Camilleri v R

ADAMSON JA: I have had the benefit of reading the reasons of Hamill J in draft and gratefully adopt his Honour’s summary of the reasons of the sentencing judge and the parties’ submissions. I consider that the appeal ought be dismissed for the following reasons.

Ground 1 arises in circumstances where the basis for the jury’s verdict was that, at the time the applicant killed her mother, she was substantially impaired by an abnormality of the mind which led to her having a diminished capacity to control herself. Her impairment was so substantial as to warrant her liability for murder being reduced to manslaughter pursuant to s 23A of the Crimes Act 1900 (NSW) (s 23A manslaughter). While the maximum penalty for murder is life imprisonment, the maximum penalty for manslaughter is 25 years’ imprisonment.

In support of ground 1, Mr Game submitted that the starting point of the sentence (before the deduction of 10% for the plea of guilty to manslaughter) of 24 years’ (21 years plus 10%) imprisonment, was far too close to the maximum penalty of 25 years’ imprisonment to be warranted in the present case and revealed error in the assessment of the gravity of the offending. He contended that the sentencing judge was wrong to characterise the offence as being “as serious an example of manslaughter as it is possible for such a crime to be” ([31] of the sentencing judgment).

Mr Game submitted that her Honour had failed to give effect to the following paragraph in the reasons, which ought be understood as a finding that the applicant offended due to a complete loss of control:

He submitted that this finding required the sentencing judge to regard the gravity of the offence as having been lessened, first, on account of the applicant’s reduced moral culpability which derived from her substantial loss of control which was “operative and causal”; and, second, by reason of the applicant’s mental impairment. He also relied on R v Kecevski (unreported, NSWCCA 10 August 1993), in which the appellant was sentenced for s 23A manslaughter.

Mr Game resisted the demarcation in cases such as Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 (Muldrock) between objective and subjective matters and submitted that the concept of objective seriousness was “a term of art” when used in the context of offences for which a standard non-parole period is prescribed (under s 54A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act)). He submitted, accordingly, that cases such as Muldrock (which deal with offences for which there is a standard non-parole period) do not assist in determining the matters which are germane to objective seriousness for the purposes of proportionality. He contended that the statutory exclusion in s 54A(2) of the Act, which requires that “only the objective factors affecting the relative seriousness of [the] offence” are to be taken into account, has no analogue in the common law assessment of the gravity of the offence for the purposes of proportionality.

Mr Game submitted that the error (in failing to take into account reduced moral culpability in assessing gravity) was evident from the following passages in the sentencing judgment:

Mr Game was also critical of the following passages which he contended in oral submissions amounted to a statement that, in effect, the applicant was fortunate to have been convicted of manslaughter rather than murder and that the judge was going to hold it against her:

Mr Game relied on The King v Porter (1933) 55 CLR 182; [1933] HCA 1 (Porter), a record of Dixon J’s summing up in a trial by jury conducted in the original jurisdiction of the High Court, and Sodeman v The King (1936) 55 CLR 192 at 214-215 (Dixon J); [1936] HCA 75.

The starting point for a consideration of ground 1 is the principle expressed in Mulato v R [2006] NSWCCA 282 at [37] (Spigelman CJ):

Simpson J in Mulato v R explained the reason for the caution required to be exercised by this Court before intervening to “correct” the sentencing judge’s assessment of objective seriousness in the following passage at [46]:

As referred to above, Mr Game challenged the sentencing judge’s assessment of gravity on two bases: first, that her Honour failed to take into account the applicant’s substantial impairment in so far as it diminished moral culpability; and, secondly, that it was not open to her Honour not to reduce the gravity of the offence by reference to the applicant’s substantial impairment. This challenge has not been made out for two main reasons.

First, moral culpability is a subjective matter which does not bear on objective seriousness. Secondly, although substantial impairment was potentially relevant to an assessment of the gravity of the offending, it was open to the sentencing judge not to reduce her assessment of the gravity of the offending on account of the substantial impairment because the applicant’s substantial impairment had been sufficiently accounted for in the reduction of her criminal liability from murder to s 23A manslaughter.

An offender’s mental impairment has a particular character in sentencing for s 23A manslaughter because substantial impairment is “effectively a constituent element of the crime”: DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 at [96] (Beech-Jones CJ at CL, N Adams and Cavanagh JJ). When sentencing an offender for s 23A manslaughter, it is necessary to avoid “double counting” the mental condition in favour of the offender (by reducing the offender’s liability to s 23A manslaughter and by reducing the gravity of the offence on the basis of the same mental condition). In R v Reid (No 2) [2021] NSWSC 475 Johnson J said at [129]:

The High Court in Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 (Veen (No 2)) addressed the very issue which arose in the present case: that is, the principles to be applied to sentencing an offender for a terrible crime in circumstances where the offender’s mental abnormality led to the offender being convicted for s 23A manslaughter, rather than murder.

In Veen (No 2) the plurality (Mason CJ, Brennan, Dawson and Toohey JJ), at 476, described as an “anomaly”, the way in which a “mental abnormality” (which increases future dangerousness) is regarded when it results in a conviction for s 23A manslaughter rather than murder, as in the present case.

Their Honours referred to s 2 of the Homicide Act 1957 (UK), which was the model for s 23A of the Crimes Act and provided for murder to be reduced to manslaughter on the grounds of mental abnormality, which in turn had the effect of reducing the maximum sentence from death (for murder) to life imprisonment (for manslaughter). Their Honours said, at 476:

The High Court expressly accepted not only the “lack of logic” to which Baroness Wootton of Abinger referred in the passage which the plurality extracted in its reasons, but also that the concept of diminished responsibility (on which s 23A manslaughter rests) constitutes “an attempt to smuggle into an essentially punitive system ideas and aims which are totally incompatible with such a system.” The High Court considered that this “lack of logic” was necessary in cases of diminished responsibility, having regard to the purposes of punishment.

Their Honours continued at 476-477:

The reference in this passage to other matters (that is, in addition to the gravity of the offending) which are germane to sentencing, such as mental abnormality which diminishes moral culpability, does not convert such “other matters” into matters which are germane to gravity and objective seriousness. Rather, it confirms that there are several factors, both subjective and objective, which are relevant to the process of instinctive synthesis by which the sentence imposed is arrived at.

The assessment of gravity is an important aspect of sentencing, including because of its significance to proportionality. Proportionality requires that the sentence imposed be neither greater (Veen (No 2)) nor lesser (R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 at [156]-[158]) than the objective seriousness of the crime requires: R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [15] (Spigelman CJ). This principle applies generally to offences for which there is no standard non-parole period as well as those for which one has been prescribed: DS v R; DM v R at [68] (Beech-Jones CJ at CL, N Adams and Cavanagh JJ).

Because the gravity of the crime is an objective matter, it necessarily excludes consideration of subjective matters such as moral culpability. The distinction, which was resisted by Mr Game, is illustrated by Muldrock where the High Court (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell J) said at [27]:

Thus, in the context of the offence in Muldrock (for which a standard non-parole period of 15 years’ imprisonment was prescribed) their Honours said, of present significance:

Accordingly, while moral culpability is relevant to sentencing (as are other subjective factors such as future dangerousness in so far as it bears on the likelihood of re-offending and the prospects of rehabilitation, which are relevant to the purpose of protection of the public), it is not germane to the assessment of objective seriousness. For these reasons, Mr Game’s criticism of the sentencing judge’s assessment of the gravity of the crime on the basis that her Honour did not take into account diminished moral culpability must be rejected.

Mental impairment is generally relevant to moral culpability. Moral culpability is subjective and therefore is not relevant to objective seriousness. However, mental impairment may, in some limited instances, be relevant to objective seriousness. This point was made in DS v R; DM v R where the Court said, at [96]:

Thus, mental impairment is at least potentially relevant to an assessment of objective seriousness for s 23A manslaughter for the purposes of sentencing. But whether it operates to reduce objective seriousness, depends on the particular case. There are some cases, such as Veen (No 2), where the objective seriousness was adjudged to be very high, notwithstanding the offender’s significant mental impairment.

It is plain from [83] and [84] of the sentencing judge’s reasons that her Honour expressly considered whether the applicant’s mental impairment reduced the objective seriousness of the offence and decided that:

As to (1) above, in my view, it was open to the sentencing judge to take this approach (which accords with that taken in Veen (No 2)) in the circumstances of the present case. Her Honour was entitled not to reduce objective seriousness by reference to mental impairment because to do otherwise would have been to “double count” the effect of the mental impairment, which itself had reduced the applicant’s criminal liability to manslaughter rather than murder.

It was, in this context, also open to her Honour to “accept that the crime was entirely spontaneous but [find that] in the context of a sustained attack, that feature is of diminishing relevance.” The spontaneity of the attack was not an independent factor which reduced objective seriousness but rather a feature of the loss of control (“the violent rage which [the applicant] is unable to control”: [57]) which was the basis for the finding of mental impairment and had reduced the applicant’s liability from murder to manslaughter. Further, because the attack was “sustained”, the fact that its commencement had been “spontaneous” diminished in significance as the attack continued.

This analysis also explains why Mr Game’s criticism of the sentencing judge’s reasons in [57] and [82] is unwarranted. What the sentencing judge said in those paragraphs was correct and accords with the approach taken by Johnson J in R v Reid (No 2).

As to (2) above, Mr Game submitted that the sentencing judge had failed to take account of what this Court had found in R v Kecevski. Mr Game relied on the following passage from Mahoney JA’s reasons (which were delivered ex tempore at the conclusion of the hearing of the appeal):

I understand Mahoney JA in Kecevski to have been saying no more than this Court said in DS v R; DM v R in the passage extracted above: namely, that the offender’s mental condition may affect operate to reduce the gravity of a s 23A manslaughter but that it will not necessarily have that effect given that the starting point is that the offender’s mental capacity was substantially impaired. Thus, her Honour was, in my view, correct to find, at [83], that Keceski did not require a reduction in the assessment of the gravity of the offence on account of mental impairment.

