevant matters of history which he discussed under the subtitles, History elicited from [the applicant], Psychiatric History, Medical History and History of Substance Abuse and Other History. 196At pages 6-7 of the report, details of the mental state examinations were recorded. In relation to the examination conducted on 18 March 2008, Dr Nielssen, inter alia, wrote: "... there was no obvious signs of neurological disorder, such as abnormal gait or tremor. Her manner was reserved and her range of emotional expression was restricted in that she did not appear especially depressed or angry despite the subject matter being discussed. She was briefly tearful when discussing the plea at the end of the interview ..." 197In relation to the mental state examination conducted on 27 June 2008, Dr Nielssen wrote: "[The applicant] presented unchanged and did not appear to have gained weight during her period of imprisonment ... Her range of emotional expression was again quite limited and she did not appear pervasively depressed. There were again no objective features of psychotic illness or any form of intellectual impairment. During the second interview there was more evidence of a tendency to blame others and distortions in the interpretation of events suggesting the presence of maladaptive personality traits." 198Dr Nielssen stated in his report that it was not clear that the applicant met the accepted criteria for the diagnosis of a psychiatric disorder. In the Opinion section of his report however, he wrote, inter alia: "... features of personality disorder include [the applicant's] abnormal emotional responses, what seemed to be distortions in her interpretation of events, her account of chronically depressed mood and episodes of deliberate self-harm, and her account of putting up with an abusive relationship for as long as she did. Her alleged failure to provide adequate care for her children was also consistent with impairment in the capacity for empathy associated with severe personality disorder." (emphasis added)

Analysis of Dr Nielssen's Evidence 199In evaluating the expert opinion evidence of Dr Nielssen, it is necessary to identify and to distinguish both the foundations for his opinion and the specific matters to which his evidence was directed. 200In both his report and in oral evidence, he initially considered and discussed a range of issues. In doing so he excluded presence of a psychotic illness, or intellectual impairment, and he specified the difficulties in diagnosing what he termed "a major psychiatric disorder". He did identify the presence of features of a personality disorder (stated to include what he detected as being the applicant's abnormal emotional responses). 201Dr Nielssen said that he carried out his clinical observations of the applicant during "two lengthy interviews": Report at p 7. The observations that he said he made during both interviews related to what he detected as the applicant's "limited" emotional expression and her "abnormal emotional responses". These were the matters to which he made repeated reference in his report concerning his "mental state examinations" conducted on 18 March 2008 and 27 June 2008 and in the "Opinion" section of his report. In the latter he referred to the alleged failure of the applicant to provide adequate care for her children as consistent with impairment in the capacity for empathy associated with severe personality disorder (p 8). 202In this latter respect there is a fundamental distinction to be made between on the one hand Dr Nielssen's specific clinical observations and findings made on 18 March 2008 and 27 June 2008, and medical opinions stated as having been derived from patient (the applicant's) history, on the other. 203In this case, Dr Nielssen stated that in both his interviews he detected in both the applicant's responses and his perception of her, that she exhibited what he considered to be consistent with emotional impairment. It is clear that Dr Nielssen expressed his findings and conclusions, made in his capacity as an experienced consultant psychiatrist as having been based on what he observed, rather than based on matters of the applicant's history. Other issues canvassed, in particular in crossexamination with Dr Nielssen, such as battered women's syndrome, were, on the other hand, dependent on the reliability of interview histories. 204There was no challenge to what Dr Nielssen said he actually observed in the interviews so far as the issue of emotional impairment was concerned. Nor was he challenged on his interpretation of what he said he saw as constituting evidence of emotional impairment. Dr Nielssen said that what he observed on both interviews with the applicant he had also observed in patients with psychiatric disorders in the course of his practice. 