R v Keli LANE [2011] NSWSC 289 (15 April 2011)

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R v Keli LANE [2011] NSWSC 289 (15 April 2011)

Last Updated: 14 June 2011

Supreme Court New South Wales

Case Title:	R v Keli LANE
Medium Neutral Citation:	[2011] NSWSC 289
Hearing Date(s):	9 August 2010 - 13 December 2010
Decision Date:	15 April 2011
Jurisdiction:
Before:	Whealy JA
Decision:	(1) For the offence of false swearing committed on 3 rd April 1995, I sentence you to a fixed term of imprisonment for 9 months, such sentence to date from 13 th December 2010, and to expire on 12 th September 2011. (2) For the offence of false swearing committed on or about 29 th April 1995, I sentence you to a fixed term of imprisonment for 9 months, such sentence to date from 13 th December 2010, and to expire on 12 th September 2011. (3) For the offence of false swearing committed on or about 13 th September 1999, I sentence you to a fixed term of imprisonment for 12 months, such sentence to date from 13 th February 2011, and to expire on 12 th February 2012. (4) For the murder of Tegan Lane, I sentence you to a non-parole period of 13 years and 5 months, to date from 13 th December 2010 and to expire on 12 th May 2024, with a balance of term of 4 years and 7 months. The balance of term is to commence on 13 th May 2024, and is to expire on 12 th December 2028.
Catchwords:	CRIMINAL LAW - Child murder - factors influencing objective seriousness - intention to kill - absence of premeditation - relatively spontaneous decision - presence of personality disorder - factors relevant to sentencing - youth and immaturity - rehabilitation - good character - unlikelihood of re-offending - excessive media attention - unavailability of standard non-parole period legislation - sentencing pattern at time of offence - delay in prosecution - protective custody - effect on child of offender - whether exceptional circumstances. STATUTORY INTERPRETATION - Standard non-parole period legislation not retrospective to date of offence - principles applicable. CRIMINAL LAW - False swearing - adoption proceedings - need for father's consent - seriousness of offence - no need to accumulate sentences on punishment for murder.
Legislation Cited:	Crimes Act 1900 ss 18(1)(a), 330 Crimes (Sentencing Procedure) Amendment Act 2007 s 44(2) Criminal Procedure Act 1986
Cases Cited:	R v Way [2004] NSWCCA 131; 60 NSWLR 168 at [86] - [93] Lodhi v The Queen [2006] NSWCCA 121; 199 FLR 303 at [22] - [56] per Spigelman CJ R v JS [2007] NSWCCA 272; 175 A Crim R 108 at [30] - [45] per Spigelman CJ R v Young [1999] NSWCCA 166; 46 NSWLR 681 R v MJR [2002] NSWCCA 129; 54 NSWLR 368 Dousha v R [2008] NSWCCA 263 GRD v R [2009] NSWCCA 149 at [20] per Buddin J Alseedi v R [2009] NSWCCA 185 at [65] Elyard v R [2006] NSWCCA 43 at [18] - [20] R v Fidow [2004] NSWCCA 172 at [18] Shore v R (1992) 66 A Crim R 37 R v Moon [2000] NSWCCA 534; 117 A Crim R 497 at [70] per Howie J
Texts Cited:	"Sentenced Homicides in New South Wales 1994 - 2001", Research Monograph 23, Judicial Commission of New South Wales, January 2004, Ch 5
Category:	Sentence
Parties:	Regina (Crown) Keli LANE (Offender)
Representation
- Counsel:	Counsel: M Tedeschi QC / H Baker (Crown) K Chapple SC / S Sloane (Offender)
- Solicitors:	Solicitors: Director of Public Prosecutions (Crown) Archbold Legal Solutions (Offender)
File number(s):	2009/256171
Publication Restriction:	Suppression orders made by this court on 26th July 2010, 9th December 2020 and 10th December 2010 to continue in force.

REMARKS ON SENTENCE

1. On the afternoon of Monday 13 th December 2010, by a majority verdict of a jury of twelve, Keli Lane (whom I shall call "the offender" or "Keli" as the context requires) was found guilty of the murder of her daughter, Tegan. Earlier that day, the jury had unanimously found the offender not guilty of three charges of perjury, but guilty of three alternate charges of false swearing.
   
2. Following the delivery of the verdicts, the jury was discharged. The offender was remanded in custody. Sentencing submissions were taken on 11 th and 18 th March 2011, and the matter was stood over for imposition of sentence today.
   

Factual findings relating to the murder

3. It is necessary first to make findings of fact regarding the murder of Tegan and the circumstances of each of the false swearing offences. At the time of the offences, Keli Lane lived in Sydney. Normally, she resided in Fairlight at her parents' home, although, during the major part of the offence period, she was in a long-term relationship with a young man, Duncan Gillies. On the surface, Keli was a happy and successful young girl, who was well liked by a multitude of friends, and very good at her chosen sport, water polo. She had the support of her parents and appeared to merit the description given of her by the Crown during the trial, a "golden girl". She had been a successful athlete at club and State level, and had represented Australia as a junior at an overseas competition. She was regarded by her water polo coaches as a valuable member of teams of which she was a member.
   
4. Beneath the surface, however, there was a very different and troubled young woman. During her teens, she had become pregnant on two occasions when she was in a relationship with her first boyfriend, Aaron Tyack. Mr Tyack gave moving evidence at the trial of a loving relationship which ended when both he and Keli were still relatively young. It was clear from that evidence that the emotional consequences of the first termination were a factor in the end of their relationship. They grew apart, and, for reasons that are not relevant to state here, Mr Tyack's enjoyment of his sporting prowess, an enjoyment he shared with Keli, diminished with time. Although he had, to some degree, shared the emotional consequences of the first termination, he was not aware that Keli became pregnant a second time. He was not aware that she had arranged for a second termination, one that was carried out without his involvement and support.
   
5. It appears that her family and friends were not aware of the two pregnancies or their termination. In 1994, when Keli was eighteen, she had a brief relationship with an older man, and became pregnant in that relationship. The offender continued in her relationship with Duncan Gillies, carrying, however, a child conceived to the other man. It is possible that she may not have known at the time the true identity of the father of the child. In any event, Keli maintained total secrecy about this pregnancy. She carried the pregnancy secretly to term. On 18 th March 1995, she played in a water polo grand final. It appears she played very well. After the game, she went with her teammates to the Bridge Hotel in Balmain. She did not stay there for very long, but, later in the evening, she travelled to Balmain Hospital by herself, and went into labour. None of her friends or family, or her boyfriend, were aware that she had gone to the hospital and, of course, they were not aware that she was pregnant and now about to give birth.
   
6. Her first live child, Tahlia Rose, was born on 19 th March 1995. It is clear that the offender was desperately endeavouring to keep the fact of the birth of her first daughter secret from her friends and family. This led to her decision to place Tahlia for adoption. The ensuing set of circumstances were complicated. It is sufficient to say that the offender maintained a many-layered web of deception surrounding her family and the identity of the father in order to avoid the birth becoming public to family and friends.
   
7. The first and second false swearing offences occurred in the aftermath of the birth of Tahlia. On 3 rd April 1995, the offender swore an affidavit in the adoption proceedings. This falsely stated that Duncan Gillies had indicated his willingness to sign a consent for the adoption of Tahlia. Mr Gillies was, of course, unaware of the pregnancy and birth. The deception engaged in by the offender led to further complications in relation to the adoption proceedings. It became necessary for the agency, perhaps more as a matter for its own protection, to file a further affidavit sworn by the offender. This second affidavit, in late April 1995, falsely stated that Duncan Gillies had informed the offender that he did not wish to have any involvement with his daughter, Tahlia, or sign a consent for the adoption of the child. In due course, the adoption of Tahlia proceeded, and she has, it seems, lived since then what is presumed to be a normal and contented life with her new parents.
   
