LN v R

1. [1]

   BASTEN JA: On 12 October 2017 LN and her partner were sentenced by Johnson J in the Supreme Court for the murder of LN’s young son, Joseph. Joseph was three years old at the time of his death in August 2014. However, he had been living with his mother and her partner, AW, (not his father) for only two months (7 weeks) prior to his death. During that period, he was subjected to sustained episodes of physical, psychological and verbal abuse, ultimately culminating in his death. The judge sentenced LN to imprisonment for a term of 44 years, with a non-parole period of 33 years. The sentence commenced when she was taken into custody on 15 September 2014; she will not be eligible for release on parole until 14 September 2047, when she will be 73 years of age. She seeks leave to appeal that sentence.

2. [2]

   A notice of appeal filed on 25 October 2019 identified three grounds, namely:

3. [3]

   The issues raised by these grounds were, in substance, threefold, namely:

   1. (1)

      whether the judge erred in taking into account conduct over several weeks of unlawful assaults which did not result in the death the subject of the charge, as a matter of aggravation, rather than merely to negate leniency;

   2. (2)

      whether the judge erred in his assessment of objective seriousness, and of the level of moral culpability of the offender, by failing to have regard to her history as a recipient of abuse and her mental illness;

   3. (3)

      whether having regard to comparable cases, the sentence was in any event outside a reasonably available range.

4. [4]

   Before addressing these issues, it is necessary to provide a summary of the circumstances of the offending, as recounted by the sentencing judge, which may be found in full in R v LN; R v AW (No 10) (“sentencing judgment”). [1]

(a) treatment of Joseph: June to August 2014

1. [5]

   At about 12.54pm on 3 August 2014 LN made a triple 0 call for assistance for Joseph. An ambulance initially attended the home in Oberon where the family was living, and he was transferred in the early afternoon by emergency helicopter to Westmead Children’s Hospital. He died at the hospital on 6 August 2014 from “hypoxic ischaemic encephalopathy” due to an earlier cardiac arrest following a “blunt force cranio-spinal injury.” [2] As explained by the sentencing judge:

2. [6]

   The judge’s findings as to the cause of death were expressed in the following terms:

3. [7]

   It is necessary to identify, in summary form, the abuse which led to the finding of physical and psychological vulnerability.

4. [8]

   Joseph was born in April 2011 in Sydney where the applicant was then living. His father had died of cancer some months earlier. The applicant was unable to cope with his care and, at about three months of age, he was sent to live with the applicant’s mother and her family in Sydney.

5. [9]

   The circumstances in which that occurred are by no means clear. According to a record taken by Dr Stephen Allnutt, consultant psychiatrist, in January 2017, she was depressed following Joseph’s birth. [3] It appears that she consulted a psychiatrist, Dr John Roberts, in Burwood at about the time of Joseph’s birth (possibly commencing in the month before his birth) who saw her “every week until the end of 2011” and prescribed both antidepressant and antipsychotic medication. The boy moved back to the applicant’s care in June 2014. There was evidence that he was a healthy child whilst living with her mother’s extended family in Sydney. [4]

6. [10]

   In June 2014 LN and AW were living in Oberon with their daughter, referred to by the trial judge as “Mary” (a pseudonym) who was about 15 months old in August 2014. LN’s 22 year old son by an earlier marriage, referred to by the sentencing judge as FN, was also living with the family in Oberon in 2014. FN’s father (LN’s former husband) and siblings were then living in Western Australia.

7. [11]

   A photograph of Joseph dated 21 June 2014 (about a week after he had moved to Oberon) showed him with a shaven head and bruise to the side of his head, but apparently happy. On 30 June he was taken to a clinic in Oberon where a nurse noted visible sores on his face, arms and ankles and described Joseph as a very sad, scared little boy. [5] On 2 July he was taken to Bathurst Hospital Dental Service, completely covered in clothing except for his face, but was observed to have a graze down the centre of his forehead, nose and chin. AW, who took him to the clinic, said he had received the injury after a fall whilst running on the carpet. [6] Another person at the dental clinic observed him to have a “spatula shaped mark on his face.” [7]

8. [12]

   On 10 July 2014 he was taken for a hearing test; AW told the nurse (it appears falsely) that he did not walk because he had rickets. He was covered in a very large coat. [8]

9. [13]

   FN described occasions when AW had struck Joseph with a wooden spoon and LN had grabbed the boy by the shoulder, because he kept “staring at her” and shook him aggressively with his head flopping back and forth. [9] He also described LN and AW placing duct tape over Joseph’s eyes because “they got sick of him staring”. FN described two occasions when Joseph was placed naked in a large Esky on a bag of ice and the lid shut for more than five minutes whilst AW sat on top of the Esky. [10] FN described AW kicking Joseph in the torso when he was lying on the floor. [11] Other aspects of the brutality were explained in police interviews by the applicant and AW as punishment because he refused to eat or drink as requested.

10. [14]

    The judge recounted the following event:

11. [15]

    Many of the forms of assault were accepted by LN in a series of recorded interviews with police which the judge summarised in the following terms:

12. [16]

    The assault which led to Joseph’s death occurred at sometime between the evening of August 2 and the morning of August 3. The account given by LN and AW attributed his injuries to a walk in the park that morning with the dogs, when Joseph had tripped on a rope between the two dogs. The trial judge accepted that the jury had dismissed the explanation as a fabrication. There were good reasons to support that conclusion. However, as neither LN nor AW gave evidence at the trial, the precise timing of the violent shaking which led to his death remained unresolved.

(b) applicant’s history of abuse and mental illness

1. [17]

   The judge noted that LN had seen Dr Allnutt and a psychologist, Ms Robilliard whilst in custody and awaiting trial. He also noted that she appeared to have received treatment from Dr Roberts commencing in 2011, but from whom no report was tendered. No report of her condition prepared following the trial was tendered. The judge therefore concluded,

2. [18]

   Ms Robilliard’s report of 19 July 2017 included the following summary, which appeared to have been taken from Dr Roberts’ records:

3. [19]

   The first entry cannot be correct. Joey (Joseph) was not 2 years in March 2012, but almost 1 year. The three month old baby (presumably Mary) was not born until 2013. There was evidence from which the judge said it appeared that the applicant first saw Dr Roberts in 2011. [12]

4. [20]

   There appears to have been a documented suicide attempt in November 2013, when she was admitted to Liverpool Hospital ICU, but discharged without being admitted to the psychiatric ward. [13] There was no record of this in Dr Roberts’ notes. The incident involved an overdose of Quetiapine. [14]

5. [21]

   Dr Allnutt noted that LN suffered from hypertension and non-insulin dependent diabetes mellitus. He further reported:

6. [22]

   The account of drug use differed from that obtained by Ms Robilliard in January 2017, who reported: [15]

7. [23]

   Relevant passages in Dr Allnutt’s report in relation to psychiatric illness read as follows: [16]

8. [24]

   Ms Robilliard undertook testing by way of a personality assessment inventory. She expressed the following clinical opinions:

9. [25]

   Although the consultation with Ms Robilliard occurred following conviction, LN continued to deny her guilt. As a result, Ms Robilliard was not able to express a view on the individual circumstances surrounding the death of Joseph. However, on the basis of reported studies, she noted: [17]

10. [26]

    Ms Robilliard continued:

11. [27]

    The sentencing judge set out the key factors identified by Ms Robilliard at [66]-[70]. However, it is clear that the judge gave limited weight to such matters. After stating that he was not satisfied that a life sentence should be imposed he continued:

(c) the sentence

1. [28]

   The offence charged being murder, where the victim was a child under 18 years of age, the table to s 54D of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Procedure Act”) identified a standard non-parole period of 25 years. Section 54B(2) provides that the standard non-parole period “is a matter to be taken into account by a court in determining the appropriate sentence for an offender, without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence for an offender.” Section 54B also provides that the court must make a record of its reasons for setting a non-parole period “that is longer or shorter than the standard non-parole period”: s 54B(3). A standard non-parole period is relevantly defined as representing the period for an offence that “taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness”: s 54A(2). The judge expressed his conclusions in that regard in the following passages:

2. [29]

   In fixing a non-parole period of 33 years, with a head sentence of 44 years, the judge declined to find “special circumstances” warranting a variation of the statutory ratio reflected in the sentence fixed.