Porter and Sodeman (on which Mr Game placed significant reliance) related to findings of guilt at trial rather than to sentencing principles and do not assist the applicant. In Porter, Dixon J presided over a jury trial in which Mr Porter was charged with murder. Porter comprises extracts from the summing up, together with the statement the accused was found not guilty of insanity at the time of the commission of the act charged (killing his infant son, who was aged 11 months). In Sodeman, the accused appealed against his conviction for murder. He admitted the killing of the deceased but raised the defence of insanity. The question was whether the jury would have understood from the summing up that the accused was required to prove insanity beyond reasonable doubt rather than, as is the case, on the balance of probabilities. Neither Porter nor Sodeman, which concerned criminal liability, provides assistance as to the correct sentencing approach in cases, such as the present. Further, both of these decisions pre-date Veen (No 2).

The rationale for the sentencing judge’s approach can be explained by analogy with Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17 in which the appellant was sentenced to manslaughter on the basis of excessive self-defence. The plea was accepted on the basis that the appellant had shot three police officers, believing that they were criminals merely posing as police officers, who were intent on killing him or causing him grievous bodily harm. On these facts, the Crown accepted that it could not exclude the partial defence of excessive self-defence under s 421(1) of the Crimes Act.

In R v Nguyen (2013) 234 A Crim R 324; [2013] NSWCCA 195, at [57], the sentencing judge said, when assessing the gravity of the offence:

This Court (Beazley P, Johnson and R A Hulme JJ) allowed a Crown appeal against the sentence, finding that the sentence imposed by the sentencing judge was manifestly inadequate: R v Nguyen (2013) 234 A Crim R 324; [2013] NSWCCA 195. It held that the sentencing judge had erred in her assessment of the objective gravity of the offence by contrasting it with the supposed gravity of the offence on the basis (contrary to the fact) that the appellant had known that the deceased was a police officer. It found, at [95]:

On appeal to the High Court, the appellant argued that this Court had wrongly excluded any consideration of the appellant’s mental state from its assessment of the gravity of the offence. He submitted that the Court ought to have taken into account, in assessing objective seriousness, that he acted in the heat of the moment, believing that he needed to defend himself. The High Court unanimously dismissed the appeal. Justices Bell and Keane held, at [43], that this Court was correct to say that the appellant’s perception that the deceased was a robber was not material to the assessment of the gravity of the manslaughter. Justices Gageler, Nettle and Gordon said:

For analogous reasons, it was open to her Honour to decide not to reduce objective seriousness by reference to the applicant’s mental impairment. The sentencing judge’s evident concern was to avoid assessing the gravity of the applicant’s offending so as to suggest that (to borrow the plurality’s words from the extract from [59] of Nguyen v R above) it “ranked lower in the range of gravity of offences of manslaughter than in fact it did”.

In summary, an offender’s mental state may reduce objective seriousness for the purposes of sentencing for s 23A manslaughter but the extent to which substantial impairment will have that effect is a matter of fact and degree. In the circumstances of the present case, it was open to the sentencing judge to find that the applicant’s substantial impairment did not further reduce the gravity of the offending beyond its effect on the jury’s verdict (not guilty of murder but guilty of s 23A manslaughter).

For the reasons given above, no error has been shown in the sentencing judge’s assessment of the gravity of the applicant’s offending which was a matter which was “classically within [her] role” (Mulato v R, at [37]). It was open to her Honour to find that its gravity put it in the worst category of cases. I am not persuaded that ground 1 has been made out.

The applicant accepted that Part 3 of Division 1A of the Act (which prescribes sentencing discounts for guilty pleas to indictable offences) did not allow for a utilitarian discount of more than 10% in the present case because s 25E(3)(b) tied the level of discount to the timing of the applicant’s offer to plead guilty to manslaughter. However, Mr Game contended that the applicant was entitled to have her sentence reduced under s 22A of the Act because, first, she did not apply to have the matter remitted to the Local Court for committal once her fitness for trial was no longer an issue (which he submitted would have entitled her, subject to s 25F(2), to a greater discount for a plea); and, second, she co-operated in the adducing of evidence at trial in a way which shortened the length of the trial. He submitted that her Honour was in error in not making an allowance for this matter.

Section 25E of the Act is qualified by s 25F(2), which relevantly provides:

Section 22A of the Act provides:

The sentencing judge decided not to allow a further discount for facilitating the administration of justice (beyond the 10% provided for by s 25E(3)(b) of the Act for the plea) on the ground that a greater discount would offend against the factor referred to in s 25F(2) and, as I read her Honour’s reasons, s 22A(2), which incorporates the common law principle of proportionality as a control on reductions for facilitation of the administration of justice.

Although Mr Game was critical of the sentencing judge taking into account s 25F of the Act when it had not been raised by the parties, it was an important qualification to s 25E, to which her Honour was required to have regard when deciding whether to allow the full discount provided for under s 25E. Her Honour’s reasons referred to the matters contained within s 25F as being relevant to whether a lesser discount ought be allowed.

It was open to the sentencing judge to express her conclusion in this way. It would also have been open to her Honour to reduce the discount provided for by s 25E(3)(b) to, say, 5%, but take into account, in the applicant’s favour, her facilitation of the administration of justice under s 22A. As a reduction of penalty under s 22A is not usually quantified, the applicant would not have been in a position to know, if this option had been chosen, the extent to which her facilitation had made a difference to her sentence. Her Honour’s approach had the benefit of greater transparency.

In substance, Mr Game submitted that it was unfair for the applicant not to have obtained a discount for facilitating the administration of justice for her conduct in not insisting that the matter be returned to the Local Court which would (but for the qualification in s 25F(2)) have resulted in a prima facie entitlement to a 25% discount rather than a 10% discount. However, this matter was fully ventilated before the sentencing judge, who decided that, if a discount of 10% was applied, no further reduction to the sentence on the ground of facilitation of the administration of justice was warranted. Thus, it cannot be inferred that, had the application taken the course of returning to the Local Court, a discount of 25% would have been allowed because her “entitlement” to the discount was qualified by s 25F(2) of the Act.

While there is a distinction between the utilitarian value of a plea of guilty (which has been quantified by the Act) and the reduction in sentence on the basis of an offender’s facilitation of the administration of justice (of which the sentencing judge was plainly aware), it was not an error for her Honour to refrain from making an additional discount for the latter by reason of making full allowance for the former. The sentencing judge’s reasons sufficiently explain why allowing the full 10% discount for the utilitarian value of the plea did not leave room, in the particular circumstances of the present case, for “an additional quantified reduction on sentence to acknowledge the facilitation of the administration of justice inherent in the efficient conduct of the trial.”

Ground 2 has not been made out.

As neither ground 1 nor ground 2 has been made out, it is necessary to address ground 4, alleged manifest excess. Whether a sentence is manifestly excessive is a conclusion and does not depend on the demonstration of patent error: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] (Gleeson CJ and Hayne J). To make out this ground, the applicant must establish that the sentence is “unreasonable or plainly unjust”: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25]-[29] (Gleeson CJ, Gummow, Hayne and Callinan JJ).

Mr Game submitted, by reference to Veen (No 2), that the applicant had, in effect, been sentenced to a greater term of imprisonment than if she had not suffered from the mental abnormality of which the jury can be taken to have been satisfied.

One of the difficulties with this submission is that it posits the wrong counterfactual (which was the error made by the sentencing judge in Nguyen, which was corrected by this Court). But for the jury’s satisfaction of both limbs of s 23A of the Crimes Act (substantial impairment that was so substantial as to warrant liability for murder being reduced to manslaughter), the applicant would have been convicted of murder, for which the maximum penalty is life imprisonment and the standard non-parole period is 20 years’ imprisonment.

In R v Blacklidge (Court of Criminal Appeal (NSW), 12 December 1995, unrep), this Court (Gleeson CJ, Grove and Ireland JJ agreeing) was persuaded that the sentence imposed on the respondent for manslaughter (on the ground of substantial impairment) was manifestly inadequate and upheld the Crown appeal. Gleeson CJ considered the various types of manslaughter and the approach that ought be taken to respond to the sentencing for unlawful homicide, including on the basis of diminished responsibility and said:

Gleeson CJ also referred to the need for a sentence imposed in circumstances such as the present to reflect “the objective seriousness of the case and, in particular, the circumstance that what was involved was the felonious taking of human life with intent to kill or cause grievous bodily harm.”

Parliament has fixed the maximum penalty for manslaughter at 25 years’ imprisonment. Although the types of manslaughter are many and various and include voluntary and involuntary manslaughter, the maximum penalty (which is an important “guidepost”) is the same for all types of manslaughter. It is the objective facts and circumstances of the case which determine its objective seriousness and not the category of manslaughter to which it belongs: R v Isaacs (1997) 41 NSWLR 374 at 381E (Gleeson CJ, Mason P, Hunt CJ at CL, Simpson and Hidden JJ); R v Dally (2000) 115 A Crim R 582; [2000] NSWCCA 162 fat [64](h) (Smart AJ, Sully J and Carruthers AJ agreeing).

The appropriateness of a life sentence (the then maximum penalty for manslaughter) for manslaughter on the ground of diminished responsibility was confirmed in Veen (No 2) at 476 and by the Court’s dismissal of the appellant’s appeal against the life sentence imposed on him for manslaughter: see also R v Cooper (Court of Criminal Appeal (NSW), 24 February 1998, unrep) at 25 (Gleeson CJ, Ireland and Bruce JJ agreeing).