205In analysing Dr Nielssen's evidence there is a further matter which should not be overlooked. The fact that Dr Nielssen said he observed what to him was consistent with emotional impairment is not to be conflated with a separate issue, namely, the circumstances in the applicant's life that may have caused her emotional impairment. The circumstances that caused it were not essential to Dr Nielssen's observations that she was exhibiting signs of personality disorder. As to causal factors, he referred to early childhood exposure to domestic violence as a matter that is correlated with the development of an abnormal capacity for emotional response as well as other influences including violence or the influence of a partner as other possible contributing factors. In summary, once Dr Nielssen stated that there were observable signs indicating the presence of an abnormal range of emotional expression, the precise cause or causes or contributing factors are of little consequence. The fact remains that no one suggested that Dr Nielssen was in error in saying what he said he had observed during the course of his interviews with the applicant and there was no suggestion made that Dr Nielssen had erred in ascribing diagnostic significance to the observations that he made. 206In relation to the applicant's limited emotional expression noted at page 7 of the report (reproduced in [ REF _Ref355709851 \r \h 196] and [ REF _Ref355709861 \r \h 198] above), Dr Nielssen in oral evidence stated that the applicant was describing distressing topics "in a fairly bland way with little in the way of sadness or anger or other outward emotion, and it wasn't sort of the flattening of an emotional expression that you often see in people who are severely depressed, it was more a lack of emotional reaction" (T 6 August 2009, at 16.9-14). 207He went on to say that he thought it was "highly abnormal" for the applicant not to burst into tears at some stage during her interview and that it was "quite unusual". As to possible causal factors he said: "My interpretation of it was that either she had a personality with - a personality type like a lifelong temperament or personalitythat lacked emotional reaction, or else her restriction in emotional range was a consequence of longstanding abuse, that is, it was her defence against longstanding fear of physical assault or emotional abuse": (T 16.19-25) (emphasis added) 208Dr Nielssen later in evidence-in-chief, was asked to explain how the limitation on the applicant's emotional responses emerged in her life: "Q. Given the history that [the applicant] gave to you, how do you explain or interpret how that characteristic of [the applicant] emerged in her life? In other words, how did that shutting down or limitation in her emotional responses, how did that develop over a period of time? A. Well again, I can only go on the history I have and it's supported to some extent by the history from Ms Duffy, which is actually a much more detailed history of her early life experiences, so when I interviewed [the applicant] she denied observing domestic violence in her family of origin, whereas it seems that that was an important influence. So the origins of it seemed to be in aspects of her upbringing. But then her experiences in adult life appear to have reinforced it and interfered with her normal emotional development to a mature state and that her emotional numbing, I thought, was probably due to the experience of being in a long term abusive relationship on a background of events in her own childhood and adolescence." (T 19.1-15). (emphasis added) 209Apart from the history elicited by Ms Duffy as to domestic violence in her family of origin as a possible causative factor, there was other evidence that could be considered as corroborative of the history of a violent early life upbringing as recorded by Ms Duffy which does not appear to have been directly referred to during the sentencing hearing. In a record made by a social worker at South Western Sydney Area Health Service in 1997, whilst the applicant was an in-patient, the clinical records include an entry made on 8 September 1997 which included the following statement: "history of domestic violence between [the applicant's] parents. Mother an alcoholic." The note went on to state that the husband at the time of admission was supportive and he had identified a number of issues as set out in the clinical note at AB 1096. 210In the remarks on sentence the sentencing judge observed: "129 Another matter that Mr Stewart submitted that I should take into account was that [the applicant] "has not been an emotionally healthy person". He contended that this could be traced back to matters such as the domestic violence she witnessed as a child and her commencing her relationship with [her husband] when she was 17 and he was 29. A difficulty with that is that it depends upon a psychiatric or psychological assessment of [the applicant] and those which I have are flawed because they are based upon a history that I cannot be satisfied is reliable with regard to crucial matters." 211It is important here to observe that the remarks on sentence do not suggest that the sentencing judge had been taken to the clinical record of 8 September 1997 to which reference has been made above at [ REF _Ref350875607 \r \h 209] in which a history of the applicant's exposure to domestic violence (later described in graphic terms by Ms Duffy) was recorded. It will be recalled that Dr Nielssen had identified such early life experiences as a possible causative factor giving rise to an abnormality in emotional development and as providing, at least to some extent, a possible explanation for what he himself detected as being consistent with an impairment in the applicant's capacity for empathy which he stated is associated with severe personality disorder. 