Lee v The State of Western Australia
[2025] WASCA 32
•28 FEBRUARY 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: LEE -v- THE STATE OF WESTERN AUSTRALIA [2025] WASCA 32
CORAM: BUSS P
VAUGHAN JA
ARCHER JA
HEARD: 20 JANUARY 2025
DELIVERED : 28 FEBRUARY 2025
FILE NO/S: CACR 49 of 2024
BETWEEN: SHA RON LEE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BARBAGALLO DCJ
File Number : IND 248 of 2022
Catchwords:
Criminal law - Sentencing - Appeal against sentence - Express and implied errors - Judge entitled to reject expert evidence - Manifest excess - Totality
Legislation:
Criminal Appeals Act 2004 (WA), s 41(2)
Criminal Code (WA), s 304(1), s 304(2), s 317
Sentencing Act 1995 (WA), s 9AA
Result:
Leave to appeal on grounds 1 and 3 granted
Leave to appeal on grounds 2 and 4 refused
Appeal allowed
Primary judge's sentencing decision set aside
Appellant resentenced
Category: D
Representation:
Counsel:
| Appellant | : | T F Percy KC & S Nigam |
| Respondent | : | R F Owen SC |
Solicitors:
| Appellant | : | Nigams Legal Pty Ltd |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Ali v The State of Western Australia [2013] WASCA 55
Allen v The State of Western Australia [2017] WASCA 203
Aung v The State of Western Australia [2022] WASCA 175
Blum v Director of Public Prosecutions (WA) [No 2] [2023] WASCA 123; (2023) 105 MVR 249
Bolton v The State of Western Australia [2012] WASCA 2
Bradley v The State of Western Australia [2024] WASCA 94
Carrick v The State of Western Australia [2017] WASCA 175
Castrilli v The State of Western Australia [2019] WASCA 135
Cheeseman v The State of Western Australia [2023] WASCA 78
Chikonga v The State of Western Australia [2017] WASCA 34
Clarke v The State of Western Australia [No 2] [2013] WASCA 197
Colbung v The State of Western Australia [2013] WASCA 257
Davies v The State of Western Australia [2021] WASCA 71
Duncan v The State of Western Australia [2018] WASCA 154
Evans v The State of Western Australia [2019] WASCA 73
Gleeson v The State of Western Australia [2019] WASCA 100
Gomboc v The State of Western Australia [2023] WASCA 115
Grenfell v The State of Western Australia [2018] WASCA 31
Holden v The State of Western Australia [2009] WASCA 50
Kabambi v The State of Western Australia [2019] WASCA 44
Kaokula v The State of Western Australia [2016] WASCA 198
Langdon v Kelemete-Leoli-McLean [2011] WASCA 26; (2011) 206 A Crim R 368
LCM v The State of Western Australia [2016] WASCA 164; (2016) 262 A Crim R 1
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Narrier v The State of Western Australia [2011] WASCA 193
Nguyen v The Queen [2016] HCA 17; (2016) 256 CLR 656
Noormets v The State of Western Australia [2021] WASCA 195
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Penny v The State of Western Australia [2016] WASCA 52
Quirk v The State of Western Australia [2019] WASCA 76
R v De Simoni [1981] HCA 31; (1981) 147 CLR 383
R v Kilic [2016] HCA 48; (2016) 259 CLR 256
R v Verdins [2007] VSCA 102; (2007) 16 VR 269
Roberts v The State of Western Australia [2014] WASCA 239; (2014) 249 A Crim R 154
RST v The State of Western Australia [2016] WASCA 59
Skelly v The State of Western Australia [2020] WASCA 3
SKL v The State of Western Australia [2024] WASCA 32
Sophiadakis v The State of Western Australia [2016] WASCA 203
Spirovski v The State of Western Australia [2017] WASCA 230
SV v The State of Western Australia [2014] WASCA 123
The State of Western Australia v Camilleri [2008] WASCA 217; (2008) 189 A Crim R 394
The State of Western Australia v Cheeseman [2011] WASCA 15
The State of Western Australia v Maee [2018] WASCA 53
The State of Western Australia v Popal [2020] WASCA 200
The State of Western Australia v Tulloch [2025] WASCA 17
Ugle v The State of Western Australia [2018] WASCA 16
Vidovic v Western Australia [2024] WASCA 63
Wark v The State of Western Australia [2023] WASCA 66
Wiltshire v Mafi [2010] WASCA 111; (2010) 211 A Crim R 326
Zimmerman v The State of Western Australia [2009] WASCA 211
BUSS P & VAUGHAN JA:
This is an appeal against sentence.
The appellant was convicted on her pleas of guilty of four counts in an indictment.
Count 1 alleged that on 16 January 2021 at a Perth suburb, the appellant, with intent to harm SKT, did an act as a result of which the life, health or safety of SKT was, or was likely to be, endangered, contrary to s 304(2)(b) of the Criminal Code (WA) (the Code).
Count 2 alleged that on the same date and at the same place as in count 1, the appellant, with intent to harm SCL, did an act as a result of which the life, health or safety of SCL was, or was likely to be, endangered, contrary to s 304(2)(b) of the Code.
Count 3 alleged that on the same date and at the same place as in count 1, the appellant unlawfully did an act as a result of which the life, health or safety of LT was, or was likely to be, endangered, contrary to s 304(1)(b) of the Code.
Count 4 alleged that on 17 January 2021 at the same place as in count 1, the appellant unlawfully assaulted SKT and thereby did him bodily harm, contrary to s 317(1)(b) of the Code.
The maximum penalty for each of count 1 and count 2 is 20 years' imprisonment. The maximum penalty for count 3 is 7 years' imprisonment. The maximum penalty for count 4 is 5 years' imprisonment.
On 1 May 2024, Barbagallo DCJ sentenced the appellant to individual terms of immediate imprisonment as follows:
(a)count 1: 5 years;
(b)count 2: 5 years;
(c)count 3: 4 years; and
(d)count 4: 4 years.
The primary judge ordered that the individual sentences for count 2 and count 4 be served cumulatively upon each other and that the individual sentences for the other counts be served concurrently with each other and concurrently with the individual sentence for count 2. The total effective sentence was therefore 9 years' imprisonment. Her Honour backdated the total effective sentence to 11 July 2022 to take account of time the appellant had spent in custody in respect of the offences. A parole eligibility order was made. Her Honour made lifetime violence restraining orders in respect of the victims.
The appellant relies upon four grounds of appeal.
Ground 1 alleges, in essence, that the individual sentence for each count was manifestly excessive. Ground 2 alleges, in essence, that the total effective sentence infringed the first limb of the totality principle. Ground 3 alleges, in essence, that her Honour made two express errors in sentencing the appellant. The first alleged error is that her Honour wrongly found and wrongly took into account that the life of each of the victims was endangered by the appellant's conduct in circumstances where that conclusion was not alleged by the State or open on the evidence. The second alleged error is that her Honour wrongly took into account that SKT had suffered injuries that in law constituted the offence of unlawfully doing grievous bodily harm, contrary to s 297 of the Code, notwithstanding that the appellant had only been charged with the lesser offence of assault occasioning bodily harm, contrary to s 317(1)(b) of the Code. Ground 4 alleges, in essence, that her Honour erred in law in rejecting uncontradicted medical evidence that the appellant was suffering from impaired mental functioning at the time of the offending.
We would grant leave to appeal on grounds 1 and 3 and refuse leave to appeal on grounds 2 and 4. Ground 1 has been made out in relation to the individual sentence for count 4, but not in relation to any of the other individual sentences. Grounds 3 and 4 fail. It is unnecessary to decide ground 2. The appeal must be allowed, her Honour's sentencing decision set aside and the appellant resentenced. This court has the material necessary to resentence the appellant.
The facts and circumstances of the offending; the primary judge's sentencing remarks; the appellant's personal circumstances and antecedents; and the submissions of the parties in the appeal
The reasons of Archer JA set out details of:
(a)the facts and circumstances of the offending;
(b)the primary judge's sentencing remarks;
(c)the appellant's personal circumstances and antecedents; and
(d)the submissions of the parties in the appeal.
We will not repeat any of those details except to the extent necessary to explain our reasons.
Overview of the facts and circumstances of the offending
The appellant was aged 46 years at the time of the offending and was 49 when sentenced.
The appellant has a long history of mental illness. At the time of the offending, she suffered from obsessive‑compulsive disorder and anorexia nervosa.
The appellant is the older sister of SCL, the sister‑in‑law of SKT and the aunt of LT. At the time of the offending LT was aged 10.
SKT and SCL are general medical practitioners. They are the proprietors of a medical practice. At the time of the offending, SCL was the appellant's treating general medical practitioner. Both SKT and SCL had been prescribing the medication Olanzapine for the appellant to treat her symptoms of anorexia nervosa.
In December 2020, the victims began residing in the house where the offending occurred.
Shortly before 6.00 pm on 16 January 2021, the appellant arrived by car at the victims' home with her 10‑year‑old son to have dinner with the victims.
The appellant often went to the victims' home for dinner on Saturday evenings. On the evening in question, the appellant brought with her a mushroom and runner bean dish, some sushi and some dessert tarts.
Before arriving at the victims' home, the appellant put a quantity of her Olanzapine into the mushroom and bean dish and one of the dessert tarts.
During the evening, the appellant served the mushroom and bean dish to SKT and SCL. The appellant gave the dessert tart that was contaminated with Olanzapine to LT.
The appellant ate some of the sushi and one of the dessert tarts (both of which she had not contaminated with Olanzapine).
Neither the appellant nor her son was poisoned by the Olanzapine.
SKT began to feel unwell less than one hour after consuming the mushroom and bean dish. He experienced nausea and tightness in his chest. He lay on the bed in LT's bedroom.
Shortly afterwards, the appellant and her son left the victims' home and drove away.
SCL also began to feel unwell, as if intoxicated, not long after consuming the mushroom and bean dish. During the night, SCL had a shower and collapsed multiple times, striking her head on the bathroom floor.
At about 6.45 am on 17 January 2021, the appellant went to the victims' home again. She gained entry to the house by unknown means. The appellant brought with her a 2 kg dumbbell. SKT was lying on the floor in the house. The appellant struck him numerous times on the head with the dumbbell.
SKT and the appellant then became involved in a physical struggle inside the house. During the struggle, the appellant brandished a bread knife towards SKT. Although the appellant did not stab SKT, the knife caused a laceration to SKT's left forearm as a result of the appellant's gross negligence in the manner she brandished the knife.
SCL noticed the appellant wielding a dumbbell. She saw blood on SKT's face as he struggled with the appellant. SKT grabbed a ceramic doorstop and struck the appellant to her forehead as he attempted to defend himself.
