Supreme Court New South Wales

• Medium Neutral Citation: R v Kristi Anne Abrahams [2013] NSWSC 952
• Hearing dates: 24, 25 and 27 June 2013
• Decision date: 18 July 2013
• Jurisdiction: Common Law - Criminal
• Before: Harrison J

Decision

For the offence of improperly interfering with the body of the deceased Kiesha Weippeart, sentenced to a fixed term of imprisonment of 18 months commencing on 22 April 2011 expiring on 21 October 2012.

For the offence of the murder of Kiesha Weippeart, sentenced to a term of imprisonment of 21 years and 6 months with a non-parole period of 15 years commencing on 22 April 2012 expiring on 21 April 2027 with a balance of term of 6 years and 6 months commencing on 22 April 2027 expiring on 21 October 2033.

The aggregate sentence is one of 22 years and 6 months with a non-parole period of 16 years. The first day upon which the offender will become eligible for release on parole is 22 April 2027.

• Catchwords: CRIMINAL LAW - sentence - murder of six year old child by mother - precise time and cause of death unknown - plea of guilty and admission of act causing death - where finding beyond reasonable doubt of infliction of fatal injuries with intention of causing grievous bodily harm - failure to seek medical treatment - middle range of objective seriousness for murder of its type - where offender has history of violent and dysfunctional childhood and intellectual disability - additional offence of improper treatment of body of the deceased - most serious category for such an offence
• Legislation Cited: Crimes Act 1900; Crimes (Sentencing Procedure) Act 1999; Mental Health (Forensic Provisions) Act 1990
• Cases Cited: Apps v R [2006] NSWCCA 290; DPP (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1; Hinchcliffe v R [2010] NSWCCA 306; Knight v R [2006] NSWCCA 292; (2006) 164 A Crim R 126; Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705; Markarian v R [2005] HCA 25; (2005) 228 CLR 357; Mitchell v R [2010] NSWCCA 145; Muldrock v R [2011] HCA 39; (2011) 244 CLR 120; Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610; R v F.A.P. [2007] NSWSC 905; R v Ha [2008] NSWSC 1368; R v JCW [2000] NSWCCA 209; (2000) 112 A Crim R 466; R v O'Brien [2003] NSWCCA 121; R v Sam [2011] NSWCCA 36; R v Turchino [2005] NSWSC 1214; R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168; R v Wilkinson [1999] NSWCCA 248; SW v R [2013] NSWCCA 103; The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270; Tran, Hoai Vinh v R [2011] NSWCCA 116; Wood v R [2012] NSWCCA 21
• Category: Sentence
• Parties: Regina (Crown); Kristi Anne Abrahams (Accused)
• Representation: Counsel: C Maxwell QC (Crown); J Manuell SC (Accused); Solicitors: Solicitor for Public Prosecutions (Crown); Armstrong Legal (Accused)
• File Number(s): 2011/133212
• Publication restriction: Nil

 

Judgment

1 HIS HONOUR: On the first day of a trial scheduled to commence in Sydney on 17 June 2013, the offender pleaded guilty to the first count in an indictment alleging that between 11 July 2010 and 18 July 2010 at Mount Druitt in the State of New South Wales she did murder Kiesha Weippeart. The offender had earlier, on 2 May 2013, pleaded guilty to the manslaughter of the deceased and guilty to a second count on the indictment alleging that between the same dates at Shalvey and other places she improperly interfered with the body of the deceased. The Crown accepted the latter plea but not the former.

2 The offence of murder carries a maximum penalty of life imprisonment. The deceased was the daughter of the offender and was aged six years and three months at the time of her death. In the event that a determinate sentence is imposed, a standard non-parole period of 25 years applies by reason of the age of the deceased. In proceeding to determine the appropriate sentence, I am not required to commence by considering whether there are reasons for not imposing the standard non-parole period of 25 years. Similarly, I am not required to make an assessment of whether or not the offence is within the mid range of objective seriousness (see Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 at [25]). The relevant statutory provisions generally, and the provisions of ss 55B(2), 54B(3) and 21A of the Crimes (Sentencing Procedure) Act 1999 in particular, require an approach to sentencing in which all of the relevant factors are identified, and a judgment is reached as to the appropriate sentence having regard to such factors (see Muldrock at [26], citing Markarian v R [2005] HCA 25; (2005) 228 CLR 357 at [51]). The standard non-parole period for the offence of murder requires that content be given to its specification as the "non-parole period for an offence in the middle of the range of objective seriousness". It represents the non-parole period for a hypothetical offence in the middle of the range of objective seriousness, without regard to the range of factors, both aggravating and mitigating, that bear relevantly on sentencing in an individual case (see Muldrock at [27] and [31]).

3 The offence of improperly interfering with the body of the deceased carries a maximum penalty of 2 years imprisonment.

The circumstances of the offence

4 The offender and Christopher Weippeart were in a de facto relationship for a period from approximately 2002 until 2005. The offender gave birth to a son on 6 February 2003. He died from sudden infant death syndrome on 23 March 2003 aged six weeks. The deceased was born on 22 April 2004.

5 On 4 July 2005 the deceased was admitted to Mt Druitt Hospital overnight for observation with a bite mark. The offender was subsequently charged with assault upon her and pleaded guilty. She was placed on a bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act to be of good behaviour for 12 months. The offender and Mr Weippeart separated after this offence. The deceased went from hospital into the custody of Mr Weippeart and his mother, and then into the care of the Department of Community Services.

6 Following the separation, the offender formed a relationship with Robert Smith in 2006. He was introduced to the deceased during the course of DoCS approved visits. The deceased was returned to the care of the offender on 23 December 2006. Thereafter the offender and Mr Smith lived together with the deceased in a unit at Mt Druitt. Mr Weippeart had little involvement in raising the deceased. The offender and Mr Smith had two children of their own born respectively on 9 February 2008 and 7 July 2010. The deceased occupied one bedroom of the unit while the offender and Mr Smith shared the other bedroom with their two children.

7 On Sunday, 1 August 2010, the offender called "000" and reported that she had awoken at approximately 9:30am and found that the deceased was missing from the unit. She said that the front door of the unit was open and that Mr Smith had gone to search for her. Police were immediately dispatched to the unit and a large-scale search and investigation commenced. They were unable to find any signs of forced entry into the unit, or any independent evidence of the deceased wandering out of the house by herself. The deceased was last seen by anyone other than the offender and Mr Smith at her cousin's birthday party on 11 July 2010.

8 A police operation commenced in 2011. On 21 April 2011, the offender was secretly recorded making various admissions regarding the deceased's death. Until this time both she and Mr Smith had consistently told police, DoCS and the media that they had no knowledge of, or involvement in, the deceased's disappearance.

9 In the course of the recorded conversation, the offender stated that about one and a half to two weeks prior to reporting the deceased missing, she was in the deceased's bedroom where the deceased was crying. The offender wanted the deceased to put her pyjamas on and she gave her "a little nudge" with her foot. The deceased jumped and hit her head on the bottom of the bed. The offender said that the deceased went "funny" and she put her in the shower to try to "wake her up". At one point the offender agreed that it was a cold shower, at another point she said that it was lukewarm. The deceased made "weird" noises that the offender thought would go away but did not. The Crown does not accept this account of the act causing death.

10 The offender said that the deceased then started to defecate and Mr Smith cleaned her. She said that the deceased felt like "jelly". The deceased appeared to be breathing so the offender and Mr Smith put her on a little fold-out lounge in their bedroom. The deceased did not bleed although there could be blood in the deceased's room from previous injuries she received. The offender and Mr Smith fell asleep and when they woke up the next morning the deceased was not breathing.

11 Around 9am on the morning of the deceased's death, the offender and Mr Smith got a suitcase from their garage. Mr Smith placed the deceased's body in the suitcase, and put the suitcase in the deceased's bedroom. Mr Smith later took a hammer and a bike, and went to find a burial site. He located the burial site in bushland near his mother's residence at Shalvey.

12 A few days after the deceased's death in the early hours of the morning, the offender and Mr Smith took the suitcase with the deceased's body to the burial site in a taxi. They took precautions with the pick-up and drop-off addresses, including booking the taxis under false names and disguising themselves to avoid being identified. Taxi records show that the offender and Mr Smith were picked up from Woodstock Avenue, Mt Druitt at 5.00am on 18 July 2010. They were subsequently collected at 7:15am on the same day from Sedgman Crescent, Shalvey, returning to Mt Druitt.

