R v DBY[2022] QCA 20

SUPREME COURT OF QUEENSLAND

1. [1]
   McMURDO JA:  I agree with Mazza AJA.
2. [2]
   BOND JA:  I have had the advantage of reading in draft the reasons of Mazza AJA.  For the reasons expressed by his Honour I joined in the Court’s decision to refuse the application to adjourn.  In relation to the disposition of the appeal against conviction and the application for leave to appeal sentence, I agree with his Honour’s reasons and with the orders proposed by his Honour.
3. [3]
   MAZZA AJA:  On 2 August 2019, the applicant was convicted on her plea of guilty of one count of attempted murder of her young daughter.  Upon entering this plea, the Crown declined to proceed with a second count of attempted murder.  On 8 October 2019, she was sentenced by Brown J to eight years' imprisonment.  Her Honour declared that 1,134 days of pre‑sentence custody be imprisonment already served and that the applicant be eligible for parole on 2 March 2020.  The applicant, who was legally represented at first instance, but is now self‑represented with the assistance of a McKenzie friend, appeals her conviction and seeks leave to appeal her sentence.  She requires an extension of time to do so.  Her appeal against sentence was filed more than a year out of time.  Her appeal against conviction was filed about 18 months out of time.  Whether extensions of time are granted will depend upon the merit of her appeals.
4. [4]
   The applicant and the respondent each filed applications for leave to adduce additional evidence.  The applicant's application, filed 16 April 2021, seeks leave to adduce evidence in support of both appeals.  The evidence is contained in the applicant's affidavit, sworn on 16 April 2021, which attaches three exhibits that I will refer to later in these reasons.  The respondent's application, filed 30 April 2021 is only in respect of the appeal against sentence.  The respondent seeks to adduce a copy of the Crown's outline of submissions on sentence which were presented to the sentencing judge.  These submissions were referred to in the sentencing proceedings.  If leave is necessary, I would grant leave to the respondent to adduce this additional advice.
5. [5]
   At the outset of the hearing before this Court, the applicant sought an adjournment of the hearing for two months.  The application for an adjournment was refused.  Later in these reasons, I will explain why the Court refused the application.

The facts of the offending

6. [6]
   An agreed statement of facts was tendered to the sentencing judge.^[1]
7. [7]
   The applicant was born in December 1974 in South Africa.  She and her husband, F, married there.  In around April 2012 they moved to Australia and settled in Brisbane.  The complainant, who was at the time of the offence nine years of age, is the daughter of the applicant and F.
8. [8]
   The applicant has a long history of mental illness including attempts to take her own life.  In the period leading up to the commission of the offence, the applicant was experiencing considerable unhappiness in her marriage and a deterioration in her mental health.  She felt isolated and trapped.  F was, at the time, a fly-in/fly-out worker working in Darwin.  He came home to Brisbane one week out of four.
9. [9]
   It is clear from messages that were exchanged between the applicant and F around the time of the offences that each was unhappy with the other.  In some of these communications, the applicant said that she felt trapped by not having financial independence from F.  Although the applicant had been employed in South Africa as a police officer and as an administrator, she had not been employed in Australia.  Further, she had no extended family in this country.
10. [10]
    On 28 July 2016, in the context of the applicant's deteriorating mental health and the escalating tensions between her and F, the applicant attempted suicide.
11. [11]
    On 3 August 2016, the applicant sent a lengthy text message to F, who at this stage was in Darwin.  She apologised for what she had done and forgave him for what he had done.  At one point she said, 'I'm sorry about the last 10 years hell that I put you through I am tired and I can't see myself doing it for it you one more day.  I love you and I also love [the complainant].'
12. [12]
    The content of this text message concerned F, particularly in light of the applicant's previous attempts to take her own life.  F tried to contact the applicant.  Initially these efforts were unsuccessful, but eventually he made contact with her.  In the period between 3 and 10 August 2016, the tensions between the applicant and F increased.  On 10 August, the applicant sent a message to F stating, 'I am going to either the jail or the madhouse.  I warned you and you did not listen.'
13. [13]
    On an unknown date after 15 August 2016, but prior to 25 August 2016 (the exact date is uncertain due to the different recollections of the applicant and the complainant), the applicant decided to take her own life.  In order to do so she purchased a gas bottle.  Subsequently, she decided that she would kill the complainant at the same time as she killed herself.  At around this time, the applicant cut off communications with a friend of F's with whom she had been in contact.  On 15 August 2016, she told this person that she was sorry and, 'I am just having a hard time coping and just can't face anyone'.
14. [14]
    On the night of the offence, the applicant gave the complainant a milkshake in which she put some anti-anxiety medication in order to reduce her daughter's fear and to prevent her suffering.  The applicant then pretended to the complainant that they would have fun together by camping out in the bathroom sleeping in their swags.  After the complainant had gone to sleep, the applicant placed the complainant's pet bird in the bathroom, brought in two gas bottles, closed the doors and windows and opened the gas bottles.  She then laid down beside her daughter.  She later told police in a voluntary interview that she wanted to kill herself and the complainant.
15. [15]
    The complainant woke up when it was light.  She felt dizzy and could not initially speak.  Eventually, she asked the applicant why the gas bottles were open.  The applicant replied to the effect that she was trying to kill them.  After speaking with the applicant, the complainant turned the gas bottles off and left the bathroom.  The applicant told the complainant not to tell anyone or she would be taken from the applicant's care.
16. [16]
    The offence did not immediately come to light.  F came home on 24 August 2016.  On the evening of 29 August 2016, F started cooking dinner on the barbeque but ran out of gas.  This surprised F because he had recently bought a gas bottle.
17. [17]
    On 30 August 2016 F picked up the complainant from school.  F told the complainant that he was returning to Darwin the following day.  The complainant then told F about the applicant's attempt to kill her in the bathroom.  That night, F took the complainant to the police station and reported what had occurred.
18. [18]
    The complainant told the police that when she found out that F was going to Darwin she was worried that the applicant might try something again.  She said to the police, 'I don't really wanna die to be honest'.  She also said that despite what had happened her relationship with the applicant was 'strong'.  F told police that he was not going to say that the applicant was a bad mother but she needed help.
19. [19]
    The police searched the home and located a gas bottle in the garage and another attached to the barbeque.  Both gas bottles were 8.5 kilogram LPG bottles.  The police also located two green sleeping swags.  The bottles were submitted for analysis at the Queensland Health and Scientific Services.  One bottle was empty, but the other contained gas consistent with LPG.  A report from a forensic physician revealed that LPG acts as an asphyxiant, the inhalation of which may result in life-threatening hypoxia.  As LPG is heavier than air, the risk of suffocation is highest if individuals are in proximity to the ground.
20. [20]
    The applicant was arrested just before midnight on 30 August 2016.  She voluntarily took part in an interview with police.  At the commencement of the interview when the interrogating officers set out the circumstances which were alleged to have occurred the applicant replied, 'It's true'.
21. [21]
    The applicant told the police that she chose the downstairs bathroom because it was small in size.  She explained that she got the gas bottles from the house and that they were normally used for the barbeque.  She said that when she and the complainant entered the bathroom the gas bottles were already in position.  The applicant admitted to opening the gas bottles after the complainant had gone to sleep.  After admitting that she did so in order to kill herself and the complainant, she told the police that she 'just wanted it to be over for the both of us'.  The applicant said that she apologised to the complainant for what she had done and told her that she had tried to kill them because they 'couldn't live like this'.
22. [22]
    When asked by the police why she wanted to kill the complainant and herself the applicant explained, among other things, her discontent with the amount of money that F gave her.
23. [23]
    Initially, the police were unaware that the applicant had given the complainant a milkshake containing a sedative.  This aggravating fact would have been unknown but for the applicant's disclosure of it to psychiatrists who interviewed her after the commission of the offence.