3. [30]

   It is appropriate to note that LN’s partner, AW, was sentenced to 40 years imprisonment with a non-parole period of 30 years.

Ground 1: assessment of objective seriousness

1. [31]

   The challenge to the use of assaults committed on Joseph between 13 June and 3 August 2014 posited a dichotomy between negation of grounds for leniency and aggravation of the seriousness of the offending. The applicant’s written submissions allowed a degree of flexibility in identifying permissible uses:

2. [32]

   The submissions further noted:

3. [33]

   The relevance of the earlier assaults was raised at the sentencing hearing and addressed by the judge in a lengthy passage at [88]-[119]. Having noted the difference in approach between the parties, the judge set out the manner in which the issue had arisen on the prosecution case: at [91]-[100]. In particular he noted:

4. [34]

   The judge then observed that the conduct over some two months “was inextricably linked to the crime of murder”, [19] and continued:

5. [35]

   The judge concluded with the following passage:

6. [36]

   The applicant submitted that this reasoning involved “an impermissible blurring between acts that are charged and not charged”, [20] and was impermissible because it relied upon a series of acts of past injury as an element of aggravation. [21]

7. [37]

   There are, as it appeared from the submissions in this Court, two lines of authority which may lead to conflicting approaches. However, for reasons explained below, that may not be so.

8. [38]

   The applicant commenced with the principle derived from Siganto v The Queen [22] that there is a distinction to be drawn between denying a basis for leniency and asserting a circumstance of aggravation. [23] A plea of guilty permits a degree of leniency which is denied to a person who pleads not guilty and is convicted, but the latter is not punished for the not guilty plea; a prior criminal record is not a circumstance warranting a longer sentence, but may be relied on to deny the leniency accorded to a first offender. Beyond acknowledging this distinction, Siganto is not directly relevant. It was not concerned with the objective seriousness of the offending, or the moral culpability of the offender, but merely the course taken by an accused person in response to a charge.

9. [39]

   More directly relevant was The Queen v De Simoni, [24] in which the High Court noted that “no one should be punished for an offence of which he has not been convicted.” [25] Where a circumstance of aggravation engaged a more serious offence than that with which the accused was charged, a number of differently expressed conclusions followed. These were that the circumstance, (i) did not render the offender liable to a greater punishment, [26] (ii) the circumstance “could not be relied upon for purposes of sentencing if those circumstances could have made the subject of a distinct charge”; [27] and (iii) the judge could not inflict a penalty on the basis of that circumstance, more severe than would otherwise have been imposed. [28]

10. [40]

    The reasoning in De Simoni concerning an uncharged more serious offence should not be applied without qualification to sentencing for the most serious offence, only because the surrounding circumstances and events, although capable of constituting separate offences, have not been the subject of separate charges. It would, of course, be an error to sentence the person for an uncharged offence, but it does not follow that conduct which might constitute an uncharged offence cannot be taken into account in sentencing for a more serious offence, in this case murder. Indeed, evidence of conduct which might be relevant to sentence might be irrelevant to the elements of the offence; it is provable on sentence as with any other (non-criminal) conduct. Were it otherwise, a prosecutor would be forced to include separate charges in the indictment for each of the alleged assaults sought to be relied upon on sentence. The administration of justice would not be advanced by such an approach.

11. [41]

    Further, it would be anomalous if such prior conduct could be relied upon as evidence of the elements of the offending (that is the murder), but could not be relied upon in assessing the objective seriousness of the offence or the moral culpability of the offender. There is another way of viewing this issue. Evidence of earlier events is not relied upon by the prosecutor to demonstrate that other offences had been committed; it is relied upon (in relation to sentencing) to demonstrate the objective seriousness, for example, of the charged offence. Where the effect is adverse to the interests of the offender, it is true that the conduct must be established beyond reasonable doubt; but that standard is not applied because a further offence is being established, but because the use to be made of the conduct is adverse to the interests of the offender with respect to the charged offence. This is but one of many different situations in which the law allows a court or tribunal to rely upon conduct which may constitute a criminal offence, without the need to determine that an offence has been committed. [29]

12. [42]

    The applicant sought to obtain assistance from the decision of this Court in JCW, [30] which involved sentencing for two sexual assaults. The issue was whether any weight could be given to two other sexual assaults admitted by the offender, but of which he could not be convicted, the relevant counts being statute barred. Spigelman CJ stated at [3]:

13. [43]

    In addressing that issue, the sentencing judge, Gibson DCJ, had said: [31]

14. [44]

    In R v McNaughton [34] this Court considered the use of prior convictions in sentencing and, in particular, whether they might affect an assessment of the objective seriousness of an offence. Spigelman CJ stated:

15. [45]

    In Weininger v The Queen [36] the High court stated:

16. [46]

    Where it is intended that a court in sentencing an offender should take into account other specific offences, there are established methods to do so, either by listing the offences on a form 1, as provided for in s 33 of the Sentencing Procedure Act, or by identifying the charges in the indictment as “representative charges”. Dealing with the latter procedure, in 2009 this Court gave further consideration to what were described as “intractable” problems generated by representative charges. [37] More generally, the Court in Giles addressed some of the issues raised by observations in JCW and subsequent cases, stating:

17. [47]

    Relevantly for present purposes, I noted, albeit without the agreement of other members of the Court (R S Hulme and Johnson JJ) on this issue:

18. [48]

    In Einfeld v The Queen [38] there was a ground of appeal alleging that, in respect of a perjury charge concerning the false statement that the applicant “was not the driver of” an identified vehicle, the sentencing judge had been wrong to take into account other knowingly false statements made by the offender in his evidence. [39] The error was said to have been taking into account uncharged offences not referred to in the indictment “as an aggravating factor, contrary to the principle in De Simoni”. [40] In rejecting that ground, I stated, with the apparent agreement of other members of the Court who would have dismissed the appeal in its entirety:

19. [49]

    The last sentence at [146] of Einfeld was applied by this Court in Lago v R. [41]

20. [50]

    In Kelly v R [42] Hidden AJ stated (with the possible agreement of Beazley P, Garling J not deciding the issue [43] ):

21. [51]

    For reasons already expressed, it may be necessary to take account of the more nuanced approach referred to in the authorities since Holyoak in 1995. [44] Nor does JCW at [52], when read in context, support the full effect of the proposition for which it was cited in Kelly. Further, in Mezher v R, [45] which relied on these two paragraphs from Kelly, Price J, in the following paragraph, set out a passage in Lago in which Gleeson JA stated that there was “no breach of the De Simoni principle when the uncharged conduct is used to inform the seriousness of an offence for which the offender is to be sentenced.” It may be that Price J understood Lago and Kelly to be harmonious statements of principle; however, if so, a degree of reconciliation was required.

22. [52]

    There are other authorities inconsistent with the narrow approach espoused by the applicant. Thus, in R v Lock, Thomas, [46] addressing circumstances similar in character to the present case, Latham J stated:

23. [53]

    In Baines v R [47] I stated (with the agreement of Rothman J):

24. [54]

    So long as it is legitimate to view an offence in context, which may include other activities of the offender, it is apparent that context may either render the objective seriousness of the offending greater than would otherwise have appeared or, depending on the extent to which different criteria are involved, may increase the moral culpability of the offender. In either case, the result may be to increase the sentence beyond that which might have been imposed had the surrounding events not been examined. There is no reason in principle to conclude that conduct which may involve criminality should be excluded, whereas conduct not itself criminal could be examined. On any view, conduct adverse to the offender’s interests must be established beyond reasonable doubt.

25. [55]

    The applicant sought to distinguish Baines on the basis that, despite the language used, no more was intended than use of other criminal conduct to remove any element of leniency, and on the basis that Baines itself was dealing with other charged conduct of which the offender was convicted. However, these submissions take no account of Fagan J’s reliance upon Einfeld, which involved similar but uncharged conduct. Nor is it clear in principle why a conviction could increase the seriousness of another offence, whereas uncharged conduct could not.