13 Mr Smith dug a hole with the hammer and tipped the deceased's body out of the suitcase into the hole, poured petrol on the body, and burnt it. The deceased was wearing pink pyjamas and a purple jacket. Mr Smith placed dirt and a big branch over the body. They walked away some short distance where Mr Smith burnt the suitcase. The offender said that she did not go to the gravesite again but that Mr Smith returned the next day to make sure everything was all right. The offender threw out the clothing and shoes she had worn while disposing of the deceased's body. About one or two weeks after the deceased's death the offender phoned police to report the deceased missing.

14 On the evening of 21 April 2011, the offender and Mr Smith unwittingly took members of the police service to the deceased's gravesite ostensibly to offer assistance with the disposal of the deceased's remains. Around 1.12am the following morning, the offender and Mr Smith were arrested near the gravesite and taken to Mt Druitt Police station. They were both offered an opportunity to be interviewed but declined.

15 After the arrests on 22 April 2011, police went to the gravesite where they discovered skeletal remains, teeth, and fragments of hair in a shallow grave and scattered over the adjacent grounds in bushland. An examination of the remains found fresh, sharp chipped teeth fractures that occurred at or near the time of death. The deceased sustained other bony injuries over the weeks and months prior to her death. A forensic anthropologist determined that the state of preservation of her remains suggested that her death had occurred months prior to discovery. The deceased's body had been partially burnt prior to burial. A combination of decomposition and the burning of the deceased's body prevented a determination of the cause of death.

Medical evidence - cause of death

16 Dr Matthew Orde, a forensic pathologist, conducted a post-mortem examination. Dr Orde's examination confirmed that the remains were those of the deceased. He found that the state of preservation of the remains suggested that death had occurred several months prior to discovery.

17 Dr Orde could not conclusively determine a cause of death due to the prolonged post-mortem period and resultant tissue loss. However, he concluded that the presence of fresh-appearing fractures to several teeth raised the real possibility that the deceased may have sustained a severe head injury at or around the time of death, caused by the forcible closure of the mouth as the result of a blow to the head. He also found that many of the bones, notably the rear portions of the ribs and spinal bones, appeared to show features of burning. Some marks were also observed on the remains indicative of post-mortem predation by scavengers.

18 Dr Orde further found evidence of earlier bony injury to the lower margins of the nasal bones, the maxilla, both sides of the mandible, and both clavicles. There was a possible prior injury to the parietal bone. A healing injury to the upper arm indicated trauma possibly two to four weeks prior to death consistent with having being caused by traction and/or twisting of the limb. Although Dr Orde could not make any reliable assessment of the timing of the majority of the bony injuries sustained by the deceased, their appearance suggested repeated injuries over the weeks and months prior to death.

19 Dr Middleton, a specialist forensic odontologist, noted the loss of tooth enamel to be consistent with fracturing of the teeth. Those fractures appeared to be recent because they had sharp, fresh margins. The freshness of the fractures suggested that they occurred a maximum of three days prior to death although probably much closer. Dr Middleton found that the distribution pattern of the fracturing and the degree of staining were consistent with trauma during life rather than post-mortem fracturing.

20 Dr Middleton further found that the pattern of distribution of the tooth fractures was consistent with the lower teeth (or jaw) being forced up against the upper teeth. The type and degree of force required to cause that fracturing of the enamel would not be within the parameters of normal function. Fracturing of the teeth on both sides was consistent with a similar significant amount of force being applied to the off-centre of the jaw area from different directions. Dr Middleton was of the opinion that one impact would not have been sufficient to cause the injury and that at least two impacts to the jaw occurred. In Dr Middleton's opinion, the type and degree of force required for such an injury would be equivalent to sporting contact or jumping from a height and landing heavily on the ground. In particular, Dr Middleton's evidence revealed the following matters.

21 The deceased's tooth fractures occurred at or around the time of death but not after it. They were the result of blunt force trauma and were consistent with being punched in an upward direction. There were at least two, possibly three, separate abnormal and unexpected impacts to different sides of the deceased's jaw. The pattern and number of injuries is inconsistent with the account of the act given by the offender. The injuries were caused by the offender and resulted in the death of the deceased.

22 A Certificate of Analysis dated 8 March 2012 was prepared by the Division of Analytical Laboratories in relation to DNA testing of various swabs taken by police from the crime scene at the offender's Mt Druitt premises. Test screening for blood returned positive results with a DNA profile matching that of the deceased in various areas of the unit, including on a mattress, blanket and bed sheet in her bedroom, as well as on the bedroom door, the linen cupboard door, a wall in the master bedroom, a rug in the dining room, and a lounge chair. There is no evidence as to the amounts of the deceased's blood detected or its age.

23 The offender has denied causing any prior injuries to the deceased. The Crown does not accept this.

Basis of liability for murder - relevant intent

24 It is uncontroversial that the offender's plea of guilty to murder carries with it an acknowledgment that she caused the death of the deceased. In the present case, the offender's version of the events surrounding the death of the deceased is neither accepted by the Crown nor on one view consistent with the expert medical evidence. The precise cause of death is therefore not known and cannot be ascertained. That necessarily confounds any proper analysis aimed at determining beyond reasonable doubt the question of whether or not the offender committed an act or acts with the intention of killing the deceased, or did so only with an intention to cause grievous bodily harm, or was recklessly indifferent to the life of the deceased.

25 The question as to whether there is a "sliding scale of seriousness" according to whether a murder offence was committed with an intent to kill or cause grievous bodily harm, or with reckless indifference appears to be unsettled. In Apps v R [2006] NSWCCA 290, Simpson J said [at 49]:

"[49] Certainly, in a case of murder, the state of mind in which the offence is committed is a relevant consideration going to objective seriousness. As is well known, murder may be established by proof of an act causing death committed when the act is accompanied by any one of three states of mind: in descending levels of seriousness they are: intention to kill, an intention to cause grievous bodily harm, or reckless indifference. I have no doubt that an intention to kill as distinct from either of the two alternatives, is a consideration tending to greater objective seriousness rather than the lesser. So much is obvious..."

26 However, in Tran, Hoai Vinh v R [2011] NSWCCA 116, after an analysis of a number of authorities on the issue (including Apps), Hidden J said at [39].

"[39] What emerges from these cases is what one would expect. Whether a killing was premeditated or, in any event, whether it was accompanied by an intention to kill are important questions in an assessment of where a murder lies in the range of objective gravity, but of themselves are not necessarily determinative. Invariably, there will be other circumstances in the particular case bearing on that assessment. In Versluys [2008] NSWCCA 76 at [36], McClellan CJ at CL said:

'When assessing the objective seriousness of any offence the court is required to identify the relevant facts and form an intuitive judgment based upon the experience of the courts in sentencing for the particular offence. This is true of murder as it is of any other offence... .'

Of course, the assessment of the objective gravity of an offence is an important aspect of any sentencing exercise, and one which requires careful consideration. For obvious reasons, this is particularly so when sentencing for offences for which a standard non-parole period is prescribed." 

27 Johnson J agreed with Hidden J but added a further observation at [44]-[45]:

"[44] Although it will generally be the case that an intention to cause grievous bodily harm is less culpable to a greater or lesser degree than an intention to kill in a case of murder, that is not always so and there may be circumstances where an intention to inflict grievous bodily harm could reflect similar criminality to other cases involving an intention to kill: R v Nelson (NSWCCA 25 June 1996, unreported); R v Hillsley [2006] NSWCCA 312; 164 A Cnm R 252 at 258 [16].

[45] These statements have been made in decisions of the Court of Criminal Appeal which predate the standard non-parole systems (R v Nelson) and which postdate that system (R v Hillsley). The statements are pertinent to the determination of objective seriousness of a crime of murder under the standard non-parole period system and, in my view, should be kept in mind in conjunction with the authorities and principles referred to in the judgment of Hidden J."

28 Since first frankly revealing her involvement in this matter, the offender has consistently maintained that her act causing the deceased's injury was "an accident". Indeed, the only account of the act causing death is that given by her. It was contended by the Crown that the offender's acts committed towards the deceased were more extreme than she admitted. It is agreed that the deceased sustained a lethal injury at the hands of the offender. The Crown submitted that the evidence concerning the number and direction of impacts apparently sustained by the deceased is at odds with "a little nudge" and a fall. It also submitted that I was entitled to find that the impacts described by Dr Middleton were occasioned during an assault upon the deceased by the offender, which resulted in a life-threatening state of health.