8. Within nine months of giving birth to Tahlia, in about December 1995, Keli fell pregnant again. The paternity of this pregnancy is not known. Keli was living with her parents at the time, but, to all external appearances, was continuing her relationship with Duncan Gillies. At least on the surface, it seems that they were in a firm and loving relationship, and that they had a regular sex life. Mr Gillies believed that Keli was taking the oral contraceptive pill and had no idea that she had fallen pregnant. Once again, the offender carried this pregnancy secretly to term. She continued her usual sporting activities and, in August 1996, secured employment as a water polo coach at Ravenswood School for Girls in Gordon. None of her family or friends, or work colleagues, knew that she was pregnant. It does not appear that the offender sought any medical care until the final stages of the pregnancy. Nor does it appear that she ever attempted to obtain a termination. Essentially, the offender followed the same course of conduct as before and concealed the pregnancy from family, friends and sporting colleagues, not only until the time of delivery, but for many years thereafter.
   
9. On 12 th September 1996, the offender presented at Auburn Hospital and gave birth to Tegan after a considered decision to induce the birth had been made by the hospital staff. Tegan's appearance and health was normal. Although Keli suffered a health complication, including a significant loss of blood, the situation was rectified satisfactorily by hospital staff immediately thereafter. A trainee social worker at the hospital, who had lengthy discussions with the offender on 13 th September 1996, recorded her presentation as being normal for a woman who had recently given birth. She was breastfeeding and happy with the infant. On 14 th September 1996, both the offender and Tegan were examined and found suitable to leave the hospital. At some time during that day, probably just before midday, the offender was formally discharged from hospital.
   
10. There is no satisfactory evidence to establish the precise manner in which the offender left the hospital, but it is to be assumed that she left with her child. Whether she left openly or secretly, as was alleged during the trial at one stage, is purely a matter of speculation. All that the evidence establishes is that at some stage, around about midday, the offender left the hospital, taking Tegan with her. There is no evidence to suggest that there was anything remarkable about her departure.
    
11. The evidence is completely silent as to what happened immediately thereafter. The Crown case was that, between the time that Tegan was examined at Auburn Hospital by the discharging doctor on 14 th September 1996, and at the time of the offender's arrival at her parents' home at Fairlight at about 3 o'clock during the afternoon, the child was murdered by her mother, who also disposed of her body. The defence case was that, by arrangement, Keli gave the child to its natural father. Consistently with the jury's verdict, I must reject this explanation. I accept, as I am bound to do by the jury's verdict, that the offender deliberately and intentionally caused the death of Tegan. There is no evidence, however, of the manner of death. There is no evidence from which the precise time of death or the manner of disposal of the child's body can be established. The offender has maintained her version of events for many years and it is clear that, despite the jury's verdict, she continues to maintain her innocence. Nevertheless, as I have said, the jury's verdict requires me to state that I am satisfied beyond reasonable doubt that the offender deliberately and intentionally caused the death of her daughter, even though I am unable to say anything as to the precise circumstances of that fatal event.
    
12. While she was at Auburn Hospital, the offender had maintained a level of deception as to her situation, with a view to preventing family and friends from learning that she had been pregnant and had given birth. There is no need for me to detail all these areas of deception. The stratagems apparently worked, as none of her family and friends became aware of the events of the 12 th to 14 th September 1996.
    
13. Later that afternoon, Keli attended a friend's wedding in company with Duncan Gillies. There is footage of aspects of the wedding. These images show the offender acting in an apparently normal way. The oral evidence, however, suggested that she was quieter than usual at the wedding, and that she went home early, leaving Mr Gillies to enjoy the rest of the evening without her.
    
14. On 16 th September 1996, it appears that the Ryde Domiciliary Midwife Programme telephoned Auburn Hospital to inform the maternity section that Keli had refused their services and would continue her Domiciliary care through her homebirth midwife. There was, of course, no homebirth midwife, and Keli had not brought the baby home with her.
    
15. For two years, the offender maintained many aspects of her previous public life, but kept secret her hidden life. Her relationship with Duncan Gillies ultimately came to an end. She entered into a brief relationship with a younger man, who lived in the Manly district. Once again, the offender fell pregnant, and there is evidence to show that the young man in question is the father of Aaron, who was born on 31 st May 1999. Once again, the father of the child believed that Keli was on the oral contraceptive pill, and was completely unaware that she had become pregnant, or that she later gave birth to a live child.
    
16. In the course of the pregnancy, at about 25 weeks gestation, Keli attempted to have a termination of the pregnancy. This was in February 1999. The termination was not carried out because of the advanced period of gestation.
    
17. Throughout this pregnancy, the offender kept her condition secret from her family and friends. The child, as I have said, was born on 31 st May 1999. Once again, the offender had given false information to hospital staff in an endeavour to prevent her family and friends from finding out about her situation. This included her story that the father was Duncan Gillies, and that both he and her parents were living in London. The offender once again determined to have the child adopted, and selected Anglicare Adoption Services for this purpose. The child was placed in foster care on 3 rd June 1999. A caseworker with the adoption agency, Virginia Fung, became involved with the offender and worked sympathetically with her to bring the adoption to fruition.
    
18. Eventually, the web of deception woven by the offender broke apart. It was probably inevitable that this would happen, since her attempts to avoid the truth coming out were becoming more fantastic. Ms Fung had been making genuine and independent efforts to contact Duncan Gillies, and when she did so, it soon became apparent that he was not the father. At this point, the offender invented a new father for Aaron. She named this fictitious person "Aaron Williams" and gave fictitious details about him. Not surprisingly, Ms Fung's attempts to contact this person in London proved fruitless. The adoption papers were signed on 13 th September 1999. One of the documents was an affidavit that was subsequently filed in the Supreme Court adoption proceedings. In that document, the offender falsely stated that the father of the child to be adopted was Aaron Williams, whom she had met whilst residing in London. This was the basis of the third false swearing charge.
    
19. On 13 th October 1999, a DoCS worker, John Borovnik, had told Virginia Fung that Keli had given birth to a female child in September 1996. In the end, the matter of the missing child was referred to Katoomba Police on 4 th November 1999. This started the process of a police investigation that, after many years, led to a coronial inquiry and, ultimately, to the filing by the Director of Public Prosecutions of an ex-officio indictment against the offender. I should add, however, that Mr Borovnik was not an impressive witness and presented as a person trying to inflate his own importance in the matter. His role in a recent Channel 7 program, when he purported to inform the audience of the precise manner in which Tegan met her end, did him little credit, and reinforced the view I had formed.
    
20. These, then, are the bare facts relating to the commission of each of the offences. I will supplement these findings of fact where necessary when considering the submissions of the parties. Before coming to that part of these remarks on sentence, I will, however, next turn to important evidence that was made available at the sentencing hearing. In this regard, I refer to the psychiatric reports filed by the Crown and the evidence of Dr Thompson, the offender's general practitioner.
    

The evidence of Dr Diamond

21. Unusually, the Crown called evidence from a psychiatrist, Dr Michael Diamond. I say 'unusually' because, although Dr Diamond produced two lengthy reports in relation to his opinions concerning the actions of the offender, he had never met nor interviewed her. Nevertheless, Dr Diamond, as he put it, had a voluminous amount of material on which he based his opinions, including the lengthy ERISP interviews between the police and the offender. In addition, he had the listening device and telephone intercept material. Initially, Mr Chapple SC opposed the tender of Dr Diamond's reports, although later he was to embrace the submission that, insofar as the reports contained material that was helpful to his client, he would place reliance upon them.
    
22. Dr Diamond was ultimately called by the Crown and cross-examined by Mr Chapple. I consider that overall, there is a reasonable level of value in the material presented by the psychiatrist. His qualifications and experience plainly equipped him to carry out the task he was required to undertake. That said, it must be acknowledged, as Dr Diamond did himself, that the fact that he has not been able to interview the offender means that some considerable degree of caution needs to be exercised in relation to a number of the opinions he expressed. Secondly, I consider that there is a need for particular caution based on the fact that, in some areas, Dr Diamond's opinions, with respect, appear to emulate some aspects of what I might call the 'Crown case theory'. For that reason, particular care needs to be taken in relation to certain of those areas, especially where the evidence ultimately called at trial diminished or eliminated those aspects of the Crown case. There is no need for me to detail the areas where this has occurred.
    
23. Notwithstanding these matters of caution, I do think that Dr Diamond's reports have some value, as I have said. Without a number of those expert opinions, Ms Lane's bizarre behaviour is virtually inexplicable. In addition, the Crown called Dr Thompson, a general practitioner who had examined and treated the offender in the past. To the extent that his evidence coincided, to a degree, with the evidence of Dr Diamond, the opinions expressed by the psychiatrist have a reinforced value.
    