The procedural history

24. [24]
    In order to deal with some aspects of the applicant's arguments in this Court, it is necessary to outline some of the procedural steps leading up to her plea of guilty and sentencing.
25. [25]
    On 31 August 2016, the applicant was charged with two counts of attempted murder.  The first count was in respect of the events I have just outlined.  The second count concerned another incident involving the complainant.  It is unnecessary to refer to the alleged circumstances of this offence.  What is clear, is that from the time she was questioned by police, up to the time that she pleaded guilty to the first count, she consistently admitted the first, but not the second, alleged offence.  As I have said, the second charge was discontinued by the Crown.
26. [26]
    On 2 March 2017, the Director of Mental Health referred both charges to the Mental Health Court.^[2]  Flanagan J dealt with the reference by applying the Mental Health Act 2000 and not the Mental Health Act 2016 (Qld), which commenced on 5 March 2017 and repealed the earlier Act.  Before this Court, the applicant contended that his Honour erred in doing so.  This contention is incorrect.  His Honour was correct to apply the earlier version of the Mental Health Act.
27. [27]
    The hearing before the Mental Health Court took place over two days: 17 November 2017 and 6 March 2018.
28. [28]
    The issue before the Mental Health Court was whether the applicant was of unsound mind when the first and second alleged offences of attempted murder were committed.  Before Flanagan J were the expert opinions of three psychiatrists, Dr Dodemaide, Dr van de Hoef and Dr Scott.  Dr Dodemaide and Dr van de Hoef considered that the applicant was suffering from a major depressive episode or illness at the time of the commission of the first alleged offence which deprived her of the capacity to know she ought not do the acts which constituted the offence.  Dr Scott, however, considered that the applicant's actions were explicable in terms of her borderline personality disorder.  Dr Scott did not accept that the applicant was suffering from a major depressive illness at the relevant time and did not support a defence of unsoundness of mind.  The opinions of Dr Dodemaide and Dr van de Hoef as to unsoundness of mind were based, at least in part, on two facts which were disputed by the Director of Public Prosecutions being:

    1. (a)
       the applicant's denial of the second act of attempting to kill her daughter; and
    2. (b)
       the level of alleged domestic violence between the applicant and F.
29. [29]
    As the proceedings before Flanagan J developed, the primary issue for him to determine concerned the application of s 269 of the Mental Health Act 2000 which, in substance, provided that the Mental Health Court must not make a decision as to unsoundness of mind if it is satisfied that a fact which is substantially material to the opinion of an expert witness is so in dispute that it would be unsafe to make the decision.
30. [30]
    It is evident from Flanagan J's reasons for decision that the applicant denied the second offence of attempting to kill her daughter and that, in relation to this second offence, there were inconsistencies between the accounts provided by the applicant and the complainant.^[3]
31. [31]
    In relation to the disputed fact concerning the level of alleged domestic violence between the applicant and F, Dr Dodemaide regarded the claims as 'genuine' although they may have been reported with a degree of bias or exaggeration.^[4]  Dr van de Hoef said that she relied on the applicant's description of domestic violence allegedly perpetrated by F on her and the complainant.^[5]  Dr Scott did not consider the applicant to be a reliable historian and thought her reporting as to the nature and extent of the alleged domestic violence to be exaggerated.^[6]
32. [32]
    The applicant was represented by counsel in the proceedings in the Mental Health Court.  Her counsel conceded that there were facts substantially in dispute for the purposes of s 269 of the Mental Health Act 2000.  Counsel for the applicant encapsulated the relevant factual dispute as whether the applicant was 'a truthful historian'.^[7]
33. [33]
    Flanagan J concluded that the disputed facts were substantially material to the opinions expressed by Drs Dodemaide and van de Hoef.^[8]  Flanagan J observed, with respect to the allegations of domestic violence, that there was evidence that the police attended at the applicant's home on 12 July 2015 and that a protection order was obtained, but much of the history of domestic violence given by the applicant was uncorroborated.^[9]
34. [34]
    Flanagan J observed that all of the reporting psychiatrists and the assisting psychiatrists were unanimously of the opinion that the applicant was fit for trial.^[10]
35. [35]
    Flanagan J made the following determination:

    1. (a)
       Pursuant to s 269 of the Mental Health Act 2000 (Qld) the court must not make a decision as to whether the defendant was of unsound mind when the first alleged offence of attempted murder was committed.
    2. (b)
       Pursuant to s 268 of the Mental Health Act 2000 (Qld)^[11] the court must not make a decision as to whether the defendant was of unsound mind when the second alleged offence of attempted murder was committed.
    3. (c)
       The defendant is fit for trial.
    4. (d)
       The proceedings against the defendant for the two alleged offences of attempted murder be continued according to law.
36. [36]
    On 2 August 2019, the applicant was arraigned before Bowskill J.  She was represented by experienced and competent counsel instructed by Legal Aid Queensland, Ms Holliday (as Holliday QC DCJ then was).  Count 1 on the indictment was amended in respect of the date on which the alleged offence occurred.  She was arraigned on count 1 as amended and entered an unequivocal plea of guilty.  The Crown prosecutor, Ms Wooldridge, informed the court that the Crown would not proceed further on count 2.  An endorsement to this effect was written on the indictment and her Honour discharged the applicant in relation to count 2.
37. [37]
    The applicant was not sentenced immediately.  It was thought that the proceedings would require a contested sentencing hearing, which would necessitate the calling of expert psychiatric evidence.^[12]  As it turned out, when the matter came on before Brown J on 8 October 2019, her Honour was advised that there were no factual matters in dispute that would require evidence from the psychiatrists.^[13]

The appeal against conviction

38. [38]
    The appeal against conviction relies on one ground expressed in the notice of appeal as:

'Where there is inconsistent evidence from the child, Evidence Act (Qld) 1977 section 9A to section 9D.  Mental Health Court, 17 November 2017 and 6 March 2018.'

39. [39]
    It is not easy to understand the ground of appeal even upon a consideration of the written and oral submissions made by the applicant.  The complainant did not give evidence in any proceeding.  Further, the ground is focused on the decision of the Mental Health Court and not on any error or miscarriage of justice which occurred in the Supreme Court.  It cannot succeed and must be rejected.
40. [40]
    In any event, any appeal against conviction must overcome the large obstacle that the applicant's conviction followed her plea of guilty to count 1.
41. [41]
    The relevant principles to be applied, to an appeal against conviction following a plea of guilty are well settled and were stated by Fraser JA (Cullinane and Peter Lyons JJ agreeing) in R v Dobie [2011] 1 Qd R 367  para 10 as follows:

'In Meissner v The Queen,^[14] Brennan, Toohey and McHugh JJ said that there is no miscarriage of justice if a court acts on a plea of guilty entered in open court by a person who is of full age and apparently of sound mind and understanding where the plea is entered in the exercise of a free choice in the interests of the person entering the plea, even if that person is not in truth guilty of the offence. It is also established that an application subsequently to withdraw a plea of guilty should be approached with considerable caution. Furthermore, a plea of guilty is an admission of all of the elements of the offence and that all available defences have been negatived. Nevertheless, it may be open to the Court to find a miscarriage of justice which permits the withdrawal of a plea of guilty and the setting aside of a conviction entered on that plea if, on the facts put forward as constituting the facts of the offence with reference to which the person was charged and sentenced, the person could not in law have been convicted of that offence.'

42. [42]
    In Borsa v The Queen [2003] WASCA 254 at para 20 Steytler J said:

'It is no easy matter for an applicant to persuade a court to set aside a conviction based on a plea of guilty. There must be a strong case and exceptional circumstances: Nutall v The Queen, unreported; CCA SCt of WA; Library No 920090; 26 February 1992; Pilkington v The Queen [1955] Tas SR 144 and Harman v Ayling, unreported; SCt of WA (Parker J); Library No 960633; 5 November 1996. Before an appellate court will set aside a conviction of that kind, the applicant must show that there has been a miscarriage of justice: Duffield v The Queen, unreported; CCA SCt of WA; Library No 950065; 14 February 1995 and Nobes v The Queen, unreported; CCA SCt of WA; Library No 960486; 26 August 1996. In Harman, Parker J, at 5, after acknowledging that the circumstances which will amount to a miscarriage of justice can never be exhaustively identified, said that there are three well-recognised circumstances in which a plea of guilty will be set aside. The first is when the applicant did not understand the nature of the charge or did not intend to admit guilt; the second is if, upon the admitted facts, the applicant could not in law have been guilty of the offence; the third is where the guilty plea was obtained by improper inducement, fraud or intimidation and the like. (See, in this respect, Meissner v The Queen (1995) 184 CLR 132 at 157, per Dawson J, Maxwell v The Queen (1996) 184 CLR 501 at 510-511, per Dawson and McHugh JJ, at 522, per Toohey J, and at 531, per Gaudron and Gummow JJ, and  Tihanyi v The Queen (1999) 21 WAR 377 at 390-391,  per Murray J).'