In the present case, the gravity of the offending, as demonstrated by the objective circumstances, was very high. It was open to the sentencing judge to find that it was in the worst category of cases and to arrive at a starting point of 24 years’ imprisonment (before the application of the 10% discount for the plea). It was, in my view, open to her Honour to find that the reduction in the applicant’s moral culpability ought not lead to a lesser sentence, in circumstances where her liability had been reduced from murder to manslaughter on the grounds set out in s 23A of the Crimes Act (thereby giving rise to the need to avoid double-counting, as referred to by Johnson J in R v Tarrant and R v Reid (No 2)). Further, future dangerousness was plainly a relevant factor which tended, as in Veen (No 2), to balance out any diminution of moral culpability. The reasons of the sentencing judge show that her Honour took into account all relevant circumstances, including the lack of any significant criminal history, the loss of control, the diminution in the applicant’s moral culpability, the various conditions which afflicted her as well as the objective facts and circumstances.

While the sentence imposed was undoubtedly high, the crime was so serious that it was open to the sentencing judge, consistently with the principle of proportionality (which operates as both an upper and a lower limit), to impose the sentence which was in fact imposed.

For these reasons, I am not satisfied that ground 4 has been made out.

I propose the following orders:

HAMILL J: On 20 July 2019 Jessica Camilleri (“the applicant”) killed her mother in horrific circumstances. She was arrested after being observed carrying her mother’s decapitated head in the street near her home. Ms Camilleri has substantial mental health issues. Over time, experts for both parties explored those issues. Ms Camilleri was charged with murder. Her lawyers raised the issue of her fitness to stand trial when the matter was in the Local Court, but in accordance with the legislative scheme, she was committed for trial on 27 March 2020. Ms Camilleri was first arraigned in the Supreme Court on 19 June 2020 and stood trial for murder before Wilson J and a jury between 30 November and 10 December 2020. The only issue for the jury was whether she was substantially impaired under s 23A of the Crimes Act 1900 (NSW), whereby her liability would be reduced to manslaughter. The jury returned a verdict of not guilty of murder but guilty of manslaughter.

The jury’s verdict established that Ms Camilleri committed each of the elements of murder but that, at the time she did so, she was substantially impaired by a mental health or cognitive impairment and the impairment was so substantial that it warranted her criminal liability being reduced to manslaughter. [1]

On 12 March 2021 Wilson J sentenced Ms Camilleri to imprisonment for a period of 21 years and 7 months, with a non-parole period of 16 years and 2 months. The maximum penalty for manslaughter is 25 years. The “starting point” for the sentence imposed on Ms Camilleri was 24 years, which was reduced by a 10% sentencing discount. The proximity between the statutory maximum and the starting point reflected Wilson J’s conclusion that “the offender’s disabilities cannot require a sentence substantially less than the maximum sentence available.” [2]

Ms Camilleri seeks leave to appeal against the sentence and relies on three grounds of appeal. A fourth ground of appeal was abandoned on the hearing of the appeal on 30 September 2022. [3] The grounds of appeal ultimately pressed were in the following terms:

I would uphold grounds 1 and 2 and have concluded that a less severe sentence is warranted and ought to be imposed. [4] If the sentencing discretion is to be exercised afresh, it is unnecessary to resolve ground 4. However, if I am wrong in accepting the applicant’s arguments under ground 1, I should make it clear that I would have upheld ground 4. I would grant leave to appeal and allow the appeal. In exercising the sentencing discretion afresh, I would impose a sentence of 16 years and 6 months, with a non-parole period of 12 years.

These are my reasons for those conclusions. They assume familiarity with the sentencing judgment which is available on Caselaw NSW and other legal websites: R v Camilleri [2021] NSWSC 221.

At paragraphs [4]-[30] of the sentencing judgment, Wilson J set out the facts of the offence and some of the surrounding circumstances. This summary was based on the evidence adduced at the trial. What follows is derived from her Honour’s factual findings which were not disputed on the hearing of the sentence appeal. [5] The sentencing Judge said at [14] that what happened between the killing and the arrival of police at the scene “can only be pieced together from the crime scene evidence, the evidence of Dr Jennifer Pokorny, Forensic Pathologist, and, with a degree of caution, the offender’s accounts to others of what took place”.

At the time of the offence, the applicant was 25 years old. She was living with her mother (“Mrs Camilleri”). Mrs Camilleri was the applicant’s sole carer. [6]

On 19 July 2019, the day before she was killed, Mrs Camilleri took the applicant to St Marys Police Station and requested a police officer speak to the applicant about calling random telephone numbers and verbally abusing the recipient of the calls. [7] Earlier that day, the applicant made something like 30 calls to an unknown man culminating in her telling him that “she hoped he got cancer and died.”

On the morning of 20 July 2019, the applicant became unhappy because a young relative, referred to as “Child A”, was present at the home where only the applicant and her mother lived. [8] She became further agitated when her mother went to assist a neighbour who was experiencing chest pains. She repeatedly called Child A “little bastard” and told Mrs Camilleri, “[y]ou have that little bastard too often”. [9] Her mother drove the neighbour to a doctor’s surgery, and the applicant and Child A went with her. A neighbour saw the applicant “yelling and throwing her arms about”, “angry” about a man in the street looking at her, and “swearing and screaming at her mother” for “always embarrassing” her. [10]

On the evening of 20 July, the applicant, Mrs Camilleri and Child A returned home. The applicant’s condition had deteriorated to the point that her mother called a home doctor service. The doctor was told that the applicant had “stomach or gastrointestinal problems”. Dr Eliza Azam arrived at 9.25pm to assess the applicant. The applicant was on the ‘phone organising food delivery. Her mother asked her to end the call so that the doctor could examine her. She refused to do so and remained on the ‘phone for another 10 minutes. Dr Azam then left. [11]

At some time after 10pm, Mrs Camilleri was so concerned about the applicant’s behaviour that she thought the applicant should be taken to hospital. When Mrs Camilleri attempted to telephone an ambulance, the applicant tried to stop her and there was a struggle over her mother’s ‘phone, which the applicant managed to take from her. [12] Mrs Camilleri then walked to the applicant’s bedroom to get the applicant’s ‘phone so that she could call an ambulance. The applicant followed her and a struggle ensued in the bedroom. [13]

The applicant knocked her mother to the ground, dragged her by her hair into the kitchen and restrained her. Wilson J found the method of restraint was “very likely with the weight of her body”. The applicant then used a number of kitchen knives to inflict “an indeterminate but very high number of knife blows at her mother’s head and neck, ultimately decapitating Mrs Camilleri at the C2 vertebra”. [14]

Dr Pokorny, who performed the autopsy on Mrs Camilleri, found “at least 100 stab wounds and incised wounds” on the mother’s face and head, including wounds that passed through the right eye socket and into the brain lining. The tip of Mrs Camilleri’s nose had been cut off. The plate on which Mrs Camilleri’s brain sat was pierced. Mrs Camilleri’s tongue had been removed as a result of the wounds causing the decapitation. Mrs Camilleri also had 33 wounds on her right hand and 62 wounds on her left hand which were “defence injuries”. Both of Mrs Camilleri’s eyeballs had been removed. At some point during the attack, the applicant stabbed her mother through a significant vein in the neck, while her mother was upright or semi-upright and breathing. Mrs Camilleri probably died soon thereafter. The applicant used a total of seven separate knives during the attack, four of which broke. [15]

Child A, then aged 4 years, attempted to stop the applicant at one point during the attack. He jumped on her and struck out at the applicant with the cardboard lid of a toy box. When the applicant went to push Child A off her, she caused a deep wound in his cheek and lacerated his head and hands. Child A vomited at some point during the incident. [16]

The applicant went out onto the street holding her mother’s severed head. The evidence suggested she dropped it on the footpath, picked it up, walked further down the street, and dropped it again. She attended a neighbour’s home and asked for emergency services to be called. She also called 000 using a mobile and asked for police and ambulance to attend. [17]

When police arrived, the applicant gave an account of what happened to police, which was recorded by body-worn video. That recording was tendered at trial. The applicant claimed that she acted in self-defence and that her mother tried to kill her with a knife. [18] However, when the applicant spoke to a forensic psychiatrist, Professor David Greenberg, she said she did not act in self-defence, was “hacking like a butcher” and twisted her mother’s head off her body. [19] Wilson J found that “the attack upon Mrs Camilleri was entirely unprovoked, and represented nothing more than an expression of the offender’s rage at her mother for her attempt to call an ambulance”. [20]

It is necessary to set out in detail the evidence of the applicant’s mental health issues and cognitive impairment. It is appropriate to do so because these conditions are central to the key issues raised in this appeal. They are relevant to the questions raised by the first ground of appeal which concern factors relevant to the objective gravity of the offence. The applicant’s mental condition is also relevant to the second ground of appeal, because the diagnoses and legal impact of the conditions explain why an offer to plead guilty to manslaughter was not made in the Local Court and leads to the submission that there should have been a “discount” for the applicant’s facilitation of the course of justice. Fundamentally, the impact of her condition on the proper exercise of the sentencing discretion is multifaceted and informs the arguments as to whether the sentence was manifestly excessive and whether a different, less severe, sentence was warranted and ought to have been imposed: Criminal Appeal Act 1912 (NSW), s 6(3).

The mental health history was lengthy and complex, and the diagnoses made over many years were inconsistent. The applicant had various conditions or impairments and their interrelationship was complicated. The evidence came before Wilson J in three stages of the curial process. Some of the evidence was tendered on an application for a judge alone trial, resolved by her Honour on 24 July 2020. Other parts of the evidence were tendered in the jury trial, while further material was adduced in the sentence proceedings. The abandonment of the third ground of appeal – which complained of a denial of procedural fairness based on the use evidence tendered in the pre-trial proceedings – and the conduct of the appeal by both parties means there is no issue that the evidence tendered on the judge alone trial application is admissible and relevant to the appeal and the question of sentence.

