Supreme Court New South Wales Medium Neutral Citation: R v MB (No. 3) [2014] NSWSC 1796 Hearing dates: 17 December 2014 Decision date: 19 December 2014 Before: Bellew J Decision: 1. I nominate, as the limiting term in respect of the offence of murder, a period of 20 years commencing on 11 December 2014. 2. In accordance with s. 24(1)(a) of the Mental Health (Forensic Provisions) Act 1990 I refer the offender to the Mental Health Review Tribunal. 3. The offender is to be detained in an appropriate correctional centre or such facility as the Mental Health Review Tribunal may determine. 4. The Registrar is to notify: i. the Minister for Health; ii. the Chairperson of the Mental Health Review Tribunal; and iii. the Commissioner for Corrective Services NSW of these orders. Catchwords: CRIMINAL LAW - mental health - where finding made on the limited evidence available the offender murdered her 6 month old daughter - necessity to impose a limiting term - seriousness of offending - whether offending pre-meditated - necessity not to allow evidence of mental illness to overwhelm appropriate consideration of the circumstances of the offending - whether offender had demonstrated remorse - whether offender be appropriate vehicle for general deterrence Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 Mental Health (Forensic Provisions) Act 1990 (NSW) Cases Cited: Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 Fahs v R [2007] NSWCCA 26 R v AN [2005] NSWCCA 239 R v Mitchell [1999] NSWCCA 120; (1999) 108 A Crim R 85 R v Reynolds [2004] NSWCCA 51 R v Wilson (No. 3) [2013] NSWSC 1684 Texts Cited: Nil Category: Principal judgment Parties: Regina - Crown MB - Offender Representation: Counsel: Ms N Noman SC - Crown Mr R Webb - Offender Solicitors: Director of Public Prosecutions (NSW) - Crown Nyman Gibson Stewart - Offender File Number(s): 2011/149163 Publication restriction: Nil Judgment INTRODUCTION 1On 11 December 2014, following a special hearing conducted over a period of 9 days, I found that on the limited evidence available MB ("the offender") had committed the offence with which she was charged, namely that on 18 November 2010, at North Strathfield in the State of NSW, she murdered her six month old daughter, OB. 2Having reached that conclusion, I adjourned the proceedings to allow counsel for the offender to make submissions to me regarding the length of any limiting term. 3On 17 December 2014 I heard submissions from counsel for the offender and from the Crown. The relevant legislative provisions 4Section 23 of the Mental Health (Forensic Provisions) Act 1990 (the Act") is in the following terms: 23 Procedure after completion of special hearing (1) If, following a special hearing, it is found on the limited evidence available that an accused person committed the offence charged or some other offence available as an alternative, the Court: (a) must indicate whether, if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for the offence which the person is found to have committed, it would have imposed a sentence of imprisonment, and (b) where the Court would have imposed such a sentence, must nominate a term in respect of that offence, being the best estimate of the sentence the Court would have considered appropriate if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for that offence and the person had been found guilty of that offence. (2) If a Court indicates that it would not have imposed a sentence of imprisonment in respect of a person, the Court may impose any other penalty or make any other order it might have made on conviction of the person for the relevant offence in a normal trial of criminal proceedings. (3) Any such other penalty imposed or order made, under subsection (2), is to be subject to appeal in the same manner as a penalty or order in a normal trial of criminal proceedings. (4) In nominating a limiting term in respect of a person or imposing any other penalty or making any other order, the Court may, if it thinks fit, take into account the periods, if any, of the person's custody or detention before, during and after the special hearing (being periods related to the offence). (5) A limiting term nominated in respect of a person takes effect from the time when it is nominated unless the Court: (a) after taking into account the periods, if any, of the person's custody or detention before, during and after the special hearing (being periods related to the offence), directs that the term be taken to have commenced at an earlier time, or (b) directs that the term commence at a later time so as to be served consecutively with (or partly concurrently and partly consecutively with) some other limiting term nominated in respect of the person or a sentence of imprisonment imposed on the person. (6) When making a direction under subsection (5) (b), the Court is to take into account that: (a) a sentence of imprisonment imposed in a normal trial of criminal proceedings may be subject to a non-parole period whereas a limiting term is not, and (b) in a normal trial of criminal proceedings, consecutive sentences of imprisonment are to be imposed with regard to non-parole periods (as referred to in section 47 (4) and (5) of the Crimes (Sentencing Procedure) Act 1999 ). (7) If the Court indicates that it would not have imposed a sentence of imprisonment in respect of a forensic patient, it must notify the Tribunal that a limiting term is not to be nominated in respect of the person. 