Application of principles

1. [56]

   It is broadly correct to say that, in the course of oral submissions, counsel objected to the thrust of the reasoning from [98]-[119] in the reasons of the trial judge. However, issue was also taken with specific passages. At [102], the sentencing judge stated:

2. [57]

   Senior counsel for the applicant challenged that finding: [49]

3. [58]

   The applicant objected that this purpose had no relevance to the sentencing exercise. However, the prior acts clearly allowed the sentencing judge to be satisfied beyond reasonable doubt that the mental element involved an intention to kill Joseph when she inflicted the fatal injuries. [50]

4. [59]

   It may be accepted that the sentence imposed for the murder was higher than it would have been absent a history of several weeks of violent, not to say brutal, treatment of Joseph prior to his death. In finding that Joseph was mentally and physically weakened by the abuse, the judge upheld a causal link between such treatment and the death. Accordingly, the actual violence required to cause death was lessened by the boy being in a weakened state due to the earlier violence of the offender. It defies common sense to suggest that the earlier violence could not in that circumstance be taken into account unless it was the subject of separate charges on the indictment.

5. [60]

   There was no error in the judge relying upon the earlier acts of violence in the way he did in determining the appropriate sentence. Ground 1 must be rejected.

Ground 2: principles relating to mental illness

1. [61]

   The applicant relied on the following principles relating to mental illness, as summarised by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa: [51]

2. [62]

   As Simpson J noted in Aslan v R, [52] none of the principles is stated in absolute terms. It is true, however, that the sentencing judge gave limited weight to the evidence of the applicant’s mental illness. That was, at least in part, because the significance of any mental illness was hard to assess from the available materials. Thus, the whole of the account of the personal circumstances of the applicant set out by the trial judge at [57]-[70], was derived from histories obtained by Dr Allnutt and Ms Robilliard. The applicant did not give evidence, either at her trial, or on sentence. There were, as already noted, inconsistencies in some aspects of her reporting, for example, with respect to her drug use. Further, neither Dr Allnutt nor Ms Robilliard was able to explore the treatment of Joseph in the weeks preceding his death. Indeed, any assessment of her condition during that period by the Court was rendered difficult by her persistence in the claim that Joseph suffered his fatal injuries in an accident in the park, which the judge was satisfied was a fabrication.

3. [63]

   The critical element in the assessment of her personal circumstances required an understanding of the absence of a maternal bond with Joseph. Ms Robilliard considered it significant that the applicant had never developed an appropriate maternal attachment to the infant before he was taken to live with the applicant’s mother and stepfather. On one view, that provided a plausible explanation for the differential treatment by the applicant of her other children, including the young girl whose father was AW. On the other hand, it does little to explain the hatred felt by the applicant for Joseph and the inhuman treatment administered to him.

4. [64]

   Not only did AW participate in that treatment, but the applicant’s oldest son, FN, who was living in the house and was then 22 years of age, appears to have witnessed the treatment without taking any steps to protect his stepbrother.

5. [65]

   It may be that these circumstances, at least so far as the applicant was concerned, were in part a product of the consumption of alcohol and cannabis, possibly with prescription drugs. However, the voluntary consumption of such lawful and unlawful drugs does not generally mitigate the moral culpability of the offending. There was no discussion in the sentencing judgment as to whether her drug use was itself a function of her depressive illness, there being no support for such a connection in Ms Robilliard’s report (the applicant having denied extensive drug abuse to Dr Allnutt).

6. [66]

   The added element is the diagnosis by Dr Allnutt of a persistent or recurrent depressive disorder. There was no challenge to that diagnosis and it was clearly accepted by the sentencing judge. However, in the discussion of other sentencing factors, at [121]-[122] (rejecting any element of remorse or contrition) and [128] (likelihood that offender will serve part or all of the sentence in protective custody) there is no discussion of mental illness. On the other hand, the express finding that general deterrence remained “a very significant factor”, relying particularly on “a pattern of mistreatment of the child victim over a period of time which culminated in the murder of the child”, [53] suggests that little or no weight was given to the evidence of a depressive disorder.

7. [67]

   In his conclusions, the judge commenced by rejecting the need for a life sentence: at [132]-[137]. In undertaking that exercise, he stated:

8. [68]

   The critical passage dealing with mental illness is to be found in the reasoning at [138], set out at [27] above. The matters which troubled the sentencing judge in placing reliance upon this material were (i) the voluntary resumption of motherhood, and (ii) the continued drug and alcohol abuse whilst Joseph was in her care. The judge had also noted in his earlier discussion of evidence for depression that no report was obtained from Dr John Roberts, the treating psychiatrist over the years 2011-2013, and that “there is no contemporaneous medical evidence concerning LN’s state of mind and her capacity to renew her maternal relationship with Joseph in June 2014.” However, there was the evidence that she had sought help with depression following the birth of Mary, in about March 2013, and of a suicide attempt in about November 2013 (for which she was hospitalised).

9. [69]

   Two aspects of this reasoning are troubling. First, although there were numerous issues to be covered, the absence of an express indication as to how the sentencing judge viewed the evidence of mental illness leaves a doubt as to whether it was accorded appropriate weight. Secondly, both Dr Allnutt and Ms Robilliard recorded a history of treatment for depression, both by Dr Roberts and other health professionals. Although both apparently had copies of Dr Roberts’ notes, the histories recorded are hard to reconcile. In particular, there is confusion as to years. However, three events appear to be uncontroversial.

10. [70]

    First, Joseph’s father died in September 2010, some seven months before his birth in April 2011. The first treatment for depression by a psychiatrist (Dr Roberts) appears to have occurred in March 2011 as a result of depression following the death of Joseph’s father. (Ms Robilliard records the first consultation as being in March 2012, but that appears to be mistaken.) It follows that the applicant was being treated for depression, and was taking an antidepressant, Lyrica, prescribed by Dr Roberts at or about the time of Joseph’s birth. There was evidence that she continued to take Lyrica, at least intermittently, throughout 2011 and possibly for longer.

11. [71]

    Secondly, there is no doubt that her child with AW was born in March 2013. Dr Allnutt records a history of depression following her daughter’s birth in 2013. (Ms Robilliard does not.) Dr Allnutt did not have Dr Roberts’ notes including symptoms of psychosis on 19 June 2013, [54] There is, however, evidence of a suicide attempt in November 2013 apparently supported by records from Liverpool Hospital.

12. [72]

    Thirdly, after the move to Oberon in December 2013, she appears to have had contact with Bathurst Mental Health Service. She told Dr Allnutt that she was continuing to have suicidal thoughts. Although the date is not clear, it seems that Dr Roberts’ earlier notes included a statement that “she wanted to kill self/baby”, and later that she had desire to “slit people’s throats if they piss me off.” He apparently prescribed an antipsychotic agent as well as an antidepressant.

13. [73]

    While it may have been open to the sentencing judge to reject aspects of the quite confused evidence recounted above, he did not do this. To the extent that it was recounted, it appears to have been accepted. In these circumstances reliance on her depressive condition was apt to mitigate her moral culpability, and to render her case an inappropriate vehicle for general deterrence. The judge took into account the likelihood that she would serve part of the sentence at least on protection, not because of mental illness, but because of the nature of the crime. There was no direct evidence as to the likely effect on her incarceration resulting from mental illness.

14. [74]

    One further basis of challenge under this ground should be noted. It was contended for the applicant that her history as a victim of abuse, both as child, and during her many years of marriage should have been accepted as a mitigating factor. There are difficulties with this submission. First, she seems to have given differing accounts of her childhood up to her marriage at age 17. On one account her mother was domineering, and her marriage was not entered of her own free will. There was on another account a claim of sexual abuse during her school years, but it was vague and the timing quite uncertain. That she was dominated and abused by her husband may be accepted; it would have contributed to her feelings of worthlessness and her depressive illness. However, once those consequences are taken into account, as they should be, it is unclear how the earlier abuse contributed to her treatment of Joseph. She described Joseph’s father as unfaithful, but not violent. She seems to have treated her other children well, although at least three of the four chose to live nearer their father in Western Australia.

15. [75]

    In the circumstances set out above, the lack of reference in the reasoning of the sentencing judge to the effects on the sentence of the unchallenged aspects of mental illness leads to the inference that, possibly through inadvertence, they were disregarded. Ground 2 should be upheld.