The applicant’s past engagement with mental health services was set out in reports provided by the psychiatrists Dr Furst (dated 10 June 2020) and Professor Greenberg (dated 21 April 2020). Dr Furst’s and Professor Greenberg’s reports were part of the evidence on the application for a judge alone trial.

The histories described in those reports included the following:

The evidence at trial included the testimony of Professor Greenberg, who was called by the prosecution and Dr Furst, who was called by the applicant. In the sentencing judgment her Honour said there “was no material distinction in the evidence the doctors [Greenberg and Furst] respectively gave as to the offender’s mental state”. [21]

Professor Greenberg was retained by the respondent, initially to provide an opinion as to the applicant’s fitness to stand trial and to advise on the issues of substantial impairment and mental illness. He had two consultations with the applicant and had been provided with a large body of material documenting the applicant’s mental health history and the circumstances of the killing. His met with the applicant on 8 and 11 April 2020 for 2½ hours on each occasion. His first report dated 21 April 2020 was comprehensive, spanning 88 pages. He provided a supplementary report dated 21 May 2020 when he was invited to review the psychological report of Yiota Zingirlis.

Professor Greenberg described the applicant as having a “complex psychiatric presentation with multiple psychiatric diagnoses and other psychological problems.” He referred to the “historical diagnostic uncertainty” in the applicant’s case and explained the possible reasons for this uncertainty. He posited that the “comorbidity” and absence of any singular diagnosis may explain the past uncertainty concerning the nature and treatment of her condition. He expressed the opinion that the past failure to diagnose autism resulted from the fact that the applicant “does not present with many of the typical autistic spectrum disorder features (Asperger’s syndrome)”. These matters contributed to the failure of treatment and medication in the past.

Professor Greenberg described the applicant “as childlike and naïve in her manner” and said she had “obviously poor self-esteem and was insecure as a person.” She spoke rapidly, exhibited mild anxiety and was “loquacious, overinclusive and circumstantial in her thoughts”. She “reiterated details of her mother’s killing in a concrete matter of fact manner [and] tone without any emotion or any emotional remorse”. During the interview she said she “wanted to suffer because she had killed her mother” but Professor Greenberg said there “was no evidence of any emotional component to this statement.”

Professor Greenberg reported that the applicant denied that she experienced auditory or visual hallucinations, paranoia, grandiosity, delusions, and disorder of thought control during the offence. Professor Greenberg’s opinion was that the applicant did not have a psychotic disorder, psychotic symptoms or major mood disorder at the time of the offence. He noted that “disease of the mind” was a legal, rather than a medical concept and that “an intellectual disability per se would be uncommon to qualify for a mental illness defence”. He spoke of her “numerous comorbid psychiatric disorders”, but stated that it did not support a defence of mental illness based on her suffering from “an intellectual disability and autistic spectrum problem”.

Professor Greenberg was of the opinion that the applicant was aware of the nature and quality of her acts and had the capacity to judge whether her actions were right or wrong. Professor Greenberg found:

Professor Greenberg concluded that the applicant met the diagnostic criteria for:

He also found that the applicant had features or traits of:

Professor Greenberg agreed with Ms Zingirlis that the applicant would have a simple understanding of moral wrongfulness, due to her intellectual disability and autistic spectrum disorder. Nevertheless, Professor Greenberg maintained that she did not qualify for the defence of mental illness because she was able to give a detailed rational account of her actions, demonstrated a capacity for a degree of rational judgement and understanding of what she was doing.

Professor Greenberg’s was of the opinion that the applicant’s complex psychiatric condition substantially impaired her capacity to control herself during the offence:

Professor Greenberg analysed the matters that led hm to conclude that the applicant was substantially impaired:

Professor Greenberg explained that “her capacity to reason with a moderate degree of sense and composure was not absent or so markedly lowered [to qualify for a mental illness defence] but [was] in keeping with psychiatric diagnoses.” The applicant’s “empathy deficiencies” was part of “her already stated symptoms of her comorbid psychiatric diagnosis”.

Forensic psychiatrist Dr Richard Furst was briefed by the applicant’s Legal Aid lawyers to prepare two reports. The first, dated 10 June 2020, was directed to the applicant’s fitness to be tried, substantial impairment under s 23A, and whether she was mentally ill at the time she killed her mother. A second report, dated 10 February 2021, was prepared for the sentencing hearing and addressed her risk of re-offending, prognosis, prospects of rehabilitation and whether her mental health may make her incarceration more onerous. Dr Furst reviewed similar material to that considered by Professor Greenberg. He had previously consulted the applicant following an incident involving her grandmother in 2014 and consulted her for the purposes of the homicide case on 15 May 2020 and 21 January 2021.

After the interview on 10 February 2014 Dr Furst described the (then 20-year-old) applicant’s mood as low and anxious with no indications of acute psychosis or suicidal ideation. Her “patterns of speech and behaviour were consistent with an intellectual disability”.

At the 15 May 2020 consultation, he described her thinking as “concrete and rigid” and her speech was “somewhat over-inclusive and detailed in her accounts of events, and she was difficult to interrupt.” Dr Furst formed the opinion that there was no clear evidence that the applicant had a major mental illness such as schizophrenia or bipolar disorder, even though some of her behaviour was quite bizarre and manic. He diagnosed the applicant with:

Dr Furst concluded that the applicant was not suffering from a major mental illness such as schizophrenia, bipolar disorder or delusional ideation about her mother and did not have “a disease of the mind” at the time of the offence.

However, Dr Furst believed that the applicant was likely suffering from a substantial impairment by abnormality of the mind, due to her various mental illnesses. He described the “[n]eurological/brain deficits underpinning both autistic spectrum disorder and obsessive compulsive disorder” and referred to the report of Ms Zingirlis where the psychologist described a history and symptoms consistent with Dr Furst’s diagnoses:

Dr Furst said:

Dr Furst believed the applicant lacked the capacity to control herself when emotionally stressed and angry. His report concluded:

In his second report, Dr Furst confirmed the diagnoses he provided in his first report and at the applicant’s trial and went on to address her risk of re-offending and prosects of rehabilitation.

He applied “[c]ommon risk assessment tools” which assist in making such predictions. He acknowledged that such tools and risk assessments “especially at the individual level, are far from precise”. He identified the following “static” and “dynamic” risk factors including in the applicant’s case:

Dr Furst also noted one “protective factor” and that was the likelihood the applicant would engage with community mental health and disability services when released on parole.

As to the risk of re-offending, Dr Furst concluded:

In considering the applicant’s prospects of rehabilitation, Dr Furst said she required a “comprehensive and highly structured agency care plan, both in custody and when released to the community on parole, analogous to the types of conditions generally found in Extended Supervision Orders for high-risk offenders, now routinely enacted in the Supreme Court of New South Wales’ civil jurisdiction.” He recommended a mental health care plan, behaviour support plan, regular psychiatric and psychological assessment, supported independent living with constant supervision, adherence to medication regimes and the appointment of a public guardian for the purpose of assisting the State Parole Authority and Community Corrections in supervising and assisting the applicant in the community.

Dr Furst also commented on the applicant’s remorse and reported that, while the applicant had “no remorse” at the time of the offence, she expressed some remorse in the second interview. The applicant was “emotionally disturbed” during the trial and Justice Health staff sought to give her extra medication.

As to the consequences of her behaviour, the applicant told Dr Furst “It didn’t hit me at first. Then it hit me like a tonne of bricks. Like a mountain. Every night, I cry and cry. I know it’s all my fault … it’s all my fault my mother is not here anymore”. Dr Furst said the applicant “appeared remorseful” and “more emotional about the loss of her mother tha[n] she had been when assessed last year” in 2020.

In relation to the impact of incarceration, Dr Furst described the applicant as being “clearly vulnerable to exploitation/abuse from other inmates and getting into conflict with other inmates.” She is also “more vulnerable to suffering episodes of severe depression”. He said the applicant “already been singled out, taunted and humiliated by other inmates”. Dr Furst concluded:

The applicant’s lawyers also retained a forensic psychologist, Ms Yiota Zingirlis, to conduct a document review and psychological assessment of the applicant. Ms Zingirlis met the applicant on 13 December 2019 and 9 January 2020 at Silverwater Women’s Correctional Centre.

Ms Zingirlis administered the Depression, Anxiety and Stress Scale. The applicant’s responses indicated she was experiencing “extremely severe” levels of stress, anxiety and depression.

The applicant was administered various cognitive assessments and memory tests. Overall, Ms Zingirlis assessed that the applicant’s cognitive functioning as falling within the “Borderline range”. This meant that the applicant “experiences great difficulty in keeping up with her peers in situations that require thinking and reasoning abilities”.

The applicant’s “general cognitive ability” fell in the borderline range while her memory was assessed as falling within the “Extremely Low range” for her age. Her delayed memory abilities were in the borderline range. The applicant’s ability to recognise emotion was assessed to be in the average range. She had “difficulty attending to instructions” and “became easily distracted by preoccupying thoughts and required consistent redirection”. On a test designed to measure mental flexibility and other related matters “her performance was profoundly impaired”. Tests for effort suggested the applicant’s responses and performance in this testing were genuine and the test results “represent a valid reflection of her cognitive abilities”.

Ms Zingirlis expressed the opinion that the applicant had many vulnerabilities in her neurodevelopment and met the criteria for:

However, Ms Zingirlis could not rule out an underlying psychotic illness because the applicant responded well in the past to psychotropic medication and psychiatric admissions (however, both psychiatrists ruled out such an illness).