5Section 24 of the Act is in the following terms: 24 Consequences of nomination of limiting term (1) If in respect of a person a Court has nominated a limiting term, the Court: (a) must refer the person to the Tribunal, and (b) may make such order with respect to the custody of the person as the Court considers appropriate. (2) If a Court refers a person to the Tribunal, the Tribunal must determine whether or not: (a) the person is suffering from mental illness, or (b) the person is suffering from a mental condition for which treatment is available in a mental health facility and, where the person is not in a mental health facility, whether or not the person objects to being detained in a mental health facility. (3) The Tribunal must notify the Court which referred the person to it of its determination with respect to the person. General principles as to the determination of a limiting term 6I am required to specify a limiting term which is the equivalent of the total sentence which would have been imposed had the offender been found guilty following a trial. The limiting term represents the period beyond which the offender cannot be detained for the offence which was the subject of the special hearing: R v Mitchell [1999] NSWCCA 120; (1999) 108 A Crim R 85. In determining the limiting term, I must take into account all relevant factors, and apply all the relevant principles that would otherwise have applied to the sentencing of the offender had there been a trial before a jury: R v AN [2005] NSWCCA 239. The facts and circumstances of the offending are set out at length in my earlier judgment and I will not repeat them. SUBMISSIONS OF THE PARTIES Submissions of the offender 7The primary submission of counsel for the offender was that the objective seriousness of the offending fell at the lowest end of the range. Counsel advanced a number of propositions in support of that position. 8Firstly, it was submitted that the offender was "labouring under a major psychiatric illness" at the time of the offending conduct, which manifested itself in (inter alia) separation of thought, high anxiety and perceptual distortions. 9Secondly, counsel submitted that the offender was preoccupied with the thought that OB had achondroplasia. It was submitted that her belief in this regard was genuinely held, and that in this sense there was a nexus between her mental state and her offending. 10Thirdly, it was submitted that the 000 call indicated that the offender was under considerable stress, and in "severe mental turmoil", at the time of the offending. 11Fourthly, counsel submitted that I would not be satisfied that the offending was pre-meditated. He submitted that the various statements made by the offender to her friends (which were set out at length in my earlier judgment) should be viewed as "utterances" which reflected "exasperation or not coping", and which were consistent with the major psychiatric illness under which the offender was labouring at the time. I should note that I rejected a similar proposition advanced by counsel at the hearing (see [266] of my previous judgment). In terms of the internet search conducted by the offender in respect of death by drowning, counsel submitted that the offender's mind was in "severe turmoil" at the time. He submitted that this tended against a conclusion that the search was indicative of pre-meditation. 12Finally, and in what might be described as an "overarching" submission, counsel for the offender submitted that the circumstances of the offending were "exceptional" and "far beyond run-of-the-mill" because of the "very complex circumstances" which existed at the time. In this regard, and in terms of such circumstances, counsel pointed to the "very significant and profound effects of the psychiatric illness under which (the offender) was labouring". 13In terms of mitigating factors, counsel submitted that the offender was a person of otherwise good character. It was further submitted that I should find that the offender was remorseful and that this was evidenced, in particular, by the contents of the 000 call. 14Finally, it was submitted that the evidence of the offender's mental state was such that she should be regarded as an inappropriate vehicle for general deterrence. Submissions of the Crown 15The Crown submitted that the most significant factor in determining the limiting term was an assessment of the seriousness of the offending. In making that submission, the Crown took issue with the proposition that the offending fell at the lowest end of the scale. 16The Crown submitted that even if it were accepted that the offender held a genuine belief that OB had achondroplasia, this did not in any way sanction what had occurred. The Crown submitted that the offence was one of "convenience", and not one which resulted from a momentary loss of control. In this regard the Crown placed particular emphasis on the statements made by the offender to her friends in the period leading up to OB's death. It was submitted that OB's death was obviously something that was operating on the offender's mind in that period and that her statements were consistent with an absence of affection for OB, a lack of bonding with her, and a firmly held view that OB had compromised her otherwise "perfect" life. 17The Crown accepted that the medical evidence supported the conclusion that the symptoms of the offender's mental illness fluctuated from time to time. However, it was submitted that the statements made by the offender to her friends were not isolated, were maintained over a period of time, and were consistent with the internet search regarding death by drowning. It was submitted that all of these considerations tended against the proposition that the offending was spontaneous. 