Supreme Court New South Wales Medium Neutral Citation: R v MB [2017] NSWSC 619 Hearing dates: 28 April 2017 Date of orders: 19 May 2017 Decision date: 19 May 2017 Jurisdiction: Common Law - Criminal Before: Beech-Jones J Decision: MB is convicted of the offence of manslaughter. Pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999, an order made directing MB to enter into a good behaviour bond for a period of four years. Pursuant to s 95 of the Crimes (Sentencing Procedure) Act 1999, the bond is subject to the following conditions: (a) that MB is to appear before the Court if called upon to do so at any time during the term of the bond; and (b) that MB is to be of good behaviour for the term of the bond; and (c) that within 14 days MB is to notify the Registrar of this Court of her residential address and, thereafter, within 14 days of her changing her residential address MB must notify the Registrar of the Court, and the Probation and Parole Service, of her new address; and (d) that by Friday 2 June 2017 MB report to an officer of the Probation and Parole Service at the nearest such service to her place of residence; and (e) that MB accept the supervision and directions of the officers of the Probation and Parole Service including all reasonable directions concerning attendance upon psychiatric specialists and mental health services and compliance with the directions and advice of those persons and bodies. Catchwords: SENTENCING – manslaughter – offender drowned infant daughter in bath – offender entered plea of guilty to manslaughter – basis of plea was substantial impairment – Crimes Act, s 23A – offender suffering anxiety and symptoms of schizophrenia in period up to the drowning – offender acting under delusion that daughter had genetic abnormality – offender previously found unfit to be tried – later found fit – offender served previous period in custody – offender's moral culpability reduced by reason of mental illness – offender unsuitable vehicle for general deterrence, denunciation and punishment – non custodial sentence imposed – bond Legislation Cited: Children (Criminal Proceedings) Act 1987 Crimes (High Risk Offenders) Act 2006 Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Mental Health (Forensic Provisions) Act 1990 Mental Health Act 2007 Cases Cited: Barbieri v R [2016] NSWCCA 295 Berrier, Steven John v R [2009] NSWCCA 40 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 R v Blacklidge (Court of Criminal Appeal (NSW), 12 December 1995, unreported R v Cooper [2001] NSWSC 769 R v Howcher [2004] NSWCCA 179; 146 A Crim R 371 R v Israil [2002] NSWCCA 255 R v LTN [2011] NSWSC 614 R v Mathers [2011] NSWSC 339 R v MB (No 2) [2014] NSWSC 1755 R v MB (No 3) [2014] NSWSC 1796 R v MB (Supreme Court (NSW), 6 February 2014 unreported R v MB [2016] NSWSC 985 R v Olbrich [1999] HCA 54; 199 CLR 270 R v Pope [2002] NSWSC 397 R v Quinn (No 2) [2016] NSWSC 1244 Shine v R [2016] NSWCCA 149 Category: Sentence Parties: Regina (Crown) MB (Offender) Representation: Counsel: M Hobart SC (Crown) P Lange (Offender) Solicitors: Director of Public Prosecutions (Crown) Aquila Lawyers (Offender) File Number(s): 2011/149163 Judgment 1. On 8 March 2017, the offender, MB, was arraigned in this Court on an indictment that charged her with the murder of her daughter, OB, on 18 November 2010 at North Strathfield. MB pleaded not guilty to murder but guilty to manslaughter. 2. The Crown accepted MB's plea in full satisfaction of the indictment. The agreed basis for the plea was that MB was otherwise guilty of murder but caused the death of OB in circumstances that gave rise to the partial defence of substantial impairment in s 23A of the Crimes Act 1900. 3. At the time of her death, OB was just under seven months old. It follows that the publication of material that is capable of identifying OB is prohibited (Children (Criminal Proceedings) Act 1987, s 15A). For that reason the offender is referred to as "MB" and her daughter as "OB" in the published version of this judgment. 4. After MB entered her plea of guilty, the proceedings were adjourned to enable the parties to discuss an agreed statement of facts and prepare material for sentencing. An agreed statement of facts was provided to the Court on 24 March 2017. Submissions on sentence were heard on 28 April 2017. 5. The maximum penalty for the offence of manslaughter is imprisonment for 25 years (Crimes Act, s 24). There is no standard non-parole period for manslaughter (Crimes (Sentencing Procedure) Act 1999, s 54A(1); the "Sentencing Act"). Agreed Facts – Background 1. As noted, there was placed before the Court an agreed statement of facts signed by the Crown Prosecutor, Counsel for MB and MB herself. 2. MB is now 41 years of age. In 2007 she married her husband. OB was born on 21 April 2010. At the time of OB's birth, MB was employed as a senior training manager with a major financial institution. 3. On 24 June 2010 when OB was approximately six weeks of age, she was examined by a pediatrician. OB was observed to have small skin tags near her ears. MB asked the pediatrician whether OB could have plastic surgery to have the skin tags removed. During the consultation, the pediatrician observed OB to have possible proximal limb shortening. This can be related to dwarfism. Starting from 24 June 2010, a series of x-rays were undertaken for what is described in the agreed facts as "maternal reassurance". 4. According to the agreed facts, MB then commenced making inquiries on the internet about medical terms relating to limb shortening and frontal bossing. An analysis of her computer identified thousands of Google searches conducted between 30 June 2010 and 11 October 2010 in relation to dwarfism, its symptoms, conditions and how they can be surgically rectified. The results of the internet searches caused MB to suffer great anxiety. 