24. It must be acknowledged that there are many aspects of the offender's behaviour in the present case that raise difficult and puzzling questions for consideration. Some of these have been highlighted in the media, and others have been the subject of comment in articles and indeed books published about the offender's life and many aspects of it. In many respects, it may accurately be said that her life has been laid bare in the media. This would have been a humiliating and intrusive experience for Ms Lane and her family. Some of the questions that excited media interest, it must be said, have been examined at a somewhat prurient level. But the fact remains that there is a need, so far as it can be achieved, to gain insight into the offender's behaviour in an endeavour to gain an understanding of the level of culpability involved in the murder itself. Some of these matters might, at first blush, seem peripheral to the ascertainment of culpability and the assessment of the objective criminality involved. But in truth, I think that the answers to these troublesome questions are highly relevant in that regard.
    
25. Questions which have excited public attention, and which I believe do have a bearing on the issue of culpability, include the following: Why did the offender become pregnant so many times when it was clearly within her means not to do so? Why were the pregnancies, terminations, and births kept secret? How were they kept secret? What was the point of their being kept secret? I am satisfied that the answers to these questions, insofar as they can be ascertained, are relevant to the sentencing of the offender. Ms Lane has not given evidence at trial or in the sentencing process. She was not obliged to do so. For that reason, it is necessary to tread cautiously. It is also necessary to acknowledge that the answers to the questions I have posed may be difficult, perhaps impossible, to ascertain.
    
26. Dr Diamond's reports are very detailed. I do not propose to go to that detail. I consider, however, that those areas which are directly enlivened by Dr Diamond's considerable experience and expertise are the ones most relevant and helpful to the sentencing exercise. I shall state the nature of the areas in which I have found the reports, to a degree, valuable and of assistance.
    
27. First, I accept Dr Diamond's opinion that there is no evidence that the offender suffered any disturbance to her mental processes so as to support a diagnosis of a mental illness or a mental disorder. She clearly knew the nature of her actions and was able to discern right from wrong. In that regard, Dr Diamond also thought there was no evidence to support an abnormality or impairment of mind argument. Indeed, there was no suggestion during the trial or the sentencing process that there was any significant mental or psychiatric illness involved. This was not the defence case, nor was an issue of that kind left before the jury. Secondly, I accept that there is some substance (although one cannot be entirely certain) in relation to Dr Diamond's opinion that the offender's overriding motive for her unusual behaviour in carrying pregnancies to term was a personal one that related to her wish to be pregnant, in the face of her decision to terminate two previous pregnancies. There is much to be said for the proposition that each subsequent pregnancy represented a further psychological motivation "to have the baby she could not have". Dr Diamond referred to this type of behaviour as "a repetition compulsion". He described it as "a powerful drive to revisit an unresolved conflicted state". It was designed, he explained, to bring about a re-enactment of that state, in the hope that a previous unsatisfactory and emotionally distressing experience could be corrected by managing the current one more successfully. Dr Diamond said:-
    

The behaviour seems to defy any rational explanation for repeating such a poor choice, yet the compulsion to repeat the behaviour is powerful.

28. Thirdly, Dr Diamond's reports described the offender's behaviour during these years as "very destructive repetitive behaviour". It was against that background that Dr Diamond expressed a clear view that, in the relevant period, the offender manifested clear signs of a disordered personality. Dr Diamond felt it necessary to refrain from making a diagnosis of any specific personality disorder, because of the fact that he had not had an opportunity to examine the offender clinically. He thought, however, that she exhibited clear evidence of "persistent long term repetitive features in her personality functioning that could be clearly identified and assessed". Dr Diamond provided, in his reports, a considerable number of these characteristics of her personality functioning that led him to the conclusion that he was dealing with a disordered personality. He said these personality features were "striking and persistent". Although he excluded a diagnosis of any significant psychiatric illness, he thought, in all likelihood, that a diagnosis of a personality disorder could be made. In that regard, Dr Diamond repeated that he found it difficult to classify the personality disorder because of a lack of opportunity to carry out a psychiatric examination or to have the offender "address certain key questions". He concluded this aspect of his second report in these terms:-
    

On this basis, my view is that the factors that cause her repetitive behaviour are best understood in terms of the interaction of her underlying personality functioning and the repetitive predicaments she faced. I note that her complicity in creating these difficult circumstances is a manifestation of her disturbed personality functioning, her judgment and her [sic] ability to resolve psychological problems in a less dysfunctional manner.

29. Finally, Dr Diamond dealt with the issue of Neonaticide. This was a reference to a number of studies that had been done in relation to the situation where young babies have been killed by their mothers in circumstances where the mother does not suffer from a mental disorder or psychiatric illness that would meet the definitions for infanticide. Although Dr Diamond was somewhat critical of, and reticent about, the value of these studies, he accepted that the murder of Tegan Lane by her mother in the present matter met the broad definition of Neonaticide, as described in those studies. Although Keli did not meet the normal social criteria for Neonaticide, she nonetheless fell within the category recognised in the studies. The relevance of these studies is that they highlight the proposition that infant killing is a broader phenomenon than we as a society would perhaps wish to know or admit.
    

The evidence of Dr Thompson

30. Dr Jeremy Thompson is a general practitioner of medicine, and also a Fellow of the Australian College of Psychological Medicine. This is a college of GPs who specialise in and undertake counselling of patients in distress. He had treated Keli as a general patient for a number of years prior to his being called to give her specific counselling and assistance on 22 nd November 2004. He was asked by Keli's parents to attend their home because she was in a distraught state. This was at a time when, in the offender's perception, she was being given "a hard time", both by the police investigation team, and by journalists who were hovering around her. Dr Thompson said:-
    

So I just sat down and listened to her story of what actually happened. And what she explained to me was that she'd been, you know, a young kid that had been good at sport and brought up in a competitive family, in a competitive community. She'd become very good at her swimming and this water polo and that everyone was expecting a lot of her and she got caught up in the whole expectation of the whole thing, but deep inside she was not happy and she was wanting something else and she ended up getting pregnant. I think it was like a cry for love or something like this.

31. Dr Thompson gave further evidence about his understanding of what it was that Keli had told him during this meeting. In short, he said that she had told him that it was " maybe a kind of subconscious thing that she was just clinging on and ended up getting pregnant, without really working it out" . The offender told Dr Thompson that she was mixed up and confused and did not know how to handle the situation she was in as at November 2004. Her mind was "in a mess and she was scared".
    
32. Keli acknowledged to Dr Thompson during this interview that she realised that she should have told her parents that she was pregnant, but she did not. Dr Thompson said:-
    

I think she was just scared and it was a nebulous kind of fear. It wasn't you know, she was a young person, you know. To me it's like these young kids that they might be top scholars or something and suddenly they commit suicide and people say why and no one really knew. These people should have communicated what they were feeling, but they don't. She didn't do that. But what her behaviours were, with getting pregnant all the time, was another kind of dysfunctional way of managing the situation.

It appears also that the doctor had asked her whether she did kill Tegan and she said, "No, no, I would never ever do that". Dr Thompson reported that Keli became very emotional about this answer.

33. Dr Thompson noted, in the weeks that followed the November 2004 interview, that the offender became more settled. He continued to treat her and her fourth child over the following years. He has, in recent times, provided a powerful written reference for her, attesting to her good character and positive role in performing her duties as a mother to this child. Significantly, however, Dr Thompson's oral evidence lends some muted support to the opinions expressed by Dr Diamond. Moreover, the offender's remarks to Dr Thompson in November 2004 reveal some degree of insight on her part into the complexities and oddness of her behaviour when she was in her late teens and early twenties. True it is she continued to deny that she had harmed Tegan, but the compulsions and unhappiness that underlay her prior destructive behaviour were to a degree recognised by Keli, and on display for Dr Thompson to record.
    

Objective seriousness of the murder

34. I now turn to consider the overall seriousness of the offences committed by Ms Lane. I shall deal separately with the offence of murder and the false swearing charges. I turn first to the murder.
    