18The Crown also pointed to the fact that OB's age made her completely vulnerable and defenceless. It was submitted that the offending necessarily involved a serious breach of trust and that it was necessary for any limiting term to reflect those considerations. 19In terms of the offender's subjective case, the Crown submitted that statements made by the offender to her mother which were recorded by listening device were completely at odds with a conclusion that the offender was remorseful, and reflected the fact that she sought to blame other circumstances for OB's death. It was submitted that a number of those statements made it clear that the offender, far from being remorseful, was concerned primarily with herself. The Crown submitted that in determining whether there was any evidence of remorse, the statements made by the offender to her mother were substantially more informative than the contents of the 000 call. 20No issue was raised by the Crown as to the offender being a person of otherwise good character. The Crown did not cavil with the general proposition that the offender's mental state rendered her an inappropriate vehicle for general deterrence. Further, I did not understand the Crown to take issue with the proposition that specific deterrence was of limited significance in the present case. CONSIDERATION 21Section 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Act") provides that it is an aggravating factor if the offence: "was part of a planned or organised criminal activity". 22It has been observed that the wording of this provision conveys more than simply that the offending was planned: Fahs v R [2007] NSWCCA 26 per Howie J at [12] (Simpson and Buddin JJ agreeing). In that case, it was observed that the sentencing judge's determination that there had been a "level of planning" did not necessarily give rise to a conclusion that the aggravating factor in s. 21A(2)(n) was established. 23In my earlier judgment (at [51]-[69]; [111]-[120]) I set out the evidence of statements made by the offender to her friends which, I concluded, evidenced a desire on the part of the offender to rid herself of OB. I also made reference (at [173]) to internet searches carried out by the offender, one of which concerned an article about drowning and sudden cardiac death. I found (at [264]-[268]) that all of this evidence supported a conclusion that the offender had intentionally killed OB. 24However it is important to bear in mind that intention and planning are quite different. A person may act with the intention of bringing about a certain result without actually having planned in advance to do so. It is also necessary for me to have regard to the whole of the evidence in determining whether I am satisfied beyond reasonable doubt that the offending was planned: R v Reynolds [2004] NSWCCA 51 at [39] per Simpson J, Levine and Barr JJ agreeing. In this regard, the evidence of the offender making arrangements for OB's Baptism (referred to at [111] of my previous judgment) is inconsistent with a conclusion that the offending was planned. 25I am satisfied that the offender had thought about killing OB at various times prior to 18 November 2010. She told her friends as much. The internet search is consistent with her having investigated ways in which OB might be killed. In that sense, her act of drowning OB cannot be viewed as entirely spontaneous: Reynolds (supra) at [40]. However, in all of the circumstances, I am not satisfied that the offending was planned in the sense contemplated by s. 21A(2)(n). 26I am satisfied that in the period leading up to 18 November 2010 the offender believed that OB had some genetic or other abnormality. That belief was completely contrary to the reassurances which she was repeatedly given by qualified medical practitioners but I am nevertheless satisfied that it was a belief which, in her own mind, she genuinely held. There was a connection between that belief and the offender's feelings of resentment towards OB (see [264] of my earlier judgment). Those feelings were, in turn, at least part of the motivation for the offender to want to kill OB. I am satisfied in these circumstances that there was some connection between the offender's mental state and the offending. 27As I have noted, the general submission advanced by counsel for the offender was that the circumstances of this case were properly regarded as "extraordinary". That submission tended to revolve around the evidence of the offender's mental state. I accept that the offender's mental state is a relevant consideration in determining the limiting term: R v Wilson (No. 3) [2013] NSWSC 1684 per Harrison J at [79]. I have taken the evidence of her mental state into account. However, as Harrison J pointed out (at [80]) an offender's mental state does not operate to displace other matters, including the objective seriousness of the offence. In that regard, his Honour cited the observations of McClellan CJ at CL (with whom Howie and McCallum JJ agreed) in Bhuiyan v R [2009] NSWCCA 221 at [30]: "In R v Engert (1995) 84 A Crim R 67 Gleeson CJ recognised the difficulties faced by a court when sentencing persons with mental disorders. Those difficulties are compounded when a person is found not fit to be tried but, applying conventional principles a court is required to determine a limiting term. It is necessary to keep steadfastly in mind that although in most cases the serious mental illness will have deprived an offender of their usual capacity for reason and control it must not be allowed to overwhelm appropriate consideration of the circumstances of the offence and the other subjective features of the offender. The particular difficulties faced by an offender which may have contributed to the offence will be addressed by the Mental Health Review Tribunal which in appropriate circumstances may release the offender before the limiting term has expired." 