29 The Crown contended that the number and intensity of the impacts inflicted upon a small and defenceless six-year-old child provided powerful evidence of an intent to cause really serious injury. Coupled with other evidence, that was sufficient to establish an intention to kill. The Crown raised the following matters in that context:

The offender's attitude towards the deceased

30 On 3 July 2010, the offender bit the deceased. The deceased was aged 15 months at the time. On 1 May 2006, the offender pleaded guilty to assault occasioning actual bodily harm and was subsequently released on a s 9 bond for a period of 12 months.

31 The deceased's physical resemblance to the offender's former partner apparently annoyed her and triggered physical and verbal abuse towards the deceased. A few weeks prior to the deceased's death, the offender wanted her father to take the deceased because she predicted that she would kill her. According to the Crown, this statement informs how the offender felt towards the deceased and more importantly what she would do to her.

32 The offender has been recorded saying that after the deceased went "funny", she put her into the shower, and then into bed. She did not call an ambulance or make any effort to obtain medical assistance, thereby demonstrating a high level of disregard for the deceased. The Crown contends that the offender's treatment of the deceased's body after death is further evidence of enmity towards her.

The offender's intention to relocate the deceased

33 The offender was at one time intending to send the deceased to live with her father in Canberra. The Crown contends that this suggests that there was an insurmountable problem between the offender and the deceased, and that the offender's ability to cope with the deceased had reached an irreversible level. The offender's proposal was effectively to send her six-year-old daughter to live interstate with a man who she had barely seen or spoken to for 15 years and who the offender claims had abused her as a child.

The offender's concealment of the deceased

34 The deceased only attended school for four days, and had little contact with people other than the offender. She was kept in the apartment because she was regularly exhibiting signs of injury or abuse, and the offender could not risk those injuries being observed by others, particularly given the offender's previous dealings with DoCS and her opinion of its "interference". The offender was unconcerned about the deceased's attendance and development at school, pre-school, or day care, and did not attempt to include her in normal day-to-day activities such as playing in the park or visiting the shops.

Injuries sustained by the deceased prior to death

35 There is considerable evidence that the deceased sustained many severe injuries during her life apart from those that ultimately caused her death. Such evidence is only relevant if I were satisfied beyond reasonable doubt that the offender caused them. The Crown contended that it would be relevant in a number of ways, primarily in order to support the proposition of the offender's enmity towards the deceased.

36 Dr Orde's evidence identified ten separate sites of injury to the surface of bones that occurred in the weeks and months prior to the deceased's death. These injuries included sharp-edged teeth fractures, injuries to the maxilla, a severe blunt force injury to the lower left side of jaw bone, a severe blunt force late healing injury to the right parietal bone above the right ear, healing fractures of the lower margins of the nasal bones caused by significant force, late healing injuries to both clavicles and a healing fracture of the upper right humerus occasioned by traction or twisting two to four weeks prior to death. None of these injuries would appear to have been the subject of medical intervention.

37 The Crown contended that the history of injuries to the deceased demonstrated an escalation in their seriousness, particularly in the last 18 months of her life and that at least some of them, such as the bony injuries, amounted to grievous bodily harm. The Crown contended that even if I were not satisfied that the offender caused them, I could still be satisfied that she was the primary caregiver at the time the deceased sustained the injuries but that she did not obtain medical assistance for her. These matters are said to be relevant to the offender's state of mind at the time of the act causing death.

38 The evidence indicates that both the offender and Mr Smith had the care of the deceased at all relevant times. Even if Robert Smith had caused the injuries, it would have been apparent to the offender. Unless I can be satisfied that the offender was directly responsible for these injuries, the evidence cannot be used against her except in terms of her failure to summon medical care.

39 The offender emphasised the following matters. Dr Orde could not determine the cause of death. The only evidence of injury that is capable of revealing a cause of death is Dr Middleton's evidence of "more than one blow" to the deceased's head.

40 It is apparent that the offender did not call for medical help when she saw the severity of the deceased's injury, despite the deceased not dying for some hours. It is on this basis that the offender says she acted with reckless indifference to the deceased's life.

41 It is acknowledged in the agreed facts that the offender had difficulty coping with parenting, and that she was at times bad-tempered towards the deceased. Her father's evidence that the offender said she would hurt or kill the deceased is derived from his conversation with her that took place more than a month before the deceased died and in the context that he telephoned the offender possibly an hour or two after their first conversation, by which time the offender had "calmed down".

42 The offender contended that her participation in the disposal of the deceased's body and her lies to the police and the media were not evidence of "enmity" towards the deceased, but rather evidence of her continuing desire to avoid detection and the likely removal of her children.

43 The offender submitted that there was no evidence to establish anything other than that she had a reckless indifference to the deceased's life.

44 I do not consider that it is possible to find beyond reasonable doubt that the offender inflicted the earlier identified non-lethal injuries upon the deceased. The collocation of events and circumstances identified by the Crown undoubtedly raises a high level of suspicion that the offender was either directly involved or indirectly complicit in the infliction of the injuries. Suspicion alone is not however a proper basis to make findings adverse to the offender.

45 On the contrary, I do find beyond reasonable doubt that the offender at least recklessly failed to take any appropriate steps to deliver or secure prompt or appropriate care and attention to the deceased after she sustained her ultimately fatal injuries. Such a finding is available beyond reasonable doubt upon the basis that the offender committed the act that eventually caused death, that she was aware that the deceased had sustained a life threatening condition, that she realised that death would probably occur if medical attention was not sought but that she proceeded to take that risk nothwithstanding.

46 I pause to observe that there is no expert or other medical evidence or opinion offered to enable me to determine the time of death of the deceased. It is not therefore possible for me to make any findings beyond reasonable doubt about the nature or extent of the offender's opportunity, in the period between her infliction of the injuries that caused the death and when it occurred, to obtain medical assistance for the deceased or correspondingly about whether that would have altered the outcome. For example, according to a version of what occurred given by the offender, the deceased went like jelly and was defecating during the unsuccessful attempts to revive her. One might be prepared to conclude from those matters that the deceased had already died before, or at least by the time, she was taken to the shower. It will be apparent, however, that such a conclusion cannot be reached without evidence and certainly not beyond reasonable doubt. The only findings available upon the time of death are that the deceased died at some time before the offender observed her the following morning and that no medical assistance was sought before that occurred.

47 Logically anterior to a finding that the offender acted with reckless indifference to human life, and necessarily in this case more difficult, is the question of whether or not the offender also either intended to kill the deceased or committed the act or acts that killed her with the intention of inflicting serious injury. Written submissions provided to me by Ms Manuell SC for the offender specifically concede that the deceased "sustained a severe head injury at the hands of the offender and that [she] died as a result". The offender's concession, however, is relevantly neutral in this context.

48 On the one hand the offender's version of events, that she gave the deceased "a little nudge" with her foot and that she struck her head on the bottom of the bed, cannot be accommodated by or within the expert evidence that the deceased sustained a series of blows of sufficient force to cause her teeth to become chipped or fractured. I reject the suggestion that those injuries could have been caused by striking her head on the bed as suggested by the offender. I am satisfied beyond reasonable doubt that they were not. On the other hand, the expert opinions concerning the posited force and direction of the blows or impacts that caused the deceased's observable injuries do not circumscribe or explain precisely what happened to her in fact. There is therefore an evidentiary gap between the offender's concession that she committed the act that killed the deceased and a satisfactory understanding of just how that occurred. Any finding beyond reasonable doubt that the offender committed the act that killed the deceased with the intention of doing so or of causing her really serious injury must therefore accommodate that gap.

49 It was in these circumstances that Ms Manuell's submissions quite understandably directed attention to the extent of the use that could be made of Dr Middleton's prognostications concerning what happened to the deceased and specifically to the issue of how many blows might have been inflicted upon her. It is necessary to consider them.