35. The starting point is the recognition that the offence of murder involves the felonious taking of a human life. The community perceives and understands that the crime of murder is one of the most serious crimes, perhaps the most serious crime, in the criminal calendar. The taking of a human life is and must remain the paramount consideration in this sentencing exercise.
    
36. Next, it must be recognised that the murder of a child, particularly by its mother, has always been considered a crime of very grave proportions. Because of the vulnerability of a child, particularly an infant child, the offence demands both a denunciation and recognition of the need for general deterrence. The Crown submitted that the objective criminality involved here was serious, although it conceded that this was not, objectively viewed, a case of the most serious kind, or, for that matter, near to that category. Mr Chapple SC submitted that the offence fell at the lowest end of the spectrum in terms of its objective seriousness. The Crown did not accept this submission. It referred to the aggravating features involved, the selfish motives underlying the murder, and the fact that this was not the first time the accused had been involved in giving birth to a baby, indeed, a baby she did not intend to keep.
    
37. The Crown case at trial had been that the offender deliberately and intentionally killed her daughter and disposed of the body such that it would not be found. The Crown submitted to the jury that they could exclude accident, misadventure, or any other basis for the death of the child. The Crown submitted before the jury that it was clear that the offender had no intention of taking the baby home with her, and had made no arrangements, prior to attending the hospital, for the care of the baby.
    
38. The Crown has submitted before me that the offender must be sentenced on the basis that, at some time either shortly before or after leaving the hospital, she formed an intention to kill the child, and then carried out this intention by murdering her daughter. The Crown submitted that an offence involving an intention to kill is generally more serious than one involving an intention to inflict grievous bodily harm. The Crown also argued that this murder could not be seen to be the result of a sudden spontaneous act. Further, the Crown submitted that the offender's conduct following the murder, that is in attending a wedding and moving on with her life in a normal manner, showed either a callous disregard for human life, or a complete ability to block out the terrible act she had just committed.
    
39. Mr Chapple SC disputed that it was open to the court to conclude that the offender had formed an intention to kill as opposed to an intention to inflict grievous bodily harm. Mr Chapple's point was that there was simply no evidence as to what happened to the baby, and no evidence as to how she may have met her death. Senior counsel submitted that the question of motive, and Crown submissions related to the offender's reasoning for the commission of the offence, were completely speculative. Counsel argued that the totality of the evidence suggested that Ms Lane was a person who was simply not experienced or mature enough in dealing with a series of difficult and emotional events in her life. He reminded the court that all these events occurred before her mid-20s, and that she found herself in a position where essentially she had to face all these difficulties in isolation.
    
40. While I can readily accept the Crown's submission that this offence was by no means at the highest end of the scale of criminal culpability, I am not prepared to find, as Mr Chapple submitted, that it was at the very bottom end of the range for this type of offence. Although the court knows nothing about the actual circumstances of the murder, it can be safely accepted beyond reasonable doubt that there are two aggravating factors. These are first, the age of the child, a baby of only 2 days old and secondly, the abuse by a woman of the position of trust as between a mother and her child. These are serious aggravating factors because the life that has been taken is that of a baby, a being who was completely defenceless, and who met her end at the hands of her mother, a person from whom she could ordinarily expect protection, sustenance and care.
    
41. I am also satisfied beyond reasonable doubt that the act causing the death of Tegan was done by the offender with an intention to kill. This must be so in the present case, since the matter was left before the jury on that basis and no other. It is simply not open for me to find otherwise. This was not a case where the evidence pointed to a particular act causing death and the jury were at liberty, having regard to the injuries, to choose between two possible states of mind. However, even though I accept the Crown submission on this point, it tells me little, in a practical sense, about the level of culpability. By that, I mean that I am none the wiser as to the actual circumstances of the child's death. Ordinarily, the nature of the act causing death will determine the nature of the intention. While I accept that generally an act causing death accompanied by an intention to kill will be more serious than an act causing death that is not so accompanied, this will not inevitably or necessarily be the case. To take a different example, where there is evidence to show that a mother had recklessly abandoned her child, not caring whether the child survived or not, in circumstances where the child eventually suffered a lingering and horrible death, the culpability might well be greater than death occasioned by a sudden violent and intentional act. In the present case, I simply do not know how the child met her death. As I have said, however, I must accept that the act causing death was carried out by the offender, and that it was accompanied by an intention to kill.
    
42. There are, I think, a number of factors that mitigate the objective seriousness of the offence in the present matter. The first matter is the issue of premeditation. I cannot be satisfied beyond reasonable doubt, on the evidence that, at the time the offender left the hospital, she had made up her mind to murder her child. I accept that the evidence shows that, in a general sense, she did not intend to take the baby home, and that she did not want any of her family or friends to find out that she had given birth. Beyond that, the evidence simply fails to establish beyond reasonable doubt what was in her mind at the moment she left the hospital. Dr Diamond's thoughts on that particular matter, although helpful in a general sense, cannot rise above speculation. All that can be said is that, some short time after Keli left the hospital, she must have determined to, and did in fact, cause the death of the child. By contrast, there is ample evidence to show that she was acting very normally and lovingly towards the child on the day before she left hospital. There is no evidence to demonstrate that there had been any change in her attitude on the morning of the day that she took the baby with her from the hospital. I should add that the evidence does not satisfy me that Keli murdered the child so that she could attend the Hansen wedding. There was nothing to stop her doing as she had done when Tahlia was born, that is obtaining a leave pass to go out, presumably for social purposes, and then simply to return the next morning. The baby would have been well looked after in the meantime. There is no evidence to satisfy me that the Hansen wedding was especially important to Keli. Indeed, the principal social connection was between Duncan Gillies and the Hansens. Even he gave evidence that the wedding was of no major significance to him. Even more so, it was of no significance to Keli. It is true that Keli evinced a clear intention on the Saturday to leave the hospital on the following day. But once again, that evidence simply does not enable me to find why that was so, or precisely when it was she determined to end the child's life.
    
43. I am satisfied beyond reasonable doubt that some time after she left the hospital, she formed the intention to take the child's life, and did so very soon after forming that intention. This does not bespeak any degree of premeditation. Rather, it suggests a relatively, although not completely, spontaneous act.
    
44. The reports of Dr Diamond, aided as they were by Dr Thompson's evidence, allow me to come to a reasonably firm conclusion that the offender's decision to bring her daughter's life to an end was made in a situation of some desperation and was contributed to, in part, by the dysfunctional complexities arising from aspects of her disordered personality. Putting it bluntly, she must have found herself in a desperate situation and could see no way out. This aspect of her personality requires recognition both in its capacity to have a causal connection with the offence and as being relevant to the imposition of an appropriate level of punishment on the offender: R v Way [2004] NSWCCA 131; 60 NSWLR 168 at [86] - [93]. Dr Diamond spoke of two unusual aspects of her personality, namely her ability to shut down emotionally, and to act pragmatically on the spur of the moment when a problem could not otherwise be solved. This fits in only too well with the tragic situation that must have arisen in her mind, following her departure from the hospital with Tegan. In her mind, Keli had nowhere to turn.
    
45. The Crown argued that the offender had family and friends who would have helped her in this difficult situation. That is true. The Crown argued that she was not isolated and that she was a gregarious person with many friends. That is also true. But, for reasons that Dr Diamond explained, she could not, in real terms, turn to her parents, her friends, or her boyfriend. She had, for whatever reason, abandoned the prospect of an adoption in this case, and found it impossible to go back to the hospital to take whatever steps were necessary to place the baby in foster care. A young mother with a less disordered personality, and a more rational ability to function within normal constraints, would have told someone of her problems. She would have approached someone for help and ministration. Such a person would not have attempted to solve the problem on her own. It is clear to me, aided by Dr Diamond's evidence, that Keli could not do this, to a large degree because of the complexities and unusual features of her personality in the particular circumstances in which she found herself. From her perspective, irrational though it was, there was simply no way out.
    
46. Dr Diamond, in his first report, made a telling point. He was commenting on a situation which had arisen in an interview with Detective Senior Constable Gaut. The offender had been interrogated by the police officer about the situation where, at Auburn Hospital, she "needed to have the pregnancy induced". Dr Diamond noticed that she became very distressed at this part of the recorded interview. He thought that these questions "were very close to revealing her true distress at the time when she was pregnant with Tegan, had kept the pregnancy secret, had no plan for what she might do with Tegan after the birth".
    