5. The agreed facts then recite a series of events between June 2010 and October 2010 in which OB was repeatedly tested for a number of developmental and genetic abnormalities, none of which were found to be present. The agreed facts also record that MB became increasingly distressed and fixated upon OB having a genetic abnormality, particularly dwarfism. At one point, MB told staff at a hospital that "Every time I look at her, she looks like a dwarf...it's affecting my bonding with her and everyone in the family including my husband thinks I'm crazy." 6. MB consulted with the Head of the Department of Medical Genetics at the Children's Hospital on 21 July 2010. This specialist reassured MB that she had a healthy baby. In the days after the consultation MB contacted the hospital on a number of occasions seeking the results of further blood tests. She reiterated her concern that OB had a genetic disorder. 7. At some point, MB was referred to a Senior Psychologist at the Children's Hospital. The psychologist was so concerned about MB's anxiety that he referred her to a psychiatrist. After MB saw the psychiatrist, he reported on the consultation by describing MB as having a "hypochondrial preoccupation with her child and that her concerns are overvalued." He referred to her as having "an obsessional personality style...". 8. Throughout the period of July to October 2010, MB's husband and other witnesses such as medical staff, her family and friends observed MB's anxiety levels to increase, especially during the period that OB was tested for genetic abnormalities. According to the agreed facts, MB brought OB to a friend's son's birthday party in September 2010 dressed in a thick quilted jumpsuit with a hood, despite it being a warm day, in order to hide OB's "ear tags". 9. Sometime around the end of September 2010, MB presented at the Concord Hospital for psychiatric assessment. On 19 October 2010, MB was referred to, and stayed one night at, a private Hospital at Baulkham Hills. 10. On 26 October 2010, MB was advised that the results of the final genetic test revealed that OB was "normal" and that "no abnormality" was detected. A letter confirming the results was sent to MB and her husband. 11. Despite this, according to the agreed facts, "in the weeks and days leading up to the death" of OB, MB had several conversations with friends during which she expressed her fear that OB was a dwarf and that this was having an adverse impact on her lifestyle and her marriage. Agreed Facts – The Death of OB 1. The agreed facts record as follows: "At 12.08pm on Thursday 18 November 2010, [MB] called triple 0 and reported that her child had drowned in the bath. A ten minute and fifty three second conversation took place [during which MB] provided her name, address and telephone number. [MB] said, "My daughter, she's in the bath, she's six months old. I left her in there just to get the shampoo and she fell out of the seat." The triple 0 operator asked if the baby was conscious and [MB] replied "No." The operator asked if [OB] was under water and [MB] replied "Yes." In the ensuing minutes, attempts were made by the operator to have [MB] render aid to [OB] however she refused to go back into the bathroom and said "I can't go in there". The operator repeatedly asked [MB] to take [OB] out of the bath tub. A triple 0 supervisor intervened and made further requests for [MB] to assist [OB] and pull the plug out of the bath. Upon realising that [MB] was not following their instructions, they directed her to unlock the front door and wait for ambulance officers to arrive." 1. The ambulance officers arrived at about 12:16pm. When they arrived MB was standing in the front yard holding a telephone. The ambulance officers were unable to get any response from MB about the location of OB. They initially looked for a swimming pool but then ran to the bathroom. They found OB submerged face down in the bath tub. They attempted to resuscitate her. They transported OB to Concord Hospital but she was later pronounced dead. 2. MB was also taken to hospital. She was scheduled under the Mental Health Act 2007. When the investigating Detectives spoke with her she told them: "I never washed her before, my mobile rang, I took her out, wrapped her in a towel, put her back in, wanted a second face towel. So I went to the cupboard but I wanted a harder one, I went to her room and at the bottom drawer grabbed one. When I came back in she was already in the water." 1. The post mortem report determined that OB's cause of death was consistent with drowning. 2. Prior to MB's arrest in May 2011, police intercepted her telephone and placed listening devices in her home and that of her mother. During one intercepted conversation MB discussed how she never "bonded with her baby" and that she believed that, from the moment she saw the "ear tags", OB was "tagged" for something. In a conversation with her mother on 16 February 2011, MB stated that she blamed OB's pediatrician for what had happened. She also said, "...I wish I never even had that baby, I wish I never even fell pregnant...". MB stated that "having that poor child was absolutely horrific and I'm glad that she was a baby and had no idea". MB's Mental State at the Time of the Offence 1. The agreed facts record the effect of two psychiatric assessments of MB's mental state at the time of OB's death. The underlying reports were not tendered. 