Ms Zingirlis doubted that the applicant could understand (emotionally) moral wrongfulness:

Ms Zingirlis believed the applicant’s cognitive deficits and emotional state at the time of the offence diminished her capacity to reason and control herself.

The applicant told Ms Zingirlis that she was struggling with being alone in her cell with limited access to exercise and interactions with others. She was saddened by the lack of contact from her family although she said she understood why they were not visiting or calling. The applicant also reported that she had been involved in three physical altercations with other inmates since her incarceration because she had told them about her charges.

The sentencing Judge acknowledged that the applicant’s criminal record was limited to one matter of common assault in October 2019, for which she was convicted with no further penalty. That incident occurred when she was in custody and on remand for the killing of her mother. However, there were several incidents which resulted in diversions to the mental health system under s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (since repealed). Wilson J set these out as follows: [23]

Based on this history and considering the limited success of treatment in the past and the future lack of family support (seeing that her mother, who was her most devoted carer and advocate, is now deceased) Wilson J found at [107] that “the possibility of a violent outburst against someone in the community looms large” and “[t]he protection of the community must be a significant consideration.”

Wilson J referred to the impact of the homicide on others, observing at [37] “[t]he lives of others have been forever changed, as the Court heard when victim impact statements were given by those whose sufferings have been greatest.” There were five victim impact statements presented at the hearing.

The first was from Mrs Camilleri’s mother and the applicant’s grandmother. She said the applicant did not listen when told to take her medication, saying the medicine made her sick. She spoke of her immense grief since her daughter’s death and that she still cannot “bear it”.

The second statement was from the applicant’s sister and Mrs Camilleri’s eldest daughter, Kristy Torrisi. Ms Torrisi spoke about the “incredible pain” and “absolute loss” her and her family have experienced since the death of her mother. She described her mother as “a beautiful woman inside and out”, who “had a heart of gold and always put others before herself”. Ms Torrisi stated that she “will never forgive [the applicant]” because she continuously refused help from her family and that “[i]t was [the applicant’s] own choices” which “put herself in a situation where she took [their] mothers life”. She spoke about the trauma visited upon Child A. Ms Torrisi suffers depression and anxiety and said she is often angry, hurt and lost for words knowing that her “own sister murdered her mother”. She is left “feeling so insecure and so unsafe”.

The third statement was from Mary Hill, the applicant’s aunt and Mrs Camilleri’s sister. She also spoke about the immense grief, trauma and anxiety that she and her family have experienced. Mrs Hill admired Mrs Camilleri for having “unconditional love for her daughter”. However, she said Mrs Camilleri “was blind sighted”, and would not listen to Mrs Hill’s concerns for her safety, putting the applicant before herself and her family. Since her sister’s death, Mrs Hill left work to be the sole carer for her mother and other family members. Mrs Hill said, “until more resources and funding are put towards essential mental health services, there will be more tragic cases that come before the courts like ours”.

The fourth statement was from the applicant’s ex-brother-in-law who gave a statement for himself and on behalf Child A, who was 4 at the time of the offence and 6 at the time of sentence. He detailed the grief and shock he felt when he learnt of Mrs Camilleri’s death and that Child A had witnessed it. At the hospital, Child A had blood stains and a large laceration on his face. Since the offence, Child A has suffered emotionally and has been more terrified than usual. Child A loved Mrs Camilleri but now blocks out memories of her, to forget the pain and trauma. Child A fears the applicant and is worried about his family’s safety. The applicant’s brother-in-law said he feels like he failed Child A because he could not protect him that night.

The final statement was from the applicant’s cousin and Mrs Camilleri’s niece, Stephanie Cook. Ms Cook spoke about the close relationship she had with her aunt, her grief and how she feels “emotionally and physically” drained by the applicant’s violent behaviour. She spoke of the impact on Child A, her own children and her family, as well as her fear that the applicant will re-offend when she is released.

Wilson J commenced the sentencing judgment by citing the High Court’s judgment in Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 (“Veen (No 2)”) and expressing the opinion that the applicant’s offence “must be regarded as one of the most serious instances of manslaughter it is possible for any imagine to conjure.” [24] Her Honour’s view was reflected in the starting point of the sentence (24 years) which was one year less than the maximum penalty prescribed by s 24 of the Crimes Act 1900 (NSW). The applicant’s total sentence is the highest sentence recorded for the 110 manslaughter cases on the Judicial Commission of New South Wales statistical database (“JIRS”) in the period of 2018 to date. Her non-parole period is also the highest recorded on that database. In Chandler v R (2023) 103 MVR 392; [2023] NSWCCA 59 (“Chandler”) N Adams J interrogated the JIRS records going back to January 2008 and, again, the applicant’s total sentence and non-parole period are the highest recorded (of 263 manslaughter cases where a sentence of full-time imprisonment was imposed): at [104]-[105]. The length of the sentence reflects a finding that the case was in the “worst case” category.

The submissions under ground 1 encompassed several complaints as to the sentencing Judge’s approach to what was described as “The Gravity of the Crime”, an expression which derives from a heading in the sentencing judgment immediately above paragraph [31], in which her Honour reiterated her conclusion that “this is as serious an example of manslaughter as it is possible for such a crime to be.” The arguments described by Mr Game SC as “doctrinal” are interrelated, but they crystallise in the dual propositions that the diminution in the applicant’s moral culpability, resulting from her neurological and psychiatric conditions, means first that it could not reasonably be held that the case was the “worst imaginable”, justifying a sentence approaching the maximum penalty available, and second that those psychiatric conditions, in the circumstances of the case, impact on a proper assessment of the seriousness of the offence.

The applicant accepted that “the assessment of objective seriousness is classically within the role of the sentencing Judge”, [25] and did not dispute Wilson J’s description of the crime as one of “extraordinary viciousness and brutality”. It is also the case that her Honour correctly identified some significant aggravating features: the offence was committed in the victim’s home; in the presence of a very young child; and there was disturbing mutilation of the victim’s body, including decapitation of her head and removal of her eyes. However, it was submitted that the assessment of the crime’s gravity was not consistent with the fact that the applicant’s loss of control was “complete” and with the findings as to the applicant’s level of impairment and consequent amelioration of her moral culpability.

The applicant relied on the expert evidence that the applicant’s psychiatric condition resulted in a complete loss of self-control at the time of the killing. Professor Greenberg gave the following evidence in cross-examination at the trial: [26]

The sentencing Judge referred to this evidence at [60]:

There is nothing to suggest that this opinion was not accepted and there was no evidence to contradict it. Her Honour said at [55] that both psychiatrists were “highly qualified and appropriately experienced” and I have no hesitation in accepting the evidence of each”. However, her Honour said at [39]:

The applicant submitted that this approach disclosed error in circumstances when the loss of control was “complete” and lasted for the duration of the attack. The sentencing Judge referred to the fact that the applicant understood the nature or her acts and that it was wrong, which were matters bearing upon the legal defence of mental illness.

The respondent described the approach adopted by the sentencing Judge as “an available and relevant finding”. [27] However, it was not explained how the spontaneity of the attack was of “diminishing relevance” because it was sustained, when the loss of self-control continued for the duration of the attack. I accept the applicant’s submission that the approach taken to this issue of the spontaneity of the attack contains an error, which inevitably impacted on an assessment of the objective criminality. To be clear, the spontaneity of the crime demonstrated a complete absence of planning. Both at common law and under the relevant legislation, planning, or a lack thereof, is relevant to an assessment of the gravity of an offence: see, for example, Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(n) and 21A(3)(b).

The applicant relied on the complexity and severity of the conglomeration of the applicant’s conditions, which involve the interplay of her cognitive impairment as well as neurological issues and psychiatric illness. In such a case, the boundary between a mental illness defence and the partial defence of substantial impairment is not necessarily stark or clear. Reference was made to the sentencing Judge’s remarks that the applicant “fully understood the nature and wrongness of her actions”, that “there is no question that the offender understood the nature of her acts when she was stabbing her mother, and also understood that is was very wrong, and criminal” and that “she well understood the nature of her act, and also well understood how very wrong it was.” [28] In a sense, those observations merely highlighted the fact that the applicant was not suffering of a disease of the mind that would have given rise to a mental illness defence. They did not illuminate or aggravate either the objective criminality or the applicant’s moral blameworthiness in circumstances where her loss of self-control at the time of the repeated stabbing of her mother was complete and enduring.

The submissions under this ground negotiated the connection between the concept and relevance of an offender’s moral culpability and the evaluation of objective seriousness. As the Court (Beech-Jones CJ at CL, N Adams and Cavanagh JJ) said in DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 at [77] (“DS & DM”) “an assessment of the seriousness of the offending and the moral culpability of the offender are separate but related steps.” Their Honours observed at [96]:

The Court distinguished between a case like the present and the example of a sexual assault committed by a person suffering from depression. In the latter case, it is “difficult to accept that the objective seriousness of the sexual assault” is reduced and, while there may be in diminution in the offenders “moral responsibility” it will not necessarily result in a reduction of the sentence. That however, is not this case and one of the applicant’s complaints under Ground 1 is that the sentencing Judge failed to consider that:

This submission is based on the judgment in R v Keceski (Court of Criminal Appeal (NSW), 10 August 1993, unrep) (“Keceski”) and the internal quote is from the reasons of Mahoney JA in that case. The argument is that Wilson J did not engage with, as Mahoney JA at 10 put it:

That assessment is to be made from the starting point that the offender’s “mental responsibility was ‘substantially impaired’”: Keceski at 11. Had that matter been addressed, “not [as] an end in itself”, it may have impacted on an assessment of the objective seriousness of the offence and on the significance of the applicant’s condition to “various sentencing factors and for the purpose of undertaking the instinctive synthesis described in Markarian” [30] : DS & DM at [92].