47. In his second report, when dealing with an analysis of the offender's mental processes during the period of pregnancy and the murder of Tegan, Dr Diamond suggested that the offender's emotional outbursts in later years, when she was asked to talk about the disposal of the child, demonstrated very clearly her state of mind that she had no other options and, for whatever reason, she could not present the child to her boyfriend or her parents. Her stated view was that "she had no other option". Dr Diamond said that these conversations (and, in particular, the discussion with her then-partner on 9 th September 2004) revealed the emotional state of pragmatism and desperation she must have felt on the earlier occasion in 1996.
    
48. I accept the Crown submissions that the motives behind the murder were, in an obvious sense, selfish. However, the attribution of overall culpability that might otherwise flow from this is, to some extent, diminished by the factors I have mentioned. I bear in mind that Dr Diamond's reports were tendered by the Crown, and I conclude that, therefore, unless otherwise stated, the Crown accepts that reliance may be placed upon them. In the end, as I have said, Mr Chapple made a submission that, to the extent that the reports assisted his client, he would place reliance on them as well.
    
49. In summary then, I find that the offence was premeditated, but only for a short time. It was committed in a situation of desperation arising from a sense of entrapment and isolation, and a perceived inability to communicate with the very people who would have eased her burden and helped her out of the desperate situation in which she found herself. Irrational though these feelings were, I accept that they were likely to have been experienced by the offender. These circumstances, based as they were on an unclassified but real personality disorder, diminish, to some extent, the level of culpability of the offending, although of course they do not reduce it from being regarded otherwise than as a serious offence. They lessen but do not diminish altogether the need for the sentence to denounce the offender's actions in murdering her child. They lessen but do not obviate the need for the sentence to reflect an element of general deterrence. Notwithstanding that the offender is on this account, in some respects, not an ideal vehicle for general deterrence, the sentences must make it clear that the community will not tolerate, or condone, even in difficult circumstances, the murder of a child by its mother.
    
50. Accordingly, I do not accept the submissions by Mr Chapple that the offender should be sentenced at the very lowest end of the scale of seriousness for the offence, but rather I would place the offence at a higher level than that, but well below the most serious level for an offence of this kind.
    

The false swearing offences

51. Each of the false swearing offences carries a maximum penalty of five years imprisonment. The offence of false swearing is, of course, a serious one, and nothing that I say in this regard is intended to undermine that consideration. However, each of the offences here completely pales into insignificance when compared to the murder offence. False swearing is a Table 1 offence under the Criminal Procedure Act 1986 (NSW), and can be dealt with in a Local Court. It is of interest to note that the Judicial Commission of NSW statistics show that, between July 2002 and June 2009, three offenders were dealt with in the District Court of NSW. One offender received a full-time custodial sentence of six months imprisonment, one a suspended sentence, and one a section 9 bond. During the same period, three offenders were dealt with in the Local Court. Two received Community Service orders and one received a suspended sentence.
    
52. The Crown submitted that these offences should be viewed as being in the worst category for offences of this kind. The Crown submitted this was so because of the motive of the offender in preventing contact with the natural fathers of the children, and because of the surrounding circumstances of duplicity and subterfuge engaged in by the offender. I am unable to accept the Crown's submissions in this regard. I would regard these actions by the offender as falling into a relatively low category for offences of this kind.
    
53. I accept that the two 1995 offences may properly be categorised as really part and parcel of the one spate of criminality. Each was related to the adoption of Tahlia Rose. First, the offender had been asked to swear an affidavit, based on information she had given, indicating that the natural father would consent to the adoption. Shortly thereafter, the offender was required to swear an affidavit that the father had changed his mind, and did not so consent. The second affidavit was required by the agency, at least in part, to protect its own position. Both these statements in the two affidavits were completely false, as the offender knew. As I said during the trial, the legislation in force at that time did not, however, in the circumstances require the father's consent, nor was he required to be notified. It was simply the practice of the adoption agency to give such notice. It thought it should do so. That misconception on its part probably occasioned the requisition raised by the Equity Court in May 1996.
    
54. From the offender's point of view, the false statements were not designed primarily to prevent contact with the natural father, in the sense of prohibiting the natural father from knowing he had a child. They had that effect, of course, but were primarily designed to prevent the outside world from knowing of her pregnancy and the birth. Duncan Gillies was not the natural father, as it happened, although whether the offender realised this has not been demonstrated. Secondly, it must be accepted that the affidavits were sworn in a highly emotional context, and in a situation where the offender was about to make a final and permanent decision to give up her child, Tahlia, in favour of adoption. Her emotional state was very evident at the time of swearing the first affidavit, and there is no reason to doubt, as Mr Chapple argued, that the central document principally occupying her attention at that time would have been the final consent to adoption. This is not to say that she would not have appreciated that she was swearing a false document that was to be used in the adoption proceedings. She must have realised that. It is not to say that her highly emotional state excused the offence, or made it, in some way, acceptable. That was clearly not the case. However, her "duplicity" in this regard is to be seen in the light of those general considerations raised by Dr Diamond in his report that might properly be said to ameliorate, to a degree, the seriousness of the offence.
    
55. The third affidavit was sworn a number of years later in connection with the adoption of the offender's third child, Aaron. Once again, for the reasons suggested by Dr Diamond in his report, the offender was likely to have been influenced in her duplicity by the complexities of the same disordered personality that had manifested themselves on earlier occasions. As with the previous two offences, the evidence showed that the third affidavit was sworn in connection with the final consent to adoption, a procedure which, once again, meant that Keli, in practical terms, had to make a final decision to give a child away permanently in favour of adoptive parents. It was, it might be said, a final separation, and it was clearly a very emotional moment in the offender's life. Once again, this did not excuse the swearing of a false affidavit but, in the circumstances I have already outlined, it lessened the culpability in my view, so that one could not say that this offence fell into the worst category. I should also add that, although the relevant adoption legislation had been amended in the interim, the position remained that, in the circumstances, the father's consent was not required for the adoption.
    
56. In a practical sense, the argument in relation to these offences really centred around the Crown's submission that the sentences to be imposed should be accumulated, at least partially, on the sentence for the murder. I am unable to agree that some level of accumulation is necessary. As I have said, these offences pale into complete insignificance when compared to the murder. They were not, in my opinion, offences in the worst category of false swearing offences. Had they stood alone, I think there was a respectable argument to suggest that the offender might not have received custodial sentences at all in respect of them. The pattern of sentencing revealed by the material I have earlier mentioned supports this contention. The Crown accepted that the offender's desire for secrecy was common to both the murder and false swearing charges, but submitted that these offences were of a completely different nature. That may be accepted. In my view, however, the sentences to be imposed for these offences, especially when regard is had to the principle of totality, do not require that there be discrete punishment in the form of accumulation upon the murder sentence in order to give effect to the principles of general and specific deterrence. Rather, in my opinion, it will be sufficient to accommodate the sentences for these offences within the sentence for murder, although there will be a degree of accumulation within the sentence structure as between the individual offences themselves.
    

Do the non-standard parole periods apply to the murder offence?

57. A question arose during the sentencing submissions to which I must now turn. This is the question as to whether the non-standard parole period legislation applies to the murder offence. I can deal with this matter quite briefly, because there is no significant difference between the parties on this point.
    
58. The standard non-parole period was introduced in New South Wales on 1 st February 2003. That regime provided a standard non-parole period for murder of a public official, and for murder generally. The Savings and Transitional provisions, however, made it quite clear that the new regime did not apply to offences committed before the commencement of the regime. It is therefore perfectly clear, as the Crown pointed out, that the standard non-parole period for murder of 20 years has no application in the present case.
    
59. The complication arises from later legislation - the Crimes (Sentencing Procedure) Amendment Act 2007 - which commenced on 1 st January 2008. This inserted a number of new offences into the standard non-parole regime. Included in the table was the new category of "Child Murder", which carried a standard non-parole period of 25 years. The Savings and Transitional provisions of this amendment were, it might be thought, oddly worded. They provided:-
    

The amendments made to this Act by the Crimes (Sentencing Procedure) Amendment Act 2007 apply to the determination of a sentence for an offence whenever committed, unless:

(a) the court has convicted a person being sentenced of the offence, or

(b) a court has accepted a guilty plea and the plea has not been withdrawn,

before the commencement of the amendments.

