R v AS [2018] NSWSC 930

Supreme Court New South Wales

Medium Neutral Citation: R v AS [2018] NSWSC 930 Hearing dates: 15 June 2018 Decision date: 20 June 2018 Jurisdiction: Common Law Before: Fullerton J Decision: Imprisonment for 3 years to date from 10 February 2017, comprising a non-parole period of 16 months which expired on 9 June 2018 with a balance of term of 20 months expiring on 9 February 2020. Catchwords: CRIMINAL LAW – sentence – manslaughter by negligent homicide – plea of guilty – discount for utilitarian value of plea – finding of special circumstances – non-exculpatory duress. Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(d); 23(4) Cases Cited: Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 Giang v R [2017] NSWCCA 25 R v KJ [2015] NSWSC 767 R v Loveridge [2014] NSWCCA 120 R v PFC [2010] NSWSC 834 R v Smith [2013] NSWSC 796 R v TP [2018] NSWSC 369 Yun v R [2017] NSWCCA 317 Category: Sentence Parties: The Crown AS (Offender) Representation: Counsel: P Hogan (Crown) B Rigg SC (Offender)

Solicitors: Director of Public Prosecutions (Crown) Legal Aid NSW (Offender) File Number(s): 2017/43826

REMARKS ON SENTENCE 1. HER HONOUR: On 2 March 2018, AS entered a plea of not guilty to murder but guilty to the manslaughter of her daughter, DB, on 20 December 2016. DB was aged 2 years and 8 months at the time of her death. 2. It was the agreed position of the parties on the arraignment that the matter should be listed for sentence pending the Crown's formal acceptance of the plea of guilty to manslaughter in full satisfaction of the indictment when the facts for sentencing purposes were settled and agreed. 3. On 15 June 2018, the Crown formally accepted the plea of guilty to manslaughter at the commencement of the sentence proceedings. 4. On sentence the Crown tendered a bundle of materials comprising: the agreed facts; a statement of Robert Zavone dated 10 January 2017; AS's criminal and custodial histories; and a confidential affidavit by a police officer addressing the nature of the assistance AS had provided to date and her undertaking to give evidence at the forthcoming trial of Mohammed Khazma, her former partner. Mr Khazma has been charged with the murder of DB. 5. AS read two affidavits: one affirmed by her and dated 15 June 2018 with annexures; and two from her solicitor, Mr Bernhaut, the first dated 14 June 2018 and the second dated 19 June 2018. She also relied upon a report from Ms Lucas, forensic psychologist, dated 5 May 2018 and a report from Dr Ellis, forensic psychiatrist, dated 11 June 2018. 6. AS's criminal liability for the manslaughter of her daughter is constituted, in part, by her failure to remove her from an abusive domestic relationship with Mohammed Khazma, a relationship which commenced one month prior to the death of the child. Over the course of that month, it is agreed for sentencing purposes that the risk to the child's health and safety was patent to AS by reason of Mr Khazma's escalating and gratuitously violent assaults on the child, inclusive of multiple applications of blunt force to her face and head and other physical and verbal abuse. 7. AS's criminal liability is also constituted by her failure to obtain medical treatment for her daughter when, over a period of at least two and a half hours on 19 December 2016, and very likely over a period of days prior to that, the child lapsed into progressively extended periods of unconsciousness with accompanying perceptible changes in her neurological functioning. By her plea of guilty, AS acknowledges that course of conduct constitutes gross criminal neglect.