At about 7.15 am, SCL and LT ran from the house. SCL used her mobile telephone to make a triple‑zero emergency call. She also attempted to obtain assistance from members of the public.
The appellant, who was still in possession of the dumbbell, pursued SCL and LT down the street. A member of the public who was riding a bicycle in the vicinity assisted SCL and LT. The cyclist directed the appellant to put down the dumbbell. The appellant complied with the direction. The cyclist then made a triple‑zero emergency call. Police and an ambulance arrived about five to ten minutes later.
Police found SKT on the floor inside his home. He had serious facial injuries. SKT was taken by ambulance to hospital. He was intubated and sedated. His injuries included a left orbital wall fracture, severe concussion, intracranial bleeding, multiple head lacerations and a lacerated forearm.
Analysis at the ChemCentre of the remnants of the mushroom and bean dish detected Olanzapine. Analysis of blood samples taken from SKT, SCL and LT also detected Olanzapine.
Symptoms of an overdose of Olanzapine include muscle toxicity and coma.
The levels of Olanzapine in the bodies of SKT and SCL indicated that they may have consumed in excess of 200 mg of the drug, which is 10 times the usual prescribed dose. The quantity of Olanzapine apparently consumed by SKT and SCL would have resulted in severe intoxication. The clinical features described by them included feeling tired, nauseous, dizzy and weak, and also suffering chest pain, blackouts, confusion, disorientation, falls and incoordination.
The organisation of the balance of these reasons
It is convenient, first, to deal with ground 3, next ground 4, then ground 1, followed by ground 2.
We will then proceed to the resentencing of the appellant.
Ground 3
We agree with Archer JA, for the reasons she gives at [129] ‑ [157] below, that ground 3 fails.
Ground 4
We agree with Archer JA, for the reasons she gives at [158] ‑ [186] below, that ground 4 fails.
Ground 1
Ground 1 alleges, in essence, that the individual sentence for each count was manifestly excessive.
Count 1 pleaded, in effect, that the appellant, with intent to harm SKT, did an act as a result of which SKT's life, health or safety was, or was likely to be, endangered, contrary to s 304(2)(b) of the Code. Similarly, count 2 pleaded, in effect, that the appellant, with intent to harm SCL, did an act as a result of which SCL's life, health or safety was, or was likely to be endangered, contrary to s 304(2)(b) of the Code.
The maximum penalty for each of count 1 and count 2 is 20 years' imprisonment.
The factors relevant in determining the appropriate sentence for an offence contrary to s 304(2) of the Code include:
(a)the nature and seriousness of the offender's intent to harm;
(b)the nature and seriousness of the offender's act which resulted in the victim's injuries;
(c)the nature and seriousness of the bodily harm caused to the particular victim, or the severity and other circumstances of the actual or likely endangering of the particular victim's life, health or safety, as the case may be; and
(d)the potential (as distinct from the actual) consequences of the offender's conduct.
See The State of Western Australia v Tulloch.[1]
[1] The State of Western Australia v Tulloch [2025] WASCA 17 [99] (Quinlan CJ, Buss P & Mazza JA).
There is no sentencing tariff for offences against s 304(2) because of the wide variety of circumstances in which the offences are committed and the wide variety of personal circumstances and antecedents of the offenders who commit them. See The State of Western Australia v Popal;[2] Cheeseman v The State of Western Australia.[3] A wide range of sentences has been imposed for offences against s 304(2). See Quirk v The State of Western Australia;[4] Tulloch [100].
[2] The State of Western Australia v Popal [2020] WASCA 200 [74] (Buss P, Mazza & Beech JJA).
[3] Cheeseman v The State of Western Australia [2023] WASCA 78 [84] (Mazza, Beech & Vaughan JJA).
[4] Quirk v The State of Western Australia [2019] WASCA 76 [57] (Buss P, Mitchell & Pritchard JJA).
We have had regard to two decisions of this court in sentencing appeals concerning offending contrary to s 304(2) of the Code that were relied upon in the present case by counsel for the appellant; namely, SKL v The State of Western Australia[5] and Gomboc v The State of Western Australia.[6] We agree with Archer JA, for the reasons she gives at [215] ‑ [231] below, that the facts and circumstances of SKL and Gomboc are distinguishable from the present case.
[5] SKL v The State of Western Australia [2024] WASCA 32.
[6] Gomboc v The State of Western Australia [2023] WASCA 115.
We have also had regard to a number of other decisions of this court in sentencing appeals concerning offending contrary to s 304(2) of the Code, including Penny v The State of Western Australia;[7] Sophiadakis v The State of Western Australia;[8] Kaokula v The State of Western Australia;[9] Chikonga v The State of Western Australia;[10] Ugle v The State of Western Australia;[11] Quirk; Gleeson v The State of Western Australia;[12] Popal; Cheeseman and Tulloch. It is unnecessary to reproduce the relevant facts and circumstances or the sentences imposed in those cases. None of them is truly comparable with the current offending.
[7] Penny v The State of Western Australia [2016] WASCA 52.
[8] Sophiadakis v The State of Western Australia [2016] WASCA 203.
[9] Kaokula v The State of Western Australia [2016] WASCA 198.
[10] Chikonga v The State of Western Australia [2017] WASCA 34.
[11] Ugle v The State of Western Australia [2018] WASCA 16.
[12] Gleeson v The State of Western Australia [2019] WASCA 100.
In the present case, the very serious nature of the appellant's offending on count 1 and count 2 is apparent from our overview of the facts and circumstances of the offending and from the primary judge's sentencing remarks.
There were a number of serious features of the appellant's offending on count 1 and count 2, including the following. First, the appellant's offending was premeditated and planned. The offending was also malicious and devious. Secondly, the appellant was closely related to SKT and SCL and was a guest in their home. Thirdly, SKT and SCL were vulnerable to the poisoning in the context of a family meal. Fourthly, the level of poisoning was high. SKT and SCL may have consumed in excess of 10 times the usual prescribed dose of Olanzapine. The impact of the poisoning upon them was serious. The poisoning caused SCL to collapse on multiple occasions and strike her head on the bathroom floor. Fifthly, the appellant left the victims' house after poisoning SKT and SCL and did not obtain medical assistance for them.
The State did not contend that the lives of SKT and SCL had been endangered by their ingestion of the Olanzapine. Rather, the State contended that the appellant, with intent to harm SKT and SCL, did an act (namely, poisoned them) as a result of which their health or safety was, or was likely to be, endangered.
There were some mitigating factors; notably, the appellant's very late pleas of guilty (for which a 3% discount under s 9AA of the Sentencing Act 1995 (WA) was allowed); her acceptance of responsibility; her long history of mental illness including obsessive‑compulsive disorder and anorexia nervosa (but, on her Honour's findings, there was no causal link between the appellant's mental illness and the offending); her prior good character (including the absence of any criminal history); and some limited and belated remorse.
In our opinion, the sentence of 5 years' immediate imprisonment for each of count 1 and count 2 was commensurate with the seriousness of the appellant's offending. We are satisfied, having regard to all relevant facts and circumstances and all relevant sentencing factors (including the appellant's personal circumstances and antecedents and the mitigating factors), that the length of each sentence was not unreasonable or plainly unjust.
Ground 1 fails in relation to count 1 and count 2.
Count 3 pleaded, in effect, that the appellant unlawfully did an act as a result of which the life, health or safety of LT was, or was likely to be, endangered, contrary to s 304(1)(b) of the Code.
The maximum penalty for count 3 is 7 years' imprisonment.
Section 304(1) is materially different from s 304(2). The maximum penalties are different. The offence created by s 304(2) has an additional element compared to s 304(1), namely that the alleged offender must have an 'intent to harm'. Section 304(1) refers to a person who 'unlawfully does any act', whereas s 304(2) merely refers to a person who 'does any act' which has the stipulated result.
We have had regard to a number of decisions of this court in sentencing appeals concerning offending contrary to s 304(1) of the Code; in particular, Narrier v The State of Western Australia;[13] Bolton v The State of Western Australia;[14] Colbung v The State of Western Australia;[15] Roberts v The State of Western Australia;[16] Grenfell v The State of Western Australia;[17] The State of Western Australia v Maee;[18] Evans v The State of Western Australia;[19] and Blum v Director of Public Prosecutions (WA) [No 2].[20] It is unnecessary to reproduce the facts and circumstances or the sentences imposed in those cases. None of them is truly comparable with the current offending.
[13] Narrier v The State of Western Australia [2011] WASCA 193.
[14] Bolton v The State of Western Australia [2012] WASCA 2.
[15] Colbung v The State of Western Australia [2013] WASCA 257.
[16] Roberts v The State of Western Australia [2014] WASCA 239; (2014) 249 A Crim R 154.
[17] Grenfell v The State of Western Australia [2018] WASCA 31.
[18] The State of Western Australia v Maee [2018] WASCA 53.
[19] Evans v The State of Western Australia [2019] WASCA 73.
[20] Blum v Director of Public Prosecutions (WA) [No 2] [2023] WASCA 123; (2023) 105 MVR 249.
In the present case, the very serious nature of the appellant's offending on count 3 is apparent from our overview of the facts and circumstances of the offending and from the primary judge's sentencing remarks.
There were numerous serious features of the appellant's offending on count 3 including:
(a)the offending was premeditated, planned, malicious and devious;
(b)the appellant was closely related to LT and her parents and the appellant was a guest in their home;
(c)LT was vulnerable to the poisoning in the context of a family meal and was also vulnerable as a result of her age;
(d)the appellant could not have known of the extent of any potential harm to LT, who was aged only 10; and
(e)the appellant left the victims' home after poisoning LT and did not obtain medical assistance for her.
The State did not contend that the life of LT had been endangered by her ingestion of the Olanzapine. Rather, the State contended that as a result of the appellant's unlawful act (namely, poisoning her), LT's health or safety was, or was likely to be, endangered.
In our opinion, the sentence of 4 years' immediate imprisonment for count 3 was commensurate with the seriousness of the appellant's offending. We are satisfied, having regard to all relevant facts and circumstances and all relevant sentencing factors (including the appellant's personal circumstances and antecedents and the mitigating factors), that the length of the sentence was not unreasonable or plainly unjust.
Ground 1 fails in relation to count 3.
Count 4 pleaded, in effect, that the appellant unlawfully assaulted SKT and thereby did him bodily harm, contrary to s 317(1)(b) of the Code.