The respondent relied on the sentencing remarks of Johnson J in R v Tarrant [2018] NSWSC 774 at [170]-[171] that, in addressing these matters, “it is necessary to bear in mind that aspect of this evidence have already been taken into account by the jury in returning a verdict favourable to the Offender.” However, Johnson J made it clear in the passage cited that “the Offender’s mental condition remains relevant to the sentencing exercise and is to be take into account.” Similar remarks were made by his Honour in R v Reid (No. 2) [2021] NSWSC 475 at [129] and R v Cahill (No. 4) [2018] NSWSC 1896 at [204], and by me in R v Hong [2021] NSWSC 1487 at [23]-[29]. If these remarks in sentencing are inconsistent with what Mahoney JA said in R v Keceski, they ought not to be followed. However, I doubt they are inconsistent with what his Honour said. For example, in R v Hong, having grappled with the submissions made on the subject, I held at [29] “the nature and extent of Mr Hong’s impairment remains a relevant consideration and I have concluded that his moral culpability is relatively low for an offence of manslaughter.”

The applicant’s complaint stems from the following remarks in the sentencing judgment:

Mr Game submitted bluntly that this was tantamount to saying to an offender "You're very lucky that you've got manslaughter … and I'm going to hold it against you" and “[t]hat's what is being said here, it's being held against her, and you've got to put it to one side, it's not relevant, it's immaterial to say that.” [31]

While I do not accept the submission in those terms, it is correct that in dealing with an offence of manslaughter following a plea of guilty or verdict based on a finding or acceptance of substantial impairment, the sentencing judge should not diminish the role played by an offender’s cognitive or neurological impairment or mental illness. Those matters remain relevant to the sentencing exercise both in terms of their impact on a proper assessment of the objective criminality and on the way in which the offenders diminished moral culpability feeds into the purposes of punishments and sentencing factors. This is consistent with what Mahoney JA said in Keceski and the judgment in DS & DM.

The respondent submitted: [32]

The respondent’s position was to the effect that the impact on the applicant’s moral culpability had “no real role” in the ultimate sentence, because it had to be balanced against the issue of the applicant’s future dangerousness. I am not quoting counsel for the respondent in putting it in this way, but it is the legal and practical effect of the submission. I accept the applicant’s submission that this approach is contrary to the principle of proportionality as explained in Veen (No 2). The judgment of Mason CJ, Brennan, Dawson and Toohey JJ included the following:

In Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33 the issue of proportionality arose in very different circumstances, namely the way in which a court could take into account the system of remissions in South Australia. The Court said at 354:

While the joint judgment in Veen (No 2) contemplates (at 477) that the relevant considerations (diminution of moral culpability and protection of the community) “may balance out”, the judgment does not authorise a sentencing court to disregard matters relevant to a proper assessment of the (objective) gravity of the offence, in determining what a proportionate sentence is. I accept the applicant’s submission that this is what occurred here as a result of: (i) the sentencing Judge “diminishing” the significance of the spontaneity of the attack, because it was a sustained attack, even though the expert evidence established her loss of control endured throughout; and (ii) the failure to consider, in accordance with the judgment of Mahoney JA in Keceski, the extent to which her complex psychiatric and cognitive impairments impacted on objective seriousness and moral culpability.

Accordingly, the applicant has established error pursuant to ground 1. After circulating this judgment in draft, I had the opportunity of reading the judgments of Adamson JA and Cavanagh J. I respectfully adopt the additional reasons of Cavanagh J for upholding Ground 1 and, in particular, his Honour’s reference (at [207]) to the decision in Tepania v R (2018) 275 A Crim R; [2018] NSWCCA 247 and the reasons (at [205] and following) for rejecting the suggestion that there is any “double counting” involved in considering an offender’s mental health impairment in sentencing beyond an acknowledgment that it resulted in the reduction of the charge from murder to manslaughter.

This ground arises because of the prescriptive regime of sentencing discounts under Pt 3 Div 1A of the Crimes (Sentencing Procedure) Act. It is common ground that, under that regime, the applicant was entitled to no more than the 10% discount allowed by the sentencing Judge: see the sentencing judgment at [62]-[68].

The provisions operated unfairly in the applicant’s case. To place that unfairness and the arguments under this ground of appeal in context, it is worth repeating the uncontested chronology which derives from the prosecution sentence summary and the applicant’s written submissions: [34]

It will be seen that the applicant was committed for trial at a time when it was thought, based on Dr Eagle’s report, that she was not fit to stand trial. Her fitness was raised during the committal hearing in the Local Court. After the committal, Professor Greenberg provided an opinion that she was fit to be tried. A little less than three weeks later, the applicant offered to plead guilty to manslaughter. The prosecution rejected that offer to plead guilty. There was no formal fitness hearing, and the applicant was not found (by a court) to be fit to be tried. Further, while a plea of guilty was offered, no plea was actually entered.

The sentencing Judge said at [67]:

The applicant submits that the words “found fit to be tried” in s 25D(5)(a) do not require a formal fitness hearing but may apply to a finding by a qualified psychiatrist. However, she acknowledges that the section requires that a plea of guilty actually be entered. While s 25E allows for the prescriptive gradation of sentencing discounts to be guided by the timing of formal offers to plead guilty when such offers are rejected but later vindicated, it makes no such provision in the case of an offender who had not been found fit to be tried at the time of the committal hearing. The applicant is correct to identify the “inherent unfairness” in this lacuna in the legislation.

The sentencing Judge seemed to acknowledge this unfairness when she said at [68]:

The applicant accepts that, irrespective of the unfairness, she was entitled to no greater discount than 10% for the utilitarian value of her plea of guilty (or offer to plead guilty). In view of that concession, it is unnecessary to resolve the difference between the approach taken by the sentencing Judge and that contended for by the applicant on appeal, in relation to the meaning of “found fit to be tried” in s 25D(5)(a).

However, the applicant submits that the sentencing Judge erred in failing to reduce the sentence pursuant to s 22A of the Crimes (Sentencing Procedure) Act. That section provides:

The applicant submits that the following matters gave rise to an entitlement to consideration of a “lesser penalty” under the s 22A:

Moreover, the applicant submits that the sentencing Judge erroneously allowed herself to be constrained by s 25F of the Crimes (Sentencing Procedure) Act, a provision in relation to which neither party made submissions. Her Honour said: [36]

Section 25F relevantly provides:

The respondent submitted that the sentencing judgment should be read to be no more than a reflection of her Honour’s conclusion that no additional discount was appropriate under s 22A, because the applicant received the 10% discount to which she was entitled under the statute, and this was not reduced under s 25F. Further, it was submitted that, “whatever the import” of the Prosecutor’s concession about the length of the trial being shortened, the facilitation discount was a matter for the sentencing Judge. It was also submitted that there would have been no practical basis upon which to remit the matter to the Local Court.

I accept the respondent’s submission that the failure of the applicant to seek to have the case remitted to the Local Court was of little to no moment in terms of the facilitation discount under s 22A. However, I accept that it was open to the applicant to make such an application and it would not have amounted to an abuse of the Court’s processes to seek to have a case conference held to allow for the formal recognition of her offer to plead guilty, for the purposes of Pt 3 Div 1A Crimes (Sentencing Procedure) Act.

I also accept that s 22A cannot be used to fill gaps in the provisions for “sentencing discounts for guilty pleas” in Pt 3 Div 1A. However, those discounts relate to the “the utilitarian value of a guilty plea”, [37] rather than for the facilitation of the course of justice. The distinction drawn by the applicant based, inter alia, on the High Court’s judgment in Cameron is correct. Section 22A is of wide application and encompasses facilitation of the administration of justice “whether by disclosures made pre-trial or during the trial or otherwise”.

I accept the applicant’s submission that s 25F, on the clear terms of sub-s (1), relates only to sentencing discounts applied under Pt 3 Div 1A. It therefore, does not apply to the imposition of “a lesser penalty” authorised by s 22A when an offender has facilitated the administration of justice. The passage at [69]-[70] of the sentencing judgment suggests that the sentencing Judge allowed the power in s 22A to be constrained by s 25F when that section had no application. This interpretation of the sentencing judgment is supported by the fact that her Honour did not deal with the concession made by the Prosecutor or otherwise explain why the applicant, in the particular circumstances, did not receive a lesser penalty pursuant to s 22A. Her Honour did not make a finding under s 22A(2) and, given the length of the sentence imposed and despite her Honour’s finding as to future dangerousness, such a finding would not have been warranted.

I would uphold ground 2.

In exercising the sentencing discretion afresh, I would adopt most of the factual findings made by Wilson J.

I have considered the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act. The concepts of adequate punishment, accountability and denunciation are significant given the seriousness of the offence. The sentence must also recognise the harm done to the victim and her family and vindicate her dignity. As will be seen, and as recognised by Wilson J, deterrence is less significant in this sentencing exercise. The protection of the community is a particularly significant matter, but some consideration must also be given to the rehabilitation of a seriously challenged offender who remains quite young.

Objectively, the facts were gruesome and brutal and involved a frenzied attack on an innocent victim in her own home and in the presence of a very young child. The mutilation of the victim’s body, including her decapitation and the removal of her eyes, made this homicide particularly horrendous. The threats of decapitation and similar threats to others in the past make the incident particularly troubling. The applicant used a large number of knives in the course of the frenzied and unrestrained attack.