2. The first assessment referred to in the agreed facts was undertaken by Professor Greenberg. Professor Greenberg concluded that MB was "suffering from prodromal symptoms of schizophrenia exhibiting as perseveration of thought (pre-occupied thoughts), thought blocking, dysphoric mood, heightened anxiety, poor concentration and poor attention, low energy, intermittent brief hallucinations and perceptual distortions of various heightened noises". Professor Greenberg considered that these symptoms varied or fluctuated such that they did not have the "intensity of a fixed unshakeable delusional belief" or overt psychosis. Professor Greenberg concluded that MB's "underlying schizophrenic mental illness substantially impaired [MB] so that she was unable to control her actions at the time of the offence." 3. The second assessment referred to in the agreed facts was undertaken by Dr Adam Martin. Dr Martin concluded that MB's concerns about her daughter's health prior to her death were of a delusional intensity in the context of an emerging psychotic illness. Dr Martin concluded that MB was "experiencing fluctuating anxious and depressive symptoms" but was still functioning to a degree. He opined that MB's delusional belief about OB's health status could have led to MB forming an intention to kill. As I will explain, this latter aspect of Dr Martin's findings must be considered in the context of the agreed basis upon which MB pleaded. 4. At the sentencing hearing there was tendered on behalf of MB a report from a forensic psychiatrist, Dr Stephen Allnutt, dated 22 April 2017. Dr Allnutt's report recounts MB providing a version of events that does not appear to involve her accepting responsibility for killing OB. The report also suggests that the partial defence of infanticide under s 22A of the Crimes Act may be available to MB. In light of the plea, both of those matters can be put aside. That said, Dr Allnutt describes MB as being anxious, depressed and psychotic at the time the offence was committed. 5. The agreed facts also record that, after OB's death, MB's psychotic symptoms "became more prominent". She was diagnosed with schizophrenia, schizoaffective disorder and major depressive disorder with psychotic features. As explained below, her treatment has been regularly reviewed by the Mental Health Review Tribunal since 2014. Her condition has steadily improved and her psychiatric illness is described as now being in "remission". Basis of Liability for Manslaughter 1. The agreed facts record the following concerning MB's responsibility for OB's death: "[MB] left [OB] face down in the bath tub and/or failed to retrieve [OB] from the bath tub once she had fallen face down. This was not accidental but as a result of her mental condition. At that time [MB's] capacity to understand events, judge whether her actions were right or wrong and/or to control herself was substantially impaired by an abnormality of mind arising from her underlying condition. That impairment was so substantial as to warrant [MB's] liability for murder [being] reduced to manslaughter." (emphasis added) 1. This part of the agreed facts identifies the relevant act of MB that caused OB's death as being either her leaving OB face down in the bath or her failing to retrieve OB from the bath once she had fallen face down. In relation to the latter it was confirmed in submissions that any such failure to retrieve OB was deliberate albeit that the deliberation involved was substantially impaired by her mental condition. [1] 2. Sub-section 23A(1) of the Crimes Act relevantly provides: "(1) A person who would otherwise be guilty of murder is not to be convicted of murder if: (a) at the time of the acts or omissions causing the death concerned, the person's capacity to understand events, or to judge whether the person's actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition, and (b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. 1. In identifying the basis upon which MB is liable for manslaughter by the operation of s 23A(1), four matters need to be determined. 2. The first matter that must be identified, is what is the relevant act or omission of MB that gives rise to her being "otherwise" guilty of murder and in respect of which MB's ability to control herself was substantially impaired. Consistent with the agreed facts, the only basis upon which the Court can proceed is that the relevant act was either MB placing OB face down in the bath or deliberately failing to retrieve her from the bath tub once she had fallen face down. 3. The second matter that must be determined is why it is that MB is "otherwise … guilty of murder" as referred to in s 23A(1). There are only three relevant possibilities, namely, that MB had an intention to kill, an intention to inflict grievous bodily harm or was "reckless[ly] indifferent to human life" (Crimes Act, s 18(1)). The agreed position of the Crown and MB was that she was recklessly indifferent to human life. [2] 4. The third matter is to identify the "underlying condition" that caused MB's substantial impairment as referred to in s 23A(1)(a). An "underlying condition" in s 23A(1)(a) is "a pre-existing mental or physiological condition, other than a condition of a transitory kind" (s 23A(8)). I have summarised all the material on that topic. Dr Martin's opinion as to MB having an intention to kill is inconsistent with the agreed basis for the plea, namely, that MB exhibited a reckless indifference to human life. As noted, aspects of Dr Allnutt's report proceed on a basis that is inconsistent with the agreed facts and MB's plea of guilty to manslaughter. To the extent that there is any difference between the three psychiatric opinions, Professor Greenberg's opinion is to be taken as determinative of MB's underlying condition. 