See also R v Carkeet [2009] 1 Qd R 190 at para 25.

43. [43]
    At all relevant times, as I have observed, the applicant was represented by experienced and competent counsel.  The unanimous opinion of all the psychiatrists who testified in the Mental Health Court was that the applicant was fit to stand trial.  Flanagan J made a declaration in those terms.  There is no evidence, either in this court or before the sentencing judge, capable of demonstrating that when the applicant entered her plea of guilty on 2 August 2019, she was not of sound mind or that the plea was not entered in the exercise of a free choice.  It was, in its terms, unequivocal.  There was a period of slightly more than two months between the entry of the plea and the sentencing.  No step was taken in this time to withdraw the plea.  It was also clearly in her interests to enter the plea.  By doing so, the Crown declined to proceed with count 2.  The entry of the plea had an obvious mitigating effect, including, that it obviated any need for the complainant to give evidence.  It showed genuine remorse.
44. [44]
    Acknowledging that the categories of miscarriage of justice are not closed, and having regard to the three well recognised circumstances identified by Steytler J in Borsa, I note:

    1. (a)
       There is nothing to indicate that the applicant did not understand the nature of the charge or that she did not intend to admit guilt.
    2. (b)
       Upon the admitted facts, it is patent that the applicant was guilty of the offence.  I observe that even in oral argument before this Court, she accepted her guilt in respect of count 1.
    3. (c)
       Having regard to the record in the court below and the material sought to be adduced in this Court there is no cogent evidence that the guilty plea was obtained by fraud, improper inducement or the like.
45. [45]
    While I accept that the opinions of Dr Dodemaide and Dr van de Hoef were capable of supporting a defence under s 27 of the Criminal Code, Dr Scott held a contrary view.  It is by no means certain that had the applicant chosen to go to trial on the basis that she was of unsound mind at the time of the commission of the offence, she would have been found not guilty of count 1 on this basis.  Had she been convicted after trial, she would not have been able to claim the mitigation a plea of guilty would have attracted.  The complainant may have been required to give evidence against her mother.  The applicant's claim of genuine remorse may have been undermined.
46. [46]
    As I understand the applicant's submissions, she wants this Court to set aside the conviction on count 1 and return the matter to the Mental Health Court to, in effect, enable her to show that at the time she committed count 1, she was suffering from unsoundness of mind as a result of alleged extreme levels of domestic violence perpetrated upon her over a long period of time.  It is plain from the oral submissions that her views about F and his conduct towards her and the complainant are strongly held.  However, both before and at the time she entered her plea of guilty, the substance of these allegations was well‑known.  It was also known that their veracity was disputed.
47. [47]
    Bearing this in mind, having regard to this and the matter referred to at [43] above, the applicant's decision to plead guilty involved a rational forensic choice on her part, taken no doubt on the advice of her counsel.  While the applicant regrets this decision, no miscarriage of justice has been demonstrated.  The appeal against conviction is without merit.  Accordingly, it would be pointless to grant an extension of time.  I would dismiss the application for an extension of time and dismiss the appeal against conviction.  As the proposed additional evidence takes the appeal nowhere, the application to adduce additional evidence in the appeal should be dismissed.

The appeal against sentence

48. [48]
    The applicant seeks leave to appeal against sentence on what I will take to be two grounds.  The first is that the sentence was manifestly excessive.  The second is that the sentencing judge erred by not taking into account relevant facts, including the extent of the domestic abuse she suffered at the hands of F and that her mental illness was 'a reason for the crime'.
49. [49]
    As I have already said, the applicant entered her plea of guilty on 2 August 2019.  The sentencing hearing was adjourned to 8 October 2019 because it appeared, at the time the plea was entered, that there would need to be a contested sentencing hearing.  The area of potential contest was the applicant's mental state.
50. [50]
    In the period between the entry of the plea and the sentencing hearing, the applicant obtained further psychiatric reports from Dr van de Hoef, dated 11 September 2019, and from the applicant's treating psychiatrist, Dr van de Belt, dated 26 September 2019.  This material, as well as a summary of the evidence given by Dr Scott in the Mental Health Court, the accuracy of which Dr Scott confirmed, was before her Honour.
51. [51]
    In her report of 11 September 2019 Dr van de Hoef said that she interviewed the applicant on 4 September 2019 for approximately two hours.^[15]  Dr van de Hoef reported that:

    1. (a)
       The applicant stated she had 'always been truthful about the offence' constituted by count 1 and that she knew what she had done was a crime and understood she had to be punished.
    2. (b)
       The applicant's account of her mental state around the time of the commission of the offence was 'very consistent' with the interview she conducted with the applicant on 12 September 2017, including in the giving of a detailed account of her unhappy and troubled marriage and various abuses allegedly perpetrated upon her by F.^[16]
    3. (c)
       In both interviews, the applicant said that in the weeks before the offence she felt increasingly trapped with 'no way out'.^[17]
    4. (d)
       At the time of the commission of the offence the applicant considered herself to be 'batshit crazy' and that she thought, at the time, it was 'humane' to take the complainant with her when she killed herself.  However, at the time of her latest interview with Dr van de Hoef she considered herself to be in a very much better mental state.^[18]
52. [52]
    The opinions of Dr van de Hoef were as follows:

    1. (a)
       For possibly many years prior to mid-2014 the applicant suffered from a lower‑grade depressive illness.
    2. (b)
       The records of the applicant's general practitioner support the presence of a depressive illness which impaired her mood, thinking and judgment from at least August 2014.
    3. (c)
       Significant severe depressive symptoms were present at the time of her arrest in August 2016.
    4. (d)
       At the time of the commission of the offence, the applicant was suffering from a mental disease, namely a major depressive disorder, which, at the time, although perhaps only for a matter of weeks, featured psychotic symptoms.
    5. (e)
       Features of the applicant's history supported a secondary diagnosis of borderline personality disorder.
    6. (f)
       Although the applicant reported symptoms consistent with post-traumatic stress disorder, these were insufficient for her to make a definitive diagnosis of this condition.
    7. (g)
       There was a connection between the commission of the offence and the applicant's mental state at the time.  About this, Dr van de Hoef said:^[19]

'Therefore, in my opinion, there was a connection between the offence of which she has been convicted and her mental state at the time.  In my view, her increasingly severe Major Depressive Episode, worsened by her physical health issues, social isolation, lack of financial independence, separation (by distance) from her sons, mother and erstwhile friends in South Africa, who struggled to make new and lasting friendships in Australia, her failure in gaining employment, matrimonial disharmony with – but possibly the absences as well - of her husband (by virtue of being a FIFO worker) impaired her capacity to know that she ought not do what she did.  In my view, her very depressed mood, sleep deprivation, fatigue, growing hopelessness, worsening panic attacks (at least one of which mimicked a heart attack) her growing sense of being trapped (with no way out other than death), anxiety and worry, all distorted and narrowed her thinking in judgment to impair her capacity.' (emphasis included)

53. [53]
    Dr van de Hoef then addressed the effect that domestic violence may have had on her depressive illness.  She wrote:

'As I understand, it the Court [which I understand to be a reference to the Mental Health Court] has accepted that there is relatively little objective evidence of the Domestic Violence she has alleged in detail to various parties over several years (apart from the DVO brought by police to F in 2015).  In my opinion, her beliefs and intense negative emotions in relation to that was only one of a number of factors that precipitated her depressive illness and that regardless of the DV evidence or otherwise, [the applicant] suffered from a significant Depressive Episode round [sic] the material time.'

54. [54]
    Dr van de Hoef went on to state that the applicant's personality disorder was likely to be a lifelong issue, with behavioural upheavals being a long‑term risk to varying extents.  She also stated that, in her opinion, the applicant's history of 'almost certainly' recurrent major depressive episodes meant that a sentence of imprisonment was likely to weigh more heavily on her than on individuals without a history of major mood disorder.
55. [55]
    Dr van de Belt was the applicant's treating psychiatrist within the prison mental health service.  Dr van de Belt noted that the applicant had been diagnosed with 'recurrent Major Depressive Disorder, Borderline Personality Disorder and Post Traumatic Stress Disorder'.^[20]  Dr van de Belt stated that the applicant continued to experience residual depressive symptoms which included 'hopelessness (particularly regarding any future contact with her daughter), helplessness, worthlessness, a sense of injustice (regarding the victimisation she suffered in her marriage), a low mood and suicidal ideation'.  She stated that the applicant had recently suffered exacerbation of her PTSD symptoms as a result of hearing the voice of F in a video recording and finding another prisoner hanging during a suicide attempt.
56. [56]
    Dr van de Belt said that the applicant had been largely compliant with the medication that she had been prescribed and that she has engaged in treatment, but her residual depressive and PTSD symptoms have been resistant to that treatment.^[21]
57. [57]
    In Dr Scott's opinion, at the time of the commission of the offence, the applicant had a mental illness namely Post Traumatic Stress Disorder and Borderline Personality Disorder.  He said that the history, particularly that documented by the applicant's general practitioner did not indicate that she had developed a major depressive episode with either melancholic or psychotic features.  While Dr Scott accepted that the applicant's emotional regulation, judgment and distress tolerance skills were likely to have been impaired, in his opinion her mental illness did not deprive her of any of the capacities in s 27 of the Criminal Code.  He accepted that the applicant's capacity to know that she ought not do the act (attempting to gas her daughter) was impaired as a result of mental illness.
58. [58]
    Although Dr Scott did not believe that the applicant was suffering from a major depressive episode at the time of the offence, he did not exclude that she may have developed such a condition subsequent to her arrest.  Dr Scott accepted that prison would be more onerous for the applicant due to her mental state than would otherwise be the case for someone in her position.
59. [59]
    It may be seen from this summary of the expert psychiatric opinions before her Honour that the real point of difference between Dr van de Hoef and Dr Scott was their primary diagnosis.  Dr van de Hoef supported a primary diagnosis of Major Depressive Disorder at the time of the offence, while Dr Scott supported a primary diagnosis of a Borderline Personality Disorder.  Further, while Dr van de Hoef referred to psychotic symptoms, Dr Scott denied psychosis.
60. [60]
    In the sentencing proceedings, the Crown indicated that it did not accept some of the factual representations made by the applicant to Dr van de Hoef.  Relevantly for present purposes, the Crown denied that there was any evidence of F being abusive towards the complainant.  Furthermore, the Crown observed that the applicant's continued focus on F's alleged abusive behaviour towards her was not always congruent with the objective evidence.^[22]
61. [61]
    In the end, her Honour was not required to decide any of the differences in the psychiatric opinions or the factual matters disputed by the Crown.  By the time of the applicant's sentencing, any matters in dispute had been resolved.
62. [62]
    The Crown ultimately submitted that the divergence between Dr van de Hoef and Dr Scott as to their primary diagnoses was, in substance, immaterial given that each confirmed that at the time of the offence the applicant suffered from a mental illness which impaired her capacity to know that she ought not do the act constituted by the offence.^[23]  The Crown further noted that both psychiatrists agreed that the applicant had a borderline personality disorder and neither doctor excluded an additional diagnosis of major depressive episode and post‑traumatic stress disorder.  It was said that Dr van de Belt, the applicant's treating psychiatrist, was operating on the basis of all three diagnoses.  The Crown observed that both Dr Scott and Dr van de Hoef identified the applicant's borderline personality disorder as an issue of long standing for the applicant and that each was of the opinion that prison would be more onerous on the applicant than would otherwise be the case.
63. [63]
    In defence counsel's plea in mitigation, she expressly accepted the Crown's submissions, referred to in [60], as to how the conflicting psychiatric opinions could be reconciled.^[24]  Defence counsel emphasised to the sentencing judge that both forensic psychiatrists had opined that the applicant's capacity to know that she ought not do the act was impaired.^[25]  Defence counsel emphasised that both psychiatrists found that her ability to understand that she ought not do the act had been impaired by her mental state.^[26]
64. [64]
    Defence counsel made no submission as to the extent or effect of any domestic violence perpetrated upon the applicant by F.