50 Dr Middleton gave evidence of his opinion as to the number of blows said to have been sustained by the deceased. He was first qualified in respect of this matter in April 2011. Since then he has provided four reports and had a conference with the DPP on 22 June 2012. Dr Middleton agreed that in each of his reports he gave the opinion that the deceased sustained "more than one blow". In the notes of the conference on 22 June 2011, Dr Middleton is noted as saying, "If limited to one side, there would not have been bilateral injuries to the teeth, so a number of collisions to the jaw occurred". The words "a number of collisions" are not, on their face, inconsistent with Dr Middleton's earlier, repeated opinion that there was "more than one blow".

51 In his oral evidence, Dr Middleton said, "The absolute minimum would have to be three [blows] and I would be hesitant to go that low. I would say more like four or five absolute minimum." In cross-examination he was asked, "In fact, in your reports, when you were carefully considering the material over a period of more than two years, the only conclusion you could safely draw was that there had been more than one blow; isn't that right?" He replied, "That's correct."

52 Dr Middleton's evidence that there were possibly three but more likely a minimum of four or five blows sustained by the deceased is clearly more adverse to the offender than simply "more than one blow." He agreed that he had not previously described the blows in that way. It must be presumed that the Crown did not know Dr Middleton was going to give this evidence, since notice of it was not given to the offender. It was submitted in these circumstances that Dr Middleton's evidence of three, four, five or more blows had the hallmarks of recent invention and should not be accepted.

53 Additionally, a fundamental difficulty with Dr Middleton's evidence as to the number of blows sustained by the deceased is that it is evidence of biomechanics. Dr Middleton is not a biomechanic and had no expertise in the area, both matters with which he agreed. He also agreed that there were no papers or research that he could rely upon to support a more exact estimate of the number of blows. Dr Middleton's attempt to quantify the number of blows the deceased sustained is clearly a matter that is outside his expertise. The purported, and spurious, proffering of "expert" evidence in the field of biomechanics was discussed in Wood v R [2012] NSWCCA 21 at [466] - [477].

54 Moreover, in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 at [85], Heydon JA said:

"In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of 'specialised knowledge'; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be 'wholly or substantially based on the witness's expert knowledge'; so far as the opinion is based on facts 'observed' by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on 'assumed' or 'accepted' facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of 'specialised knowledge' in which the witness is expert by reason of 'training, study or experience', and on which the opinion is 'wholly or substantially based', applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ's characterisation of the evidence in HG v R (1999) 197 CLR 414, on 'a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise' (at [41])."

55 The only evidence Dr Middleton could properly give within his area of expertise was that the positioning of the fractures to the deceased's teeth established that different directional forces from more than one blow caused them. He was unable legitimately to say more than that. Significantly as well, Dr Middleton was not able to rule out that the deceased's teeth could have been damaged in the period between death and burial. His opinion as to the timing of the fractures was ultimately predicated on soil staining of the teeth, not the date of death. It is not in issue that there was a period of some two to three days between death and burial, and that during this period there was rough handling of the body.

56 Associate Professor Richard Widmer, who is a paediatric dental specialist rather than a forensic odontologist, gave unchallenged evidence that the dental damage evident on the teeth of the deceased, as depicted in the post mortem photographs, was strongly suggestive of traumatic dental damage. He offered the opinion that it would appear to have happened around the time of the death of the deceased.

57 I am unable to find beyond reasonable doubt that the offender relevantly formed an intention to kill the deceased. There is no direct evidence to support such a finding. Such inferences as are available from the evidence are weak or ambiguous. For example, there is evidence of physical abuse of the deceased over an extended period before her death but unrelated to it. Putting aside the fundamental problem with that evidence, that it cannot be established that the offender committed the acts that caused the injuries concerned, the assumed conduct was non-lethal and correspondingly uninstructive upon the question of the offender's intent with respect to the offence of murder. The injuries to the deceased cannot in my opinion be confidently arranged in an order suggesting a chronological increase in severity. Indeed, the particular mechanisms by which they were inflicted are in every case necessarily mired in doubt.

58 The mechanism of the death of the deceased is also unknown beyond general and hypothetical terms. My rejection of the offender's version of what happened does not automatically operate to elevate some otherwise available competing hypothesis about it to the requisite level of satisfaction. Indeed, even accepting for the purposes of the analysis that the deceased died as the result of a series of blows to her jaw sufficient to cause the observed damage to her teeth, such an acceptance produces no more than a reasonable suspicion that she was struck in that way in order to cause injury of some sort. It is insufficient, except with the illegitimate benefit of hindsight, with which to reason to a finding beyond reasonable doubt that the injuries were inflicted with an intention to cause death. A significant countervailing inference arises from the fact, which I find on the balance of probabilities, that the offender sought, albeit unsuccessfully, to revive the deceased in the immediate period following the infliction of the ultimately fatal injuries.

59 Nor does the apparently fraught physical and emotional relationship between the offender and the deceased reliably inform this inquiry. The Crown has emphasised, for example, that the offender has admitted that she was intending to send the deceased to live with her father. As extraordinary as that proposal may on one view appear to have been, it is not altogether inconsistent with the offender acknowledging that the deceased would be better off if she were moved. It does not come close in my view to assisting a determination of the offender's intentions at some later stage. The same applies to the offender's attempts to conceal the deceased's injuries from childcare professionals employed by the relevant department.

60 On the contrary, I am satisfied beyond reasonable doubt that the offender intended to inflict grievous bodily harm upon the deceased when she committed the act that caused her death. I am satisfied that the offender caused such harm, by reason of the combination of the offender's concession that the deceased sustained a severe head injury at her hands, and the evidence of damage to the deceased's teeth referred to by Dr Middleton and Dr Orde. I have formed that view upon the basis that the force required to cause the injuries described by these doctors was only consistent with an intention to cause really serious injury. I am confirmed in arriving at that finding by the fact that more than one blow was administered to the deceased. An attack upon a six-year-old child with that amount of force is wholly inconsistent with the existence of an intention to cause less than really serious injury. I am satisfied on the balance of probabilities that no more than two blows were inflicted.

Objective gravity of the offence of murder

61 The determination of where on the scale of criminality a given offence lies is an essential part of any sentencing exercise, whether or not the offence attracts a standard non-parole period: Hinchcliffe v R [2010] NSWCCA 306 at [31]; Mitchell v R [2010] NSWCCA 145 at [16]. The following matters appear to be relevant to a consideration of that question.

62 The evidence establishes that the deceased is likely to have suffered a severe brain injury which, together with the failure to obtain medical care, caused her death. The offender was the deceased's mother and so had a high duty of care towards her. The offender significantly breached that duty. The trust reposed in a parent by a child must be taken to be of the highest and utmost importance: R v Ha [2008] NSWSC 1368 at [42]. I must be mindful of "the heavy responsibility that rests upon a parent to care for a child who is otherwise utterly defenceless": R v Wilkinson [1999] NSWCCA 248 at [26].

63 The deceased was vulnerable because of her age, although this is reflected in the standard non-parole period and should not be double-counted. The deceased was towards the lower end of the range of ages encompassed by the standard non-parole period but not at the very lowest end. The standard non-parole period applying to cases involving the death of a child and the maximum penalty make it plain that the offence is regarded as a serious offence.

64 There is no evidence to suggest that the offence of murder was planned. It was submitted on the offender's behalf that she appears to have acted spontaneously, possibly as the result of fatigue. She then had the care of three young children, including her baby less than two weeks old. A submission to this effect may accord with possibilities informed by human experience but the evidence about it rises no higher than supposition.

65 There is no evidence that a weapon was used to inflict injury upon the deceased.

66 Although the evidence establishes that the offender had been short-tempered with the deceased in the past, and that she was not coping, I have already indicated that the evidence is insufficient to establish beyond reasonable doubt that the offender had previously caused injuries to the deceased, other than the bite mark in 2005. In any event, before any evidence of an uncharged act may be taken into account on sentence, the offender must admit to it: see The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [18] as follows:

"[18] The offender may have conspired with others to import the drugs; the offender may very well have intended to deal with the drugs in Australia in ways that amount to the commission of other offences in this country. But it would be quite wrong to sentence an offender for crimes with which that offender is not charged..."