Section 317(1) of the Code provides, relevantly:
Any person who unlawfully assaults another and thereby does that other person bodily harm is guilty of a crime, and is liable -
(a)if the offence is committed in circumstances of aggravation … to imprisonment for 7 years; or
(b)in any other case, to imprisonment for 5 years.
In the present case, no circumstances of aggravation were alleged against the appellant. The maximum penalty was therefore 5 years' imprisonment.
In Holden v The State of Western Australia,[21] Wheeler JA said that it is difficult to discern a 'tariff' for the offence of assault occasioning bodily harm because of the great variation in the circumstances in such cases. Her Honour added, however, that:
[I]n cases which have involved pleas of guilty, a post‑transitional range could appropriately include sentences from 6 months' suspended imprisonment, to 2 years' immediate imprisonment. That range is demonstrated to be appropriate even in relation to sentences imposed by magistrates, the jurisdictional limit of whose sentencing in respect of such offences is 2 years' imprisonment, as opposed to the 5 years available on indictment [43].
[21] Holden v The State of Western Australia [2009] WASCA 50 [43].
We have had regard to Duncan v The State of Western Australia,[22] a decision of this court in a sentencing appeal concerning offending contrary to s 317(1) of the Code, that was relied upon in the present case by counsel for the appellant. We agree with Archer JA that the decision in Duncan is of little assistance in considering whether the sentence imposed on the appellant was manifestly excessive.
[22] Duncan v The State of Western Australia [2018] WASCA 154.
We have also had regard to a number of other sentencing dispositions for offences against s 317(1) of the Code, without circumstances of aggravation, including the relevant dispositions in The State of Western Australia v Camilleri;[23] Holden; Wiltshire v Mafi;[24] The State of Western Australia v Cheeseman;[25] Langdon v Kelemete‑Leoli‑McLean;[26] Ali v The State of Western Australia;[27] Clarke v The State of Western Australia [No 2];[28] Carrick v The State of Western Australia;[29] Allen v The State of Western Australia;[30] Spirovski v The State of Western Australia;[31] Castrilli v The State of Western Australia;[32] Davies v The State of Western Australia;[33] and Bradley v The State of Western Australia.[34]
[23] The State of Western Australia v Camilleri [2008] WASCA 217; (2008) 189 A Crim R 394.
[24] Wiltshire v Mafi [2010] WASCA 111; (2010) 211 A Crim R 326.
[25] The State of Western Australia v Cheeseman [2011] WASCA 15.
[26]Langdon v Kelemete-Leoli-McLean [2011] WASCA 26; (2011) 206 A Crim R 368.
[27]Ali v The State of Western Australia [2013] WASCA 55.
[28] Clarke v The State of Western Australia [No 2] [2013] WASCA 197.
[29] Carrick v The State of Western Australia [2017] WASCA 175.
[30] Allen v The State of Western Australia [2017] WASCA 203.
[31] Spirovski v The State of Western Australia [2017] WASCA 230.
[32] Castrilli v The State of Western Australia [2019] WASCA 135.
[33] Davies v The State of Western Australia [2021] WASCA 71.
[34] Bradley v The State of Western Australia [2024] WASCA 94.
It is unnecessary to reproduce the facts and circumstances or the sentences imposed in the previous cases. There are some comparable features between some of those cases, on the one hand, and the present case, on the other, but there are also distinguishing features.
In the present case, the very serious nature of the appellant's offending on count 4 is apparent from our overview of the facts and circumstances of the offending and from the primary judge's sentencing remarks.
There were numerous serious features of the appellant's offending on count 4 including:
(a)the appellant returned to the victims' house early in the morning following the dinner at which she had poisoned them, so that the appellant knew that the victims would be unwell, be vulnerable to an attack and have a diminished ability to defence themselves;
(b)the appellant did not bring the dumbbell to the victims' home for an innocent reason;
(c)the appellant struck SKT on the head with the dumbbell multiple times;
(d)later, the appellant brandished a knife which caused a laceration to SKT's arm;
(e)SKT suffered serious facial injuries;
(f)the offending occurred in SKT's home;
(g)LT, a child aged 10, witnessed the offending; and
(h)the appellant pursued SCL and LT down the street after they fled from the house.
The primary judge observed, correctly, that count 4 was 'a most serious example of offences of this kind', not only because of the injuries suffered by SKT, but also because of SKT's vulnerability due to his diminished ability to defend himself as a result of the appellant having poisoned him the previous evening (ts 701).
However, her Honour did not find that the appellant's offending on count 4 was of the 'worst type' of offending against s 317(1) of the Code, without circumstances of aggravation. See R v Kilic.[35]
[35] R v Kilic [2016] HCA 48; (2016) 259 CLR 256 [18] (Bell, Gageler, Keane, Nettle & Gordon JJ).
The primary judge's approach in this regard was consistent with the manner in which the State presented its case.
The State did not assert before her Honour or in this court that count 4 was in the worst category of assaults occasioning bodily harm, without circumstances of aggravation (appeal ts 49).
In R v De Simoni,[36] Gibbs CJ (Mason and Murphy JJ agreeing) held that the general sentencing principle that the sentence to be imposed on an offender should take into account all of the facts and circumstances of the offence is subject to a more fundamental and important principle, namely, that no person should be punished for an offence of which he or she has not been convicted.
[36] R v De Simoni [1981] HCA 31; (1981) 147 CLR 383, 389.
Section 6(2)(b) of the Sentencing Act provides that the seriousness of an offence must be determined by taking into account 'the circumstances of the commission of the offence, including the vulnerability of any victim of the offence'. However, s 6(2)(b) does not apply to a circumstance of the offending if the circumstance is an element of an offence that has not been charged or is an element of an offence that has been charged but not proven. See Zimmerman v The State of Western Australia;[37] SV v The State of Western Australia;[38] Evans [109].
[37] Zimmerman v The State of Western Australia [2009] WASCA 211 [20] (McLure P).
[38] SV v The State of Western Australia [2014] WASCA 123 [136] ‑ [137] (Mazza JA; McLure P agreeing & Pullin JA relevantly agreeing).
The offence charged in count 4 was that the appellant unlawfully assaulted SKT and thereby did him 'bodily harm'. The offence charged in count 4 was not that the appellant had unlawfully done 'grievous bodily harm' to SKT, contrary to s 297(1) of the Code, an offence that carries a maximum penalty of 10 years' imprisonment.
In s 1(1) of the Code:
(a)the term 'bodily harm' is defined to mean 'any bodily injury which interferes with health or comfort'; and
(b)the term 'grievous bodily harm' is defined to mean 'any bodily injury of such a nature as to endanger, or be likely to endanger life, or to cause, or be likely to cause, permanent injury to health'.
In the present case, the primary judge was required to sentence the appellant for count 4 on the basis that the appellant had caused SKT 'bodily harm' (that is, bodily injury which interfered with SKT's health or comfort) and not on the basis that she had caused SKT 'grievous bodily harm' (that is, any bodily injury of such a nature as to endanger, or be likely to endanger SKT's life, or to cause, or be likely to cause, permanent injury to SKT's health).
The most significant of the mitigating factors were the appellant's prior good character (including the absence of any criminal history) and her history of mental illness.
After taking into account:
(a)the maximum penalty for count 4;
(b)the facts and circumstances of the offending;
(c)the standards of sentencing customarily observed;
(d)the serious features of the offending which we have mentioned;
(e)the mitigating factors;
(f)the primary judge not having found that the offending was in the worst category of assaults occasioning bodily harm, without circumstances of aggravation;
(g)the State not having asserted before her Honour or in this court that the offending was in the worst category; and
(h)all other relevant sentencing considerations,
we are of the opinion that the sentence of 4 years' immediate imprisonment for count 4 was unreasonable or plainly unjust.
Ground 1 has been made out in relation to count 4.
Ground 2
Ground 2 alleges, in essence, that the total effective sentence of 9 years' imprisonment infringed the first limb of the totality principle.
It is unnecessary to decide ground 2 because the total effective sentence took into account all of the individual sentences, in that the total effective sentence was arrived at by making the individual sentences for count 2 and count 4 cumulative and the other individual sentences concurrent. Consequently, this court in setting aside the sentence for count 4 may also vary the other sentences that were imposed by her Honour. See s 41(2) of the Criminal Appeals Act 2004 (WA).
The outcome of the appeal and the resentencing of the appellant
We would allow the appeal.
The primary judge's sentencing decision, including the sentences imposed by her Honour and the orders for cumulacy and concurrency, should be set aside. However, the violence restraining orders made by her Honour should not be disturbed.
This court has the material necessary to resentence the appellant.
At the hearing of the appeal, counsel for the appellant did not put before this court any facts and circumstances that had occurred since the appellant was sentenced by her Honour that were relevant to any resentencing (appeal ts 39).
We have taken into account, in exercising the sentencing discretion afresh, all the information that was before the primary judge.
It is well established that:
(a)a court sentencing an offender for multiple offences must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence as well as questions of totality;
(b)if, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation; and
(c)if an appropriate sentence is not fixed for each offence, the failure to do so may give rise to artificial claims of disparity between co‑offenders or otherwise distort general sentencing practices in relation to particular offences.
See Pearce v The Queen;[39] Nguyen v The Queen.[40]
[39] Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 [45] ‑ [48] (McHugh, Hayne & Callinan JJ).
[40] Nguyen v The Queen [2016] HCA 17; (2016) 256 CLR 656 [37] (Bell & Keane JJ).
Like her Honour, we would allow a discount of 3%, pursuant to s 9AA of the Sentencing Act, on the head sentence we would otherwise have imposed for each of counts 1, 2, 3 and 4, on account of the pleas of guilty.
We would also reduce the sentences we would otherwise have imposed for counts 1, 2, 3 and 4 to reflect the other mitigating factors mentioned by the primary judge.
We would exercise the sentencing discretion afresh by imposing individual sentences of immediate imprisonment as follows:
(a)count 1: 5 years;
(b)count 2: 5 years;
(c)count 3: 4 years; and
(d)count 4: 3 years 6 months.
We consider that the appropriate new total effective sentence is 8 years 6 months' imprisonment. A custodial term of that length is required in order properly to mark the very serious character of the appellant's offending as a whole, and to give effect to all relevant sentencing considerations. A total effective sentence of that length bears a proper relationship to the criminality involved in all of the offences, viewed together, and having regard to all relevant facts and circumstances and all relevant sentencing factors, including the appellant's personal circumstances and antecedents and the mitigating factors. The new individual sentences for counts 2 and 4 should be served cumulatively upon each other and the new individual sentences for the other counts should be served concurrently with each other and concurrently with the new individual sentence for count 2. The new total effective sentence of 8 years 6 months' imprisonment should be backdated to 11 July 2022 to take account of the time the appellant spent in custody on remand in respect of the offences.