60. If this transitional provision was intended to create a standard non-parole period of 25 years for a child murder, no matter when it was committed, this would have been a very unusual piece of legislation and a very unusual statement of legislative intention. It would have led to absurdities and anomalies that could not be countenanced. The Crown powerfully identified those absurdities and anomalies in its written submissions. To give the legislation such a meaning would disregard long established authority that presumes against the retrospectivity of new or sterner punishments for offences committed many years earlier, or for the criminalisation of previously non-criminal conduct: Lodhi v The Queen [2006] NSWCCA 121; 199 FLR 303 at [22] - [56] per Spigelman CJ; R v JS [2007] NSWCCA 272; 175 A Crim R 108 at [30] - [45] per Spigelman CJ; R v Young [1999] NSWCCA 166; 46 NSWLR 681.
    
61. In my opinion, the 2007 amendment does not apply to the present offence. I consider that a satisfactory and sensible meaning can be given to the transitional provisions, if they are construed to include the offences and standard non-parole periods referred to in the 2007 amendment as though they had been included in the original 2003 amendment. The legislation is accordingly retrospective only so far as I have stated, but no further. I do not consider it was the legislative intention that the 2007 amendments should apply to offence committed prior to the period before the introduction of the standard non-parole period regime.
    
62. The position remains, therefore, that the offence of murder in the present case carries with it a maximum sentence of life imprisonment. It follows also, that Keli Lane falls to be sentenced according to the prevailing sentencing practices at the time the offence was committed, insofar, of course, as those practices can be ascertained: R v MJR [2002 NSWCCA 129; 54 NSWLR 368; Dousha v R [2008] NSWCCA 263; GRD v R [2009] NSWCCA 149 at [20] per Buddin J. I shall return to this subject in due course.
    

Subjective matters

63. I turn now to consider the subjective circumstances of the offender. Keli Lane was born on 21 st March 1975. She was raised in a respectable, well known family in the Manly area, where her parents were active community members. Her father had a significant position in the NSW Police Force, and an active involvement in sport, especially with Rugby Union and water sports. Her mother is highly regarded in the local community. She has one brother, Morgan, who is a successful solicitor. Keli grew up on the Northern beaches of Sydney. It is clear that she was a successful sportswoman from a very early age. She pursued a successful career as a water polo player, and progressed to the elite level. She lived with her family at their home well into her twenties. It seems she had a very strong and settled group of friends from her early years, and was well respected in the local environment.
    
64. Keli was twenty-one at the time of Tegan's death, and she is now thirty six years of age.
    
65. She completed her secondary education and thereafter tertiary education, obtaining an Arts degree. She was successfully employed at Ravenswood Girls School at Gordon, and based on the evidence I have received, was very well regarded in that occupation and in the different areas of work she has undertaken between 2004 and the time of her trial.
    
66. A clear indication of the type of person she is can be gained from the significant number of character references and testimonials that have been assembled on her behalf. These include testimonials from friends she has known all her life and from her mother, father and brother. There are, however, over forty character references provided, and they emanate from people with a wide variety of backgrounds and connections with the offender. The most significant factor to emerge from these testimonials is the undoubted fact that she is a loving mother to her nine year old daughter, [NAME RESTRICTED]. The strong relationship and firm bond between mother and daughter clearly goes very deep. This only serves to heighten the tragic irony of the nature of the principal crime of which the offender has been convicted. The testimonials speak of Keli's love for her daughter, and the ability that she has shown in nurturing her daughter into a lovely and caring child. Keli and the child's father married in 2004 but, perhaps not surprisingly, given the pressures that she has been under over the last ten years, that relationship resulted in a parting of ways. Her former husband has, however, provided a character reference and this shows that he continues to hold her in high regard, and that he is also a continuing important personage in the life of their child. He plays an important role in the child's upbringing and development. This is even more the case since the offender has gone into custody.
    
67. The testimonials particularly demonstrate that Keli has a unique rapport and successful relationship with young children generally. This appears to include her background as a teacher of children, but it extends also to the close relationship she has with the children of her many friends and acquaintances in the local area. The character references demonstrate that she is a strong community member and has a continued involvement in children's sporting activities. They also show that she has demonstrated strength and courage in the face of increasing adversity as the mounting publicity and her trial have led to an invasion of her privacy to an extraordinary degree.
    
68. The overall conclusion I draw from this material is, first, a reinforcement of the notion that the criminal offences of which she has been convicted were committed when she was very young, when she was very immature, and (as Dr Thompson suggested) deeply conflicted as to the proper direction for her life to take. Secondly, they reinforce the fact that she is rehabilitated and, so far as can be ascertained, may have resolved, with the onset of maturity, those personality problems and conflicts that underpinned her aberrant behaviour all those years ago. She presents no danger to the community and there is no risk of re-offending. I am satisfied that Keli Lane is now a very different person to the troubled personage that lay beneath the "golden girl" exterior so eloquently described by the Crown during the trial. This maturity has probably been cemented, ironically enough, because of the love and devotion that has grown between her and her daughter, [NAME RESTRICTED].
    
69. It is a further tragic irony that, despite her maturity, her rehabilitation and the apparent resolution of the difficulties that beset her in her youth, she must now face a lengthy period in prison.
    

Factors relevant to sentencing

70. I have earlier set out the more important principles involved in the present sentence. They require that the court not lose sight of the need to denounce and mark out the abhorrence the community has for the crime of child murder. They require that the factor of general deterrence be recognised. Indeed, general deterrence, notwithstanding the offender's personality disorder at the time, must take its place in the present sentencing exercise. The court must make clear its absolute disapproval of the crime. On the other hand, Mr Chapple SC has raised a number of matters which the court is asked to take into account in ameliorating the severity of the sentences to be imposed. First, Mr Chapple submits that the sentence to be imposed for the murder should, so far as it can be ascertained, reflect the sentencing pattern of the period when the offence was committed. The Crown agreed with that submission, and I accept that the matter should be approached in that way. As I shall point out, however, the problem is that there is probably no reliable pattern that can be identified.
    
71. Secondly, Mr Chapple submits that the court should find special circumstances here so as to vary the statutory ratio between the custodial period of the sentence and the additional term. This submission emphasises the age of the offender at the time of the commission of the principal offence, that it is Ms Lane's first time in custody, and the fact that the nature of the offence will attract the general opprobrium of other prisoners and necessitate continued protective custody.
    
72. Thirdly, Mr Chapple has asked that a number of other overlapping matters, personal to the offender, be taken into account. These include the impact incarceration will have on her daughter, [NAME RESTRICTED] and, so far as Ms Lane is concerned, the distress that will be occasioned to her by separation from her daughter. Mr Chapple also asks the court to take into account the offender's suffering and distress over the years during the police investigation and up to the time of the trial. Counsel submitted that the allegations against her, and the convictions, have brought very public community censure, and have made her working life as a teacher untenable. The offender has been subjected to incessant publicity of the most intrusive kind. Finally, Mr Chapple argued that the tremendous delay between the time of the commission of the offences and the time she now stands for sentence is a serious and relevant factor which should be taken into account in the imposition of sentence. Her lack of prior convictions, her good character, and the fact that she has not come under notice since 1999 are also relied on as matters requiring attention.
    
73. The Crown has argued that this is not a case for a finding of special circumstances. Secondly, it argues that the distress of the offender's daughter [NAME RESTRICTED], although understandable, does not amount to exceptional circumstances so as to warrant reflection in the sentences. Thirdly, the Crown argues that the other matters relied on by Mr Chapple are not matters which ought to have any significant bearing on the outcome. In particular, the Crown has submitted that the delay is largely the responsibility of the offender herself, and that there is no warrant for considering that she will be in protective custody for any lengthy period of time, or that her conditions of incarceration will be unduly onerous, if she does remain in protective custody.
    

Resolution

74. I shall first address the issue of protective custody. Ms Lane went into custody immediately after conviction, on 13 th December 2010. She presented as "scared and fearful" and the Corrective Services Department determined that, "given the nature of her offence, placement in special management area placement (SMAP) was considered an appropriate placement". She remained in an observation cell for some days, but was then placed into SMAP custody.
    