67 This principle was explained further by Spigelman CJ in R v JCW [2000] NSWCCA 209; (2000) 112 A Crim R 466 at [54]-[56]:

"[54] In England the Court of Appeal considered the practice of specimen counts in R v Kidd [1998] 1 WLR 604 (reported sub nom R v Canavan [1998] 1 Cr App R 79). Lord Bingham CJ said at 607; 81-82:

'A defendant is not to be convicted of any offence with which he is charged unless and until his guilt is proved. Such guilt may be proved by his own admission or (on indictment) by the verdict of a jury. He may be sentenced only for an offence proved against him (by admission or verdict) or which he has admitted and asked the court to take into consideration when passing sentence: see R v Anderson (Keith) [1978] AC 964. If, as we think, these are basic principles underlying the administration of the criminal law, it is not easy to see how a defendant can lawfully be punished for offences for which he has not been indicted and which he has denied or declined to admit.

It is said that the trial judge, in the light of the jury's verdict can form his own judgment of the evidence he has heard on the extent of the offending conduct beyond the instances specified in individual counts. But this, as it was put in R v Hutchison [1972] 1 WLR 398, 400 is to 'deprive the appellant of his right to trial by jury in respect of the other alleged offences'. Unless such other offences are admitted, such deprivation cannot in our view be consistent with principle.'

[55] The effect of the judgment of the Court of Appeal is that, absent an admission, the court should not take into account commission of other offences when sentencing for particular offences charged. The position is otherwise, it appears, in the case of an admission.

[56] The reasoning of the Court of Appeal in Kidd is consistent with the reasoning of Brennan J in Kingswell v The Queen (1985) 159 CLR 264 at 288-289:

'Even where the practice of charging a representative offence has been sanctioned, it has been held essential that the express and unequivocal assent of the offender be given before an offence for which he has not been convicted is taken into account: R v Anderson [1978] AC 964 at 977. Without the offender's assent it would be wrong to deprive him of his right to trial by jury for that offence: R v Huchison [1972] 1 WLR 398; (1972) 56 Cr App R 307; R v Reiner (1974) 8 SASR 102'." 

68 The offence was committed in the home, when two other young children were present. There is however, no evidence to establish that either of the other children (then aged respectively two years and less than two weeks) witnessed the act causing the deceased's brain injury, or were in any other way aware of what occurred.

69 The offence, or more particularly the failure to call medical care, was committed in company, but not in the aggravating sense that it caused fear in the victim so that resistance was futile because reinforcements were at hand.

70 The offender was not subject to conditional liberty. She has an intellectual disability and had a highly dysfunctional childhood, both of which led to her emotional dysregulation. In her "interview" with the undercover operative, the offender repeatedly says that what happened to the deceased was "an accident" and that she did not intend seriously to hurt her. It was submitted on her behalf that the known circumstances are highly suggestive that the offender's intellectual disability, in combination with her childhood experiences, contributed to this offence, in the sense that "the offender's capacity to reason, or to appreciate fully the rightness or wrongness of a particular act, or to exercise appropriate powers of control has been affected": R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [86].

71 It has also been contended that immediately following the commission of the acts that led to the death of the deceased the offender was subject to considerable conflict. It was apparent to her that the deceased had been seriously injured and yet she had the certain knowledge that informing the authorities of what had just occurred would result in her children being taken into care. The offender's limited cognitive reasoning skills are very likely to have contributed to her decision not to call an ambulance following the deceased's injury.

72 In R v O'Brien [2003] NSWCCA 121, the offender failed to have her 14-month-old child hospitalised when advised by a medical practitioner that urgent hospitalisation was required. Dunford J said at [74]:

"[74] This was a very serious offence. The appellant allowed her 14 months old, helpless and defenceless child to die. She was the child's mother, the person from whom above all others, the child was entitled to expect nurture, care, sustenance and protection, and she failed the child in her most important duty, with fatal results."

73 In R v Turchino [2005] NSWSC 1214 Latham J said this at [62] and [64]:

"[62] It is difficult to comprehend Mr Turchino's concern about the intervention of the Department of Community Services and/or the police over and above his concern for the welfare of the child, especially one he considered to be his own. ...

...

[64] ...His failure to notify the authorities or to seek assistance as soon as he realised that the child had been scalded is simply inexplicable."

74 The offender contends that she is remorseful. In this respect I note that the offender did not give evidence before me. The submission is based principally upon what the offender can be seen and heard to have done and said when covertly recorded in a conversation with the police. During the course of that conversation the offender can be seen to become upset when recalling some of the circumstances closely associated with the death of the deceased. It is submitted that the emotions exhibited by her in those circumstances were genuine, as there was no apparent reason for her to feign such emotions at the time.

75 The Crown has contended on the contrary that the offender's conduct at other times indicates a complete lack of contrition and remorse. For example, it is noted that she was prepared to stand by whilst the deceased's body was burnt and buried with the intention that her remains might never be discovered. That circumstance is said to counter any display of emotion that may have been evident in her recorded conversation.

76 The offender had a prior conviction for an offence of "serious personal violence" (the biting offence) against the deceased in 2005. She was convicted of this offence but was placed on a good behaviour bond.

77 It is unlikely that the offender will re-offend, at least because at the end of her term of imprisonment her children will no longer be young. She is unlikely again to be exposed to the same pressures. The offender has pleaded guilty to the offence.

78 I consider that this offence of murder lies in the middle of the range of objective seriousness of cases of its type. In making that assessment I expressly disregard the evidence tending to suggest that the deceased had been abused on other occasions for the reasons already noted. I also expressly disregard the circumstances attending the post-offence conduct and the disposal of the deceased's body, as they are either wholly or significantly referable to the additional charge.

79 I also note in making that assessment that it seems highly likely that the death of the deceased occurred quickly and that it was the result of an impulsive and uncontrolled act of violence. I have regrettably not been provided with medical opinion upon the issue but the condition of the deceased described by the offender during attempts to revive her appears to me to have been consistent with some form of flaccid paralysis or total neurological collapse. It is unknown precisely how much time elapsed before the offender took the deceased to the shower but I consider that more probably than not she was unconscious and moribund from the time of the infliction of the injuries that led to her death or from a very short time thereafter. I do not accept and I specifically reject the offender's version, given to the undercover police officer, that the deceased was able to respond to a request to squeeze the offender's finger.

80 I have already indicated that it is not possible on the state of the evidence to make findings about the timing of death beyond reasonable doubt. Moreover, there does not appear to be evidence that the offender has either prevaricated concerning the sequence of events following infliction of injury, as opposed to the circumstances that occasioned it, or about the precise period for which she relevantly delayed seeking medical assistance. I consider on the balance of probabilities that even the timely summoning of medical care would not have altered the outcome having regard to the offender's description of the deceased during attempts to revive her. To that extent this case is not one where an offender has stood by at length to let a child die when timely intervention would certainly have prevented it.

81 The objective seriousness of this case lies in the circumstance that the offender caused the death of the deceased by the infliction of a violent, lethal force upon what was a vulnerable and defenceless child in her care, who was entitled to expect and receive her protection, and who could not have consciously caused or contributed to whatever emotions or loss of control accompanied the assault. I have already found that I am satisfied beyond reasonable doubt that in doing so the offender assaulted the deceased with the intention of causing really serious injury.

Objective gravity of the s 81C(b) Crimes Act 1900 offence

82 This charge relates to the disposal of the deceased's body. The evidence establishes that following the death of the deceased, the offender and Mr Smith placed the body in a suitcase and put it in the deceased's bedroom. About two or three days later, they took the suitcase to bushland near Shalvey and placed it in a shallow grave dug by Mr Smith. He then poured petrol on the body and set fire to it. He placed dirt over the body, to extinguish the fire and cover it. The offender stood by watching. The offender and Mr Smith then did a number of things to conceal their disposal of the body, including burning the suitcase, throwing out the clothes and shoes they wore to the bush and destroying their mobile phone SIM cards.

83 The conduct of an offender following the death of a victim, depending on that conduct, can be an aggravating circumstance of a murder offence: Knight v R [2006] NSWCCA 292; (2006) 164 A Crim R 126. However where, as here, the offender's conduct is separately charged, a separate punishment must be imposed without the offender being doubly punished.

84 In Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610, McHugh, Hayne and Callinan JJ said at [40] and [45]:

"[40] To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.

...

[45] To an offender, the only relevant question may be 'how long', and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality: Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59."