The appellant should remain eligible for parole. She will be eligible to be considered for release on parole when she has served 6 years 6 months in custody, calculated from 11 July 2022.
Orders
The orders that should be made in accordance with these reasons are as follows:
(1)Leave to appeal on grounds 1 and 3 granted.
(2)Leave to appeal on grounds 2 and 4 refused.
(3)Appeal allowed.
(4)The primary judge's sentencing decision, including the sentences imposed by her Honour and the orders for cumulacy and concurrency, are set aside.
(5)The appellant is resentenced to individual sentences of immediate imprisonment on the counts in District Court indictment IND 248 of 2022 as follows:
(a)count 1: 5 years' imprisonment;
(b)count 2: 5 years' imprisonment;
(c)count 3: 4 years' imprisonment; and
(d)count 4: 3 years 6 months' imprisonment.
(6)The new sentences for counts 2 and 4 are to be served cumulatively upon each other. The other new sentences are to be served concurrently with each other and concurrently with the new sentence for count 2.
(7)The new total effective sentence is therefore 8 years 6 months' imprisonment.
(8)The new total effective sentence is backdated to 11 July 2022.
(9)The appellant is eligible for parole.
(10)The violence restraining orders made by the primary judge are not disturbed.
ARCHER JA:
Introduction
On 16 January 2021, the appellant went to her sister's home for a regular family dinner. She brought food with her, which she had laced with a prescription drug. She served the food to her sister, her sister's husband and her 10‑year‑old niece. The appellant went home after dinner. The next morning, she returned to her sister's home. She attacked her still drug affected brother‑in‑law, striking him multiple times in the head with a 2 kg dumbbell. Her sister and niece, who were also still drug affected, ran out of the house down the street. The appellant ran after them, still holding the dumbbell. A passerby intervened.
For these crimes, the appellant was sentenced to a total of 9 years' imprisonment. She seeks leave to appeal against that sentence.
There are four grounds of appeal. They allege that:
1.the individual sentences imposed on each count were manifestly excessive;
2.the total effective sentence infringed the first limb of the principle of totality;
3.the sentencing judge wrongly found that certain consequences of the appellant's actions were aggravating features of the offending and took those matters into account in sentencing the appellant; and
4.the sentencing judge wrongly rejected uncontradicted medical evidence that the appellant was suffering from impaired mental functioning at the time of the offending.
For the reasons that follow, I would allow the appeal on ground 1 in relation to one of the sentences, but would resentence the appellant to the same total effective sentence as that imposed by the sentencing judge.
The sentencing
The offences
The appellant was convicted, on her pleas of guilty, of four offences:
1.two counts of, with intent to harm, doing an act as a result of which the life, health or safety of a person was or was likely to be endangered, contrary to s 304(2)(b) of the Criminal Code (WA) (counts 1 and 2);
2.one count of unlawfully doing an act as a result of which the life, health or safety of a person was, or was likely to be, endangered, contrary to s 304(1)(b) of the Code (count 3); and
3.one count of assault occasioning bodily harm, contrary to s 317(1) of the Code (count 4).
The facts are as follows.[41]
[41] See the appellant's submissions [10] ‑ [19] and the specific references footnoted below.
At the time of the offending, 16 and 17 January 2021, the appellant was 46 years of age. She was 49 years of age at the time of sentencing. The appellant was married and had a 10‑year‑old son. She had a master's degree in mechanical engineering.[42] The appellant suffered from obsessive‑compulsive disorder and anorexia nervosa. She had been prescribed olanzapine to treat symptoms of the latter.
[42] AB 221.
The victims of the offending were the appellant's sister (SCL), her sister's husband (SKT), and their 10‑year‑old daughter (LT). SCL and SKT were general medical practitioners and owned a medical practice.
The appellant had a close relationship with the victims. She was also a patient of the medical practice.
The appellant had worked as a receptionist in the medical practice for a few months at the end of 2020. Her employment was terminated on 10 December 2020, about five weeks before the offending. The sentencing judge was told that the employment was terminated because the appellant's obsessive‑compulsive disorder led her to repeatedly ask patients the same questions (for example, repeatedly asking them their names).[43] In her police interview, the appellant said the termination made her sad, but not angry. She said she had asked SCL if she could return to work, but SCL had said no.[44]
[43] AB 214.
[44] AB 221. See also AB 416, 418.
Although her employment had been terminated, SCL and SKT continued to pay the appellant a salary.[45]
[45] AB 214.
SCL and SKT regularly hosted family dinners in their home. One such dinner occurred on 16 January 2021. At that time, they were living in Mosman Park. The appellant lived in East Cannington.
The appellant attended the dinner with her son. The appellant brought with her a mushroom and bean dish, some sushi, and some tarts. Before arriving at the victims' home, the appellant had put a quantity of olanzapine into the mushroom and bean dish and into one of the tarts.[46] She had not put any olanzapine into the sushi.[47]
[46] See AB 250 [14].
[47] AB 215.
After arriving in the victims' home, the appellant heated and served the mushroom and bean dish to SKT (count 1) and SCL (count 2). LT did not eat any of the mushroom and bean dish, but the appellant served her the tart she had laced with olanzapine (count 3).
The three victims ate the contaminated food, while the appellant ate the sushi. The agreed facts did not address what the appellant's son ate, but there was no suggestion that he had fallen ill.
Less than an hour later, SKT began to feel nauseous and tightness to his chest. He lay on the bed in LT's bedroom. The appellant and her son left the house shortly afterwards.
SCL also began to feel unwell not long after eating the contaminated food.[48]
[48] AB 215 ‑ 216.
At around 10.00 pm, there were telephone calls between the victims and the appellant. The content of the calls was disputed but, at the very least, the appellant was told that they were unwell.[49]
[49] AB 216. And see record of interview, AB 346 ‑ 347.
During the night, SCL took a shower and collapsed multiple times, striking her head on the bathroom floor.[50]
[50] AB 216; see also AB 251 [17].
At approximately 6.45 am on 17 January 2021, the appellant returned to the victims' home to cause further harm to at least the adult victims.[51] She knew they would be vulnerable to further attacks and less able to defend themselves.[52]
[51] AB 216 ‑ 217, 233.
[52] AB 217.
Once inside the house,[53] the appellant struck SKT in the head multiple times with a 2 kg dumbbell.[54] SKT remembers being on the floor near the door when the appellant struck him.[55] SKT suffered a left orbital wall fracture, a laceration to his forehead, multiple scalp lacerations, severe concussion, and an intercranial bleed.[56]
[53] In the agreed facts (AB 251 [19]), it is said that, after gaining entry, the appellant encountered SKT on the floor near the door to the garage. However, the sentencing judge found, favourably to the appellant, that SKT had probably let her into the house - AB 216.
[54] AB 217.
[55] AB 251 [19].
[56] AB 219.
The appellant and SKT then became involved in a struggle. During the struggle, the appellant brandished a bread‑knife at SKT in a manner that was grossly negligent, causing a laceration to SKT's left forearm.[57]
[57] AB 251 [20], 224 ‑ 225.
At one point during the struggle, SKT punched the appellant to defend himself. At another point, he hit her with a ceramic doorstop, again in self‑defence. The sentencing judge rejected the suggestion that SKT had struck the appellant first.[58] The attack on SKT constitutes count 4.
[58] AB 217 ‑ 218.
SCL and LT awoke and fled from the house to find help. The appellant ran after them with the dumbbell still in her hand. A nearby cyclist heard SCL calling for help and got between the appellant and SCL. The cyclist told the appellant to put the dumbbell down and she did.[59]
[59] AB 218, AB 251 - 252 [23] - [25].
When being taken to hospital, both SCL and LT kept falling asleep in the ambulance. SCL became unconscious. LT threw up on arrival at the hospital.[60]
[60] AB 292 - 294 [42], [47], [61], [62].
Later, the victims' blood was tested for drugs. SKT was found to have 0.13 mg/L of olanzapine in his blood.[61] SCL was found to have 0.14 mg/L.[62] LT's blood was not tested for six days. However, there was still a trace of olanzapine in her blood. The expert toxicologist said it could be predicted, from the average elimination time of olanzapine in children, that LT would have had a blood level similar to her parents.[63] These levels would cause severe intoxication. It would be expected that this would cause symptoms such as extreme dizziness and drowsiness.[64]
[61] AB 299.
[62] AB 298.
[63] AB 300.
[64] AB 300.
The expert toxicologist said that adverse reactions due to high doses of olanzapine are seen with blood levels between 0.12 – 0.67 mg/L from doses between 195 – 405 milligrams and as low as 15 milligrams in children. Having regard to the levels of olanzapine found in the blood, SKT and SCL may have each consumed more than 200 milligrams of olanzapine, which is 10 times the usual prescribed dose.[65] Consumption of 600 milligrams has resulted in death.[66]
[65] AB 219, 300.
[66] AB 300.
The sentencing judge found that the offending was motivated by animus, jealousy, revenge, anger, or being offended, or a combination of all or some of these.[67]
The sentence
[67] AB 233.
Her Honour imposed a total effective sentence of 9 years' imprisonment, which was structured as follows:
count 1:5 years imprisonment (concurrent);
count 2:5 years imprisonment (head sentence);
count 3:4 years imprisonment (concurrent); and
count 4:4 years imprisonment (cumulative).
It is convenient to begin with the grounds that allege express error, grounds 3 and 4.
Ground 3 - did the judge wrongly find certain matters to be aggravating?
Ground 3 alleges that the sentencing judge erred in finding certain consequences of the appellant's actions were aggravating features of the offending, and in taking those matters into account in passing sentence.
Counts 1 to 3 endangering life (particular 3.1)
By particular 3.1, the appellant alleges the sentencing judge wrongly found, and wrongly took into account, that the lives of the victims were endangered by the conduct of the appellant in committing the first three offences. The appellant alleges that this finding was not open on the evidence and was not alleged by the prosecution.
This particular is based on the sentencing judge's statement that '[y]ou have risked the lives of three people, three family members including your 10‑year‑old niece'.[68]
[68] AB 243.
The appellant correctly points out that the prosecution did not contend that the victims' lives were endangered by the medication which they ingested.[69] Further, the facts alleged and admitted with respect to counts 1 to 3 included only that 'the health and safety of all three [victims] was endangered by the offender'.[70]
[69] AB 285 - State's outline of submissions in relation to sentencing dated 18 April 2024 [12A].
[70] AB 96.