The sentencing remarks

65. [65]
    Her Honour observed at the outset of her sentencing remarks that the maximum penalty for the offence of attempted murder was life imprisonment.^[27]  She noted that the applicant was 41 years old at the time of the offence and 44 at the time of sentencing.  She also noted that the applicant had cooperated with authorities, confessed to her crime and given details of it including that she disclosed details to her psychiatrist that would not otherwise have been known.^[28]  Her Honour observed that the applicant had no criminal history prior to the offence and was remorseful for what she had done.^[29]
66. [66]
    The aggravating factors identified by her Honour were:

    1. (a)
       The complainant was only nine years of age at the time of the offending.
    2. (b)
       The applicant was the complainant's mother and was therefore in a position of trust.
    3. (c)
       The offence was premeditated.
    4. (d)
       The applicant 'tricked' the complainant into participating in what was said to be 'something fun'.
    5. (e)
       The applicant's attempt to end her life and that of the complainant only ended because the complainant turned off the gas cylinders, albeit that the applicant told her how to do so.
    6. (f)
       After the incident, the applicant told the complainant not to tell anyone what had occurred.  She also told the complainant that if she did, the complainant would be taken away from her.
    7. (g)
       The offending was, in part, motivated by anger towards F, but her Honour noted there was no suggestion of malice in what the applicant did.
    8. (h)
       The offence was a domestic violence offence: s 9(10A) Penalties and Sentences Act 1992.^[30]
67. [67]
    Putting to one side for the moment the applicant's mental health, her Honour identified the following mitigating factors:

    1. (a)
       The applicant's 'timely' plea of guilty, which was of particular significance because it spared the complainant the burden of having to give evidence at a trial.
    2. (b)
       The applicant's remorse.
    3. (c)
       The applicant's co-operation with the police and her voluntary disclosure of the fact that she had given the complainant a milkshake which contained a sedative.
    4. (d)
       That, in prison, she had taken positive steps towards her rehabilitation.
    5. (e)
       The applicant faces deportation from Australia as a result of the sentence to be imposed and that the prospect and uncertainty of such deportation was a matter of hardship to her.
68. [68]
    As to the applicant's mental health, her Honour recognised that the diagnoses of Dr Scott and Dr Van de Hoef differed but, consistently with the submissions that had been put to her by counsel, her Honour found that the differences did not have any practical impact upon the sentence because both psychiatrists considered that the applicant was suffering, at the time of the offending, from a mental impairment which affected her capacity to know that she ought not do the act.^[31]  Her Honour noted that it was accepted by both the applicant and the respondent that the applicant's moral culpability was reduced as a result of her mental impairment.  The sentencing judge determined that by reason of the applicant's mental impairment, denunciation and general and specific deterrence were of little relevance.^[32]  However, the sentencing judge did not consider that general and specific deterrence were of no relevance.
69. [69]
    Her Honour accepted that the sentence she imposed would weigh more heavily on the applicant than it would on a person of normal health.  It was noted that the applicant's mental health after arrest was such that she spent two years in a mental health facility, including 12 months under very close supervised care.  By the time of her sentence, she showed significant improvement and insight into her condition.  Her Honour recognised that the applicant's borderline personality disorder would be an ongoing issue for her.
70. [70]
    Her Honour acknowledged that the offence was a domestic violence offence, but she weighed this against the impact of the applicant's mental health.
71. [71]
    The sentencing judge referred to a number of comparable cases.  I will refer to these cases below.  The Crown submitted that the appropriate sentence should be a sentence of slightly less than 10 years' imprisonment.  Defence counsel submitted that the appropriate sentence would be seven years' imprisonment with a parole eligibility date set as at the date on which the sentence was imposed.^[33]
72. [72]
    Her Honour imposed the sentence of eight years' imprisonment with the orders that I referred to earlier.

Was the sentence manifestly excessive?

73. [73]
    Having read the applicant's submissions and listened carefully to her oral submissions, I think that the applicant's position can be best expressed this way: having regard to her good antecedents, her impaired mental state, the steps that had been taken to treat her mental impairments and her prospects of rehabilitation, the sentence that was imposed upon her was manifestly excessive.
74. [74]
    For the respondent, it was submitted that having regard to the maximum penalty, the aggravating circumstances identified by her Honour, the comparable cases and notwithstanding the mitigating factors her claim of manifest excess has not been made out.