Ground 3: manifestly excessive sentence

1. [76]

   Given the finding of error with respect to ground 2, it is neither necessary nor appropriate to determine whether, despite the specific error, the sentence imposed was manifestly excessive: the Court must re-exercise the sentencing power in any event.

Resentencing

1. [77]

   There are various findings made by the trial judge which should be accepted for the purposes of resentencing the offender. First, it should be accepted that this was not a case attracting a sentence of life imprisonment in accordance with the statutory criteria set out in s 61(1) of the Sentencing Procedure Act. That conclusion is reinforced by the need to take her mental illness into account as a mitigating factor.

2. [78]

   Secondly, the challenge raised in ground 1 having been rejected, the Court should accept the judge’s findings that the objective seriousness of the offending “lay very significantly above the mid-range”, [55] and that the final assault resulting in death was accompanied by an intention to kill Joseph. [56]

3. [79]

   Without further recounting the findings of the trial judge with respect to the conduct leading up to Joseph’s death, which was relevant both in relation to an assessment of both the applicant’s intention and the vulnerability of the boy at the time of the final assault, those findings should be accepted and taken into account in resentencing.

4. [80]

   Thirdly, the judge’s finding that no element of remorse or contrition was demonstrated should also be accepted. [57] Fourthly, as the judge noted, the physical abuse and final death of Joseph resulted from a gross breach of trust on the part of the applicant as his mother and carer. [58]

5. [81]

   Two other factors should be noted which mitigate the appropriate sentence to some extent. First, the judge noted that there was co-operation during the trial in reducing the number of witnesses and limiting the facts in issue; he took that matter into account in favour of the applicant on sentence. [59] Further, the judge took account of the likelihood of the applicant facing some or all of her sentence in protective custody, which would be likely to involve more restrictive conditions than those imposed on the general prison population. [60] These findings should also be accepted.

6. [82]

   This Court must consider additional matters relating to the subjective circumstances of the applicant and in particular to weight to be given to her mental condition.

7. [83]

   Although it was not established that her depressive condition contributed directly to the death of Joseph, it clearly affected the level of judgment and control which would be expected of her as a parent. The sentencing judge was critical of the applicant for removing Joseph from the care he was receiving from her mother’s family in June 2014. He was also, at least implicitly, critical of her for not seeking further help when it became clear, or should have become clear, to her that she was not coping with Joseph in the light of her feelings towards him. Such lack of control and judgment may well have been the immediate product of her use of alcohol, cannabis and prescription medication, but was likely to have been, at least in part, a consequence of her depressive illness. She appears to have attributed her abuse of prescription medications to her feelings of worthlessness and absence of self-esteem, as recounted to Dr Allnutt.

8. [84]

   Ultimately the question is to what extent her depressive illness should mitigate an otherwise appropriate sentence. These are not matters of precise evaluation, nor is it possible to say that either specific or general deterrence become irrelevant. Clearly they do not; and in the present case, the extent to which those considerations are diminished should be limited. While she may not have bonded with her child as a baby, her accounts to Dr Roberts suggest she had some understanding that her emotional state was not conducive to re-establishing that relationship. Ms Robilliard’s evidence provided a professional basis for accepting that that was so. The depressive condition may have limited her understanding of her own responses and her own options, but there were many respects in which she carried on a normal life while caring for Joseph, including taking him for dental treatment and medical treatment on occasions.

9. [85]

   Nevertheless, the evidence set out above as to the unchallenged history of her psychological and psychiatric difficulties should be accepted and should reduce her moral culpability to some degree.

10. [86]

    In circumstances where a lengthy sentence will be imposed in any event, there is no need to have regard to the element of community protection. The applicant has no prior criminal record and there is no evidence of mistreatment of her other children, or of any other children. The question is not so much one of likely rehabilitation, although that may occur over time despite the unpromising start, but rather that there is unlikely to be a future occasion for the repetition of the criminality revealed in relation to Joseph.

11. [87]

    This Court was pressed with the argument in support of the ground of manifest excess that this was the longest sentence of its kind imposed for a single murder by a parent of a child, in circumstances where a life sentence was not deemed appropriate. Two particular cases were helpful in relation to determining an appropriate range.

12. [88]

    In SW v R, [61] consideration was given to comparable cases which had been determined by 2013. In considering historical cases, it is necessary to bear in mind that the sentencing regime has varied over the years. Prior to 1 January 2008 the standard non-parole period for the murder of a child under 18 years of age was 20 years. The change introduced from 1 January 2008 increased the standard non-parole period to 25 years, and applied to the determination of a sentence for an offence “whenever committed”, unless the offender had been convicted, or the court had accepted a plea of guilty, before that date. [62] The increase in the standard non-parole period was a statutory indication that the offence was thereafter to be seen as warranting a higher sentence than had previously been the case; some increase in sentences thereafter would therefore have been expected and appropriate.

13. [89]

    SW involved a seven year old girl who had, in May 2006, been described as a “healthy, chubby looking girl”. [63] She died on 3 November 2007. The forensic pathologist who visited her home on the day of her death described her as looking “wasted and dehydrated”, and “in an extreme degree of emaciation”. He described her clothing and bedding as heavily stained with vomit, faecal matter and bodily fluids that appeared to have accumulated over a period of time. She weighed nine kilograms at the time of her death. [64] The trial judge had sentenced SW to life imprisonment; in this Court, by a majority, that sentence was quashed and in its place a sentence of 40 years imprisonment with a non-parole period of 30 years was imposed.

14. [90]

    More recently, R v JK [65] involved sentencing of a stepfather for the murder of his young stepdaughter. The child, CN, died in October 2015. The offender’s violence against CN and her sister commenced in late 2011. It escalated and in the child’s last days was appalling. It ultimately led to cardiorespiratory arrest secondary to shock. [66] It was described by the trial judge as “close to the top of the broad and diverse spectrum of conduct that can be charged as homicide.” It demonstrated, in colloquial terms, sadism. The events of the last three days of her life were found to be “not isolated but formed part of a consistent pattern of cruel and barbaric abuse of a helpless child.” [67]

15. [91]

    The sentence imposed involved a discount of 10% for a late plea of guilty. However, although belated, it came with evidence of “a degree of insight and contrition”, which was unusual. In deciding to impose a determinate sentence, the judge concluded:

16. [92]

    There are two potentially conflicting factors which need to be considered in imposing a sentence for murder of a young child by a parent or carer. On the one hand, as occurred in SW, JK and the present case, the sentencing judge had the unenviable benefit of persistent exposure to the detailed evidence of degrading and brutal treatment of the victim. The understanding thus acquired cannot be replicated in this Court. Nor is it to be expected that the full horror of the photographic descriptive and forensic evidence will be recounted in the sentencing judgment. That factor should make this Court reluctant to depart from the sentence imposed below, in the absence of identifiable error of principle.

17. [93]

    On the other hand, there may be a tendency for the sentencing judge who has conducted a full trial in relation to the murder to reflect in his or her sentence a deep sense of revulsion at the conduct of the offender. There may be differing views as to whether, in that circumstance, this Court should be alert to a need to mitigate a possibly excessive sentence. That may not be appropriate, if one considers that the judge is justified in giving effect to the need for retribution which would be felt by many in the community if familiar with the nature of the offending. But in some cases fairness to the offender may require a more detached assessment. The Court should probably bear both considerations in mind, while being careful not to underestimate, from lack of familiarity with all the evidence, the true extent of the abusive conduct leading to death.

18. [94]

    Because it is not necessary, nor appropriate, to determine whether the sentence in the present case, absent error, was manifestly excessive, these questions need not be addressed further. It may be accepted that the sentence in fact imposed was the highest determinate sentence imposed for a parental murder in recent times. It was not, for that reason, manifestly excessive. The exercise of resentencing should be resolved on the basis that there was evidence of mental disturbance and depressive disorder which warranted some reduction in the assessment of moral culpability and the value of general deterrence. Similarly, some degree of leniency should be allowed with respect to the elements of co-operation in the conduct of the trial.