The appellant says that, by saying she had 'risked the lives' of the victims, the sentencing judge was recording a finding that the victims' lives were endangered by the contaminated food. The appellant says that the point at which the sentencing judge said this shows that this was her Honour's encapsulation of the gravamen of the offences. She submits that the statement was made after the sentencing judge had considered the circumstances and before her Honour listed what her Honour saw to be the critical factors. The appellant further notes that, immediately following this statement, the sentencing judge said, 'You have done so in the most surreptitious of ways'. She submits that this gave some emphasis to the impugned sentence.[71]
[71] ts 6.
The appellant says that this shows that the sentencing judge found that the victims' lives were endangered by her conduct and took that into account in sentencing, and that this was an error.
I am not satisfied that the single sentence in the lengthy and comprehensive sentencing remarks can bear the meaning placed on it by the appellant.
First, her Honour understood that the offences in counts 1 to 3 were alleged to have endangered 'only' the health and safety of the victims. In concluding her recitation of the facts for those counts, her Honour said:[72]
By you lacing the food they each ate with the antipsychotic drug, olanzapine, you endangered the health and safety of all three family victims.
[72] AB 216.
Second, the context of the statement relied upon was as follows:[73]
So, Ms Lee, your offending is very serious. The consequences of your offending against your family members [have] been significant, although it could have been worse. You have risked the lives of three people, three family members including your 10‑year‑old niece. You have done so in the most surreptitious of ways. You gave [them] no chance of defending [them]selves against your deplorable behaviour. You completely breached the trust of your family members and left two of them injured. In my view, the dominant sentencing considerations are punishment, general and specific deterrence. Your personal factors ordinarily ought to carry less weight.
[73] AB 242 ‑ 243.
Immediately afterwards, her Honour listed and discussed various factors relevant to the offending, including:[74]
Secondly, one of the victims was a 10‑year‑old child. There is no rhyme or reason why you would want to harm a child and yet you did without any real knowledge as to the harm you could have potentially caused that child. Not only a child, your niece.
…
Eleventh, the consequences of your offending, that is the harm to your family members. Twelfth, the potential for very serious consequences of your offending.
[74] AB 243.
In discussing the second factor, her Honour was clearly referring to the offender's lack of knowledge of the effect of the drug on the child. The expert toxicologist said that adverse reactions due to high doses of olanzapine are seen with blood levels between 0.12 – 0.67 mg/L from doses between 195 – 405 milligrams and as low as 15 milligrams in children.[75] This suggests that it takes much less of the drug to cause an adverse reaction in a child than would be required to cause an adverse reaction in an adult. The appellant did not know what the amount of olanzapine she had put in the tart would do to LT.
[75] AB 300.
In discussing the eleventh and twelfth factors, her Honour distinguished between the harm that was actually caused and the potential for harm. In this case, the victims could have eaten more of the contaminated food than they did, to the point where the level of toxicity could have been fatal.
Having regard to the sentencing remarks as a whole, I do not accept that the sentencing judge sentenced the appellant on the basis that the drug ingested by the three victims endangered their lives.
Count 4 endangering life (particular 3.2)
By particular 3.2, the appellant alleges the sentencing judge wrongly took into account that SKT had suffered injuries that amounted in law to the offence of grievous bodily harm in circumstances where the appellant had only been charged with the lesser offence of assault occasioning bodily harm.
In Skelly v The State of Western Australia,[76] the Court of Appeal said:
It is a fundamental principle that 'no one should be punished for an offence of which he has not been convicted'. The importance of this fundamental principle, which is founded on basic notions of fairness and justice, means that it trumps the general principle that all the circumstances of the offence are to be considered in determining the appropriate sentence for that offence.
This principle applies in several different situations. Among other things, it means that, in sentencing an offender for an offence, a sentencing judge must not take into account a fact or circumstance if it would, in effect:
(a)treat the offender as guilty of a more serious offence than the offence of which they have been convicted; or
(b)constitute a circumstance of aggravation, so as to render the offender liable to a higher penalty.
…
It is not always easy to determine where the line is to be drawn between permissible consideration of the circumstances of the offence and punishment for an offence not charged. Questions of fact and degree are involved. What is required is a careful reading of the sentencing remarks to see to what extent, and for what purpose, uncharged acts might have been taken into account. (citations omitted)
[76] Skelly v The State of Western Australia [2020] WASCA 3 [81] ‑ [84] (Buss P, Mazza & Beech JJA).
In Langdon v Kelemete-Leoli-McLean,[77] this principle was applied to overturn a sentence imposed for an assault occasioning bodily harm. The magistrate had taken into account that one of the victim's injuries was a permanent loss of smell. The court said that, where an accused has caused grievous bodily harm to a victim but is convicted only of an assault occasioning bodily harm, the accused cannot be sentenced on the basis that the injury caused grievous bodily harm.
[77] Langdon v Kelemete-Leoli-McLean [2011] WASCA 26; (2011) 206 A Crim R 368 [9] ‑ [10], [36] ‑ [37] (Buss JA, as his Honour then was), [94] ‑ 96] (Mazza J, as his Honour then was, with whom Pullin JA agreed).
The appellant was originally charged with an offence of grievous bodily harm in relation to the assault on SKT. Following a plea negotiation, the charge was downgraded to an assault occasioning bodily harm and the appellant pleaded guilty.
The appellant makes two complaints. First, that the sentencing judge wrongly found that, but for medical intervention, SKT would have died. Second, that the sentencing judge wrongly took this into account in sentencing.
As to the first complaint, the appellant conceded during the appeal hearing that it was open to the sentencing judge to be satisfied beyond reasonable doubt that SKT's injuries required life‑saving intervention.[78]
[78] ts 17.
As to the second, I do not accept that the sentencing judge sentenced the appellant on the basis that the injuries were life threatening.
During the sentencing hearing, the sentencing judge expressed her displeasure at the way the matter had been resolved and queried how it was in the public interest.[79] Her Honour noted that SKT had been found to have a Glasgow Coma score of 8. She said that this meant that, without being sedated and intubated, he would have died.[80]
[79] See, in particular, AB 99 - 100.
[80] AB 149.
Nevertheless, her Honour clearly understood that the appellant could only be sentenced on the basis that she had been convicted of an assault occasioning bodily harm.
This is a serious injury. He would have died but for medical intervention, and it's been resolved to an assault occasioning bodily harm. I mean, how is that in the public interest? Anyway, that's what I'm stuck with, so - you know, when people criticise judges for not imposing sentences that don't seem like it matches the crime, then perhaps they need to be looking at what it is that - how you've resolved it.[81]
…
[SKT made a very good recovery because] of medical intervention. Without it, he would have been dead. But that's a submission that you make, Mr Dunn, and, you know, the fact that this has been resolved to an assault occasioning bodily harm does not in any way detract from the seriousness of the injury. So you can dress it up all you like - and, of course, I'm going to be limited in terms of the sentencing range available to me because of that but, dress it up how you like, on the medical evidence, you have a Glasgow Coma score of eight, you are in trouble without medical intervention.[82] (emphasis added)
[81] AB 100.
[82] AB 149.
In her sentencing remarks, her Honour listed the injuries SKT suffered as a result of the appellant's conduct as follows:[83]
1.A left orbital wall fracture, which was managed conservatively without emergency surgery.
2.A forehead laceration and multiple scalp lacerations which were washed and sutured closed and antibiotics provided to prevent infection.
3.Severe concussion.
4.An intercranial bleed which was assessed as not to endanger or be likely to endanger his life.
5.A lacerated forearm.
[83] AB 219.
Her Honour referred to the medical evidence on the prosecution brief. She said that evidence asserted that, without medical intervention, SKT would have died. She said that '[i]t is widely accepted that patients with a reduced Glasgow Coma Score level of 10 or less are [at] extremely high risk of respiratory arrest due to loss of normal brain function regardless of the cause of that loss'.[84]
[84] AB 220.
The sentencing judge then referred to an article provided by defence counsel to the effect that a Glasgow Coma Score of 8 does not necessarily mean that the situation is life threatening. Her Honour noted that the article had been provided with no other information and she did not know, for example, if it had been peer‑reviewed.[85]
[85] AB 220.
The sentencing judge went on immediately to say:[86]
In any event, the State has made a deliberate decision to accept a plea of guilty to assault occasioning bodily harm rather than proceeding with a charge of grievous bodily harm. On my reading of the medical evidence on the prosecution brief, it reveals that the injuries to your brother‑in‑law were very serious injuries requiring life‑saving interventions. Remarkably, a serious injury such as this has been compromised by the State for public interest reasons, I'm told. That is their right, but it has consequences in terms of the sentence that can be imposed for such conduct. (emphasis added)
[86] AB 220 - 221.
Having regard to the sentencing remarks as a whole, I am not satisfied that the sentencing judge took into account for the purposes of the sentence her view that, but for medical intervention, SKT would have died.
Her Honour was critical of the State for reducing the charge from grievous bodily harm. Her displeasure arose, as she articulated, from the fact that the consequence of the State's decision was that she would be required to sentence the appellant in a way that the public would think did not match the crime. That is, her Honour was displeased precisely because she knew that, as a result of the State's decision, the sentence could not reflect that the injuries were life threatening. In those circumstances, it is inconceivable that her Honour would then impose a sentence on the basis that the injuries were life threatening. In any event, it is clear from what her Honour said immediately after referring to the Glasgow Coma Scale, quoted above, that her Honour did not do this.
While I would grant leave to appeal on ground 3, the ground has not been made out.
Ground 4 - did the judge wrongly reject uncontradicted medical evidence?
By ground 4, the appellant contends that the sentencing judge wrongly rejected uncontradicted medical evidence that she was suffering from impaired mental functioning at the time of the offending. Before the sentencing judge, the appellant had argued that she was, at the time of the offending, suffering from cognitive impairment due to starvation of her brain, which itself was caused by her anorexia nervosa.[87] That submission was challenged by the prosecution.[88]
[87] AB 260 [15].
[88] AB 285 [16].
The medical evidence relied upon by the appellant is a letter from psychiatrist Dr Michelle Middlemost and two letters from psychiatrist Dr Alexandra Welborn.
Dr Middlemost did not commence treating the appellant until more than two years after the offending. Dr Middlemost said that she could not comment on the appellant's psychiatric condition at the time of offending as the appellant was not her patient at that time. Despite this, she said she believed that the appellant was likely cognitively impaired at the time of the offending.[89]
[89] Offender's Book of Reports and References filed 15 April 2024 (Offender's Book of Reports) 1 ‑ 2, pars (c) and (o).
Dr Welborn had treated the appellant, both before and after the offending. She said that she believed that there was evidence that the appellant's frontal lobes were not operating properly at the time of the offence.[90]
[90] Psychiatric Report of Dr Welborn dated 5 August 2022 (Welborn August 2022 Report) 1 - 2.
