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Court of Criminal Appeal 7 June 2013

SW v R

[2013] NSWCCA 103

Homicide
CRIMINAL LAW APPEAL CONVICTION APPEAL MURDER OF 7 YEAR OLD DAUGHTER BY MOTHER MANIFEST EXCESS LIFE IMPRISONMENT

Citation: SW v R [2013] NSWCCA 103
Court: Court of Criminal Appeal, NSW
Date: 7 June 2013
Judge(s): McClellan JA; Hall J; Davies J

Background

The appellant was convicted by jury of the murder of her seven-year-old daughter, Ebony, following a joint trial with her husband. The child had a history of developmental delay and autism and had been progressively isolated from the outside world. When emergency services attended the family home in November 2007, Ebony was found dead, severely emaciated and dehydrated. The forensic pathologist described her condition as resembling a mummy.

The appellant's husband was acquitted of murder but convicted of manslaughter. The trial judge sentenced the appellant to life imprisonment and her husband to 16 years with a 12-year non-parole period.

The appellant brought two grounds of appeal against her conviction and one against sentence. The conviction grounds concerned the trial judge's directions to the jury on alleged lies, consciousness of guilt evidence, and intoxication. The sentence ground alleged manifest excess in the imposition of a life term.

  • Whether the trial judge adequately directed the jury on how to use evidence of the appellant's alleged lies, including lies told to her husband (the "Edwards direction" requirement, drawn from Edwards v The Queen (1993) 178 CLR 193, which requires a jury to be satisfied a lie was deliberate, related to the offence, and made out of a realisation of guilt before using it as evidence of guilt)
  • Whether the trial judge erred in commenting on the absence of corroboration for the appellant's claimed state of mind during the period of the child's deteriorating health
  • Whether the trial judge adequately directed the jury on consciousness of guilt evidence
  • Whether the trial judge adequately directed the jury on the effect of intoxication from prescription drugs on the appellant's capacity to form the specific intent required for murder
  • Whether a life sentence was manifestly excessive in all the circumstances

Decision

Conviction grounds: The Court dismissed all conviction grounds. On the directions concerning alleged lies, the Court found that the trial judge's summing-up, read as a whole, sufficiently conveyed the relevant principles to the jury. The Court was not persuaded that the directions fell short of what was required or that any inadequacy gave rise to a miscarriage of justice.

On the comment about corroboration of the appellant's claimed state of mind, the Court found no error that infected the verdict. Similarly, on the consciousness of guilt directions, the Court found the summing-up adequately addressed this topic in context.

On the intoxication ground, the Court found the trial judge had directed the jury that they could not convict of murder unless they were satisfied beyond reasonable doubt that the appellant had the requisite intent, having regard to her drug use and claimed mental state. No error was established in those directions.

Sentence ground: The Court upheld the sentence appeal. It found that the case, while involving a serious and prolonged failure to protect and care for the child, did not fall within the category of worst-case murders justifying a life sentence under s 61 of the Crimes (Sentencing Procedure) Act 1999. The Court noted that community protection was not relevant, specific deterrence was of minimal significance, the appellant had no prior convictions, had not set out upon a deliberate plan to kill the child, and had significant psychological difficulties supported by psychometric testing. The Court also gave weight to psychiatric evidence that was not fully addressed in the original sentencing exercise.

Orders Made

In respect of the conviction appeal:
- Both conviction grounds dismissed

In respect of the sentence appeal:
- Leave to appeal granted
- Appeal allowed
- Life sentence quashed
- In lieu: a non-parole period of 30 years commencing 17 November 2007 and expiring 16 November 2037, with an additional term of 10 years expiring 16 November 2047

Key Takeaways

  • A life sentence under s 61 of the Crimes (Sentencing Procedure) Act 1999 is reserved for offences where the level of culpability is so extreme that the community interest can only be met by permanent incapacitation; the Court of Criminal Appeal confirmed that prolonged neglect resulting in a child's death by starvation and deprivation did not automatically satisfy that threshold.
  • Where several statutory considerations supporting a life sentence are absent or of minimal weight (here, community protection and specific deterrence), a sentencing court must weigh those absences carefully before imposing the maximum.
  • Psychological and psychiatric evidence tendered at sentence, even where partially dependent on the offender's own account, cannot simply be discounted without proper engagement; elevated scores across multiple clinical scales were treated as relevant mitigating circumstances.
  • An Edwards direction on lies does not need to follow a precise formulaic structure; the question is whether the summing-up as a whole adequately conveyed the necessary matters to the jury, including that a lie could only be used as evidence of guilt if the jury was first satisfied it was deliberate and made out of a consciousness of guilt.
  • No error was found in intoxication directions where the trial judge had made clear to the jury that the Crown bore the burden of proving the requisite intent for murder beyond reasonable doubt, having regard to the appellant's drug use and claimed mental state.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18(1), 19A(1), 24
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21(1), 61; Division 1A of Part 4 (Table, Item 1b)

Cases:
- Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193
- BW v R [2011] NSWCCA 176
- House v The King [1936] HCA 40; (1936) 55 CLR 499
- Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
- Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297
- R v De Gruchy [2000] NSWCCA 51; (2000) 110 A Crim R 271
- R v Folbigg [2003] NSWSC 53; [2003] NSWSC 859
- R v Fraser [2004] NSWSC 53; [2005] NSWCCA 77
- R v Cheatham [2001] NSWSC 580; [2002] NSWCCA 360
- Bellchambers v R [2008] NSWCCA 235
- Hopley v R [2008] NSWCCA 105
- DJF v R [2011] NSWCCA 6
- R v BW & SW (No 3) [2009] NSWSC 1043
- R v Ainsworth (1994) 76 A Crim R 127
- R v Garforth (Unreported, Court of Criminal Appeal, 31 March 1994)