5. The fourth matter that must be determined is what faculty of MB was substantially impaired. In particular, was it her "capacity to understand events", to judge whether her actions were right or wrong, or to control herself or a combination of those matters? The inclusion of the phrase "and/or" in the above extract from the agreed facts means that the Court is not bound to act on the basis that all three faculties were impaired. In that regard there is nothing in the material to support a suggestion that MB's ability to differentiate between right and wrong was impaired when she killed OB. However, based on the description of Professor Greenberg's and Dr Martin's reports in the agreed facts, I am relevantly satisfied that MB's capacity to both understand events and control her actions was substantially impaired. The concept of control in this context is wider than voluntariness (R v Quinn (No 2) [2016] NSWSC 1244 at [28]ff). 6. In light of the agreed basis upon which MB is guilty of manslaughter, it is necessary to place some of the agreed facts in context. To the extent that in doing so I make findings of fact adverse to MB then I am satisfied of those matters beyond reasonable doubt, and to the extent that I make findings of fact that are favourable to MB, then I am satisfied of them on the balance of probabilities (see R v Olbrich [1999] HCA 54; 199 CLR 270 at [27] per Gleeson CJ, Gaudron, Hayne and Callinan JJ). 7. The references in the agreed facts to such matters as MB expressing concerns about the impact that her anxiety about OB was having on her marriage and "lifestyle", the inability of the ambulance officers to ascertain OB's whereabouts from MB and the recorded conversations between MB and her mother in February 2011 might be considered capable of supporting a contention that MB planned to kill OB to rid herself of a child that did not conform with her expectations of "normal" and which represented a threat to her lifestyle. However, the psychiatric evidence and the acceptance by the Crown that MB drowned OB, or let OB drown, while possessing a reckless indifference to human life, means that it cannot be concluded beyond reasonable doubt that OB's death was premeditated or planned, much less that it was done by MB to rid herself of OB while acting under a delusion that she did not meet MB's understanding of normality. It is not apposite, or even possible, to make such findings in circumstances where the progression of MB's anxiety and symptoms of schizophrenia through 2010 significantly impaired her thought processes. Instead I am relevantly satisfied that, in a deluded state, MB ruminated on the possibility that she would be free of her mental torment if OB was gone but she did not plan that outcome. Procedural History 1. It is necessary to describe the unusual procedural history of these proceedings, including the periods spent by MB on remand and in detention. As noted, OB died on 18 November 2010. MB was arrested on 6 May 2011. She was later charged with murder. On or about 20 December 2012 she was committed for trial. She was arraigned in this Court on 2 August 2013. 2. On 6 February 2014, Barr AJ found MB unfit to be tried (R v MB (Supreme Court (NSW), 6 February 2014 unrep; "MB (No 1)") (Mental Health (Forensic Provisions) Act 1990; s 11; "MHFPA"). His Honour referred MB to the Mental Health Review Tribunal (the "Tribunal") under s 14(a) of the MHFPA. 3. On 10 July 2014, the Tribunal determined under s 16(1) of the MHFPA that, on the balance of probabilities, MB would not become fit to be tried during the 12 month period following the finding of unfitness. After receiving advice from the Director of Public Prosecutions (the "DPP") that further proceedings would be taken against MB, the Court conducted a special hearing to determine whether, on the limited evidence available, she committed the offence of murder (MHFPA, s 19(1) and 19(2)). 4. On 11 December 2014, Bellew J found that, on the limited evidence available, MB committed the offence of murder (R v MB (No 2) [2014] NSWSC 1755; "MB (No 2)") (MHFPA; s 22(1)(c)). On 19 December 2014 Bellew J imposed a limiting term of 20 years commencing 11 December 2014 (s 23(1)), referred MB to the Tribunal (s 24(1)(a)) and directed that she be detained in a correctional centre or such facility as the Tribunal may determine (s 24(1)(b)); R v MB (No 3) [2014] NSWSC 1796 ("MB (No 3)"). No regard has been had to any of the findings in MB (No 2) and MB (No 3) in determining the sentence now to be imposed on MB. 5. On 26 March 2015, the Tribunal determined that MB suffered from a "mental illness" (MHFPA; s 24(2)(a)). The Court was notified of the determination (MHFPA; s 24(3)). On 20 May 2015 the Court ordered that MB was to be detained in a mental health facility (MHFPA; s 27(a)). Subsections 45(1) and 45(2) of the MHFPA required the Tribunal to review MB and determine whether or not she had become fit to be tried. On 10 September 2015, the Tribunal determined that MB was then fit to be tried and would remain so for 12 months. Pursuant to ss 47 and 48 of the MHFPA, the Tribunal determined that MB should be transferred to the Bunya Unit at Cumberland Hospital but that pending transfer she should be detained at the Forensic Hospital at Long Bay. 6. On being notified of the Tribunal's determination that MB was fit to be tried and acting on the DPP's advice, this Court held a further inquiry into MB's fitness to be tried (MHFPA; s 29(1)(a) and s 29(1)(b)). On 11 July 2016 Mathews AJ found MB was fit to be tried. Her Honour granted MB bail on conditions including that she continue to reside at the Bunya Unit (R v MB [2016] NSWSC 985). On 6 March 2017 her bail conditions were varied to allow her to reside either at the Bunya unit or with her father. 