In my view, it was well open to the sentencing judge to reject the psychiatrists' evidence.
To assess the weight to be given to an expert report, a court must know the facts on which it is based.[91] To be of any weight, an expert opinion must be based on facts that are established by the evidence or on assumed facts that are 'sufficiently like' the established facts.[92] The expert's reasoning process must be fully exposed.[93]
[91] RSTv The State of Western Australia [2016] WASCA 59 [28] (Buss JA, as his Honour then was); Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 [69] (Heydon JA).
[92] Makita [64]; RST [28].
[93] Makita [67].
A court is not obliged to uncritically adopt the opinion of an expert even if the opinion is unchallenged (noting that the State challenged the expert evidence in this case). The court is entitled to have regard to the expertise of the expert, the questions involved in the opinion and the reasoning underpinning the opinion. The court is also entitled to weigh the opinion against other evidence in the case. Other evidence of facts and circumstances may displace or throw doubt on the expert evidence.[94]
[94] Noormets v The State of Western Australia [2021] WASCA 195 [165] (Beech JA).
In the paragraph in which the opinion was expressed, Dr Middlemost wrote:[95]
Although [the appellant] was not my patient at the time of the alleged offending it is my opinion that she was likely cognitively impaired at the time of the alleged offense. [The appellant] clarified that she carried a dumbbell around with her at the time of the alleged offense to increase her weight when being weighed for her Anorexia Nervosa. She would hide the dumbbell on her person at the time of being weighed. Trying to increase weight by hiding objects is incredibly common in patients with Anorexia Nervosa (another strategy is water loading) as is cognitive impairment in the context of a starving brain and recovery of the brain after successful refeeding can take years.
[95] Offender's Book of Reports 2, par (o).
Dr Middlemost did not expressly identify the facts or assumptions on which her opinion was based. Nor did she explain her process of reasoning. While Dr Middlemost gives expert opinion that cognitive impairment is incredibly common in anorexia nervosa patients in the context of a starving brain, the conclusion that the appellant was 'likely cognitively impaired' is no more than a bald assertion.
At best, it may be inferred from the letter as a whole that Dr Middlemost's opinion was based on the appellant's self‑report that she weighed 35 kg at the time of the offending and the hospital admission record that showed that nearly a year later the appellant was 38.9 kg and had a severely malnourished brain.[96]
[96] Offender's Book of Reports 1 - 2, in particular pars (c) and (l).
The sentencing judge did not accept that the appellant weighed 35 kg at the time of the offending.[97] It was open to the sentencing judge not to accept this,[98] and the appellant does not challenge the refusal. It would have been difficult for her to do so. Even though she was dishonest in the police interview,[99] she did not there claim to be 35 kg - she said she weighed 43 kg.[100]
[97] AB 228.
[98] See AB 226 - 228. See also AB 158 - 163.
[99] See AB 239 - 240.
[100] AB 427.
Further, even assuming that it was established that, at the time of the offence, the appellant had a severely malnourished brain and that this had caused some cognitive impairment, Dr Middlemost did not identify or explain what the likely symptoms or consequences of such an impairment would be.
As the assumptions on which Dr Middlemost's opinion appears to have been based were not proved, and as she did not expose her reasoning process, the sentencing judge was entitled to reject Dr Middlemost's opinion.
Dr Welborn's evidence (written in August 2022) was as follows:[101]
It is my belief that at the time of the incident [the appellant] was suffering from a psychiatric disorder. The reason I have come to this conclusion is that her mental state has dramatically improved with the reinstatement of a normal body weight. [The appellant] is very sensitive to starvation syndrome and I believe that there was evidence that her frontal lobes were not operating properly at the time of the offence. She has on the day of this report returned to her normal mental functioning.
[101] Welborn August 2022 Report 1 - 2.
The last time Dr Welborn saw the appellant prior to the offending was on 19 December 2020. She first saw the appellant after the offending in August 2021. It appears that her opinion as to the appellant's mental state at the time of the offending is based on an unstated assumption that the appellant's weight when seen by Dr Welborn in August 2022 was different to her weight at the time of the offence. There is no evidence of what the appellant's weight was when seen by Dr Welborn in August 2022 other than Dr Welborn's statement that it was 'normal'. There is no evidence of what the appellant's 'normal' body weight is.
Further, Dr Welborn did not identify the 'evidence that [the appellant's] frontal lobes were not operating properly at the time of the offence'. She also did not explain what the likely symptoms or consequences of that would be.
In addition, Dr Welborn did not explain why she says that the appellant is very sensitive to starvation syndrome, or what that syndrome is. She did not explain why she is of this opinion in circumstances where the only evidence of brain malnourishment is in the report of Dr Middlemost, in which Dr Middlemost states that hospital admission notes showed that, in December 2021, the appellant had a severely malnourished brain and weighed 38.9 kg.[102] This was nearly a year after the offending.
[102] Offender's Book of Reports 2.
Despite numerous hospital admissions, there is no evidence of any cognitive impairment prior to the offending. In May 2020, a CT scan of the appellant's head was normal. In June 2020, she scored 30/30 on a Montreal Cognitive Assessment.[103] When the appellant was admitted to hospital on 11 August 2020, a mental health state examination showed she had logical and linear thought processes, and no formal thought disorder or delusions. She was found to have no perceptual abnormalities, was oriented to time, person and place, and had intact judgment.[104] The appellant's husband gave evidence that, when her employment was terminated about five weeks before the offending, the appellant thought she was able to work, and he agreed.[105]
[103] Psychiatric Report of Dr Welborn dated 3 November 2021 [3].
[104] Offender's Book of Reports 39 - 40.
[105] AB 186, 187.
The sentencing judge succinctly described the gap in the evidence as follows:[106]
I accept that a person suffering from anorexia nervosa may experience starvation of the brain causing irrationality of thought, but I do not accept that this occurs in all people who suffer from anorexia, nor do I accept that it occurs at all times in a person who is suffering from anorexia. When one looks at your medical history, your weight fluctuates, as well as your presentation, upon reviews by your medical professionals. This does not mean that you are cognitively impaired all of the time or, indeed, at any of the time. It may mean, depending on the circumstances, that your mental health may fluctuate, depending what is going on at that time.
I have not been provided with any evidence as to your behaviour or your mental health at the time of your offending to support a submission that you were suffering from a cognitive impairment.
[106] AB 229.
The appellant contends that there was evidence that she had been acting irrationally prior to the offending. She refers to the evidence that her employment at the medical practice had been terminated due to her persistent questioning of patients. However, the appellant acknowledges that this was a symptom of her obsessive‑compulsive disorder.[107] That is, it is not an indication of any cognitive impairment caused by a starving brain.
[107] Appellant's submissions [70].
The sentencing judge also noted that there was no evidence that either psychiatrist had considered whether the nature of the offending (the premeditated conduct involving numerous preparatory steps) was indicative of, or even consistent with, brain starvation. Indeed, there was no evidence that the experts were aware of the nature of the offending. Dr Middlemost's only reference to the circumstances of the offending was to record that the appellant said that she acted in the context of a fight.[108] The sentencing judge said that, regardless of the appellant's weight at the time of the offending, it may be that the way in which the appellant committed the offences and the time over which they were committed negated any suggestion that she was cognitively impaired or acting irrationally.[109] In the absence of any expert psychiatric evidence as to whether the nature of the offending was consistent with cognitive impairment, it was open to the sentencing judge to reach that view.
[108] Offender's Book of Reports 1 - 2, pars (e), (k).
[109] AB 229.
In addition, the appellant was interviewed by the police at 5.30 pm on the day of the fourth offence. The sentencing judge noted that the experts did not appear to have watched the police interview. Her Honour considered that the police interview revealed that the appellant had her full faculties about her.[110]
[110] AB 231.
The appellant gave a detailed and false account to the police over nearly two hours. She said she had gone over to the house to check on her sister and brother-in-law because her sister had called her the night before and told the appellant that she and her husband were not feeling well.[111] She did not mention the contaminated food at all. She gave an account of her assault on SKT in which she claimed that her conduct had been in response to what SKT did to her.[112]
[111] AB 346.
[112] See AB 341 - 342.
Early in the interview, the appellant described the force with which she had hit SKT as '[h]ard … not very hard'.[113] Over an hour later, it was put to her that his injuries were not consistent with her claim that the force she had used was 'not hard'. She accurately corrected the police officer about what she had said over an hour earlier.[114] She was also able to give them her vehicle registration.[115]
[113] AB 357 (18:03:35), AB 367 (18:15:44).
[114] AB 425 (19:20:20).
[115] AB 347.
In the absence of any expert psychiatric evidence as to whether the appellant's performance during the police interview was consistent with cognitive impairment, it was open to the sentencing judge to consider that the police interview showed that the appellant's mental functioning was not impaired.
The nature of the offending and the police interview appeared to be inconsistent with the proposition that the appellant was cognitively impaired at the time of the offending. Neither expert addressed whether these matters were inconsistent. There is no evidence that either was aware of those matters.
Finally, neither expert expressed an opinion that the appellant's obsessive‑compulsive disorder or anorexia nervosa, or any other mental dysfunction, were causally connected to the offending.
The sentencing judge raised her concerns as to deficiencies in the expert evidence during the hearing on 29 April 2024.[116] The defence did not seek an adjournment to correct the deficiencies.
[116] See AB 160 - 161, 169 - 177, 200 - 201.
In my view, ground 4 was not reasonably arguable. Leave to appeal on this ground should not be granted.
Ground 1 - were the individual sentences manifestly excessive?
The general sentencing principles applicable to a ground of appeal which alleges that an individual sentence is manifestly excessive are well established.[117]
The circumstances of the offending
[117] Kabambi v The State of Western Australia [2019] WASCA 44 [21] (Buss P, Mitchell & Pritchard JJA). See also Wark v The State of Western Australia [2023] WASCA 66 [606] ‑ [615] (Buss P, Mazza & Vaughan JJA).
The offending was motivated by animus, jealousy, revenge, anger, or being offended.
Unsurprisingly, the offending had a significant and adverse impact upon the victims.
Counts 1 to 3 (contamination of food)
The offending conduct on 16 January 2021 (counts 1 to 3) was not fleeting or on the spur of the moment. It was premeditated. It involved numerous preparatory steps.[118]
[118] AB 230, 232, 243.
The appellant then sat and watched the victims consume contaminated food while deliberately not eating that food herself.[119]
[119] AB 230.
The appellant went home after the three victims had eaten the contaminated food.[120]
[120] AB 230.