75. The original report from Corrective Services indicated that "she could remain on some sort of protective custody for the entire duration of a custodial sentence". The report indicated that the offender was to be reviewed on 20 th March 2011, although no evidence has been placed before me to suggest that her custody conditions have altered.
    
76. It is my understanding that SMAP is the lowest level of protective custody. It is protective custody, nevertheless, and it requires that inmates are separated from normal discipline inmates, into an area where SMAP inmates may associate with each other. The out-of-cell hours are the same as all other housing units within the centre, that is from 8:00am to 3:30pm. The SMAP unit houses up to thirty-six offenders, where inmates may mix freely with those persons on similar placement. Offenders in this area have the same access to custodial, programme and service staff, telephones, grocery, activity and cosmetic buy-up and activities, as all other inmates within the centre. There are, however, more limited employment opportunities at the present time.
    
77. The most recent information from Corrective Services is contained in a letter from Rob Walters, the Director of Legal Services, dated 17 th March 2011. This document (exhibit '2') unfortunately speaks in the language of bureaucracy as to Ms Lane's future classification. In other words, it really tells me nothing of any real utility.
    
78. It has long been recognised that protective custody represents a loss of liberty more than that experienced under the ordinary conditions of imprisonment. However, the Court of Criminal Appeal in recent times has sounded a note of caution on two levels. First, given the difficulty of predicting future classifications, considerable care should be taken before concluding that a prisoner's custody will be served on protection for the duration of the sentence. Secondly, the nature of protective custody is by no means uniform in the modern custodial situation. Ms Lane's placement on SMAP is a good example of that situation. It is accepted that, although onerous to some limited degree, the type of protective custody is at the lowest level.
    
79. While it may be the case that it can never be assumed or predicted with absolute confidence that a prisoner will serve the whole of his or her sentence in any particular type of custodial arrangement, it nevertheless appears from the material placed before me that it is likely that Ms Lane will remain in a low level of protective custody throughout her sentence. It may safely be assumed that the type of offence for which she has been convicted is highly likely to render the offender susceptible to recrimination, and perhaps even physical mistreatment, at the hands of other women prisoners.
    
80. It all these circumstances, I think that some limited allowance should be made in the imposition of the sentence to reflect the type of custodial situation she is likely to experience throughout her sentence. In practical terms, it really means that her level of association with other women in the prison will be quite severely limited, even though the placement is essentially for her own benefit. Secondly, at least as presently appears, there are quite limited employment opportunities for her to undertake, which will no doubt make her time in custody more difficult for her than might otherwise be the situation. There is enough there, I think, for some limited allowance to be made, although it cannot be expressed in mathematical terms. It is merely a factor, along with other subjective matters, that should be taken into account in imposing sentence.
    
81. The offender is entitled to recognition of her prior good character, her rehabilitation, her lack of prior convictions, and the fact that she has not come under notice since 1999. Indeed, the court is also entitled to take into account that, far from harming her third child, Aaron, she arranged from the outset to place him into adoptive care, and ultimately secured his placement with, it seems, caring adoptive parents. It may, perhaps, be remarked in passing that a puzzling aspect of the Crown case at trial was that the offender was said to have been so distressed by the difficulties involved in the first birth that she murdered her second child, rather than face again the prospect of a long adoption process. Yet upon the birth of her third child, that was the very process on which she immediately embarked.
    
82. I turn now to consider the difficult question of the separation that has, and must, occur between the offender and her daughter, [NAME RESTRICTED]. From the offender's perspective, this is probably the most painful aspect of her custodial situation. It is not hard to imagine that the impact on her child is equally painful and difficult. Indeed, there was evidence from Mrs Lane, and from Simone Tamanaha, that demonstrates that the child has already suffered as a consequence of this rupture between mother and child. The child has become quieter and has lost her usual "sparkle", it seems. This is hardly surprising, given the close relationship between Keli and [NAME RESTRICTED]. It is hardly surprising, given the difficulties for a young child to understand why her mother is now in a custodial situation. It may, however, properly be observed that the hardship suffered by the offender because she is separated from her daughter will exacerbate, to a degree, the hardship of remaining in protective custody, or for that matter, custody generally. I have already taken that matter into account in a limited way, and I do not consider that it is appropriate to do other than to recognise it, once again, as a further variation of the subjective circumstances that may properly be taken into account in the imposition of sentence. It does not, I repeat, require a mathematical allowance or recognition in other than a limited way.
    
83. Regrettably, however, I cannot find, so far as the hardship to [NAME RESTRICTED] is concerned, that this constitutes "exceptional circumstances" as that phrase has been determined by authority of the highest kind. Here, at least, it can be said that the child is in very good hands. Part of her care, the major part, now falls on her father, who has apparently willingly undertaken that task. Mr and Mrs Lane have shown themselves to be exceptional grandparents, and they too play a significant role in caring for, and rearing, the child. Of course, it would be better for the child to be with her mother, but this must always be the case when a mother with a young child or children is sentenced for a serious crime. That is why the law selects only those cases that are highly exceptional as available to bring about a real impact on a sentencing decision. The law requires me to state that third party hardship may be taken into account only in cases that are truly exceptional. This case, involving the child [NAME RESTRICTED], does not reach that level. This may seem a harsh decision but it is clear that the law gives me no leeway in this regard.
    
84. I might add, since it is relevant to this decision, that the present case may properly be seen, in every sense, as a tragedy involving mother and daughter. It is a tragedy at three levels. First, there is the tragic fact that, for whatever reason, Keli Lane could not tell her mother, all those years ago, of the secret births of her three children. This remark is not intended to reflect in any way adversely on Mrs Lane, but merely to highlight the fact that the tragic circumstances underlying the present trial could have been avoided, obviously enough, if Keli could have brought herself to reveal her secrets to her mother. Secondly, it is a tragedy between mother and daughter, in the sense that the offender disposed of her second child, Tegan, and in so doing, tore asunder the natural relationship between mother and daughter. That fact has, and will, continue to haunt the offender throughout her life. The third tragedy is the rupture that must occur between Keli and her daughter, [NAME RESTRICTED], because of the law's requirement that she be sentenced to imprisonment for the murder of her second child. It is in these three senses that I say that this case reflects the most profound tragedy of the relationship between mother and daughter.
    
85. I now turn to the vexed issue of delay. Sometimes, the law recognises that delay in prosecution, and hence conviction, can operate unfairly to an accused person. Here, the situation is more complex. The Crown has simply argued that, from the time she first told police that the child had been taken by its natural father (Andrew Morris or Norris), the offender, in effect, sent the police on a "wild goose chase" which lasted many years. Hence, the Crown argues that the delay was brought about solely by the offender. The position, as I have said, is more complicated than that. The initial parts of the police investigation were, it must be said, very slow and laborious indeed. There were administrative reasons for that, and I am not critical of the particular police officer involved. But overall, the police investigation languished for some considerable time. It was then taken over by Detective Gaut and, by contrast, he showed a relentless determination to uncover, as he saw it, the truth as to the fate of the child. His investigation was, broadly speaking, completed in 2005/2006, at about the time of the Coronial inquiry. Thereafter, the homicide team took over the investigation. Although the Crown insisted at trial that this was a most efficient investigation (and indeed, in a number of respects it was), the fact is that it continued over many years before an ex-officio indictment was presented against the offender. Indeed, the investigation continued right up to - and during - the trial. Substantial inquiries to locate Tegan were still being made only weeks before the Crown made its final submissions to the jury. As I say, the position was quite complicated, and it is impossible to make a generalised statement about the delay, other than to note that it did span many years and in that time, as I have said earlier, the offender in that time grew into a mature woman, and achieved considerable rehabilitation from the tribulations of her younger years.
    
86. On balance, I think that the Crown submissions in this regard are to be preferred. There is an element of delay, however, that should operate in the offender's favour, but it will not have any significant application. On the one hand, it could not be said that the offender volunteered her guilt so, in that sense, any uncertainty experienced by her during the ensuing years must be regarded as a result of the necessity to carry out a lengthy investigation in an endeavour to find the natural father and Tegan. In such a situation, it might be thought that little mitigation would arise, although it must be observed that, in some respects, the search was not so much as to find Tegan as it was to prove that she could not be found. On the other hand, fairness to the offender requires that some weight be given to the progress of her rehabilitation during this time. As I have said, on balance, some allowance should be made, but it cannot be of a substantial kind.
    