85 The offender contended that in light of her plea of guilty to this offence, her actions following the death of the deceased could not be used to aggravate the sentence imposed for the murder. Rather, the criminality of each of the offences must be carefully identified and then separate sentences must be formulated for each. The issue of totality must then be considered. In this last respect, regard must be had to the offender's subjective circumstances common to both offences. I agree.

86 I have expressly disregarded any of the offender's conduct consisting of uncharged acts allegedly occurring before the act that caused the death of the deceased and any conduct thereafter in assessing the objective seriousness of the offence of murder. I am even so of the opinion that the circumstances surrounding the disposal of the body constitute a very serious example of improperly interfering with or offering an indignity to the body of the deceased.

87 The body was kept in a suitcase at the home for something in the order of three days. It was then transported unceremoniously and without respect in the same container to a remote location, hopefully to be hidden from view and, so it would clearly appear, never to be seen again. The body was set on fire for no reason beyond an assumed desire further to reduce recognition and presumably detection.

88 This offence falls objectively into the most serious category of offences of this type.

The offender's subjective circumstances

89 It is contended on behalf of the offender, and properly conceded by the Crown, that she has the benefit of a strong subjective case. That understanding derives in a significant degree from material contained in a series of very comprehensive and helpful reports prepared by Mr Peter Champion, a clinical psychologist. Mr Champion had the unique but valuable benefit of having examined and assessed the offender when she was only ten and a little more than three years later when she was just 14. He also examined and reported upon the offender for the express purposes of these proceedings in May this year. There is however other evidence that is relevant to the offender's subjective circumstances as well.

Mr Champion's reports

90 The offender is currently 30 years of age and so was 27 years of age at the time of the commission of the offences.

91 Mr Champion first saw the offender in June 1994 following her mother's death. He was retained by DoCS to assess her and her brother prior to her being made a ward of the State. He saw her again in May 1997. Mr Champion initially assessed the offender's intellectual capacity and found her to be functioning in the borderline disabled range. He also noted various issues that confronted her. These included her grief and sense of loss following the death of her mother. It would appear that an inappropriate degree of responsibility had been given to the offender for managing her mother's epilepsy. This was completely inappropriate for a child then of her age and was made worse because of her intellectual disability. This created the unfortunate prospect that the offender might irrationally come to blame herself for her mother's death.

92 The offender was also found to have been exposed to serious domestic violence. This is referred to in more detail later in these remarks. The offender formed the belief that her father had caused her mother's death. The offender ended up rejecting her father and his family, and consequently her own aboriginality. In this setting she became subject to racist comments from a close family member that were inconsistent with the love and care she was entitled ordinarily to expect from that person. Considerable and detrimental tension developed between the offender and that person who was, or should have been, her only potential alternative primary carer. This led the offender to feel that this person's anger about the death of her mother was being directed at her.

93 Mr Champion detected that the offender was in a state of denial and suffered from severe anxiety. She developed problems at school, as well as sleep problems and lethargy. The offender's residential and educational status was severely disrupted and remained unstable over many years. The offender was in a constant state of uncertainty as to her future placement.

94 Mr Champion assessed the offender again in May 1997 at the request of Care Force. He noted that after the offender and her brother were made wards of the State, they were placed separately in foster care, then together into an Aboriginal group home, and then together into foster care for three months before being sent back into the Aboriginal group home.

95 Mr Champion did not undertake an intellectual assessment of the offender in 1997 because she had been recently assessed at school. He noted her results showed that she was functioning in the range of upper mild to borderline developmental disability, with a full IQ score of 68. He observed that "the fact of her disability is... undoubted". He said consideration could be given to placing her in special education, although it was thought to be preferable to keep her in mainstream schooling to aid her social progress. He recommended that plans be developed to assist with her social and vocational development.

96 Mr Champion expressed the following opinion:

"She tended to be quite defensive in her reporting, which I gather is not uncommon for her, in that she tends to shy aware [sic - away] from having to explain her thoughts and feelings to others. One cannot of course ignore the issue of her intellectual competence in all this, in that she might well find it threatening to have to try to confront issues which are of themselves traumatic, which are difficult to conceptualise, which are difficult to explain, and into which she perhaps has limited insight. One might also surmise that her reticence is also a function of the confusion she herself feels in relation to many topics, where many of her thoughts are in conflict. She is also of course a lass who has been faced with more than a measure of uncertainty and turmoil in terms of placement, despite the fact that she has been in care for some time now, and thus in a situation of flux and unpredictable future, it is perhaps not unusual for any child to keep their own counsel."

97 In terms of the issues facing the offender in 1997, Mr Champion noted the following matters:

• She suffered from an incomplete resolution of her grief at the death of her mother.
• She had a sense of "guilt that she had not in some way avoided [her mother's death] or acted in a way to prevent it".

• She was challenged by her family member's blame of "an aborigine" for the death of her mother since it conflicted with her own sense that she too was Aboriginal.

• She had a difficult and conflicted relationship with her brother: on the one hand, she felt the need (and perhaps had made a promise to her mother) to look after and protect her brother, so she felt a deep sense of responsibility for him but, on the other hand, was aware of her brother's behavioural difficulties and felt that he might be a bar to her placement in a foster family that she very much wanted.

• She experienced significant feelings of emotional deprivation, poverty of emotional connection and loneliness, causing her to over-eat and become obese.

• She demonstrated inconsistent maturation. Although she appeared to be socially able, she had "a great affection for things which are more in keeping with a much younger child", such as "Bananas in Pyjamas paraphernalia", even at the age of 13 years 11 months. This suggested that her emotional needs had not been met for many years, and that despite her social maturation "there [were] still significant immature dependency needs present".

98 Mr Champion administered a test for depression and expressed the following opinion:

"Looking at [the offender] responding, the impression was that she was subject to a variety of troubling thoughts and feelings, which she perhaps did not understand very well and did not know how to cope with... Overall her pattern of performance was broadly consistent with what one might expect of a lass who has been subject to abuse, who has lost both her parents, and who has not been able to find a viable reliable replacement for them, and who is subject to feelings of guilt and inadequacy."

99 Mr Champion noted that the offender's rejection of her father meant that any contact with him at all was "contraindicated".

100 Mr Champion summarised his 1997 report, saying that the offender had a "significant level of intellectual disability" but that because she was quite well socialised, "her limitations [were] not always obvious". He said that rather than therapy, which would have been of limited utility for her because "she finds intrusive discussions about her feelings confronting and anxiety provoking" in the context of her intellectual disability, the better option was to place her "in a family where she could begin to receive the sort of emotional care she has been desperately seeking for some years".

101 Despite the very strong terms of Mr Champion's report of 29 May 1997, the offender was not placed with a family but instead remained in the Aboriginal group home until she left to live in a girls' refuge at the age of 16 years.

102 Mr Champion again assessed the offender on 30 May 2013. At this time she had indicated an intention to plead guilty to manslaughter and the s 81C(b) offence. He once again assessed her intellectual functioning, confirming his earlier findings that she had a mild to borderline intellectual disability. There was some variability in her sub-tests, which is not unusual, but he found that overall the offender functioned in the bottom two percent of the population.

103 Mr Champion summarised his findings in fairly guarded language having regard to the status of these proceedings, but was of the following opinions:

• The offender has a demonstrated intellectual disability, "which could be expected to limit her in terms of judgment and learning and coping with stressful situations".

• The offender was not mentally ill within the meaning of the Mental Health (Forensic Provisions) Act 1990.

• As a result of her inadequate bonding and attachment, the offender's needs have probably not been met and, combined with the other problems she has experienced, "she may struggle to prioritise the needs of her children over her own needs".

• A diagnosis of a personality disorder could not be made on the basis of one assessment as an adult, but if she does have such a disorder then the symptoms of the condition "tend to make [sufferers] unpredictable parents, unable to provide consistent care and nurturance, and with the potential to be abusive".

• A child's exposure to violence might impact negatively on development, attitudes, values and behaviours. It might also negatively impact on parenting behaviour either because of "underlying anger resentment which is easily triggered and externalised (towards children for instance)" or because it might encourage aggression in the individual.

• If the allegations of previous abuse were to be established, it could probably be assumed that the offender "lacked the ability to parent appropriately, lacked the ability to control her own behaviour and to quarantine her emotions and hence lacked the ability... consistently [to] parent her children without aggression".

• In gaol, the offender should be given psychiatric and psychological care as required and access to appropriate educational programs. She should also be supported by DoCS or such other department as may be appropriate to her age and status upon her release.