7. MB was on bail from the time of her arrest until Bellew J decided MB (No 2) on 11 December 2014, except for a period of four days in November 2013 when her bail was revoked. From 11 December 2014 until 9 November 2015 MB was detained in custody first at Silverwater Women's correctional facility and then at the Forensic Hospital. She was transferred to the Bunya unit on 9 November 2015. Ultimately, it was agreed that MB had spent 334 days in custody (at Silverwater and the Forensic Hospital) and 246 days in "quasi custody" at Bunya before obtaining bail from Mathews AJ. Thereafter she spent a further seven months or so on bail conditions that required her to remain at Bunya. Personal Circumstances and Future Risk 1. MB's background and personal circumstances are addressed in Dr Allnutt's report. MB grew up with both parents and a sibling. Dr Allnutt described MB as having a "loving but difficult familial environment due to her mother's own difficulties with depression". [3] Although MB described to Dr Allnutt an incident in which she was spoken to directly by a children's television character through the television and another in which she saw the face of Christ in a wooden drawer, [4] Dr Allnutt reported MB as not having suffered any symptoms of psychiatric illness prior to her marriage. MB completed year 12 and studied at University. As stated, she married her husband in 2007. Sadly, and of significance to this matter, she had two failed pregnancies prior to the birth of OB. 2. I have already described the evidence concerning MB's mental state at the time of the offence. In relation to her present state, a report from Associate Professor John Basson at the Bunya unit dated 16 December 2016 was tendered at the sentencing hearing. Associate Professor Basson confirmed that MB's mood was settled and that she did not display any symptoms of mental illness. To that time she was spending daytime hours during the week and weekends with her family and had a significant degree of independence. Associate Professor Basson concluded that MB need no longer remain as an inpatient at Bunya. 3. MB consulted Dr Allnutt on 13 March 2017. Dr Allnutt describes her present psychiatric state in similar terms to Associate Professor Basson. Not surprisingly he also described MB as "sad" with her main stressor being these proceedings. Dr Allnutt reported MB as having accepted that she had mental illness and needed to take medication. MB told Dr Allnutt that she had separated from her husband but they remained friends. She also told Dr Allnutt that she had a supportive family and a "few friends" who were likewise supportive. [5] 4. Dr Allnutt also addressed MB's risk of recidivism. Dr Allnutt identified factors associated with an increased risk of aggression on MB's part, namely, the existence of ongoing unresolved depressive symptoms as well as emotional vulnerability and instability especially regarding her marriage. Dr Allnutt also identified various factors that would protect against those risks as being "abstinence from substances" as well as treatment. Otherwise Dr Allnutt pointed to a number of factors usually associated with recidivism that were absent in MB's case namely a history of anti-social behaviour, violent attitudes and difficulties in the workplace. Dr Allnutt identified the features of a regime for supervision that would maintain a low risk profile for MB namely treatment, placement and supervision. 5. MB's future prospects, both in terms of recidivism and her reintegration into the community, are greatly enhanced by the strong family support she receives and her access to mental health services. Neither in the past, nor at present, has MB represented any danger to the wider community. At most, MB represented and still represents a potential risk to vulnerable persons who may be highly dependent on her, such as young children like OB and perhaps the aged. Even so, I assess that risk to be very low given the unlikelihood that she will occupy any position of trust or authority over the vulnerable and the level of support for mental illness that she has access to. Aggravating and Mitigating Factors 1. Subsection 21A(2) of the Sentencing Act lists a series of aggravating factors the Court is to take into account in determining the appropriate sentence. These factors cannot be considered as aggravating the offence if they are elements of the offence. Subsection 21A(3) lists a series of mitigating factors. 2. Subsection 21A(2)(k) provides that it is an aggravating factor if an offender abuses a position of trust or authority in relation to the victim. Subsection 21A(2)(l) provides that it is an aggravating factor if the victim was vulnerable because, for example, the victim was "very young". Both of these factors were present in this case. 3. It is trite to observe that a baby in OB's circumstances is almost exclusively dependent on their parent or parents for love, support and protection. The killing of a baby or young child by a parent is a gross violation of the unconditional trust placed in parents. At the sentencing hearing no victim impact statement was read by anyone associated with OB. I do not treat that circumstance as any reflection of a lack of grief at her death from her immediate or extended family (Sentencing Act; s 29(3)). There are many reasons for the absence of such a statement and, in this case, that may include the traumatic situation that family members find themselves in with OB's mother charged with killing her. Nevertheless, the absence of anyone to speak for OB to this Court demonstrates her vulnerability. OB's life was ended before she had a chance to live any of it. OB is not just some passing reference in a discussion of MB's mental state. On the contrary, OB was the victim of a serious crime and the gross violation of her rights by MB's actions is the very premise of these proceedings and this judgment. 