On the other hand, the offence was spontaneous and the result of the applicant losing control of herself because of her complex psychiatric illness. That loss of self-control continued throughout the incident, at least until her mother was dead, whereupon the applicant mutilated her mother’s body in a macabre and inexplicable way, apparently or partly because of her obsession with horror movies, a matter discussed in the psychiatric and psychological reports. Her behaviour of walking into the street with her mother’s head and dropping it, as well as asking emergency services personnel whether they could reattach it, demonstrated the extent to which the applicant’s conduct was divorced from the real world. Her indifference at that point is likely to be a product of her mental health conditions. I am satisfied that the extent to which the applicant’s behaviour was affected by her mental health conditions was significant, even starting from the position that she was “substantially impaired” based on the jury’s verdict, and noting the consistent evidence of the two psychiatrists and the psychologist.

In many ways, the description of the killing speaks for itself. There were a number of aggravating features and not any by way of mitigation, apart from the lack of planning in the attack and the extent to which the applicant’s mental health played the role that it did. The objective criminality is extreme and towards the very top of the range of offences of manslaughter.

I accept that the applicant’s moral culpability is significantly diminished as a result of her psychiatric condition. I take a different approach to Wilson J as to whether the applicant “fully understood the nature and wrongness of her actions.” [38] Based on the evidence of the psychiatrists and the psychologist, I find the applicant had only a simple understanding of moral wrongfulness, due to her intellectual disability and autism spectrum disorder, and had lost her self-control at the time of the homicide.

I would adopt Wilson J’s approach to the limited evidence of the applicant’s remorse although, given her psychiatric condition and the circumstances, I would not attach much weight to her demeanour during the reading of the victim impact statements. Having said that, her Honour was in the courtroom; I was not. No positive finding can be made concerning the applicant’s remorse. It is, as Wilson J described it at [79], a neutral factor.

I agree with Wilson J that general deterrence has a very limited role to play in the present case. The applicant is not a suitable vehicle through whom to send messages of deterrence. Other offenders with such conditions, who lose their self-control, are unlikely to be deterred by the length of the sentence imposed on the applicant.

I am not at all confident about the applicant’s prospects of rehabilitation. However, she remains a relatively young woman and has shown some limited insight into the consequences of her conduct. After many years of confused diagnoses, it appears that she may now have received an accurate diagnosis of her psychiatric issues. This may inform the appropriate treatment and management of her condition.

Even taking an optimistic view of her prospects, I agree with the sentencing Judge that the applicant’s history of violence and the harassment of others, along with the disturbing details of the present offence, mean that the protection of the community is a critical purpose of punishment. The sentence I propose reflects that but remains proportionate to the facts and circumstances of the case and allows for the possibility of reform.

I have taken into account the opinions of Dr Furst that the applicant’s mental health issues, her difficulties in relating to others and other aspects of her personality mean that her custodial sentence will be more onerous than it would be for the average inmate.

I have also considered the affidavit of the applicant’s solicitor, which was tendered in the event that this Court came to exercise the sentencing discretion afresh. It annexed and summarised several case notes from Corrective Services staff during the period from 5 April 2022 until 22 September 2022. While the applicant’s performance in custody has been patchy to say the least, the notes since April 2022 are mostly quite positive and suggest that there has been a significant improvement in the applicant’s conduct and engagement with other staff and inmates since she was moved from Mulawa to the Dillwynia Correctional Centre.

The applicant provided a schedule of comparative cases where an offender has been sentenced for manslaughter involving substantial impairment, between 2014 and 2021. I have considered the outcomes in those cases, which range from sentences of 6 to 11 years imprisonment. [39] Many of these cases constitute very serious examples of the offence and some have similarities to the present case. The outcomes in those cases have made me consider closely the sentence that I intuitively thought was appropriate. That sentence is substantially higher than those imposed in the cases described in the table provided by the applicant. However, none of those cases feature the most brutal and macabre features of the present case. In none of them was the protection of the community such a potent factor in determining the appropriate sentence.

I also reviewed the judgments in the four cases identified by N Adams J in Chandler (at [104]) as being the “next four most severe sentences indicated for the offence of manslaughter”, after those imposed on the applicant and Mr Chandler. [40] Those cases might be thought to have less in common with the applicant’s case, but the objective seriousness, the brutality of the conduct and, in some cases, the past criminal history demonstrated cases in which one would expect very severe sentences. None of those cases have the macabre features of the present case. Nor do those cases, in spite of their individual seriousness, possess features which require the protection of the community to play such a prominent role.

I have also considered the respondent’s submissions about Veen (No 2), its factual similarities with the applicant’s case and the availability, and appropriateness, of a sentence involving or approaching the maximum penalty. The problem with the comparison with Veen (No 2) is twofold. First, the statutory landscape is entirely different today than it was when Veen (No 2) was decided. A “life sentence” was subject to re-determination, whereby a determinate sentence was imposed after the offender had served a number of years in prison. There also remained in place a system of remissions which impacted on the length of the sentence actually served. Since 1999, and the introduction of “truth in sentencing”, the non-parole period set by a sentencing judge is the minimum sentence the offender will serve. The second matter is that Veen (No 2) was, of course, preceded by Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7. In the 1979 case, a majority of the High Court decided that the maximum penalty for manslaughter (then life imprisonment) was not appropriate even though Mr Veen had a condition which resulted in violent, uncontrollable rages, had stabbed somebody to death and had a prior offence involving a similar stabbing where the victim was seriously wounded but not killed. The High Court’s comments relating to the protection of the community and the appropriateness of the life sentence came in the aftermath of Mr Veen’s second homicide in 1993. The 1979 case established the principle of proportionality.

I am very conscious that no two offences, and no two offenders, are the same and the guidance to be taken from the sentencing outcomes in other cases is limited. Similarly, the results in other cases cannot determine the upper limit of the appropriate sentence to be imposed on an applicant who has committed such a serious offence and from whose violent outbursts the Court must protect the community. [41]

Despite the unfairness discussed earlier, the sentence will incorporate the statutory sentencing discount to which the applicant is entitled, that is, 10%.

I am satisfied that the applicant facilitated the course of justice in a number of ways. In particular: (i) she was prepared to plead guilty to manslaughter from an early stage, (ii) she accepted the opinion of the prosecution’s expert as to her fitness to be tried, and (iii) very shortly thereafter she, opened up discussions to reduce the length of the proceedings. The trial itself was largely confined to the single issue of substantial impairment and, as I follow the discussions before the sentencing Judge, the trial was much shorter than it might have been. Obviously, against that, the prosecution case (in terms of the acts causing death) was overwhelming. While it is not necessary to reduce this aspect of the matter to a number, [42] it is generally more appropriate to do so. I would decrease the penalty by around 7.5%.

I will apply a total discount of 17.5% to the sentence I would otherwise have imposed.

I would commence with a total sentence of 20 years imprisonment. That sentence will be reduced by three and half years, resulting in a total sentence of 16 years and 6 months. I find that there are special circumstance warranting a reduction in the non-parole period. These concern the fact the sentence will be particularly onerous on the applicant, the complexity of her mental health conditions and consequent need for a very long period of support and supervision in the community. However, the adjustment will be very modest because the non-parole period must also reflect the seriousness of this offence. I propose a non-parole period of 12 years (being a little less than 73% of the total sentence).

Accordingly, the sentence I propose is 16 years and 6 months imprisonment with a non-parole period of 12 years.

I propose the following orders:

CAVANAGH J: I have received the judgments of both Adamson JA and Hamill J. I am grateful for their Honours’ extensive analyses.

It is not necessary that I reiterate the circumstances of the offending, the submissions of the parties or all of the relevant parts of the sentencing judgment. Further, I do not intend to rehash their Honours’ analyses but rather state the basis upon which I would allow Ground 1 but not Ground 2 of the appeal.

I agree that the applicant’s criticisms of the sentencing judgment are largely unwarranted. I also agree with their Honours’ analyses in respect of the relationship between objective seriousness or gravity and moral culpability. They are separate but related concepts.

To the extent that the applicant submits that the sentencing judge erred in failing to have regard to reduced moral culpability in assessing objective seriousness, that proposition must be rejected. So much is clear from DS v R; DM v R [2022] NSWCCA 156 (“DS and DM”).

In that case at paragraphs [63] to [96], the Court (per Beech-Jones CJ at CL, N Adams and Cavanagh JJ) undertook a lengthy analysis of the relationship between the two principles, having regard to the submissions of both applicants that there had been an error in failing to have regard to moral culpability whilst assessing objective seriousness.

As the Court concluded at [128]:

However, in a passage to which both Adamson JA and Hamill J refer at [96] of DS and DM, the Court also observed that mental illness may be a relevant factor in assessing both objective seriousness and moral culpability. Whilst objective seriousness and moral culpability are separate but related concepts, a mental illness which contributes to the offending may be a factor relevant to the objective seriousness of the offending. For example, when assessing objective seriousness, a Court might distinguish between a planned or premeditated event and one which arises spontaneously stemming from of a loss of control caused by the mental illness from which the offender was suffering.

That much is probably uncontroversial. It is also uncontroversial that the assessment of objective seriousness is a matter within the sentencing judge’s discretion.

However, the important question which arises on this appeal is the extent to which mental illness is a factor in the exercise of a sentencing discretion, in circumstances whereby the applicant has been acquitted of murder but convicted of manslaughter pursuant to s 23A of the Crimes Act. In other words, to what extent should mental illness be taken account of in the exercise of the sentencing discretion when the applicant has already been convicted of a lesser offence than they might otherwise have been, having regard to that mental illness.

Plainly, Adamson JA and Hamill J take different approaches to that important question.

Adamson JA emphasises, like the sentencing judge, that it is important to avoid double counting in the sentencing exercise and that the sentence must be proportionate to the crime. Having regard to the fact that the applicant was convicted of manslaughter rather than murder pursuant to s 23A, the role that mental illness played in the circumstances of the offending may have already been given effect.