19. [95]

    There was no submission that an otherwise appropriate non-parole period should be reduced on account of special circumstances, pursuant to s 44 of the Sentencing Procedure Act. There will, inevitably, be a lengthy period of conditional release with at least the possibility of supervision in the early years, which may be extended. [68]

20. [96]

    In all the circumstances, I would sentence the applicant to imprisonment for 38 years, to date from 15 September 2014. The sentence comprises a non-parole period of 28 years, 6 months and a balance of term of 9 years, 6 months. She will first be eligible for parole on 14 March 2043, when she will be 69 years of age.

Orders

1. [97]

   The Court should make the following orders:

   1. (1)

      Grant the applicant leave to appeal from the sentence for murder imposed on her by the Supreme Court.

   2. (2)

      Allow the appeal and quash the sentence.

   3. (3)

      Sentence LN to imprisonment for 38 years, to run from 15 September 2014, comprising a non-parole period of 28 years 6 months and a balance of term of 9 years 6 months.

   4. (4)

      LN will first be eligible for parole on 14 March 2043.

2. [98]

   R A HULME J: In relation to Ground 1, I am indebted to Basten JA and Hamill J for their survey of the relevant authorities. I agree with Basten JA that there was no error by the sentencing judge as contended for by the applicant.

3. [99]

   I also agree with Hamill J insofar as his Honour accepts that the judge's approach was correct. [69] I do, however, take issue with the particular ways in which he considers the judge fell into error. [70]

4. [100]

   It is uncontroversial that the prior conduct of the applicant and AW was "inextricably linked to the crime of murder" and was a "course of conduct". My disagreement with Hamill J lies in his attribution of error to such uncontroversial observations by the judge, or finding error without regard to context.

5. [101]

   An example of the need to have regard to context is the quotation in his Honour's judgment [71] of two sentences that appear at the beginning of a paragraph in the primary judge's sentencing remarks. [72] In my respectful view, that passage is not an erroneous statement of a matter taken into account in the assessment of the seriousness of the offence; it leads to the statement in the third sentence of that paragraph that is the matter of significance. The paragraph, and that which precedes it, should be quoted in full:

6. [102]

   A similar example is the reference to the primary judge having said that there was a "pattern of ongoing and escalating abuse of Joseph" which "reached the point where LN slammed his head whilst closing a wardrobe door shortly before the fatal attack". This appears in a later passage of the remarks on sentence (paragraph [113]). The point the primary judge was leading to, however, is at the end of that paragraph and the beginning of the next:

7. [103]

   I agree with Basten JA that Ground 1 must be rejected for the reasons his Honour has provided at [54]-[60].

8. [104]

   In relation to Ground 2, it is clear that there were a number of difficulties with the evidence concerning the mental condition of the applicant at the time of the offending. There were inconsistencies between the accounts provided by the applicant to Dr Allnutt and Ms Robilliard. A particular difficulty was that the applicant told Ms Robilliard of her abuse of drugs and alcohol in the relevant period while she conveyed the opposite to Dr Allnutt. Both the experts were confronted with the absence of a truthful account by the applicant of her conduct towards the deceased child in relation to the fatal assault and the abusive conduct in the weeks that preceded it.

9. [105]

   While there were difficulties with the evidence, it remained the fact that the applicant's case on sentence was that her mental condition at the time of the offending should be accepted in the terms described by the experts. Reference was made in submissions to Dr Allnutt having said that the applicant, at the relevant time, was experiencing symptoms consistent with a "disease of the mind" and an "abnormality of the mind due to an underlying condition", the condition being "major depressive disorder and possible mild psychotic symptoms". Reference was also made to the assessment of Ms Robilliard to which Basten JA has referred and does not require repeating.

10. [106]

    The learned judge summarised some of the submissions made by counsel for each offender and in that context referred to LN’s senior counsel having "pointed to evidence of her background and mental health which he said operated in her favour" on the issue of moral culpability. His Honour referred to having "taken into account" and to having "considered" the applicant's moral culpability, along with other factors, both generally in relation to the assessment of sentence and particularly in relation to whether a life sentence should be imposed. [73] Regrettably, his Honour did not state what finding he made as to the impact, if any, of the applicant's mental condition upon her moral culpability.

11. [107]

    It may be that a complete rejection of the significance of the evidence of the applicant's mental condition was indicated by the statement that the applicant's "troubled background and mental health issues do not provide real assistance" because her resumed motherhood of Joseph was marked by further drug and alcohol abuse. Perhaps his Honour had in mind the applicant's statement to Ms Robilliard, "I wasn't there when he [Joseph] needed me, I was drug fucked". However, it is unclear that complete rejection is what his Honour intended having regard to the fact that earlier in the sentencing remarks he referred in considerable detail to the evidence concerning the applicant's mental condition with no apparent criticism.

12. [108]

    I agree that Ground 2 should be upheld.

13. [109]

    There is an issue discussed in the judgment of Basten JA [74] that, as his Honour notes, is not relevant to the resentencing task. For that reason, I would prefer to await a case in which the issue arises before expressing a view. Aside from that, I agree with the other members of the Court with what is proposed in terms of resentencing.

14. [110]

    Accordingly, I agree with the orders proposed by Basten JA.

15. [111]

    HAMILL J: I have had the advantage of reading the judgment of Basten JA in draft form. I am grateful for, and need not repeat, his Honour’s careful and comprehensive analysis of the facts of the case, the history of the litigation and the submissions made by the parties on the hearing of the appeal. I agree that ground 2 (relating to evidence of the applicant’s mental state) should be upheld for the reasons given by the presiding Judge. I also agree that it is unnecessary to determine ground 3 (manifest excess) in circumstances where the sentencing discretion must be exercised afresh.

16. [112]

    I have concluded that ground 1 should also be upheld. These are my reasons for that conclusion.

A review of the authorities

1. [113]

   It is a fundamental principle of the criminal law that an offender is not to be punished for offences for which they do not stand to be sentenced or with which they are not charged. That is not to say that evidence of other offences, if proved to the requisite standard, is not relevant to an assessment of the appropriate penalty.

2. [114]

   Usually, evidence of uncharged offences is relevant to the denial of leniency that might otherwise be afforded to the person facing sentence. The use of the evidence in this way is not controversial. Such evidence is used in the same way that an offender’s prior criminal history might be used to deny leniency that might otherwise be appropriate. [75] Similarly, the uncharged offences may establish that the offence for which the offender is to be sentenced is not an isolated incident or that the offender is not a person of good character. Inevitably, an offender with a criminal history, or against whom other criminal offences are established, will receive a higher sentence than one who has no criminal past. [76] Used in this way, the evidence is not being used to “aggravate” the seriousness of the offence for which the offender is being sentenced or to inform the sentencing Court’s assessment of the “objective criminality” of that offence. The sentence must be proportionate to the gravity of the charged offence. [77]

3. [115]

   As the applicant submitted, the use of the evidence in this way is in conformity with the approach taken to pleas of guilty explained by the High Court in Siganto v The Queen. [78] The offender is not being punished for the uncharged offences but, rather, is being denied the leniency that would otherwise be extended if they had not committed those offences. While this difference has been described as approaching “the metaphysical” [79] and a matter of “semantics”, [80] there is no doubting the currency of the distinction between punishing an offender (for pleading not guilty or for their criminal record or guilt of uncharged offences) and affording leniency to an offender (who pleads guilty or who has prior good character). [81]

4. [116]

   Another uncontroversial way in which such evidence might be used adversely to an offender’s interests is in making findings relevant to the protection of the community; that is, in assessing the offender’s future dangerousness. [82]

5. [117]

   Using the uncharged offences in the ways referred to in the preceding paragraphs does not relate to an assessment of the objective seriousness of the charged offence. The evidence is not being used to aggravate the criminality or to impose additional punishment based on the seriousness of the instant offence. The appropriateness of using evidence of uncharged acts to deny leniency is well established and not in doubt. [83]

6. [118]

   In the present case, the sentencing Judge was entitled to take into account the fact that Joseph’s murder was not an isolated incident of violence and to deny the applicant the leniency that might have been extended to her if the offence was an uncharacteristic aberration, or because she had no prior convictions.