4. Counsel for MB, Mr Lange, submitted that seven mitigating circumstances provided for in s 21A(3) of the Sentencing Act were established in this matter. The first was that the offence was not part of a planned or organised criminal activity (s 21A(3)(b)). It follows from what I have stated that I accept that contention. The second and third factors were that MB does not have any criminal record, or at least significant criminal record (s 21(3)(e)) and was a person of good character s (21A(3)(f)). These matters can also be accepted. The fourth and fifth mitigating circumstances relied on were that MB is unlikely to re‑offend (s 21A(3)(g)) and has good prospects of rehabilitation whether by reason of her age or otherwise (s 21A(3)(h)). It follows from my earlier findings that I accept that those circumstances are established. 5. The sixth mitigating circumstance relied on by Mr Lange was that MB had shown remorse for the offence. In that regard s 23A(3)(i) of the Sentencing Act provides that a mitigating factor in sentencing is: "(i) the remorse shown by the offender for the offence, but only if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both) ..." 1. There is some evidence that MB has accepted responsibility for her actions in killing OB, namely her plea of guilty to manslaughter and her signing of the agreed facts. Nevertheless, while I accept that MB may have experienced anguish at her daughter's death and significant suffering from the combination of her mental condition and the prolonged legal proceedings, I am not satisfied that she is remorseful for her conduct in killing OB. The material that was tendered does not contain any expression by MB of regret or remorse for her actions in killing OB, much less any insight into her conduct. That said, a rejection of the submission that MB is remorseful should not be interpreted as a conclusion that MB is callous. An inquiry into whether a person with MB's mental state is remorseful and has insight into their actions is unlikely to advance the sentencing exercise. Otherwise, as I accept that MB may have suffered some anguish as a result of OB's death, it follows that this can be considered as a form of extra curial punishment (R v Howcher [2004] NSWCCA 179; 146 A Crim R 371 at [16]). 2. The seventh mitigating factor relied on by Mr Lange was MB's plea of guilty (s 23A(3)(k)). Subsection 22(1) of the Sentencing Act obliges the Court to take into account the fact that a plea of guilty has been entered, when it was entered and the circumstances in which it was entered, and provides that the Court may impose a lesser penalty that would otherwise have been imposed. As noted, the plea of guilty was entered in March 2017 which was very shortly prior to the commencement of the trial. Discussions over that plea had commenced in the weeks preceding the trial date. 3. Mr Lange submitted that MB should receive the full benefit of her plea because it could only have been entered after she was found fit to be tried bearing in mind her history of deteriorating mental illness. Mr Lange relied on Shine v R [2016] NSWCCA 149 ("Shine") where on resentencing, Bathurst CJ allowed an offender who entered a late plea the full discount of 25% because he had never denied committing the offence but had waited on receipt of some psychiatric evidence before entering a plea of guilty (at [94] to [95] with whom Davies J and R S Hulme J agreed at [113] and [115]). 4. The analogy between the offender in Shine and MB on this point is not complete. At no point prior to entering the plea did MB ever admit that she killed OB. Nevertheless bearing in mind that she was not found fit to be tried until July 2016 and the "circumstances in which [MB] indicated an intention to plead guilty" (s 22(1)(c)), I consider that a substantial discount on sentence on account of MB's plea is appropriate. Whether that discount should be quantified is a matter that will only arise if I decide to impose a custodial sentence, a matter I will return to. Objective Seriousness and Culpability 1. I have already made such findings as I can concerning the circumstances of the offence, including as to MB's conduct as well as her mental state at the time of, and preceding, the offence. 2. It has been said that of all crimes, manslaughter is said to "thro[w] up the greatest variety of circumstances affecting culpability" (R v Blacklidge (Court of Criminal Appeal (NSW), 12 December 1995, unrep). Even within the categories of manslaughter, such as unlawful and dangerous act or excessive self‑defence, the range of circumstances is "notoriously wide" and an offence in one category is not necessarily better or worse than one in another (Berrier, Steven John v R [2009] NSWCCA 40 at [25]). This is especially so for an offender who is guilty of manslaughter by reason of s 23A of the Crimes Act. Where a person is guilty of manslaughter by reason of s 23A, the offender's mental state and the impairment of their faculties are, in a sense, elements of the offence and it must follow that a consideration of them cannot be divorced from any consideration of the objective circumstances of the offending. It is not sensible to speak of a range of manslaughters committed in circumstances where the offender was substantially impaired. 3. Section 3A of the Sentencing Act identifies the purposes for which courts must impose sentences namely punishment, general and specific deterrence, protection of the community, promoting the rehabilitation of the offender, denouncing the conduct of the offender and recognising the harm done to the victims of crime and the community. A number of principles have emerged concerning the application of these factors to the circumstances of mentally ill offenders, four of which are relevant to this case. 4. The first is that where an offender suffers from a mental impairment then general deterrence plays a much reduced role, if any, in their sentencing as do considerations of retribution, denunciation and punishment (Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [53] to [54]. In short, such persons are not suitable to be made an example of. 5. The second principle is related to the first, namely, that where the offender's mental condition contributes to the commission of an offence then the reduction in the significance of punishment, general deterrence and denunciation may be that much greater. In such cases their moral culpability is or may be reduced (Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [177]; "De La Rosa"; R v Israil [2002] NSWCCA 255 at [23]; Barbieri v R [2016] NSWCCA 295 at [53] per Simpson JA; "Barbieri"). 