Disposition – manifest excess

75. [75]
    Although it hardly needs to be said, the imposition of a sentence upon an offender involves the exercise of a discretion by the sentencer.  Long established authority requires, an applicant in an appeal against sentence to demonstrate error of the kind described by Dixon J in House v The King.^[34]  It is not to the point, that an appellate court would have, had it been sentencing the applicant at first instance, imposed a different sentence.  An allegation of manifest excess in relation to a sentence is an allegation of implied error on the part of the sentencer.  A sentence which is manifestly excessive (or inadequate) is a sentence which is unreasonable or plainly unjust.
76. [76]
    An orthodox approach in deciding whether a sentence is manifestly excessive is to view the sentence having regard to the maximum penalty, the circumstances of the offence, if there are comparable cases, those cases, and the personal circumstances of the offender, see Munda v Western Australia.^[35]
77. [77]
    It is unnecessary to repeat the maximum penalty, the circumstances of the offence, the sentencing remarks, or the personal circumstances of the applicant.  I have had regard to all these matters.
78. [78]
    Clearly, the offence was a serious one of its kind.  The applicant attempted to kill her own young and highly vulnerable daughter.  The offence was premeditated and could have easily led to the complainant's death, or to permanent injury as a result of hypoxia.  Fortunately, the complainant appears to have had no lasting physical effects.  However, this is not to deny the real prospect that the complainant has already suffered psychologically and will do so in the future, particularly as she gets older.  It would be fortunate if the complainant has not or does not psychologically suffer from the applicant's actions.  Human life, particularly that of vulnerable children must be protected and any attempt by any adult particularly a parent to kill a child must be regarded with the utmost seriousness.
79. [79]
    However, it must not be overlooked that the applicant's capacity to know that she ought not do what she did was impaired by mental illness.  There was a causative link between the mental illness and the offending.  As a result of her mental illness, the sentencing objectives of personal and general deterrence were, sensibly moderated.
80. [80]
    Her Honour had regard to other consequences of the applicant's mental illness, including that the sentence she imposed would weigh more heavily on the applicant than it would upon a person who did not suffer from mental illness.  The applicant entered a timely plea of guilty, spared the complainant the trauma of giving evidence, was remorseful and was a person of prior good character.  She voluntarily disclosed that she had provided the complainant with a sedative.
81. [81]
    I now turn to the comparable cases.  Attempted murder is an offence which is committed in widely varied circumstances by offenders with widely varied backgrounds.  I have read the comparable cases cited in the court below, being R v Ali,^[36] R v Black,^[37] R v LAN,^[38] R v Seijbel-Chocmingkwan,^[39] R v Sprott; Ex parte Attorney-General (Qld).^[40]  It is unnecessary to discuss these cases in detail.  The range of comparable cases is a yardstick against which to compare the sentence in question.  However, it is not a perfect yardstick.  A range is no more than a historical record of sentences that have been imposed in the past and does not represent the upper or lower limits of the exercise of a proper sentencing discretion.  In the end, each case must be decided upon its own facts and circumstances.
82. [82]
    I am aware that this Court has stated the appropriate range for the offence of attempted murder is generally from 10 to 17 years' imprisonment.^[41]  Such pronouncements are made by appellate courts for the assistance of judges at first instance but cannot, as I have said, limit the exercise of the sentencing discretion to a sentence within that range.
83. [83]
    At first instance the Crown submitted that the appropriate sentence was one of 'slightly less than 10 (years)'^[42] and defence counsel submitted that the appropriate head sentence was one of seven years with eligibility for parole fixed on the day of sentence.  Of course, these submissions were not binding upon her Honour or this Court.
84. [84]
    Having weighed all of the relevant circumstances, I am unpersuaded that the sentence imposed by her Honour was plainly unreasonable or unjust.  In my opinion, particularly having regard to the premeditated nature of the offence, the breach of trust and the vulnerability of the victim, and notwithstanding the mitigating factors, a sentence of eight years' imprisonment was not manifestly excessive.
85. [85]
    For these reasons ground 1 fails.

Did the sentencing judge err in not taking into account relevant circumstances?