212Although the history recorded by the social worker in 1997 was a history given by the applicant herself, nonetheless it was a history given in a very different setting to the one provided to Ms Duffy. It concerned the applicant herself, not her children, in the course of an assessment of a medical condition which had apparently led to her admission for treatment and possible referral for counselling. In other words, it was not a history given in a context in which she was being investigated in relation to the care of her children. 213It appears that Dr Nielssen had apparently been unaware of the corroborative evidence of the applicant's childhood history recorded in the clinical notes made in 1997 (para [ REF _Ref350875607 \r \h 209] above). The fact that he did not have that information and yet made observations as to early life experiences, if anything, establishes his perspicacity in referring to early life experiences as a factor known to be linked with such lack of emotional responsiveness as he found on both examinations. 214It is true, as the sentencing judge observed, that the history as to the relationship between the applicant and her husband depended upon her own history and that was found to be unreliable. However, the sentencing judge's observation in that respect did not, as earlier noted, undermine Dr Nielssen's evidence as to observable abnormalities which he stated had diagnostic significance. Nor, on Dr Nielssen's evidence, did it necessarily negate as a possible causal factor the applicant's early childhood experience in what he referred to as "emotional numbing". 215Dr Nielssen saw the lack of emotional reaction in the applicant as either being due to a lifelong temperament or personality issue or as being due to physical abuse and/or emotional abuse in adult life or both. 216As to the significance of the observations made by him, he said: "... a lack of emotional responsiveness and that could translate to her lack of capacity for empathy or ability to recognise another person's feelings." (T 18.40-45). 217He was asked: Q. "Would you expect that that characteristic would impact on a person's capacity to respond to and empathise with persons close to her? A. Yes. Q. Including children? A. Yes." (T 18.45-50) 218Dr Nielssen elaborated upon the significance of his assessment of the applicant and distinguished two aspects, namely, her capacity to appreciate the child's needs and her capacity to attend to the child's needs. He gave the following evidence: Q. At the end of your report you stated that the combination of her own physical problems and her lack of initiative may have affected her capacity to appreciate the state of her child's health or attending to her needs. When you say, may have affected her capacity, are you talking about a matter of degree? A. Yes. Q. So is it your opinion that to some extent her capacity may have been affected? A. Yes, two parts; to appreciate how unwell her child was, and her child's circumstances, which were pretty dire, but also her capacity to do something about it, are likely to have been affected. Q. How does being in that kind of relationship and plus having the particular physical problems that she had, and also her particular personality as it developed, how does that operate to affect her capacity to appreciate? A. Well, I don't think her capacity to appreciate the physical circumstances were greatly affected, other than to say that she probably became habituated, became used to the squalor and to the child's poor health, but it was more in her capacity to attend to the child's needs, which according to the history I obtained was very much limited by her husband's control of the situation, both with money, with her personal freedom, and also her physical limitations in being able to keep the house clean and to tend to the child. Q. Given your particular opinions as you've expressed them, are you able to say that her particular problems and her particular lack of initiative as you based on her history, that that would impact on her to some degree fail to appreciate the condition of her child, who for some period of time leading up to her death was suffering from gross chronic malnutrition? A. Yes. There must have been, and again, it's hard to - hard for me to link the person I interviewed with the facts of the case, but there must have been quite a disruption of capacity for empathy for the child, over and above any limitation on her freedom of movement and freedom of action. Q. You said it was hard to link the person that you spoke to with the facts of the case. What did you mean by that? A. Well, again, she seemed quite intelligent, was well groomed, seemed to be a competent sort of person, and also her reactions when these details were put to her, because that's how the interviews unfolded. I read from the documents and asked her to respond, and it was difficult to reconcile the lack of response and also her answers to the objective circumstances. (T 21.3022.19) 219Whilst the secondlast answer does not refer to the applicant's lack of emotional responsiveness in terms of her early life experiences, but rather refers to her husband's alleged control, it is not a retraction of (i) his reported findings on his clinical observations referred to in [ REF _Ref355709851 \r \h 196] and [ REF _Ref356818396 \r \h 197] above; (ii) the link or association to which he earlier referred between relevant early life experiences and the applicant's observed lack of emotional response or capacity for empathy. 