When the appellant left the victims' home, she knew that at least SKT had been made ill. By that evening, she knew that SCL was also ill.
The victims were vulnerable to the poisoning, as they were served the food by a close family member at one of their regular family meals. The appellant preyed on that vulnerability to commit the offences.[121] LT was additionally vulnerable due to being only 10 years old.[122]
[121] AB 234, 243.
[122] AB 234.
Having regard to the levels of olanzapine found in the victims' blood, the amount they consumed would cause symptoms such as extreme dizziness and drowsiness.
SCL's symptoms caused her to collapse in the shower multiple times, striking her head on the bathroom floor. All three victims were still drug affected when the appellant returned the next morning.[123] The sentencing judge noted that the appellant could not have known the extent to which the 10‑year‑old LT could be harmed.[124]
[123] As to SKT, the appellant said in her police interview that, during the attack, SKT was not speaking clearly and she could not understand him - see AB 348. As to SCL and LT, see AB 292 - 295 [42], [47], [61] - [62].
[124] AB 243.
The nature of the offending was such that the victims would not have known that they had ingested the drug.
By giving all three victims contaminated food, there remained no one in the house (after the appellant left) who could render aid.
Count 4 (AOBH)
With respect to count 4, the sentencing judge rejected the submission that the appellant returned to the house early the following morning to check on the welfare of the victims of her earlier offending. Rather, the appellant returned to the house to cause further harm.[125]
[125] AB 216 - 217, 233.
The appellant brought with her the dumbbell she used to attack SKT.[126]
[126] AB 230.
The appellant knew that the occupants would be unwell. She knew that they would be vulnerable to attack and would have a reduced ability to defend themselves.[127]
[127] AB 216 - 217, 233, 234.
The appellant struck SKT repeatedly in the head with a 2 kg dumbbell, and at one point she also brandished a knife.
The attack on SKT was persistent. It began on the ground floor just inside the entry and continued into various locations in the house. The appellant only left SKT to run after her sister and niece as they fled the house.
Personal circumstances of the appellant
The sentencing judge made the following findings as to the appellant's personal circumstances.
The appellant was raised with a good family and was of prior good character. She had a history of employment. The offending was out of character. Her time in custody would be hard on her family, but not such as to be exceptional.
Although the appellant had been asked to stop working at the victims' medical practice a month prior, the adult victims were still paying her a salary.
The appellant had a long history of eating disorders and issues with weight. She had been treated for anorexia and obsessive‑compulsive disorder since May 2020, including both voluntary and involuntary hospitalisations. Her medical conditions could be managed in custody.
There was no causal link between anorexia and obsessive‑compulsive disorder and the offending, but the sentencing judge said she would take them into account in a general way.[128]
[128] AB 232.
The appellant was not suffering any cognitive impairment at the time of the offending. Rather, she was very capable of ordered thought and conduct and was fully aware of the intended consequences of her behaviour.
An assessment of the risk of reoffending could not be (and so was not) made.
The appellant was found to be remorseful only in 'some limited way'. The sentencing judge acknowledged that the (belated) pleas of guilty may indicate remorse. However, the sentencing judge noted that the appellant's conduct prior to the pleas of guilty was inconsistent with remorse. That conduct included the self‑serving, dishonest interview with police, her false claim to her family and friends and to the court that she did not remember contaminating the food, and her false claim that the assault on SKT had occurred after SKT hit her first.[129]
[129] AB 225, 231 - 233, 239 - 241, 243 - 244. See also AB 338, 341 - 342.
The sentences imposed were discounted by 3% for the late guilty pleas.[130] The plea agreement was only reached after the first trial (in which all three victims had given evidence) aborted.
Counts 1 and 2 - s 304(2) - poisoning of adult victims
[130] AB 238 - 239.
The maximum penalty for an offence against s 304(2) of the Code is 20 years' imprisonment. There is no tariff for offences against s 304(2).[131] The appellant was sentenced to 5 years' immediate imprisonment for both offences.
[131] SKLv The State of Western Australia [2024] WASCA 32 [19] (Mazza & Hall JJA).
The appellant relies on two cases: SKL v The State of Western Australia and Gomboc v The State of Western Australia.[132]
SKL
[132] Gomboc v The State of Western Australia [2023] WASCA 115.
In SKL, the offender had been sentenced to immediate imprisonment of 4 years and 4 months for a single offence against s 304(2) of the Code. On appeal, the court reduced the term to 3 years and 3 months. The appellant submits that SKL is directly comparable to this matter. While there are some similarities, I do not accept that SKL is comparable.
As with the appellant, the offender in SKL suffered from anorexia and obsessive‑compulsive disorder. However, unlike the appellant, SKL's obsessive‑compulsive disorder drove her to commit the offence.[133] It was of central importance to the case.[134]
[133] SKL [5], [20] (Mazza & Hall JJA), and see also [60] (Vandongen JA).
[134] SKL [5] (Mazza & Hall JJA), and see also [60] (Vandongen JA).
Prior to the offence, SKL had been experiencing intrusive thoughts that she should kill herself, her husband and her children. SKL did not actually want to kill anyone. SKL decided to stab a stranger so that she would be arrested and kept in custody, which would prevent her from acting on her thoughts. SKL bought a knife and took it to a shopping centre. She went into a store and stabbed a stranger once to her lower right back, just above the hip. The knife went into the victim's body to the hilt. SKL then ran away. The victim suffered a laceration to her right buttock which could potentially have endangered her life because, without medical intervention, it would have remained a bleeding wound.[135]
[135] SKL [60] - [63] (Vandongen JA).
In findings not challenged on appeal, the sentencing judge found that SKL's moral culpability for the offence was reduced by reason of her mental illness. The sentencing judge further found that her mental health reduced the need for general and personal deterrence and that time in prison would be more onerous for her.[136]
[136] SKL [16], [21] (Mazza & Hall JJA), [89], [108] - [109], [118] (Vandongen JA).
In addition to the impact of SKL's mental health, there were several other significant mitigating factors in her case. In particular, SKL pleaded guilty at the first reasonable opportunity, for which the sentencing judge reduced the sentence he would have otherwise imposed by 25%. Further, SKL was genuinely remorseful, she cooperated with police and made admissions, and she had embarked on a program of rehabilitation.[137]
[137] SKL [16], [21] (Mazza & Hall JJA), [92] (Vandongen JA).
While some of the mitigating factors present in SKL's case[138] were also present in the appellant's case, the appellant's mental health did not cause her to commit the offences.[139] This is a significant feature of distinction.
[138] See SKL [4] and [5] (Mazza & Hall JJA), [107] - [109] (Vandongen JA).
[139] AB 232.
There are other points of distinction.
First, the appellant's pleas of guilty attracted a discount of only 3%, compared to the 25% given to SKL.
Second, the appellant was found to be remorseful only in 'some limited way'.[140]
[140] AB 241.
Third, unlike in SKL, the sentencing judge here did not find that time in custody would be more onerous for the appellant because of her mental illness. Nor was there any evidence of this.[141]
[141] See Gomboc [163] - [164] (Quinlan CJ, Mazza & Hall JJA) as to the need for an evidential basis.
The appellant further submits that SKL's offending was markedly more serious than her own. The appellant notes that SKL had used a large knife that she had bought for the very purpose of stabbing a stranger. The appellant submits that the injury inflicted by SKL 'seriously endangered the life of the victim'.[142] She submits that this is what the court in SKL found, in finding that the injury could potentially have endangered the victim's life because, without medical intervention, it would have remained a bleeding wound.
[142] Appellant's submissions [36].
Putting aside the significant differences in mitigating factors, I do not accept that SKL's offending was more serious than the appellant's. On the contrary, I consider that the appellant's offending against the two adult victims was significantly more serious than SKL's. It was, among other things, malevolent.
Gomboc
In Gomboc, the offender was sentenced to a total effective sentence of 11 years and 10 months' imprisonment for 19 offences against the victim, including one offence against s 304(2)(b) of the Code. The other offences were two counts of aggravated assault occasioning bodily harm, one count of aggravated unlawful wounding, one count of wilful and unlawful property damage, one count of being armed in circumstances likely to cause fear, seven counts of making threats to unlawfully harm, and six counts of making threats to unlawfully kill. For the offence against s 304(2)(b), the offender was sentenced to immediate imprisonment of 4 years and 6 months.
The offender in Gomboc appealed against his sentence on three grounds. Two alleged express errors, which were not established on appeal. The third alleged that the total sentence was manifestly excessive. The court allowed the appeal on this ground, reducing the total sentence to 9 years and 6 months' imprisonment.
In Gomboc, the Court of Appeal noted that there was no challenge to the individual sentences imposed by the learned sentencing judge. It said that those sentences were, in the court's view, appropriate.[143] However, even where the Court of Appeal resentences on a successful appeal, its decision does not, of itself, fix the upper limit of the range.[144] Accordingly, the court's endorsement of the individual sentences in Gomboc could not, and did not, establish an upper limit for the individual sentences imposed.
[143] Gomboc [225] (Quinlan CJ, Mazza & Hall JJA).
[144] Vidovic v Western Australia [2024] WASCA 63 [98(5)] (Quinlan CJ, Mazza & Vandongen JJA).
Gomboc's conduct in committing the offence against s 304(2) was more serious than the appellant's conduct in counts 1 and 2 in several respects, including that it endangered the victim's life, would have been very frightening to the victim, and occurred in the context of domestic violence. However, some of the features aggravating the appellant's offending were not present in Gomboc's offending. In particular, the appellant's offending in counts 1 and 2 was premeditated, persistent, devious, and malevolent. It required several steps to be followed. The appellant was able to commit the offences because the victims had invited her into their home to share a meal. She stayed while the victims ate the contaminated food and left after SKT had begun to show signs of illness. The nature of the offences was such that the victims would not know they had been poisoned. She poisoned all three occupants, leaving no one unaffected to care for the others.
In my view, all that Gomboc relevantly established was that a sentence of immediate imprisonment of 4 years and 6 months for a serious offence against s 304(2) was within the range of appropriate penalties.
No error on counts 1 and 2
As the above discussion shows, the offending in counts 1 and 2 was very serious. There was little mitigation. The mitigation was limited to the appellant's prior good character, limited remorse, health issues and the 3% discount for her pleas of guilty. In my view, it was well open to the sentencing judge to impose terms of 5 years' imprisonment for each offence.
Count 3 - s 304(1) - poisoning of child
The offence the subject of count 3 was contrary to s 304(1) of the Code and carried a maximum penalty of 7 years' imprisonment. Unlike an offence against s 304(2), it is not an element of an offence against s 304(1) that the offender intended to cause harm.