86. [86]
    It is clear from my summary of the sentencing remarks, that her Honour took into account the applicant's mental illness as a mitigating factor, including that there was a causal connection between the mental illness and the offence.  There is no merit to this claim and it must be rejected.
87. [87]
    Neither, in my opinion, did her Honour err in failing to have regard to the extent of the domestic abuse the applicant claimed had been perpetrated upon her by F.  Defence counsel did not raise this as an issue in mitigation and her Honour cannot be said to have erred if she was not asked to regard it as a relevant sentencing consideration.
88. [88]
    However, the question remains whether the applicant has suffered a miscarriage of justice because the matter was not raised by defence counsel.  The applicant contends that she has suffered a miscarriage of justice because, if her Honour had been aware of the full extent of the domestic violence perpetrated upon her by F, that would have been an additional mitigating factor which would, had it been considered, resulted in a lesser sentence.
89. [89]
    In support of the allegation of a miscarriage of justice, the applicant sought to adduce the additional evidence contained in her affidavit of 16 April 2021.  The three exhibits attached to the affidavit are copies of the decision of the Mental Health Review Tribunal made on 13 November 2020 (exhibit 1), the reasons for decision of the Mental Health Court referred to above (exhibit 2) and a memorandum by Dr Dodemaide addressed to the Chief Psychiatrist, dated 12 February 2018 (exhibit 3).  These documents do not materially add anything to the information before the sentencing judge.  Paragraph 12 of the affidavit sets out what the applicant describes 'as a true account of events surrounding my offending in the current case'.  What follows is an account of the domestic violence she says was perpetrated by F, both before and since their arrival in Australia.  In her oral submissions, the applicant, at some length, made allegations against F which went beyond those set out in her affidavit.  These statements are not evidence, but, in substance, they reflect the kinds of allegations in the affidavit.  It is unnecessary to set out the details of the allegations.  It is enough to say that if true, the applicant was subjected to severe and prolonged psychological and physical abuse by F.
90. [90]
    It is apparent from the reasons of Flanagan J in the Mental Health Court that the applicant had made allegations of severe domestic abuse by F to the psychiatrists who examined her.  It is also evident from the reasons of Flanagan J that the veracity of these allegations was a matter of controversy.  In particular, Dr Scott regarded the applicant as an unreliable historian.  While Flanagan J made no finding on this issue, he noted that there was a dispute as to whether the applicant was a truthful historian.
91. [91]
    In the sentencing proceedings, the Crown did not accept the veracity of a number of statements made by Dr van de Hoef, including as to the extent of the domestic violence allegedly suffered by the applicant.
92. [92]
    In circumstances where the Crown was not prepared to accept the applicant's claims, the onus was on the applicant to do so and to establish the mitigating factor on the balance of probabilities.  No such step was taken in the proceedings before her Honour.
93. [93]
    Whether or not the applicant's allegations of domestic violence were put to her Honour as a mitigating factor was a matter for the forensic judgment of defence counsel.  In the present case, there were good forensic reasons not to pursue the matter.
94. [94]
    First, having regard to Dr Scott's opinion, there was reason to believe that the applicant was not a reliable historian and that the allegations she made against F were exaggerated.  If the applicant gave evidence at a contested sentencing proceeding, there was a prospect that the court would conclude that her testimony was not reliable.
95. [95]
    Second, a contested hearing to resolve this issue may have involved the complainant having to testify, particularly as the applicant alleged that F had been violent towards the complainant.  To have subjected the complainant to this process may have undermined one of the benefits of the plea of guilty, namely that the complainant was spared the trauma of giving evidence, and the applicant's claim of remorse.
96. [96]
    Third, a contested hearing of the issue would have delayed the applicant's sentencing in circumstances where she had already been in custody on remand for over three years.
97. [97]
    Fourth, by the time of the sentencing hearing on 8 October 2019, the prosecution and defence had agreed that the applicant was mentally ill at the time of the commission of the offence and that her the mental illness was a significant mitigating factor.  Having arrived at this position, what caused or contributed to the mental illness was not a matter that required any adjudication by the sentencing judge.
98. [98]
    Having regard to the combination of the abovementioned circumstances, it may objectively be inferred that defence counsel fairly and reasonably took the view that there was no forensic advantage to be taken in pursuing the issue of the extent of the domestic violence suffered by the applicant at the hands of F.
99. [99]
    It is plain from her oral submissions, that the applicant has intense emotions and views about F's behaviour towards her.  I do not doubt the sincerity with which she holds these views.  Nevertheless, experienced and competent defence counsel could reasonably have made a forensic choice not to pursue this issue.  The applicant has not suffered any miscarriage of justice as a result of the failure to do so.
100. [100]
     For these reasons, what I have described as the second ground of the appeal against sentence has not been made out.
101. [101]
     As the grounds of appeal have not been made out, an extension of time would be pointless.
102. [102]
     I would dismiss the application for an extension of time, refuse the application to adduce additional evidence, and dismiss the appeal against sentence.

The application for an adjournment

103. [103]
     As indicated at the outset of these reasons the court refused the applicant's application to adjourn the hearing of the appeal for two months.
104. [104]
     The applicant explained in a letter forwarded to this Court, dated 12 May 2021, that she required the adjournment because she had not received medical information that she had sought on 27 March 2020 from West Moreton Health namely all mental health records relating to her from April 2012 to March 2020.  The letter attached correspondence from West Moreton Health addressed to the applicant, dated 19 April 2021, which noted that the documents sought by the applicant were in excess of 4,326 pages and would take some 96 hours to process.  The author of the letter from West Moreton Health invited the applicant to narrow the scope of her enquiry.
105. [105]
     It is unclear what could be achieved by the applicant pursuing her enquiries with West Moreton Health.  In other words, what evidence could be obtained which would have assisted her appeals that was not otherwise available at the time of sentencing.
106. [106]
     The letter to the Court also referred to the applicant having only recently received 'an enormous box' of materials from Legal Aid spanning 2014 to 2019 which contained documents that she had 'never viewed or been made aware of in the past'.  The applicant has had some opportunity to go through the box of materials that have been provided to her, it is unclear how anything that Legal Aid may have been able to provide to her would have been of assistance.
107. [107]
     While the applicant requested a two‑month adjournment, I was by no means confident that she would be ready to proceed in two months, having regard to the volume of documents she wished to examine.
108. [108]
     In my opinion, further adjournment of the appeal would not have been in the interests of justice.  For these reasons, I joined with the other members of the coram and refused the application to adjourn.

Conclusion

109. [109]
     For the reasons that I have given, I would, in each appeal, refuse the application for an extension of time, refuse the application to adduce additional evidence, refuse the application for leave to appeal sentence, and dismiss the appeal.