220In cross-examination the Crown took up the issue of her lack of emotion with Dr Nielssen (at T 26-27). Dr Nielssen was asked by the Crown Prosecutor: "Q. What I'm saying to you is what you observed as to lack of emotion is capable of more than one explanation? A. Yes. Q. Your assessment of it as reported, is in the light of the history she was giving you? A. Yes. Q. You use the expression in relation to an answer from Mr Stewart of a lack of empathy? A. Yes. Q. Well a lack of empathy in relation to what had happened to the child would result in no emotion to that, wouldn't it? A. Yes there was a lack - the apparent lack of emotion whilst describing the child's condition suggested perhaps a lack of empathy there. A lack of capacity to recognise the other person's feelings. Q. Nothing that she described to you would in any way in your opinion, affect her eyesight would it? A. I'm sorry? Q. None of the history she gave you, none of the emotions or the effects that you noticed would in any way reflect to indicate there was anything wrong with her eyesight? A. No." 221The questioning then moved on to other topics. It is noted that the above line of questioning by the Crown Prosecutor commenced with an examination of Dr Nielssen's evidence on the issue of the applicant's capacity to empathise but without exploring or challenging Dr Nielssen's evidence any further on that issue the cross-examination deviated in the last two questions to the issue of the applicant's ability to visually see the child's condition. In other words, the consequences or significance of a lack of the applicant's capacity in terms of her emotional capacity to respond as referred to by Dr Nielssen in both his report and oral evidence was not analysed in cross-examination. Dr Nielssen addressed as a quite separate issue the applicant's ability to physically see the child's condition. After he was shown Exhibit L, a photograph of the child taken in December 2004, he agreed that it would defy commonsense and logic that anyone would not notice a difference in a child's condition which at an earlier time had been described as being a healthy chubby six year old and what was subsequently described in the autopsy report and by Dr O'Loughlin. 222Accordingly, whilst the above segment of the cross-examination commenced with the issue addressed by Dr Nielssen as to the applicant's lack of emotion, it deviated from that issue to the issue of the capacity of a person to physically see and identify the deteriorating physical condition of the child rather than to the applicant's capacity to respond to what she was seeing. Dr Nielssen's evidence, on more than one occasion, had drawn the distinction between her capacity to physically see the condition of the child, and her capacity to respond to the needs of the child. 223It is of some significance to observe that whilst Dr Nielssen dealt with matters of history in his report under the specific subheadings referred to in para [ REF _Ref355965119 \r \h 195] above, it was his clinical or objective observations on the applicant's lack of emotional response on both examinations, that formed the basis for his opinion concerning her emotional state, in particular her lack of capacity for empathy. Plainly in both his report and in his oral evidence, Dr Nielssen stated that this feature was present on both examinations and that it conformed with what he identified as "features of personality disorder", described as the applicant's "abnormal emotional responses". Its relevance to the issue of the applicant's moral culpability was that in Dr Nielssen's opinion it wasconsistent with "impairment in the capacity for empathy associated with severe personality disorder": (p 8). It has not been overlooked that Dr Nielssen identified the fact of abnormal emotional response as but one of other stated features that together could support a diagnosis of "personality disorder". 224It was not put or suggested to Dr Nielssen in cross-examination, a highly experienced and respected forensic psychiatrist, that the abnormal emotional response he detected in the applicant was something that could have been feigned by her. Nor, as earlier noted, was it suggested to Dr Nielssen that his observations were flawed or that his mental state observations upon which he reported and the significance he attached to them were without a proper basis or support. 225Dr Nielssen's clinical observations and his diagnostic assessment as to the existence of an impairment in the applicant's capacity for empathy could not, in our opinion, be given no weight, particularly in circumstances in which the validity of his observations and conclusions were not the subject of direct challenge. 226Whilst, with respect, the sentencing judge's conclusions as to the unreliability of the applicant's history on the issue of physical abuse and domination by her husband were certainly open to him, that did not, for the reasons we have identified, in our opinion, detract from or dispose of Dr Nielssen's other observations and conclusions which were not based solely upon history found to be unreliable. The finding as to the applicant's unreliability as a historian on matters concerning her relationship with her husband in other words could not remove the identified basis for Dr Nielssen's opinion, based as it was upon his clinical findings on the examinations of the applicant. 