It seems to me that this is the point of principle which arises in this appeal. The applicant submitted on sentence that her mental illness and cognitive impairment should substantially reduce her sentence, both because her level of impairment was greater than that required to make out the partial defence of substantial impairment, and in accordance with the principles emanating from DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; 2010 NSWCCA 194 (“De La Rosa”).

However, as expressly stated, the sentencing judge was not persuaded that anything said in R v Keceski (unreported, NSWCCA 10 August 1993) required any amelioration of sentence beyond that which flows from the proper application of the De La Rosa principles. Her Honour identified those principles in paragraph [84] of the sentencing judgment and then made a finding in respect of amelioration of moral culpability at [85], as follows:

Her Honour accepted that there would be some amelioration of moral culpability but did not accept that it could be complete (I assume meaning significant), based on her Honour’s findings that the applicant well understood the nature of her actions and how wrong they were. Those findings were open to her Honour, albeit they say nothing about the full extent of the applicant’s mental and cognitive conditions.

This Court is a court of error. Whether different findings in relation to moral culpability might also have been open is not to the point.

However, her Honour did not consider that the applicant’s mental illness had any role to play in assessing the objective seriousness of the offending. This is clear from her Honour’s observation that the applicant had already had her liability reduced from murder to manslaughter solely because of her substantial impairment.

With respect to her Honour’s remarks under the heading “Mental Illness and Sentence”, I took her Honour to be finding that whilst the applicant’s mental illness and cognitive impairment gave rise to some amelioration in moral culpability, it was not otherwise a relevant sentencing factor. That is because her Honour did not consider that anything said in R v Keceski required any reduction in sentence beyond that permitted by the proper application of De La Rosa principles.

It is notable that in DS and DM, the Court observed that an offender’s mental impairment would affect both the assessment of moral culpability and objective seriousness, even following a reduction in liability from murder to manslaughter because of substantial impairment (pursuant to s 23A of the Crimes Act, as in the present case). Of course, nothing in DS and DM suggests that an offender’s mental or cognitive impairment must always impact upon objective seriousness where s 23A of the Crimes Act is enlivened.

Referring specifically to DS and DM at [96], Adamson JA concludes that a reduction in objective seriousness by reference to mental impairment in the present case would essentially ‘double count’ the effect of the mental illness, in light of the conviction for manslaughter rather than murder because of substantial impairment.

I disagree on that point for the following reasons.

In Hoare v The Queen (1989) 167 CLR 348 at 354, Mason CJ, Deane, Dawson, Toohey and McHugh JJ observed that:

As observed by Johnson J in Tepania v R (2018) 275 A Crim R; [2018] NSWCCA 247 at [112]:

The applicant has been sentenced for manslaughter. As is well-known, the offence of manslaughter encompasses a range of facts and circumstances. Of course, the sentencing judge was well aware of that and I reject the applicant’s rather exaggerated submission about the effect of her Honour’s approach as set out in paragraphs [82] and [83] of the sentencing judgment. Plainly, her Honour was not sentencing as if the applicant had been convicted of murder. On her Honour’s analysis, future dangerousness was an important sentencing factor, as it is in the resentence suggested by Hamill J.

The question which remains is thus whether the need to avoid double counting in sentencing for this type of offence is such that the otherwise important role that mental illness might have to play in assessing objective seriousness should be diminished.

In Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14, the Court (per Mason CJ, Brennan, Dawson and Toohey JJ) said at 476:

In Tarrant v R [2018] NSWCCA 21, the Court (per Basten JA, RA Hulme J and Hidden AJ) said at [74]:

Then, in R v Tarrant [2018] NSWSC 774, after referring to that passage, Johnson J said at [167]-[170]:

See also his Honour’s observations in R v Reid (No 2) [2021] NSWSC 475 at [129].

I do not read the comments of Johnson J in either Tarrant or Reid as suggesting that the Court should not have regard to all of the relevant sentencing factors in sentencing for this type of offence. I do not take his Honour to be suggesting that the Court should not have regard to a significant mental illness from which an offender was suffering in assessing objective seriousness, for example, in determining whether the actions were planned or spontaneous or arose from a complete loss of control due to the mental illness. Rather, I take his Honour to merely be suggesting that due regard must be had to the basis of the manslaughter conviction, that is, s 23A of the Crimes Act. Much may depend on the extent of the mental illness or cognitive impairment.

Indeed, this is what was meant by the Court in DM and DS at [96], to which there has already been extensive reference. The Court in that case provided examples of circumstances in which an offender’s mental impairment may affect the assessment of both moral culpability and objective seriousness in a case of manslaughter under s 23A of the Crimes Act, including where an offender damaged property during a period of psychosis which fell short of what might establish a mental illness defence. Whilst the extent to which any mental illness or cognitive impairment impacts upon moral culpability and objective seriousness may be different, a consideration of the impact and degree of the impairment as it relates to objective seriousness is not precluded by the principle of double counting.

Such an approach is consistent with the principle that it is necessary to have regard to all sentencing factors in sentencing for manslaughter (even manslaughter which arises pursuant to s 23A of the Crimes Act) and the point made by Johnson J that it is important to have regard to the fact that the offender has had their conviction reduced because of their substantial impairment.

This is also consistent with what was said in R v Keceski; that it is necessary to consider the extent to which the offender’s acts were really affected by their mental condition, starting from the position that his or her mental condition was substantially impaired. It is consistent with the approach in other cases such as that of N Adams J in R v Scott (No 3) [2021] NSWSC 1646 at [27], as well as that of Ierace J in R v Hill [2019] NSWSC 733 at [45], neither of whom suggested that the need to avoid double counting meant that a mental impairment of such significance was diminished when assessing objective seriousness.

Further, this approach is harmonious with the observations of Beech-Jones J (as his Honour then was) in R v MB [2017] NSWSC 619 at [59]:

I agree with Hamill J’s analysis of the medical evidence and the impact of the applicant’s conditions on the nature of the offending. In my view, consistently with R v Keceski, the need to consider these matters is not diminished by the fact that the applicant had been convicted of manslaughter rather than murder. Nor is it diminished on the basis of the need to avoid double counting.

Specifically, I agree with his Honour’s observations that the spontaneity of the crime demonstrated a complete absence of planning or premeditation and that the loss of control caused by the applicant’s mental impairment continued for the duration of the attack. Those are factors which are relevant to the assessment of objective seriousness. They are factors which should be taken into account in assessing the objective gravity of the offending, consistently with R v Keceski.

The sentencing judge took account of the applicant’s mental illness in assessing moral culpability (but only to a limited extent) and did not consider that it had any further role to play in the sentencing process (i.e. in assessing the gravity of the offence). For the reasons set out by Hamill J on this aspect, I consider that the sentencing judge erred in that approach.

The sentencing judge gave such weight to various factors as she considered appropriate and I do not disagree with the approach of her Honour on Ground 1, except for this point. I am not in any way disagreeing with the description of the horrific nature of the crime but, like Hamill J, I consider that error has been established.

Again, it is not necessary that I repeat the analyses undertaken by both Adamson JA and Hamill J with respect to Ground 2 of the appeal.

The applicant accepts that she was entitled to no greater discount than 10% for her offer to plead guilty. However, the applicant submits that she should have been entitled to an additional discount under s 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSP Act”) on the basis of her assistance in facilitating the administration of justice.

Section 22A is in the following terms:

Two things might be said about s 22A, being:

The Court is thus required to assess the extent to which the administration of justice has been facilitated by the applicant and consider whether a lesser penalty should be imposed (having regard to all relevant matters), whilst ensuring that any lesser penalty is not unreasonably disproportionate to the nature and circumstances of the offence.

The applicant submits that the sentencing judge erred in determining whether there should be any additional discount for her facilitation of the administration of justice, in that her Honour erred in having regard to s 25F(2) of the CSP Act. That is based on the following passage from the sentencing judgment (at [69]-[70]):

As observed by Hamill J, s 25F relates only to sentencing discounts applied under Part 3, Div 1A. It does not apply to any discount assessed under s 22A of the CSP Act. At least in my view, that much is clear.

However, contrary to the applicant’s submission, I do not consider that the sentencing judge did apply s 25F(2) or was constrained by s 25F(2) in determining that no additional discount should be given for the applicant’s facilitation of the administration of justice.

I consider that when her Honour stated (at [70]) “[f]or the same reason, I do not propose to allow an additional quantified discount”, her Honour was referring back to what she had said about the offence being so extreme that the community’s interest in retribution, punishment, community protection and deterrence could not be met by a sentence incorporating the discount. I take her Honour to have meant that those factors militated against the additional discount sought by the applicant in respect of her facilitation of the administration of justice, rather than that she was in some way constrained by s 25F(2) in affording such an additional discount.

Whether an additional reduction in sentence should be afforded under s 22A is a matter for the sentencing judge. This is not a case in which the sentencing judge has failed to consider s 22A or whether there should be any additional reduction on sentence. Indeed, to the contrary, her Honour has identified the factors which led her to conclude that there should be no additional quantified discount for the applicant’s facilitation of the administration of justice.

There was no error in that approach. Indeed, it seems to me to be consistent with subss 22A(1) and (2). The point at which I diverge from Hamill J on Ground 2 is thus in the identification of error. I do not consider that her Honour erred and I would reject Ground 2.

I agree with Hamill J’s resentencing. His Honour adopts most of the findings of the sentencing judge. In particular, his Honour pays due regard to the significance of future dangerousness. Of course, having found error, this Court is engaged in the process of resentencing. Whether any additional reduction should be made under s 22A and the extent to which the applicant’s mental illness impacts upon both objective seriousness and moral culpability (as well as all of the other relevant sentencing factors) are considered afresh.

I thus agree with the orders proposed by Hamill J.