The appellant was sentenced to 4 years' immediate imprisonment for this offence. The appellant submits that the penalty imposed was outside of the range, given the sentence in SKL of 3 years and 3 months' immediate imprisonment for an offence against s 304(2). She points out that such offences involve an intention to harm, unlike her offence against her niece. She further says that SKL's offence endangered the life of the victim, unlike her offence which was not alleged to endanger LT's life. The appellant submits that it follows that the sentence imposed for count 3 was manifestly excessive.
This does not follow. An offence against s 304(1) may attract a sentence of up to 7 years' imprisonment. Plainly, a sentence for an offence against s 304(2) may be less than 7 years. While the maximum penalty applicable to an offence will always be a relevant factor in determining the appropriate sentence, it cannot mean that a lower maximum penalty requires a sentence lower than a sentence imposed for an offence which has a higher maximum penalty.
Further, I do not accept that the sentence was manifestly excessive in the circumstances.
First, the offence was very serious for many of the same reasons as counts 1 and 2.
Second, it involved an additional aggravating feature - the victim was the appellant's 10‑year‑old niece. This 10‑year‑old child was served a contaminated tart by her aunt at a family dinner in the child's home. This fact speaks for itself.
Third, while the appellant was not to be sentenced on the basis that the child's life was endangered by the contaminated tart, the sentencing judge noted that the appellant could not have known the extent of potential harm to the child.[145] There was no evidence before the sentencing judge that the appellant knew the extent of potential harm and she did not contend that she did.
[145] AB 243.
Fourth, there was comparatively little to mitigate the offence.
Fifth, as explained above, the case of SKL is not a useful comparator.
In my view, it was well open to the sentencing judge to impose the term of 4 years' imprisonment for this offence.
Count 4 – s 317(1) - assault occasioning bodily harm on SKT
The offence the subject of count 4 carried a maximum penalty of 5 years' imprisonment. The sentencing judge imposed a term of 4 years' immediate imprisonment for this offence. The appellant notes this is 80% of the maximum.
The appellant relies on Duncan v The State of Western Australia.[146]
[146] Duncan v The State of Western Australia [2018] WASCA 154.
The offender in Duncan appealed against a sentence of 3 years' immediate imprisonment. The court said that the sentence was high, but that it was not manifestly excessive in the circumstances. The court refused leave to appeal, as the court considered that the appeal did not have a reasonable prospect of succeeding.[147]
[147] Duncan [34], [60] (Buss P, Mazza JA & Pritchard J).
The dismissal by this court of an appeal against sentence does not fix the upper limits of a proper exercise of the sentencing discretion. Further, as the court in Duncan refused leave to appeal, the case is of little assistance even as a marker of the upper limits of the proper exercise of discretion.[148]
[148] Aung v The State of Western Australia [2022] WASCA 175 [45].
The respondent concedes that, having regard to the maximum penalty of 5 years, the 4‑year term imposed with respect to count 4 was unquestionably high. The respondent submits, however, that it was not manifestly excessive in the circumstances. The respondent submits that the offence was a very serious instance of an assault occasioning bodily harm.
I agree it was a very serious instance of an assault occasioning bodily harm.
First, the appellant returned to the victims' home to cause further harm to at least the adult victims.
Second, the offence was committed on a victim in his own home, who had been deliberately and surreptitiously poisoned the night before by the appellant.
Third, the appellant knew that the occupants would be vulnerable to further attacks and less able to defend themselves.
Fourth, the offence involved multiple blows to the victim's head with a 2 kg dumbbell.
Fifth, the appellant also brandished a knife at one point during the attack.
Sixth, the attack was persistent - beginning near the door and continuing through the house. The appellant only desisted to run after her sister and niece as they fled the house.
Seventh, there was comparatively little to mitigate the offence.
The State did not contend before the sentencing judge that the offence was in the worst category of cases of assaults occasioning bodily harm. It was, however, very serious. In my view, the seriousness of the offence was such that it was open to fix a head sentence of 4 years and 6 months' imprisonment. A 3% discount for the plea of guilty would reduce that head sentence by less than two months. A final sentence of 4 years would represent a further reduction of more than 4 months on account of the other mitigating factors.
I accept the State's submission that there was little to mitigate the offending. Nevertheless, I have reached the view that the appellant's prior good character and her mental health issues required somewhat more of a discount than 4 to 5 months. That is, I accept the appellant's submission that it was not open to her Honour to impose a sentence of 4 years for this offence.
Conclusion on ground 1
In my view, ground 1 was not reasonably arguable in relation to the sentences imposed for counts 1 to 3, but has been made out in relation to count 4.
Ground 2 - did the total sentence infringe the totality principle?
The appellant alleges that the total sentence infringed the first limb of the totality principle. The first limb of the totality principle relevantly requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all the offences, viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally, all relevant sentencing factors and the total effective sentences imposed in comparable cases.[149]
[149] Kabambi [21(3)] (Buss P, Mitchell & Pritchard JJA).
The general sentencing principles applicable to such a ground of appeal are well established.[150]
[150] Kabambi [21] (Buss P, Mitchell & Pritchard JJA).
In support of her submission that the total effective sentence was unjust, the appellant raises four matters said to be mitigating.
The first is her pleas of guilty. I accept this was mitigating. However, the sentencing judge found that the pleas warranted a reduction of only 3% in all the circumstances. This finding was not challenged.
The second matter of mitigation is the appellant's prior good character. The appellant notes that, at the time of sentencing, she was a 49‑year‑old mother and wife, with no criminal record. This was mitigating.
The third matter said to be mitigating is '[t]he unlikelihood of the Appellant re-offending in a similar manner or at all'.[151] The sentencing judge expressly declined to make that finding.[152] The appellant has not challenged the failure to make that finding.
[151] Appellant's submissions [48(d)].
[152] AB 242.
The fourth matter said to be mitigating is '[t]he impaired mental functioning of the Appellant at the time of the offending and throughout most of the period she spent remanded in custody, including the application of the Verdins[153] principles to same'.[154] Having regard to the sentencing judge's findings, and my dismissal of ground 4, all that is mitigating is that the appellant has mental health issues that could be taken into account in a general way.
[153] R v Verdins [2007] VSCA 102; (2007) 16 VR 269; see LCM v The State of Western Australia [2016] WASCA 164; (2016) 262 A Crim R 1.
[154] Appellant's submissions [48(e)].
In further support of her submission that the total effective sentence was unjust, the appellant relies on '[t]he unusual features of the offending in respect of counts 1 to 3 which did not involve any overt acts of violence, but rather, the lacing of food with medication … which did not endanger their lives'.[155]
[155] Appellant's submissions [48(c)].
The fact that the offending did not involve overt violence does not make it less serious. On the contrary, its covert nature was aggravating. A victim of an assault is likely to be aware of the assault and its effect and, if circumstances permit, will be able to seek help. A victim poisoned by contaminated food may have no idea that their health has been endangered. In my view, the appellant's chosen method of offending was aggravating, not mitigating.
The appellant also refers to the fact that the individual sentences imposed on counts 1 and 4 were not reduced on account of the totality principle, yet the sentence in count 4 was ordered to be served cumulatively on the sentence imposed on count 2.
I do not accept this shows an error. The totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all the offences. It does not dictate how that is to be achieved. In any event, count 4 was qualitatively different to the first three counts. The first three counts related to the appellant's serving of contaminated food to the three victims at dinner. Count 4 related to the appellant's return to the house the next morning and the striking of the still drug affected SKT in the head multiple times with a 2 kg dumbbell.
I am not satisfied that the total effective sentence offended the totality principle. The offences were very serious and warranted a substantial term of imprisonment. The offences were against three victims, one of whom was a child. The offending was motivated by animus, jealousy, revenge, anger, or being offended. The offending was calculated and persistent. The first three offences were surreptitious and took advantage of the vulnerability of the victims eating a family dinner. The first two, in which the appellant intended to harm, were malevolent. The third, against her 10‑year‑old niece, was callous. The fourth and last offence was committed on a victim that the appellant had already rendered vulnerable by her offending on the previous evening. The impact on the victims was significant. There was little mitigation.
While I would grant leave to appeal to appeal on ground 2, it has not been made out.
Resentencing
As a result of the success of ground 1, it is necessary to resentence the appellant.
In dealing with grounds 1 and 2 of the appeal, I explained why the offences were very serious and warranted a substantial term of imprisonment.
I would discount the head sentences by 3% for the pleas of guilty. I would also take into account the sentencing judge's acceptance that there was some late and limited remorse, and that the appellant undoubtedly suffers from obsessive‑compulsive disorder and anorexia nervosa.
More difficult is the assessment of the weight to be given to the appellant's prior good character and her Honour's finding that the offending was out of character. In my view, the following factors are relevant to that assessment.
First, the offending was not a spontaneous and impulsive act. The first three offences were planned. The appellant then contaminated food, served the food, and stayed while the victims ate the food. The fourth offence occurred when the appellant went back to the house the next morning, knowing the occupants would be less able to defend themselves.
Second, up until the late plea, there was no sign of remorse. The appellant gave a self‑serving, dishonest account to the police, falsely claimed to her family and friends and to the court that she did not remember contaminating the food, and falsely claimed that the assault on SKT had occurred after SKT hit her first.
Third, the offending was motivated by animus, jealousy, revenge, anger, or being offended.
Nevertheless, the appellant's prior good character and the fact that the offending was out of character does carry some weight.
Having regard to the relevant sentencing factors, I would impose the same sentence as the learned sentencing judge on counts 1, 2 and 3. I would impose a sentence of 3 years and 6 months' imprisonment on count 4.
Each of the offences warrants separate punishment.
Counts 1, 2 and 3 were committed against different victims. Count 3 was also of a distinctly different nature. Although it did not involve the element of an intent to harm, it was committed using different food and the victim was the appellant's 10‑year‑old niece. Contaminating a tart and then serving it to her niece was particularly callous. The appellant could not have known the extent of potential harm to the child. Further, there is no suggestion that the child had done anything that could have upset the appellant.
The offending in count 4 occurred the day after the first three offences and was qualitatively different.
Other than the totality principle, there is no reason why any of the sentences should be entirely concurrent with another.
In my view, having regard to the relevant sentencing considerations, the total effective sentence necessary to reflect the overall criminality involved in the offending is the same as found by the sentencing judge, namely 9 years' imprisonment.
It is unnecessary to address how I would structure such a sentence, as the other members of the court have reached a different view.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SC
Research Associate to the Honourable President Buss
28 FEBRUARY 2025
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