6. The third principle is that in considering the appropriate punishment for a person with a mental condition it may be that a custodial sentence will weigh more heavily on them (De la Rosa at [177]; Barbieri at [23]). 7. The fourth principle is that in some cases the need for specific deterrence may be much reduced or eliminated by reason of the person's mental condition (De la Rosa at [177]). 8. Each of these principles is apposite to the circumstances of MB. Her impairment directly contributed to her killing OB. Her moral culpability for that killing is substantially reduced. She is a poor candidate for general deterrence, denunciation and the imposition of further punishment. Any further period in custody, especially a correctional centre, is likely to weigh very heavily upon her. Given the findings that I have made, a custodial sentence will not achieve anything in terms of specific deterrence. Comparable Cases 1. Notwithstanding the idiosyncrasies of each crime of manslaughter where the offender was substantially impaired, it is appropriate to consider the sentences imposed in roughly comparable cases (Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [53]). 2. The Crown Prosecutor referred the Court to a number of sentences imposed for manslaughter in circumstances where the offender was substantially impaired. I have reviewed those decisions. I will describe two of them. In R v LTN [2011] NSWSC 614 ("LTN"), Hidden J sentenced a mother who killed her three year old daughter to 4 years imprisonment with a non‑parole period of two years. The offender had a longstanding schizoaffective disorder (at [3]) and drowned her daughter as part of a plan to drown herself and her daughter (at [18]). 3. In R v Mathers [2011] NSWSC 339, Hall J sentenced a 64-year-old man who assisted his 78-year-old partner to commit suicide to a 2 year term of imprisonment that was wholly suspended. The offender had given his partner some pills when she asked for them and attempted to suffocate her (at [19]). The pills were causative of her death (at [33]). The offender pleaded guilty to manslaughter on the basis of a substantial impairment arising from his major depressive disorder (at [72]). 4. Mr Lange referred the Court to two sentences imposed in infanticide cases. Subsection 22A(1) of the Crimes Act relevantly provides that where a woman would otherwise be guilty of the murder of her child who was under the age of 12 months but the "balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth" or lactation then she is guilty of infanticide. In such a case the offender is to be punished as if she had been guilty of manslaughter. Even though infanticide is a different offence to manslaughter, its penalty is the same and its elements are sufficiently close to a case of manslaughter committed by an offender who is substantially impaired such as to warrant consideration being given to sentences imposed in infanticide cases when considering the appropriate sentence for a case such as this. 5. Thus, in R v Cooper [2001] NSWSC 769, Simpson J sentenced an offender who pleaded guilty to the infanticide of her seven month old child by suffocating her through covering her mouth and nose with her hand (at [14]). The offender received a 4 year bond under s 9 of the Sentencing Act. The offender was intellectually impaired, and after the birth of her child, experienced auditory hallucinations and depression (at [12] to [13]). 6. In R v Pope [2002] NSWSC 397, ("Pope") Greg James J sentenced an offender who pleaded guilty to infanticide to a 3 year bond under s 9 of the Sentencing Act. The offender drowned her 12 week old daughter in the bath (at [3]). Following the birth of her daughter, the offender developed "post-natal depression in a severe form" (at [32]) which appears to have involved her experiencing "psychotic symptoms or schizophrenic illness with a significant mood component" (at [33]). These conditions were described by one psychiatrist as depriving her of her capacity to "understand right and wrong" (at [33]), a description that would meet the test for substantial impairment. 7. For the reasons already discussed, neither these cases nor the other decisions referred to by Counsel establish any range of sentences for manslaughter committed by a substantially impaired offender. Instead, they illustrate the application of the principles to which I have referred, specifically, the need to impose a sanction that respects the sanctity of human life but also reflects the significantly reduced significance of most of the sentencing factors in the case of an offender who is mentally ill. For the sake of completeness, I note that the period of custody that MB has served is roughly comparable to that served by the offender in LTN. Sentence 1. At the sentence hearing, Mr Lange urged the Court to impose a bond under s 9 of the Sentencing Act. He contended that, given the time that MB had already spent in custody, she had already been punished sufficiently. Consistent with his obligations, the Crown Prosecutor did not urge any course upon the Court other than to note that to "reflect the community's distaste and concern about the offence, [while allowing MB] to continue with her rehabilitation" the Court might consider imposing a suspended sentence. 