7. [119]

   The controversy arises when, as in the applicant’s case, a sentencing Judge is invited to make findings concerning the objective seriousness of the offence by reference to other, uncharged, criminal acts. That is, put another way, where it is submitted that greater punishment should be imposed because the seriousness of the charged offence is aggravated by reason of the commission of criminal offences with which the offender has not been charged or convicted. As the analysis of the authorities undertaken by Basten JA demonstrates, the authorities in the area are at times difficult to reconcile.

8. [120]

   Even so, the preponderance of authority and the fundamental principles of fairness and proportionality support the proposition that uncharged offences ought not generally be used to inform an assessment of the seriousness of the charged offence. However, as is often the case with great statements of general principle, there are exceptions and nuances that arise from the myriad of factual circumstances thrown up by individual cases. In any event, the starting point is that no person is to be punished for offences of which they have not been convicted.

9. [121]

   In The Queen v De Simoni, [84] Gibbs CJ (with whom Mason and Murphy JJ agreed) said at 389:

10. [122]

    In De Simoni it was held that a sentencing court could not take into account an aggravating circumstance of a robbery offence (the wounding of the victim) which, if charged, would have exposed the offender to a greater maximum penalty. However, the principles endorsed by the majority are also relevant to a case where other offences are established on the evidence but not subject to a specific charge. This is because, had those offences been charged, and admitted or proved, the offender would be exposed to further – and therefore greater – penalty. This is not to “read the principle … beyond its immediate context” or to extrapolate the principle “beyond that which is necessary to give effect to its purpose.” [85] Rather, it is to give full effect to the “more fundamental and important principle” of which Gibbs CJ wrote in De Simoni.

11. [123]

    Before leaving De Simoni, it is worth observing that Gibbs CJ acknowledged, at least implicitly, that there is an element of artificiality in the approach required to give effect to the principle. [86] Brennan J dissented on the issue stating that such artificiality placed “at risk” the “administration of criminal justice”. [87]

12. [124]

    In Abbas & Ors v R, [88] Basten JA said:

13. [125]

    The specific statutory qualification the Court was considering in Abbas & Ors was the procedure by which offences placed on a Form 1 might be taken into account in sentencing. [90] The correctness of Basten JA’s statement that the application of the fundamental principle may be “contestable” in “particular circumstances” is demonstrated by the analysis which follows and by the circumstances of the present case.

14. [126]

    The issue has been considered in the context of what have become known as “representative charges”. This arises, most often in the case of child sexual abuse, when there is evidence before the Court of a greater number of offences than those for which the offender has been convicted. In H [91] and Holyoak, [92] this Court held that those offences which were not charged could only be taken into account to place the charged offences in context and to rebut any suggestion that the charged offences were isolated or a “spur of the moment” aberration. [93] In other words, the evidence of those uncharged offences could only be used to deny the offender leniency and could not justify the imposition of any additional penalty beyond that which was proportionate to the gravity of the charged offences. [94] In Holyoak, Allen J said at 511:

15. [127]

    The matter of representative charges was thereafter considered on many occasions and the approach taken in H and Holyoak was adopted or followed. [95] In JCW, [96] Spigelman CJ undertook an extensive review of the authorities and concluded:

16. [128]

    Basten JA has pointed out in various judgments that cases following JCW may have failed to recognise that the Chief Justice left open the situation of cases where the uncharged acts were clearly identified and admitted by the offender. [97] Generally, New South Wales cases since JCW have held that uncharged offences in cases of representative counts can only be taken into account to demonstrate that the offences are not isolated and to deny leniency. [98]

17. [129]

    In Giles v Director of Public Prosecutions (NSW), [99] Basten JA described the “problems generated by representative counts” as “intractable”. [100] His Honour explained that this intractability arose from the tension between the principle “that no one should be punished for an offence without the conduct being proved beyond reasonable doubt, or admitted” and the practical desirability that the prosecution not overload the indictment. That pragmatic consideration was raised by Spigelman CJ in JCW. [101] Basten JA identified the real issue in Giles to be “whether it is appropriate to take a course of conduct into account, to the extent it has been admitted, in order to place the individual offences in a higher range of objective seriousness than would otherwise be the case.” [102] His Honour cited R v CJK, [103] where the Victorian Court of Appeal held that JCW was inconsistent with the law of Victoria, that “representative counts may be considered in their full context”, and that “detailed particularisation is not required”. [104] Basten JA concluded that the “surrounding circumstances are themselves relevant to the objective seriousness of the offence.” [105] His Honour said:

18. [130]

    R S Hulme J disagreed, stating: [106]

19. [131]

    Johnson J, while finding the presiding Judge’s reasons to be “persuasive”, did “not join with Basten JA’s analysis concerning the approach to sentencing for representative counts.” [107] Johnson J felt the issue should await determination when the Court had “the assistance of submissions from the parties”.

20. [132]

    I am not aware of any case decided since Giles which has accepted unambiguously the approach to representative charges described by Basten JA. In AK v R, [108] Johnson J, with the agreement of Beazley P and Harrison J, said:

21. [133]

    In the course of his judgment in Giles, Basten JA raised the question of whether s 21A(2)(m) of the Crimes (Sentencing Procedure) Act 1999 (NSW) may have impacted on the reasoning in JCW. [109] Section 21A(2)(m) provides that it is an aggravating factor where “the offence involved multiple victims or a series of criminal acts”. The reference to “the offence” is a reference to the offence for which the offender is to be sentenced. It applies when the offence is constituted by a series of criminal acts; not when an offender has committed a series of criminal offences. [110] The provision does not encompass other uncharged offences. [111] This section has no application in the circumstances of the present case and the presiding Judge does not suggest that it does.

22. [134]

    In Giles, Basten JA also referred to the fact that Spigelman CJ in JCW did not conclusively determine the issue of how, if at all, uncharged offences that were clearly identified and admitted could be taken into account. His Honour was correct in that observation, as the passages at [66] and [68] of JCW show. [112] However, the cases decided before and since JCW have almost uniformly approached the issue on the basis that the offender cannot be punished for the uncharged offences, and that their relevance to sentence is to deny leniency and, in some cases, to inform questions such as future dangerousness.

23. [135]

    The cases on representative counts provide support for the proposition that uncharged offences cannot be used to inform an assessment of the seriousness of the charged offence, to aggravate that offence, or result in additional (disproportionate) punishment by reference to the gravity of the offending. However, that proposition is not universally true as cases outside the area of representative counts in sexual assault cases demonstrate.

24. [136]

    In Einfeld v R, the offender was sentenced for one count of perjury and one count of perverting the course of justice. The evidence adduced on sentence also disclosed that the applicant provided a number of false statements leading up to the sworn statement that constituted the offence of perjury. The sentencing Judge held that the earlier false statements were relevant to an assessment of the gravity of the perjury charge. The Court of Criminal Appeal (Basten JA, R S Hulme and Latham JJ agreeing) rejected an argument that the offender was punished for uncharged criminality. The other false statements were relevant to an assessment of the objective gravity of the perjury count because those statements “demonstrated that it was not a spontaneous response given in the witness box, but a planned response to an expected question”. [113] The earlier conduct showed that the perjury offence was “carefully planned.” It was in this context that Basten JA said: [114]

25. [137]

    This passage from Einfeld was relied on in Lago v R, [115] where it was held that there was “no breach of the De Simoni principle” when a sentencing Judge took into account earlier drug dealing to support a finding that a supply offence was not an isolated incident and to assess the offender’s role and position in the hierarchy of the drug syndicate. Gleeson JA (with whom Button and Fagan JJ agreed) set out the way in which the evidence was (and was not) used:

26. [138]

    A similar approach was taken in another drug case: see Mezher v R. [116]

27. [139]

    Baines v R [117] was referred to by both parties on appeal. However, Baines was not a case involving uncharged offences. Rather, the Judge took into account that the “course of conduct” involved 13 charged offences of indecent assault, involving 7 different victims and extending over 4 years. At [5], Basten JA said:

28. [140]

    Rothman J wrote separately but agreed with Basten JA’s reasons. Fagan J (dissenting on the question of re-sentence) referred at [127] to the passage in Einfeld at [146] before saying (citations omitted):

29. [141]

    This brings me to consider a number of murder cases where, like the applicant’s case, the homicide was the culmination of a course of conduct involving a pattern of child abuse over a period leading up to the date of the murder.