28The offender's actions in intentionally killing OB represented a serious breach of trust and a complete abandonment of maternal responsibility. That breach of trust is an aggravating factor having regard to the provisions of s. 21A(2)(k) of the Sentencing Act. Moreover, OB was a defenceless and vulnerable 6 month old child who was completely dependent upon the offender for her survival. That vulnerability is a further aggravating factor having regard to s. 21A(2)(l) of the Sentencing Act. 29For the reasons expressed in my previous judgment, I am satisfied that the offender intentionally killed OB. I am satisfied that she did so because she regarded OB as an imposition upon, and an interference in, her life (see [307] of my previous judgment). In these circumstances, the conclusion that the offending in the present case was of the utmost seriousness is inescapable. For all of these reasons I am unable to accept the submission that the offending falls at the lowest end of the scale of objective seriousness. I place it slightly below the middle of the range, albeit not by a substantial margin. The offender's subjective case 30The offender is now 39 years of age. She was aged 35 at the time of the offending. It was accepted by the Crown that she is a person of otherwise good character. That is a mitigating factor having regard to s. 21A(3)(f) of the Sentencing Act. 31I do not accept that the offender has demonstrated any remorse. The fact that she was obviously distraught when making the 000 call does not evidence remorse, nor does the content of the conversation which took place at that time. Moreover, there is other evidence which tends wholly against a conclusion that the offender is genuinely remorseful. 32In recorded conversations the offender told her mother that she wished she had never fallen pregnant with OB: Ex AH 2 p. 10. She sought to attribute the blame for OB's death to others, including medical practitioners: Ex AC 2 at p. 6-8; Ex AD 2 p. 2; Ex AE 2 p. 5. She also sought to attribute OB's death to the fact that she had skin tags on her ears (Ex AF 2 at p. 3; Ex AH 2 at p. 11). On another occasion she expressed indignation at the position in which she found herself, threatening to "sue for fuckin' compensation" in the event that she was placed in custody (Ex AH 2 at p. 37). Those various statements are, in my view, the antithesis of genuine remorse. 33The offender's mental state is such that she is not a suitable vehicle for general deterrence: Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 esp. at [177] per McClellan CJ at CL. Moreover, the unique circumstances of her offending are such that I am not satisfied that there is a particular need for specific deterrence. 34Whether there is a likelihood of re-offending, and what the offender's prospects of rehabilitation might be, are factors which are difficult to determine. In his most recent report of 1 February 2014 (Ex AT 3) Professor Greenberg noted that the offender was under treatment from a psychiatrist who had prescribed two forms of anti-depressant medication. Professor Greenberg reported that the offender had acknowledged to him that she had not been compliant with her medication for at least the preceding month, and possibly longer. Professor Greenberg proceeded to confirm the diagnosis of a Schizophrenic disorder. 35There is no evidence before me as to whether the offender's compliance with her medication regime has improved in the past 10 months. Determining the likelihood of re-offending, and the offender's prospects of rehabilitation, is dependent, at least in part, upon her adherence to any prescribed regime of medication. Her recent history is not favourable in this respect but I have no evidence before me as to the current position. 36In all of the circumstances the evidence does not permit me to reach a finding in respect of either of these issues. ORDERS 37In accordance with s. 23(1)(a) of the Mental Health (Forensic Provisions) Act 1990 I indicate that if the special hearing involving the offender had been a normal trial of criminal proceedings against a person who was fit to be tried for the offence of murder, I would have imposed a sentence of imprisonment. 38For the reasons I have expressed, I make the following orders: (1)I nominate, as the limiting term in respect of the offence of murder, a period of 20 years commencing on 11 December 2014. (2)In accordance with s. 24(1)(a) of the Mental Health (Forensic Provisions) Act 1990 I refer the offender to the Mental Health Review Tribunal. (3)The offender is to be detained in an appropriate correctional centre or such facility as the Mental Health Review Tribunal may determine. (4)The Registrar is to notify: (i)the Minister for Health; (ii)the Chairperson of the Mental Health Review Tribunal; and (iii)the Commissioner for Corrective Services NSW, of these orders. ********** 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: 13 March 2017