2. Even though neither set of submissions adverted to the possibility that MB should be returned to custody, I would have no hesitation in so ordering if I considered that was required by a proper application of sentencing principles. As I have explained, the taking of a defenseless child's life by their parent is a grave crime. Absent other considerations, a full time custodial sentence of some length would be inevitable. However, as I have also sought to explain, there are ample other considerations here that warrant the adoption of a different course. The significant mental illness suffered by MB before, during and after the commission of the offence permeates every aspect of these proceedings, including the satisfaction of s 23A, an assessment of her criminal culpability and a consideration of the impact, and utility, of ordering a further period in custody. Her mental condition makes her a completely unsuitable example of someone who should receive a custodial sentence to reflect denunciation, general deterrence or punishment. 3. MB has already spent a little under two years in custody. It has been six and a half years since she killed OB. MB has been in and out of prisons, psychiatric hospitals, residential centres and this Court during that period. By the end of the period of supervision that I will order, it will be over ten years since OB died. I have no doubt that the consequences of MB's actions will remain with her for the rest of her life. Notwithstanding the seriousness of MB's crime, the need and the time for her punishment has passed. Instead, at this point the necessity for the supervision and reintegration of MB into the community predominates. 4. Subsection 5(1) of the Sentencing Act provides that a Court must not sentence an offender to a term of imprisonment unless it is satisfied that, having considered all possible alternatives, no penalty other than imprisonment is appropriate. To return MB to custody would be likely to cause her significant psychological harm while not advancing the purposes of sentencing. To impose a custodial sentence with a view to suspending it would at most only allow MB to be supervised for a maximum period of 2 years. It follows that, having considered the alternatives, I am not satisfied that "no penalty other than imprisonment is appropriate". 5. Instead, I consider that the appropriate sentence is to order that MB enter into a bond under s 9 of the Sentencing Act for a period of 4 years. A bond for that period of time will enable MB to receive supervision from probation and parole officers who in turn will ensure that she continues to receive psychiatric treatment. 6. MB is convicted of the offence of manslaughter. Pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999, I make an order directing MB enter into a good behaviour bond for a period of four years. Pursuant to s 95 of the Crimes (Sentencing Procedure) Act 1999, I specify that the bond is subject to the following conditions: (a) that MB is to appear before the Court if called upon to do so at any time during the term of the bond; and (b) that MB is to be of good behaviour for the term of the bond; and (c) that within 14 days MB is to notify the Registrar of this Court of her residential address and, thereafter, within 14 days of her changing her residential address MB must notify the Registrar of the Court, and the Probation and Parole Service, of her new address; and (d) that by Friday 2 June 2017 MB report to an officer of the Probation and Parole Service at the nearest such service to her place of residence; and (e) that MB accept the supervision and directions of the officers of the Probation and Parole Service including all reasonable directions concerning attendance upon psychiatric specialists and mental health services and compliance with the directions and advice of those persons and bodies. 1. I am required by s 96 of the Crimes (Sentencing Procedure) Act 1999 to explain to MB the effect of the order that I have made. 2. The bond is for a period of four years. It has five conditions. The first is that MB must appear before the Court when required to during the term of the bond. The second is that MB be of good behavior during the term of the bond. The third is that within 14 days of today, MB notify the Registrar of this Court of her residential address and thereafter she notify the Court and the NSW Probation and Parole Service of any change of address within 14 days of any such change. The fourth is that by 2 June 2017 MB report to her nearest probation and parole service. The fifth is that she accept the supervision and direction of the probation and parole service including any directions as to her attendance on psychiatrists and mental health services and compliance with the directions and advice of those persons. 3. MB must comply with the conditions of the bond. If she does not, she is liable to be brought back before this Court and sentenced. If she is suspected to be in breach of the bond, this Court may call upon her to appear before it. If MB does not appear, the Court may order a warrant for her arrest. If the Court is satisfied that MB has failed to meet her obligations under the bond, the Court may re-sentence her, take no action, vary the conditions of the bond, or impose further conditions or revoke the bond. If the bond is revoked then all sentencing options are again available. 4. Finally as the offence of manslaughter is a "serious and violent offence" as defined in s 5A of the Crimes (High Risk Offenders) Act 2006 (NSW), I am obliged by s 25C of that Act to advise MB of the existence of that legislation and of its application to the offence she has committed. ********** Endnotes 1. T 28/04/17 p 6.47 to p 7.15 2. T 28/04/17 p 7.29 and p 17.20 3. Report of Dr Allnutt at p 7 4. Report of Dr Allnutt pp 7 to 8 5. Report of Dr Allnutt at p 6.5 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 May 2017