30. [142]

    R v Hill [118] is a sentencing judgment of Bellew J involving the murder of a child a little younger than 3 years. The child died from horrific injuries resulting from massive blunt force trauma inflicted by the offender who was in a domestic relationship with the child’s mother. The statement of facts detailed a number of earlier incidents in which the child was assaulted by the offender from 12 months old until the time of his death. Ultimately, the prosecutor relied on four such incidents. These were not taken into account to increase the objective gravity of the offending. Bellew J said at [12]:

31. [143]

    Ross v R [119] was an application for leave to appeal against a sentence imposed by Rothman J in relation to the murder of a child aged a little less than three years. The child’s death resulted from a brutal assault detailed in the judgment of the sentencing Judge, and set out in the course of the appeal judgment. [120] At the trial, the prosecution led a tendency case described by Hall J as “compelling”. That case included a number of incidents of earlier assaults and a form of training which left the child terrified and responding in a Pavlovian way to the applicant’s commands and suggestions. [121] The sentencing Judge said of this evidence: [122]

32. [144]

    However, Rothman J went on to say that similar evidence, said to be led as “context” evidence, “is probative of the state of mind of the offender when punishing [the child]”.

33. [145]

    There was no ground of appeal concerning the approach taken by the trial Judge. It was submitted that his Honour erred in assessing the offence as “well above the mid-range” and “approaching the worst case”, and that the sentence was manifestly excessive. In dealing with those grounds, Hall J (with whom Hoeben CJ at CL and Bellew J agreed) said “the context of the offending was directly relevant to the assessment of the objective seriousness of the offence of murder.” His Honour went on: [123]

34. [146]

    Ross is an authority of limited value because the issue with which the Court is now concerned does not appear to have been subject of any detailed argument if it was addressed at all. This is not surprising given the approach taken by the sentencing Judge, namely that evidence of the earlier incidents “cannot be [and was not] taken into account in assessing the objective seriousness of the offence.” [124] However, the case can be seen as authority for the proposition that the earlier uncharged incidents can be taken into account in establishing the state of mind of the offender at the time of the murder.

35. [147]

    R v Maybir (No 8) [125] involved a charge of murder of a child as well as a history of sexual and other abuse. However, the issues raised on the present appeal were not addressed because much of the earlier abuse was subject to separate charges. The result was that an aggregate sentence was imposed to encompass the criminality in all of the offending. However, in his sentencing judgment, R A Hulme J addressed the history of abuse and its relevance as follows:

36. [148]

    Basten JA has referred at [52] to the case of R v Lock, [126] in which Latham J (as sentencing Judge) held by reference to the decisions in Baines v R and Ross v R that the commission of previous assaults “affects the assessment of the objective gravity of the offence of murder.” [127] In that case, the child was killed by blunt force trauma resulting in massive internal bleeding leading to her death. The murder occurred on 21 April 2014. The prosecution relied on a tendency case including evidence that on 10 April 2014 the offender deliberately placed the child in scalding water causing bruises to her feet and buttocks, and evidence of assaults in late March and early April 2014 resulting in bruising to the child’s arms, face and neck. While Latham J expressly said she took these matters into account in assessing the objective gravity of the offence, the judgment does not expose the basis upon which her Honour did so.

37. [149]

    In R v JK, [128] (in which I was the sentencing Judge) the offender pleaded guilty to the murder of his 12 year old stepdaughter. The precise mechanism of death was unclear but there were 50 separate injuries including blunt force trauma to the head, torso and limbs, acute injuries to the liver and bowel and evidence of vomitus in the airways. The acts causing death were committed over 2-3 days and were constituted by repeated and brutal assaults. [129] There was evidence of a history of assaults and domestic abuse traversing the previous four years and continuing until a month before the murder. [130] The abuse was directed at the deceased child, her younger sister and the child’s mother (who pleaded guilty to manslaughter by gross or criminal negligence). [131] There were no submissions on the issue presently before the Court. One of the earlier assaults was the subject of a specific charge alleging the infliction of grievous bodily harm. That offence was admitted and placed on a Form 1 to be taken into account on sentencing by increasing the weight to be afforded to personal deterrence and retribution in sentencing for the murder charge. [132] The assessment of the objective criminality referred to the repeated beatings over a “period of days” (not weeks or years). The history of violence was dealt with as follows: [133]

38. [150]

    R v Khazma [134] involved the murder of a child aged 2 years and 8 months. The child died as a result of blunt force injuries to the head and spinal cord. The acts causing death were committed over a two day period from 18 to 19 December 2016. There were two other counts of assault on the indictment and evidence of injuries inflicted in the weeks before the killing as well as a history of earlier (uncharged) assaults. In sentencing, Fullerton J said: [135]

Conclusion as to the current state of the law of New South Wales

1. [151]

   A review of these authorities, and keeping in mind the important cases decided by the High Court, leads to the conclusion that the fundamental proposition remains. That is, an offender is not to be punished for offences with which they have not been charged. Accordingly, uncharged offences are not to be taken into account as part of the assessment of the objective gravity of the offence for which an offender is to be sentenced. The seriousness of the charged offence should not be assessed by reference to the gravity of the course of conduct or pattern of offending. To do so would be to punish the offender, not only for the offence with which he or she is charged, but also for a number of uncharged offences.

2. [152]

   However, this fundamental proposition is not an absolute one. In some cases, the other uncharged offences or a course of conduct may be relevant to particular aspects of the objective criminality of the charged offence. In such cases, if admitted or proved, the uncharged offence(s) may play a role in the assessment of the gravity of the charged offence and the moral culpability of the offender. It is not possible to identify all of the circumstances in which this may occur and not useful to attempt to predict the myriad of factual circumstances that may arise. Past authorities provide some examples.

3. [153]

   The first is that evidence of other uncharged offences may be important in assessing an offender’s motive or state of mind at the time of the subject offence. It may rebut any suggestion that the offence was spontaneous or unplanned. This was the case in Einfeld where the earlier false statements established that the perjury offence was not spontaneous but rather the result of a planned deception. It was also the case in Maybir where the history of other offences (some of which were charged) demonstrated an attitude of disdain toward the victim.

4. [154]

   Another example is that earlier uncharged offences may mean the offender committed the charged offence, aware of the particular vulnerability of the victim caused by the earlier offences. The cases of Khazma and Maybir are two examples of this.

5. [155]

   The issue of the vulnerability of the victim raises complications and somewhat fine distinctions. There are three aspects of this, only two of which can properly play a part in an assessment of the objective gravity of the offence. First, the fact that the victim is vulnerable is relevant to an assessment of the objective gravity of the offence. Taking that objective vulnerability into account accords with sentencing principle. [136] Second, the offender’s knowledge that the victim is vulnerable (because they caused that vulnerability or otherwise) is relevant and can be taken into account. This is not to punish the offender for the earlier assaults that caused the vulnerability; rather, it is to use the fact that the offender committed the earlier uncharged assaults to come to a factual finding that the offender was aware of the victim’s vulnerability when they committed the offence for which they are to be sentenced. It was conceded on the hearing of this appeal that committing an assault on a person an offender knows to be vulnerable makes the offence objectively more serious. The third possible use of the victim’s vulnerability is not permissible unless the earlier offence is charged. The sentencing Judge may not increase the objective criminality by reference to the fact that the offender in fact caused the victim’s vulnerability by the commission of earlier, uncharged, offences. To do so would be to punish the offender for offences with which they are not charged.

6. [156]

   In other cases, the offender’s true role or position in a criminal enterprise may be established by evidence of other uncharged offences. This was so in the drug cases of Lago v R and Mezher v R.

7. [157]

   It should be emphasised that these examples are predicated on an assumption that the uncharged offence in question is both identified clearly and admitted by the offender or established to the requisite standard.

8. [158]

   Accepting that such cases exist, it should again be emphasised that they are exceptions to a fundamental principle of long standing that an offender is only to be punished for those offences of which he or she has been convicted. It is only in such cases that the uncharged offences may inform an assessment of the objective gravity of the proven offences and can be taken into account other than for the purpose of denying an offender leniency. In most cases evidence of uncharged offending is only relevant to deny the offender the leniency that would otherwise be afforded to them on the basis that the offence was out of character, or an isolated incident or an aberration in an otherwise blameless life.