87. Mr Chapple is perhaps on safer ground, I consider, when he points to the extra-curial punishment inflicted on the offender by the unremitting media and public attention to every detail of her private life over many years. Although not strictly proved in evidence before me, there was reference throughout the trial to threats having been made against the offender from unknown sources, and I was able to make my own observations about the way in which Ms Lane was subjected to the most invasive media attention throughout the trial. It is clear that this level of attention has been relentlessly given to her following upon the media being brought into the picture at the time of the Coronial inquiry. It has continued ever since, unremittingly. The Crown submitted that the distress occasioned by this, and during the police investigation, should not be regarded as extra-curial punishment of the kind the court would ordinarily take into account. I accept that that is so in relation to the police investigation, but, given the exceptional circumstances of the media involvement, I think that this had the potential to take its place in a separate category, and could possibly warrant some degree of reflection in the sentence to be imposed. However, although I can speculate that the media and other attention may have harmed the offender, there is no clear evidence before me to enable me to find that this is the situation. There needs to be clear evidence that extra-curial punishment has significantly impacted on the offender before it can be taken into account in the manner urged by Mr Chapple. Consequently, this is not a matter for which I propose to make allowance in the imposition of sentence.
    
88. The offender, it must be said, has shown no remorse. She has maintained her innocence to this day. While no allowance for remorse can be made, it is necessary to make clear that the maintenance of her innocence, even the most vigorous maintenance of it, cannot add in any way to the sentence to be imposed upon her.
    
89. In recent times the offender has participated from prison in a television program on Channel 7, to which I have made earlier reference. The Crown has made a recent submission that aspects of this participation show that the offender publicly maintains her innocence and still adheres to her long maintained claim that Tegan was given by her to her natural father.
    
90. The Crown argues that the public maintenance of this explanation in recent times casts a doubt on the rehabilitation of Ms Lane. It also submits that these events are relevant on the issue of contrition and remorse.
    
91. I am unable to agree with these submissions. As I have said, Ms Lane's insistence that she is innocent, and that Tegan is not dead, simply means that no allowance can be made in her favour for remorse or contrition. It cannot be used to increase her punishment. As to the issue of rehabilitation, it needs to be recalled that persons found guilty after trial are not to be automatically deprived of a finding of good prospects of rehabilitation, unless they acknowledge their guilt: Alseedi v R [2009] NSWCCA 185 at [65]. Evidence of different kinds may be brought to bear significantly upon an assessment of an offender's prospects of rehabilitation and likelihood to re-offend: Elyard v R [2006] NSWCCA 43 at [18] - [20]. In this case, there is ample evidence to show that Ms Lane has, for a long time, been fully rehabilitated. Her treatment of Aaron, and her loving relationship with [NAME RESTRICTED], coupled with her active involvement with children in her local community, show this to be so.
    
92. In relation to the diary extracts, the Crown has submitted that these have a direct relevance to the offender's prospects of rehabilitation on the false swearing offences. Once again, I do not consider that this material has any significant bearing on the sentences to be imposed for false swearing.
    
93. Finally, I have determined that I should not make a finding of special circumstances so as to vary the statutory ratio under s 44(2) Crimes (Sentencing Procedure) Act 1999 . This is so, firstly, because I have already taken into account a number of the matters sought to be relied on for this purpose. It is important in the present context to avoid double counting of factors already taken into account: R v Fidow [2004] NSWCCA 172 at [18]. Secondly, I have earlier found that the offender is fully rehabilitated, in the sense that she is not likely to offend again. This brings with it the consequence that an extended period of supervision on parole is not required. Thirdly, because of the length of the sentence to be imposed, the balance of term period will be sufficient, in any event, to allow for the offender's successful return to non-custodial society. Fourthly, having regard to the objective seriousness of the offence, I consider that no lesser custodial sentence should be imposed than that provided for by the normal application of the statutory ratio.
    

The sentence to be imposed

94. What sentence should then be imposed for the offence of murder, and for the false swearing charges?
    
95. In relation to the murder, the Crown and Mr Chapple have each relied, in a non-contentious way, on the body of material demonstrating the range of sentencing for killings committed by parents, and others, of children, in the years between 1994 and 2001. It is accepted by the Crown that sentencing practices have moved adversely to the offender since 2001, particularly as a consequence of the introduction of the standard non-parole period regimes. That being the case, I am required to sentence Ms Lane in accordance with the sentencing practices as at the date of the commission of the offence: Shore v R (1992) 66 A Crim R 37; R v Moon [2000] NSWCCA 534; 117 A Crim R 497; R v MJR .
    
96. The material placed before me by the parties emerges from Chapter 5 of the research document, "Sentenced Homicides in New South Wales 1994 - 2001", published by the Judicial Commission of New South Wales. Twenty-two of the seventy-three child killers examined in that survey were sentenced for murder, however only ten of them were parents, or partners of parents, of the victims. Indeed, in the catalogue of these murders, there was only one mother who was sentenced for the murder of her child. This particular crime, according to the sentencing judge, was in the worst possible category for such an offence. It involved, apparently, the brutal bashing and killing of a six-year-old child by the mother and her partner. Consequently, it is of little assistance in the present case. By comparison, there were twelve mothers of victims who were convicted of manslaughter or infanticide. Because of the different crimes involved, however, those sentences are of no assistance in the present matter.
    
97. The result of the analysis is, as the Crown has submitted, that the available body of relevant cases is simply too small. There is insufficient statistical material capable of putting the necessary "practical flesh upon the theoretical bones" so as to assist the court to any great degree in sentencing the offender in relation to the murder charge. I note, in passing, (although it is not significantly relevant) that, in the case of the twenty-two child killers who were sentenced for murder in the period between 1994 and 2001, the median sentence was nineteen years and six months, with a non-parole period (median) of fourteen years and six months. As I have said, only ten of these were parents or partners, and only one was in the category of a mother.
    
98. I have earlier set out the brief material showing the sentencing pattern for the false swearing charges. There is no need for me to repeat those details here. For the murder charge, it falls to the court, in the absence of a helpful sentencing pattern, to reflect upon the objective seriousness of the offence as I have identified it, and to ensure, in imposing a sentence, that it is proportional to the criminality involved in the offence committed. In achieving the necessary synthesis, it is necessary for me to take into account as well the subjective features of the offender, and all other matters relevant to sentencing as required by the Crimes (Sentencing Procedure) Act 1999 (NSW): R v Moon at [70] per Howie J.
    
99. Ms Lane has been in custody since 13 th December 2010. I will direct that her sentences (save for any degree of accumulation) be backdated, so as to operate from that date.
    
100. Keli Lane, for the offence of false swearing committed on 3 rd April 1995, I sentence you to a fixed term of imprisonment for 9 months, such sentence to date from 13 th December 2010, and to expire on 12 th September 2011.
     

For the offence of false swearing committed on or about 29 th April 1995, I sentence you to a fixed term of imprisonment for 9 months, such sentence to date from 13 th December 2010, and to expire on 12 th September 2011.

For the offence of false swearing committed on or about 13 th September 1999, I sentence you to a fixed term of imprisonment for 12 months, such sentence to date from 13 th February 2011, and to expire on 12 th February 2012.

101. Keli Lane, for the murder of your daughter, Tegan, I sentence you to a non-parole period of 13 years and 5 months, to date from 13 th December 2010 and to expire on 12 th May 2024, with a balance of term of 4 years and 7 months. The balance of term is to commence on 13 th May 2024, and is to expire on 12 th December 2028.
     
102. Ms Lane, the overall sentence for the murder charge is imprisonment for 18 years. The term of the non-parole period is such that you must serve 13 years and 5 months in prison before becoming eligible for parole. I have backdated your sentence to the date you went into custody, namely 13 th December 2010. You will be eligible for parole on 12 th May 2024.
     
103. I remind the media of the suppression orders in relation to the names of Ms Lane's daughter and the fathers of her two adopted children.
     

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