227The only question raised upon a matter arising from Dr Nielssen's evidence on this aspect of the matter was a question put by the sentencing judge to him at T 30: "HIS HONOUR: Q. I'll take you to page 8 of your report. The first sentence on the page you refer to 'doubts about whether the diagnosis of personality order is sufficiently reliable to be used as evidence in court'. Can you explain that please? A. Yes, it's, I mean there's some debate as to where personality disorder sits within the psychiatric diagnostic system and one of the studies that sticks in my mind is of people who have been diagnosed with personality disorder being assessed 6 months later and it's supposed to be a life long disorder, but only 50 per cent of them were given that diagnosis, and I would say that level of diagnostic reliability is not high enough. Perhaps the other qualification I would say that I'd be cautious about making such a diagnosis without quite a lot of corroborative history of the effect of the maladaptive traits over the course of life. Q. So you'd want to look behind the history given by the person? A. Yes." 228There are three observations to be made arising from this evidence. Dr Nielssen made specific findings consistent with the presence of a personality trait or abnormality (a lack of emotional responsiveness) which, in his opinion, which, together with other matters that he identified, could go towards supporting a diagnosis of personality disorder although he did not suggest a definitive diagnosis of that kind in this case. Secondly, as to the significance of his findings, he said that his observations of the applicant suggested that there was a lack of empathy - a lack of capacity to recognise another person's feelings: (T 26.40-45). Thirdly, the association of "emotional numbing" was considered by him to be consistent with an exposure to domestic violence early in life. As stated above, there was evidence to that effect in this case. 229In the absence of any reason to the contrary, Dr Nielssen's opinion evidence was cogent evidence that went directly to the question of the objective culpability of the applicant and was evidence that had to be taken into account. 230In assessing her moral culpability, the effect of the evidence was, in our opinion, to distinguish the applicant from cases in the worst category such as the killer who acts with cold deliberation, with full capacity and who is prepared to commit a felonious act from motives such as greed or other self-interest. 231In the light of authority we do not consider that the offence can be regarded as falling within the worst category of cases nor that the level of culpability is so extreme that the community interest in the four statutory indicia can only be met through the imposition of a life sentence. Not only does it not fall within the sort of cases referred to by Wood CJ at CL in Merritt at [66], the case is so exceptional that it is doubtful that personal or general deterrence is of such significance as requiring the sentence imposed. Hulme J accepted, as we do, that protection of the community was not relevant. 232The result is that whilst retribution and punishment were of paramount significance, one of the statutory indicia was entirely lacking (community protection) and the other (specific deterrence) was of minimal significance. 233In addition, the following matters are relevant either as tempering the objective criminality or as bearing on the residual discretion under s 21(1): (a) The applicant did not deliberately set out upon a long term plan to kill the child; (b) The applicant had no prior convictions nor any prior history of violence towards the other children; (c) The applicant accepted that she had a level of criminal responsibility for the death of the child and accepted that the jury could return a verdict of guilty of manslaughter. (d) Both the applicant and the co-offender abused prescription drugs including Valium and Panadeine Forte although the sentencing judge found that the applicant's use was not as great as she made out. (e) The psychometric testing carried out by Ms Duffy (as the sentencing judge said) could not be discounted although there were some difficulties associated with it, not the least of which was that some of it was dependent upon the applicant's own account which his Honour did not entirely accept. However, that testing demonstrated elevated scores on a number of scales including Borderline Personality, Depression, Post Traumatic Stress Disorder, Anxiety, Thought Disorder and Dissociation. 234In our opinion it cannot be said that the present case is within the worst case category nor that the level of culpability was so extreme that the community interest can only be met by the imposition of a life sentence. The evidence of Dr Nielssen to which we have referred, in our opinion, provides an additional or separate basis for that conclusion. 235In our opinion the following orders should be made with respect to Ground 3: (1)Grant leave to appeal. (2)Allow the appeal. (3)Quash the sentence imposed by Hulme J. (4)In lieu, sentence the appellant to a non-parole period of 30 years commencing 17 November 2007 and expiring 16 November 2037 with an additional term of 10 years expiring 16 November 2047.

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: 19 June 2013