The relevance of the evidence of the uncharged offences in the present case

1. [159]

   In the present case the evidence that the applicant admitted committing a number of other offences of assaulting the deceased child was available to be used in the following ways:

   1. (1)

      To establish that the murder was not an aberration in an otherwise blameless life or to deny leniency on the basis that LN was otherwise a person of good character. LN had no prior criminal history. The weight to be afforded to that fact was diminished by the fact that she had committed a number of earlier assaults on her 3 year old son.

   2. (2)

      To dispel any suggestion that the offence was an isolated incident.

   3. (3)

      To impact on findings as to the applicant’s motive and state of mind at the time of the murder. The evidence was led as tendency evidence in the trial specifically to establish the applicant’s state of mind at the time of the killing. She admitted that she sometimes felt like killing the child and the evidence established that she harboured great resentment towards the child who reminded her of his father, who the applicant despised. The use of the evidence in this way is permissible even though it impacts on an assessment of the seriousness of the offence.

   4. (4)

      To establish that the victim was vulnerable and that the offender knew that the victim was vulnerable because she and her co-offender caused that vulnerability by the commission of the earlier assaults. The evidence of this included not only the history of violence itself but also the attempts to cover up the injuries and the applicant’s conduct when the child was taken to various doctors and medical practitioners in the weeks leading up to his death.

2. [160]

   However, the evidence could not be used to aggravate the offence by making an assessment of the overall course of conduct including the earlier uncharged, albeit mostly admitted, offences. Nor could it be used to increase the seriousness of the offence because the applicant caused the victim’s vulnerability by committing the earlier assaults or by being a party to a joint criminal enterprise to commit those earlier assaults.

Did the sentencing Judge fall into error in the present case?

1. [161]

   The sentencing Judge was confronted with written submissions that took diametrically opposed positions. The applicant submitted that the evidence: [137]

2. [162]

   The Prosecutor submitted that the objective seriousness of the murder charge should be assessed by reference to the entire history of abuse. For example, under the heading “Objective Seriousness”, the Prosecutor referred to the “prolonged, sustained and escalating attacks” and no distinction was made between the act or acts causing death and the earlier assaults. [138] The whole history, including the earlier assaults and the murder, was referred to (in the plural) as “extremely brutal, callous and cruel”. The victim’s death was described as “terrifying, prolonged and horrific”.

3. [163]

   The parties made oral submissions on 11 August 2017 which reflected their written submissions. The Prosecutor submitted that “in weighing up the objective seriousness of the murder of which [the applicant] has been convicted, your Honour may also take into account all of the assaults of which your Honour has heard”. [139] Senior Counsel for the applicant submitted the evidence could only be used to provide “background context” and to “overwhelm any good character.” It was accepted that the “background context” went to the applicant’s “state of mind” indicating it was “not an isolated and sudden loss of control”. [140]

4. [164]

   The sentencing Judge took a more nuanced approach to the issue and identified correctly that the evidence of the earlier assaults was capable of informing an assessment of the objective criminality of the offence. The question is whether, in doing so, his Honour infringed the fundamental principle that the applicant was only to be punished for the offence of murder and not for the uncharged assaults or for the entire history of abuse.

5. [165]

   The sentencing Judge considered the issue carefully in his judgment or remarks on sentence in the “lengthy passage” referred to by Basten JA. [141] His Honour identified that the extent to which the earlier assaults could be taken into account depended on the circumstances of the case. [142] His conclusion that the matter could be taken into account in an assessment of the objective gravity of the offence was correct in the circumstances. His Honour stated specifically that the assaults were not included on the indictment, [143] and was conscious of the care that had to be taken in using the evidence to increase the gravity of the offending. His Honour noted that there was no controversy that the earlier violence occurred and referred to the extensive admissions relating to the earlier assaults. His Honour was satisfied beyond reasonable doubt that they occurred.

6. [166]

   The sentencing Judge referred to the child’s vulnerability on more than one occasion. [144] Those references, read in context, related to the child’s objective vulnerability (resulting from the earlier abuse) and, inferentially at least, to the offenders’ knowledge of that vulnerability. There was no error in approaching the matter in that way. His Honour also referred to the visits to the doctors and the attempts to cover up the child’s injuries, matters that showed that the applicant was aware of the child’s pre-existing condition and vulnerability.

7. [167]

   Similarly, the sentencing Judge was correct to conclude that the evidence was relevant to the offender’s state of mind at the time of the killing. This was relevant to an assessment of the objective seriousness of the murder charge. His Honour found that the earlier abuse established that both offenders “demonstrated an abusive and intolerant” attitude toward the child, [145] and that the applicant expressed “dislike or hatred of the young boy” as a result of the “sins of his father” for whom the applicant had developed considerable dislike. [146] This finding was immediately followed by reference to the applicant’s admission that she “had thoughts of killing Joseph” and the role that this must have played in the jury’s guilty verdict. [147]

8. [168]

   However, while these specific findings were correct and relevant to an assessment of the seriousness of the murder charge, other remarks made in this portion of the judgment suggest that the impact of the earlier assaults was more pervasive in his Honour’s assessment of the gravity of the offence and the offender’s moral culpability. Unlike Basten JA, I have concluded that his Honour fell into error by assessing the objective gravity of the murder charge by reference to the pattern of abuse of which the homicide was the final act. This conclusion is fortified by the submissions made by the Prosecutor at first instance, which encouraged the Court to sentence the applicant (and her co-offender) by reference to the entire history of abuse without distinguishing the charged act of murder from the uncharged acts establishing the earlier pattern of violence.

9. [169]

   His Honour said the offenders “engaged in a course of conduct which consisted of intentional assaults upon Joseph as part of a joint criminal enterprise to act in this way” and that this “culminated in the infliction” of the “fatal injuries”. [148] His Honour referred to the earlier assaults being “inextricably linked” to the murder offence and said the “pattern of ongoing and escalating abuse of Joseph reached the point where LN slammed his head whilst closing a wardrobe door shortly before the fatal attack”. [149] This was a reference to an event that occurred two days before the murder.

10. [170]

    His Honour also referred to the “interrelated conduct of the offenders which culminated in the murder of a three year old child” before continuing: [150]

11. [171]

    In spite of the careful approach taken by the sentencing Judge, and the correct use of the evidence in making relevant findings as to the victim’s vulnerability and the applicant’s state of mind, each of which was relevant to the seriousness of the offence, I am unable to escape the conclusion that the gravity of the murder offence was assessed by reference to the course of conduct or pattern of abuse that preceded it. Accordingly, the applicant was in effect punished for offences with which she was not charged or convicted.

12. [172]

    I would only add that it is no answer to this conclusion to say that there is an element of artificiality in approaching the case in this way. As to this, Johnson J said, “It would be artificial and not accord with the interests of justice to confine attention to the final homicidal act, with earlier assaults upon Joseph being confined to a subsidiary role as events which indicated that the final homicidal act was not isolated.” [151] The High Court’s judgment in De Simoni shows that an element of artificiality may be inevitable to ensure the proper application of sentencing principle.

13. [173]

    It was open to the prosecution to include some of the more serious offences on the indictment without “overloading” that document. Equally, the applicant could have been invited, after the verdict, to admit some of the offences and have them taken into account pursuant to ss 32 and 33 of the Crimes (Sentencing Procedure) Act. As Spigelman CJ said in JCW: [152]

Conclusion, re-sentence and orders

1. [174]

   For these reasons, I would uphold the first ground of appeal.

2. [175]

   On the question of resentence, and even though I have reached a different conclusion in relation to ground 1, I agree with the sentence proposed by Basten JA. For the purpose of the application of the standard non-parole period, I take the view that the applicant’s criminality was above the mid-range of objective seriousness when the history of child abuse is treated in the way identified in this judgment. Otherwise, I agree with Basten JA’s approach to re-sentencing. I agree that a sentence of 38 years with a non-parole period of 28 years and 6 months is an appropriate response to the individual facts and circumstances of this case. In reaching that conclusion I have considered the outcomes in cases such as those referred to at [142]-[150] of this judgment.

3. [176]

   Accordingly, I agree with the orders proposed by Basten JA.