Intellectual disability

104 An offender's intellectual disability is relevant on sentence in the ways identified by McClellan CJ at CL in DPP (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1. There, his Honour said at [177] - [178]:

"[177] Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing...They can be summarised in the following manner:

· Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence...

· It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed...

· It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced...

· It may reduce or eliminate the significance of specific deterrence...

· Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence... Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public...

[178] I should stress that the mental health problems of an offender need not amount to a serious psychiatric illness before they will be relevant to the sentencing process. The circumstances may indicate that when an offender has a mental disorder of modest severity it may nevertheless be appropriate to moderate the need for general or specific deterrence..." [Citations omitted]

105 In coming to the views I have formed, I have taken account of these matters. I have also had regard to Mr Champion's evidence in the light of the stated principles.

Confidential Exhibit "1"

106 A letter signed on 23 June 2013 by a member of the offender's family provides significant background information about her early family circumstances. I marked the letter in question as a confidential exhibit because of a concern that its author and others to which it referred should not be publicly identified. The Crown accepted the authenticity of the reasons for that concern as well as the reliability of the contents of the letter. I have also taken the view that it is not appropriate to disclose the reasons why the author of the letter had such concerns, as that may itself be inimical to the maintenance of the confidence.

107 It is evident from this letter that the offender's first ten years were characterised by:

(1) The extreme violence of her father, both towards her mother (which was witnessed by the offender) and to the offender herself.

(2) Her mother's lack of bonding with the offender because of the mother's distraction with the ongoing violence in her relationship.

(3) Her mother's preference for the offender's young brother.

(4) Her mother's epilepsy, in circumstances where the offender appears to have been made responsible for caring for her mother when she had seizures, and where ultimately it was the offender who listened to her mother's last seizure and then found her mother dead.

(5) The constant dislocation from home to home and between States.

(6) Poverty.

(7) Disrupted and erratic schooling, with a correlating failure educationally to address the offender's intellectual disability.

(8) Disrupted social and extended family connections.

108 The family member also detailed the offender's circumstances following the death of her mother. The offender's father was, it would seem, neither interested in taking, nor equipped to take, the children or in maintaining any kind of contact with them. The offender was initially placed with another family member who was in poor health, grieving the death of the offender's mother and ill-equipped to cope with the physical and emotional demands placed on her by two young and disturbed children.

109 In July 1994, when the offender was 11 years old and her brother three years old, the children were made wards of the State. It was the recommendation of DoCS that a care order be made and that the children should be placed together in a non-Aboriginal family. This recommendation was made despite statutory provisions to the effect that Aboriginal children should be placed in Aboriginal care. This was because the offender's experiences with her Aboriginal father caused her to reject her aboriginality. Despite the recommendation, the offender and her brother were placed in an Aboriginal children's group home. The offender remained there for three or four years despite advertisements being placed for a foster family to take the children. It appears from the family member's letter that the emotional support that the offender so greatly needed was not provided within the Aboriginal group home. It also appears that, at this time, contact between the offender and her maternal extended family was disrupted, partly because members of that family had their own problems and partly because of the difficulty in communication between the group home administrators and the family.

110 The letter has a series of attachments. At least one of them requires mention. As part of legal proceedings that ensued following the death of the offender's mother, she was asked to write down everything that she remembered about her father's violence towards her or that she had seen. She was eleven years old at the time. The offender produced a two-page document in her own handwriting. It is sometimes slightly difficult to read by reason of the immature script, and it also contains spelling errors. Making allowance for each of these, the document is in the following terms:

"The things I remember what my dad did to my mum

1. When my dad strangled my mum when we were going out of the car. That was in Queensland.

2. When my dad had steel capped boots on and kicked her in the head.

3. When my dad had a big bottle and went to throw it in between my mum's legs.

4. My dad went to punch her on the nose and broke her nose.

5. And he kept hurting my mum...on the head.

6. When my mum went to work and my dad was minding me and when my mum came home I had bruises all over me.

7. And when I went to school I fell off a big beam and when I went was home time he went to kick my very sore leg.

8. My dad went to kick my mum in the tummy really hard.

9. When my dad went to hit my mum in the mouth and my mum has a fat lip or mouth."

111 There is a tragic and terrible redolence in the circumstances of the present case with the offender's own unfortunate and frightening childhood.

Mitigating features

112 There are no particular or separate mitigating features that can be taken into account that have not otherwise been incorporated in or accommodated in the matters that I have referred to already.

Pleas of guilty

113 The offender pleaded guilty to the charge of murder on the first day of her trial. It was anticipated to be a lengthy trial requiring a large number of witnesses. There is a significant utilitarian value of the plea for that reason. I consider that the offender is entitled to a discount for that plea of 10 percent. The Crown specifically agreed with that.

114 The offender pleaded guilty to the s 81C(b) offence some six weeks earlier on 2 May 2013. She had not been charged with that offence until her re-arraignment on that day. She accordingly pleaded guilty to that offence at the first available opportunity. I consider that she is entitled to a discount for that plea of 25 percent in those circumstances.

Special circumstances

115 There is no material before me that indicates that the statutory ratio of parole to non-parole periods should be varied. Having regard to the sentence that I intend to impose, the offender will necessarily be subject to a lengthy period of supervision on parole following her release.

General deterrence

116 The Crown contended that there is an important need to "ensure that the sentences reflected a significant element of general deterrence, recognising the need for parents to understand the serious consequences of breaching the trust reposed in them to care for their infant children": R v Sam [2011] NSWCCA 36 at [151]. That submission was expressly qualified by the need to take account of the offender's subjective circumstances, although the Crown contended that it arguably remained as an important consideration notwithstanding.

Comparable cases

117 It goes without saying that each case depends upon its own facts and the offender is entitled to be sentenced having regard to those facts and none other. Caution also needs to be exercised in circumstances where reference is made to cases drawn from earlier and different sentencing regimes, or where standard non-parole periods were non-existent or different.

118 Taking those qualifications into account, senior counsel for the offender relied upon the helpful remarks and summary given by McClellan CJ at CL in SW v R [2013] NSWCCA 103 at [117] - [118] as follows:

"[117] His 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).

R v Merritt [2002] NSWSC 1159, where the offender was sentenced, after a plea of guilty, to life imprisonment for the murder of his three children, aged six, 11 months and 11 weeks, in circumstances where he acted spontaneously and was in a state of depression, or at least in a significantly depressed mood. The sentence was reduced on appeal to an overall sentence of 34 years, with a non-parole period of 24 years: R v Merritt [2004] NSWCCA 19.

R v Cikos [2001] NSWSC 35, where the offender was sentenced, after a plea of guilty, to 21 years imprisonment with a non-parole period of 15 years and 6 months, for the murder of his de facto partner and two sons, aged four years and 18 months, in circumstances where he had suffered months of physical and verbal abuse by his partner. The forensic psychiatrist concluded that the offender did not suffer from any cognitive defect or serious mental disorder.

R v Cheatham [2001] NSWSC 580, where the offender received an overall term of imprisonment of 24 years, with a non-parole period of 16 years, for the murder of his wife and three-year-old daughter, and for wounding his baby daughter with intent to murder, at a time when he was depressed and suffering from delusions. On appeal, a majority of this Court reduced the sentence to 22 years overall, with a non-parole period of 14 years, on the basis that the sentencing judge had given insufficient weight to the fact that the sentence was to be served in protective custody: R v Cheatham [2002] NSWCCA 360.

R v Velevski (Unreported, NSWSC, Dunford J, 26 September 1997), where the offender was sentenced after trial to an overall term of 25 years, with a non-parole period of 19 years, for the murder of his wife, six-year-old daughter and three-month-old twins, in circumstances that involved a high degree of planning.

R v Park (Unreported, NSWSC, Sperling J, 3 August 2000), where the offender was sentenced, following conviction after trial, to a head sentence of 26 years with a non-parole period of 19 years and six months, for the murder of his wife and two children, aged three and two, in circumstances where the offender was in a highly charged emotional state, disposed of the bodies, and attempted to escape detection. The sentence was undisturbed on the Crown appeal against sentence, although it was described as "lenient": R v Park [2003] NSWCCA 142 at [19] (James J).

