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Supreme Court 21 August 2024

R v Craig

[2024] NSWSC 1059

Homicide
SENTENCE MANSLAUGHTER GUILTY PLEA DELAY 37 YEARS SINCE COMMISSION OF OFFENCE DISCIPLINARY PRACTICES OF CULT

Citation: R v Craig [2024] NSWSC 1059
Court: Supreme Court of New South Wales
Date: 21 August 2024
Judge: N Adams J

Background

In July 1987, a two-year-old girl died after her mother struck her repeatedly with a piece of irrigation pipe in an act of discipline. At the time, the mother was living with the child on a Blue Mountains property as a member of a group known as "The Family" or "The Community of Eden." The child's father had been separated from the mother and was not present. He did not learn of his daughter's death until the mother's arrest more than three decades later.

After the death, the mother burned the child's body, returned to New Zealand, changed her name, and told those who enquired that the child had been adopted. She was arrested in New Zealand in November 2021, extradited to Australia, and charged with murder.

Shortly before the murder trial was due to commence in July 2024, the accused entered a plea of not guilty to murder but guilty to manslaughter. The Crown accepted the plea in full discharge of the indictment. It was common ground that the accused had offered to plead guilty to manslaughter at the Local Court stage, and that this entitled her to a 25% sentencing discount.

  • What maximum penalty applied to manslaughter given the 37-year gap between offending (1987) and sentence (2024)?
  • Whether s 21B of the Crimes (Sentencing Procedure) Act 1999 (NSW), enacted in October 2022, required sentencing in accordance with current patterns and practices rather than those prevailing at the time of offending.
  • To what extent the accused's membership of a cult, and the degree of her indoctrination into its disciplinary practices, should mitigate her sentence.
  • How to assess objective seriousness, genuine remorse, rehabilitation prospects, and the harm caused to the child's father as harm to the community.
  • Whether special circumstances justified a departure from the standard non-parole period ratio.

Decision

Maximum penalty and applicable sentencing framework. At the time of the offending, manslaughter carried a maximum of life imprisonment. By operation of s 431A of the Crimes Act 1900 (NSW), the accused was sentenced on the basis of the current maximum of 25 years imprisonment rather than life. The court then considered s 21B of the Sentencing Act, which (having been enacted after the offending but before the sentence) requires an offender in this position to be sentenced in accordance with sentencing patterns and practices as at the date of sentence, rather than those prevailing at the time of the offence.

Objective seriousness. Adams J assessed the offending as above mid-range in objective seriousness. The court acknowledged that the Crown accepted it was open to conclude the accused would not have killed her daughter but for her membership of The Family and the belief system it imposed, particularly regarding the role of a mother in disciplining a child. However, the court found that this factor, while relevant to mitigation, did not displace the gravity of the conduct: a defenceless toddler had been beaten to death by her primary carer. The harm to the child's father, who was denied knowledge of his daughter's fate for 34 years, was taken into account as harm to the community.

Subjective factors. The court accepted that the accused displayed genuine remorse and had reasonable prospects of rehabilitation. Her physical and mental health issues were also taken into account, as was her status as a SMAP (Serious and Mentally Affected Prisoner) custodial classification. The degree of indoctrination into the cult's disciplinary values was treated as a mitigating factor, though not one that eliminated personal culpability. No cognitive impairment or mental illness causative of the offending was established, and there was no evidence of prior violence toward the child.

Special circumstances. The court found special circumstances warranted a departure from the standard ratio between the non-parole period and the total sentence. The notional (pre-discount) sentence was 12 years imprisonment. After applying the 25% guilty plea discount, the total sentence was set at 9 years, with a non-parole period of 6 years.

Orders Made

  • The accused was convicted of manslaughter.
  • Sentenced to imprisonment for 9 years, commencing 16 November 2021 and expiring 15 November 2030.
  • Non-parole period of 6 years, commencing 16 November 2021 and expiring 15 November 2027.
  • Eligible for parole on 15 November 2027.
  • Advised of the existence and potential application of the Crimes (High Risk Offenders) Act 2006 (NSW), pursuant to s 25C of that Act.

Key Takeaways

  • Section 21B of the Crimes (Sentencing Procedure) Act 1999 (NSW) applies where an offender is sentenced after the provision's October 2022 commencement, even where the offending occurred decades earlier: the sentencing court applies current patterns and practices rather than those prevailing at the time of the offence.

  • Membership of a cult and the degree of indoctrination into its value system can operate as a mitigating factor in sentencing, but the Supreme Court here found it did not displace objective seriousness that was above mid-range, particularly where the victim was a very young child entirely dependent on the offender.

  • Harm to a victim's family member, in circumstances where that person was deceived about the child's fate for over 30 years, can be taken into account as harm to the community at sentence even where the family member is not a direct victim of the offence charged.

  • A 37-year delay between offending and sentence raises multiple interrelated issues: the applicable maximum penalty, the correct sentencing patterns to apply, and the weight of subjective factors such as remorse and rehabilitation that must be assessed against circumstances far removed in time from the original conduct.

  • Special circumstances were found on the facts of this case, producing a non-parole period of 6 years within a total term of 9 years, a ratio reflecting the particular custodial and personal circumstances of the offender rather than the standard statutory proportion.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) s 431A
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21B, 25D(3)(b), 30E
- Crimes (High Risk Offenders) Act 2006 (NSW) s 25C

Cases:
- Markarian v R (2005) 228 CLR 357; [2005] HCA 25
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
- Britton v R [2024] NSWCCA 138
- Bektasovski v R [2022] NSWCA 246
- Brzozowski v R [2023] NSWCCA 129
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Paterson v R [2021] NSWCCA 273
- Afful v R [2021] NSWCCA 111
- Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550
- R v Blacklidge (Court of Criminal Appeal (NSW), Gleeson CJ, 12 December 1995, unreported)
- R v Blanco [1999] NSWCCA 121; (1999) 106 A Crim R 303
- R v Bilton [2000] NSWSC 1113
- R v Byrne [2001] NSWSC 1164
- R v Hoerler [2004] NSWCCA 184; (2004) 147 A Crim R 520
- R v HA [2008] NSWSC 1368
- *R v GJL