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Supreme Court 15 August 2012

R v Rees

[2012] NSWSC 922

Homicide
SENTENCE MANSLAUGHTER CHILD VICTIM

Citation: R v Rees [2012] NSWSC 922
Court: Supreme Court of New South Wales
Date: 15 August 2012
Judge(s): Grove AJ

Background

The offender, a woman born in 1985, was charged with the murder of her 17-month-old daughter, A, who died on 21 July 2009. The child was placed in a bath with the taps running and left unattended behind a closed door. The offender foresaw the probability of death but did not intervene. A jury acquitted her of murder and returned a verdict of guilty of manslaughter.

The offender had been in a deeply dysfunctional relationship with the child's father, marked by verbal abuse, physical intimidation, serial infidelity and deliberate deception. Over the preceding months, she had descended into severe depression accompanied by disordered thinking. Shortly before the incident, she had researched suicide methods online and composed letters intended to be found after the deaths of both herself and her daughter.

The sentencing proceedings required the court to assess the offender's moral culpability in light of significant evidence of mental illness, a troubled personal history, and an otherwise exemplary record of care for her daughter.

  • What sentence is appropriate for manslaughter where the offender suffered a substantial impairment of mental functioning at the time of the offence?
  • How should the court weigh the extreme stress and psychological harm caused by the conduct of the child's father against the gravity of the offending?
  • Whether special circumstances existed to justify varying the statutory ratio between the non-parole period and the balance of the sentence.

Decision

Grove AJ accepted the psychiatric evidence, particularly from Dr Westmore, that at the time of the offending the offender was suffering from an abnormality of mind that substantially impaired her capacity to understand, assess, and control her actions. The court found that something happened to her mental state on that day that caused her to act in stark contrast to the genuine and devoted love she had for her daughter.

The court recorded in detail the sustained psychological harm inflicted by the child's father: his physical intimidation, serial deception, constant verbal abuse including derogatory insults, threats to seek custody, and deliberate cruelty. These circumstances did not excuse the offending but were directly relevant to the state of severe depression and depersonalisation from which the offender was suffering.

Grove AJ noted that the offender had no history of abuse or neglect of the child and that all witnesses described her care as exemplary. The court found her prospects of rehabilitation to be good, and concluded that the evidence did not suggest she posed a future risk to herself or others.

On the question of sentence structure, the court accepted submissions from both prosecution and defence that special circumstances existed warranting a longer than usual period of supervision on parole. This resulted in a non-parole period shorter than one third of the total sentence, to provide for an extended period of post-release oversight.

Orders Made

  • The offender was sentenced to a total term of 5 years imprisonment for the manslaughter of A.
  • Non-parole period of 3 years and 2 months, commencing 10 August 2009 and expiring 9 October 2012.
  • Balance of term of 1 year and 10 months, commencing 10 October 2012.
  • Earliest date of eligibility for parole specified as 9 October 2012.
  • Special circumstances found, varying the statutory ratio between the non-parole period and balance term.

Key Takeaways

  • Where an offender suffers from a substantial impairment of mind at the time of a manslaughter, that impairment is a central mitigating factor in fixing the appropriate sentence, even where the offending involves the death of a child.
  • A history of sustained psychological abuse, depression, and disordered thinking by a primary carer can be directly relevant to both moral culpability and the structure of a sentence, without excusing the conduct.
  • The Supreme Court treated the offender's pre-offence record of exemplary care for her child as a significant mitigating consideration, distinguishing her case from manslaughter cases involving deliberate violence or neglect.
  • Special circumstances justifying a departure from the standard non-parole to balance-of-sentence ratio can be established where an extended period of post-release supervision is genuinely warranted by the offender's circumstances and rehabilitation needs.
  • In assessing comparable sentences, Grove AJ noted that cases involving substantially impaired offenders with no history of neglect or abuse occupied a distinct sentencing category from those involving deliberate acts of physical violence against children.

Legislation and Cases Referenced

Legislation: Not stated in the judgment.

Cases: Not individually named in the judgment. Grove AJ referred generally to a survey of comparable manslaughter cases involving child victims, including cases of infanticide, substantial impairment, and unlawful and dangerous acts such as shaking or striking a child.