R v Hughes and Ashfield (Unreported, NSWSC, Badgery-Parker J, 16 December 1994), where the two co-accused were each sentenced, following pleas of guilty, to a maximum term of 21 years penal servitude, with a minimum term of 16 years, for the murder of their six-year-old son, whom they subjected to 'hideous brutality'. The crime was found to fall marginally short of the worst category of cases.

R v Gorman and Armstrong (Unreported, NSWSC, Badgery-Parker J, 25 August 1995), where the step-father was sentenced, following conviction after trial, to a head sentence of 17 years with a non-parole period of 13 years, for the murder of his step-daughter. It was found that there was no element of premeditation or planning, and that the offence in a general way was attributable to the prisoner's immaturity and inability to cope with domestic situations. The sentence corresponded with a crime at the higher end of the scale of objective seriousness.

[118] The established range does not fix the boundaries within which judges must or even ought to sentence: Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [54]. As the plurality said in Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at [59], 'recording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal'. Accordingly, it is necessary to endeavour to identify the 'unifying principles', if any, which can be derived from the abovementioned sentences for child murders."

119 In addition to the cases to which his Honour referred is R v F.A.P. [2007] NSWSC 905. In that case, the 24-year-old Aboriginal offender caused a severe, fatal head injury to his 15-month-old son. The offender pleaded guilty on the first day of his trial. He admitted having previously assaulted the deceased. The offender had a record of serious offences, including time in custody, although he had no convictions in the five years before the offence. He was intellectually disabled and had had a very disadvantaged background. Howie J found the offence to be slightly below the middle of the range of objective seriousness. His Honour imposed a sentence of 14 years 6 months imprisonment with a balance of term of 5 years (with an applicable 20 year standard non-parole period, but pre-Muldrock). His Honour said this at [38]-[40]:

"[38] The offender's background has given him very few advantages, either subjectively or of a material kind. He has low intelligence, poor hearing, lack of insight into many of his problems such as drug abuse, and his upbringing did not dispose him to be able to cope with the behaviour of the child. He made what must be considered to be disastrous choices about the child's welfare through fear of his wife leaving him. This would hardly be mitigating except that it is understandable given his background. He is a very immature and inadequate person who simply cannot be judged against the standard of other members in the community.

[39] He is on protection at his own request. This is unsurprising given that he has killed a very young child but I know nothing about the nature of his custody so I cannot take it into account in any significant way. Many of the sentencing considerations that were referred to in Fernando are relevant here. The offender has been particularly disadvantaged as a result of his upbringing despite the best endeavours of persons in the community to assist him. He was introduced both to alcohol and drug use at a young age within the community in which he lived.

[40] It is a difficult sentencing exercise. On the one hand members of the community generally and those close to the mother would be outraged that a young child can be so brutally injured by the person who is responsible for its care and safety with so little provocation. On the other hand the offender is very much a product of his upbringing with his immaturity, low intelligence and inadequacies. Although there would be reasons in many cases to find special circumstances it appears to me that the statutory proportion will adequately permit the offender to have such assistance as he may need on release to parole. He does not present a danger to the community unless he finds himself again in the care of a young child but that will be after hopefully some maturity by reason of the passage of time serving this sentence."

120 I would not ordinarily extract in such detail cases of an arguably similar factual or legal character. I consider that it is potentially instructive to do so in this case, however, because a number of them have attracted considerable public attention and media interest. SW v R is an example of a case that attracted a great deal of interest and publicity. This case has done so as well. It is therefore preferable that a quiet and patient review of these remarks should conveniently provide all readers, lawyers and non-lawyers alike, with easy and immediate access to the matters that have been taken into account in arriving at the final result.

121 It is important to bear in mind at all times, however, that sentencing principles and discretionary considerations forming part of the sentencing process are not dictated by the notoriety of any particular case or the lack of it. Cases are to be decided, and offenders are to be sentenced, upon the basis of evidence and legal principles distilled and developed over many years by the legislatures and the courts. They are never to be decided upon the basis of commentary or opinion that is offered for general consumption from time to time in the absence of the parties and beyond the courtroom, or unconstrained and unchecked by a rigorous application of legal principle. They are certainly never to be decided upon anything that does not become evidence that is available for consideration and scrutiny in a court of law, far less upon the often vile, obscene, ill-informed and plainly irrelevant outbursts that have characterised so many of the anonymous and unaccountable opinions publicly at large and accessible in this case.

122 The many decisions to which I have been referred have all been decided, and in some cases reviewed on appeal, according to proper principles. I am mindful of the need, and of my obligation, to decide this case, and to sentence the offender, in the same way.

Consideration

123 Precisely what happened when the deceased was killed would seem to be known only to the offender and Mr Smith. It is not known to me. I have rejected the offender's version of what happened but I have been unable to provide a satisfactory version to replace it. Expert witnesses have only been able to do so to a limited extent.

124 Just as significantly in my view is the total absence of any reasonable explanation for what happened. No motive for the offence has emerged. Indeed, in a civilized community it is distressing even to consider that a mother could rationally formulate any possible reason for killing her child. There is no suggestion that the offence was associated with the consumption of alcohol or the ingestion or administration of drugs. There is no evidence of planning or premeditation. There is no evidence or even any suggestion of the use of a weapon. Even the offender's unguarded revelations of what happened, made to an undercover police officer, fail to cast any light upon why this death occurred.

125 A search of the past offers some clues, but not all of them. In the immediately preceding period the offender had given birth to her fourth child, who was no older than two weeks at the time the deceased was killed. The other of her children was almost two and a half years old. I have been left to speculate about the physical state of the household in which the deceased died and the mental or emotional state of the offender when she did. The offender denied that she had postnatal depression but has otherwise given no useful or reliable insight into her mental or emotional state at the relevant time. There has been no evidence from her friends or neighbours who might reasonably have been expected to observe it.

126 It seems uncontroversial that the offender was intellectually and emotionally incapable of controlling whatever impulse it was that led her to harm the deceased. She reported to Mr Champion that she was having difficulty coping with the care of three children, including nursing the youngest, with little help from Mr Smith. Her own tragic experiences as a child in a disrupted home of violence and abuse, in fear of her father for herself and her mother, the distressing death of her mother and her subsequent rejection by significant members of her family, and the unimaginable effects of custody proceedings and unsatisfactory foster care placements as a ward of the State, are all necessarily beyond most people's understanding. The offender is an inevitable product of entrenched intergenerational failures. As anyone knows, the burdensome responsibilities of parenthood are not bestowed only upon those who are capable of meeting them. The offender was patently ill-equipped for the role and probably equally unable to recognise it. Mr Champion recorded her demonstrated intellectual disability that could have been expected to limit the offender's "judgment and learning and coping with stressful situations". The death of the deceased was in these circumstances the foreseeable and preventable consequence of equally foreseeable and preventable causes. The offender's failings are mirrored in the failings of others.

127 The offender has been publicly vilified. The death of a child stirs many emotions in the community, not the least of which I strongly suspect is guilt. The offender is nevertheless entitled to be sentenced dispassionately having regard both to the objective circumstances of her crimes and the subjective considerations at play.

128 I do not consider that there is any need for specific deterrence. The offender is never likely in my opinion to reoffend and is likely to be rehabilitated in the course of her imprisonment. Nor do I consider that the offender is a good vehicle for general deterrence in light of her particular subjective circumstances although the sentence I impose must reflect a significant degree of punishment and disapprobation. The offender showed herself to be remorseful when secretly recorded and also reported similarly to Mr Champion. She did not give evidence before me but I necessarily must accept the existence of forensic imperatives that influenced that fact. Retribution and mercy are important in equal measure.

Sentence

129 Kristi Anne Abrahams, you are convicted of the offence of improperly interfering with the body of the deceased Kiesha Weippeart. I sentence you for that offence to a fixed term of imprisonment of 18 months commencing on 22 April 2011 expiring on 21 October 2012.

130 For the offence of murder you are convicted. I sentence you for that offence to a term of imprisonment of 21 years and 6 months with a non-parole period of 15 years commencing on 22 April 2012 expiring on 21 April 2027 with a balance of term of 6 years and 6 months commencing on 22 April 2027 expiring on 21 October 2033.

131 The aggregate sentence is one of 22 years and 6 months with a non-parole period of 16 years. The first day upon which you will become eligible for release on parole is 22 April 2027.

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Decision last updated: 18 July 2013