LJP v The State of Western Australia - [2024] WASCA 102

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   LJP -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 102
CORAM:   QUINLAN CJ
VANDONGEN JA
TOTTLE J

HEARD:   20 MAY 2024
DELIVERED          :   20 MAY 2024
PUBLISHED           :   27 AUGUST 2024
FILE NO/S:   CACR 110 of 2023
CACR 111 of 2023

BETWEEN: LJP
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   BARBAGALLO DCJ
File Number            :   IND 227 of 2021

Catchwords:

Criminal law - Appeal against conviction - Whether appellant misunderstood nature of charge or did not intend to admit guilt - Whether facts relied on by the State supported the appellant's convictions

Legislation:

Children and Community Services Act 2004 (WA), s 3, s 28, s 101
Criminal Code (WA), s 7(a)

Result:

Appeal allowed
Judgments of conviction set aside on counts 1 - 3
Judgments of acquittal entered on counts 1 - 3

Category: B

Representation:

Counsel:

Appellant	:	E R Zillessen
Respondent	:	R F Owen SC

Solicitors:

Appellant	:	Legal Aid (WA)
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Gibson v The State of Western Australia [2017] WASCA 141; (2017) 51 WAR 199
RMM v The State of Western Australia [2018] WASCA 183

REASONS OF THE COURT:

The appellant is the father of three children. When his children were still quite young, they were all diagnosed with Ehlers‑Danlos Syndrome (EDS), a condition that affects the connective tissue of the body and which is generally characterised by hypermobility, tissue fragility and increased skin extensibility. Symptoms can also include increased fatigue as well as muscle and joint pain.
The State alleged that after each child was diagnosed with EDS, on many occasions, and over long periods of time, the children's biological mother provided each child with prescription medication without, or contrary to, prescription or medical advice. As a result, the children suffered from serious psychological and physical harm.
The children's mother was eventually charged with three offences contrary to s 101(1)(b) of the Children and Community Services Act 2004 (WA) (CCS Act). Specifically, it was alleged that the mother was a person who had the care or control of each of her three children, and that she engaged in conduct reckless as to whether such conduct may have resulted in the children suffering from harm as a result of physical abuse, emotional abuse and/or neglect.
The appellant was jointly charged with the children's mother. However, it was not alleged that he had provided any prescription medication to his children. Instead, it was alleged that he was guilty of an offence contrary to s 101(1)(b) because he allowed his wife to take responsibility for the children's medication, reckless as to whether his own conduct may have resulted in the children suffering from harm.
After entering into negotiations with the State, the appellant and his wife both pleaded guilty in the District Court. The appellant was then sentenced to a total effective sentence of 4 years and 6 months' immediate imprisonment, while his wife was sentenced to a total effective sentence of 7 years' imprisonment.
Despite his pleas of guilty, and almost seven months after the last date for appealing, the appellant appealed against conviction. He also appealed against the sentences imposed on him, arguing they were manifestly excessive.
The respondent conceded that the appeal against conviction should be allowed and that the judgments of conviction should be set aside. The respondent also conceded that judgments of acquittal should be entered in respect of all three charges. In light of those concessions, Buss P, Mazza and Hall JJA granted the appellant bail on 19 February 2024, pending the determination of the appeal.
We heard the appeal on 20 May 2024.
At the hearing of the appeal, the appellant sought leave to adduce an affidavit sworn on 24 November 2023. In that affidavit, the appellant gave evidence about his state of mind at the time of the alleged offences. Significantly, the appellant gave evidence that at all relevant times he had been unaware of the fact that his wife had been providing their children with unprescribed medication. The appellant also gave evidence about his understanding of the legal advice he received that led to him entering pleas of guilty. In essence, the appellant said in his affidavit that he pleaded guilty on the basis that he was reckless, for the purposes of an offence contrary to s 101(1)(b), because he ought to have known that his wife was providing their children with unprescribed medication.
The Director of Public Prosecutions for Western Australia (Director), who represented the respondent at the hearing of the appeal, did not object to the tender of the affidavit and did not seek to cross‑examine the appellant about its contents.
At the conclusion of the hearing of the appeal, the court announced that it was unanimously of the opinion that that appeal should be allowed. The following orders were made:
1.The appellant have leave to adduce the appellant's affidavit sworn on 24 November 2023 as additional evidence in the appeal.
2.Leave to appeal is granted on grounds 1 and 2.
3.The appeal is allowed.
4.The appellant's convictions on counts 1, 2 and 3 on indictment IND 227 of 2021 are set aside.
5.Judgments of acquittal are entered on counts 1, 2 and 3 on indictment IND 227 of 2021.
As we mentioned earlier, the appellant also appealed against the sentences imposed on him. However, because of the orders made in the conviction appeal, the appeal against sentence became otiose and it was dismissed.
What follows are our reasons for allowing the appeal against conviction.

The charges

The appellant was charged with having committed three offences contrary to s 101(1)(b) of the CCS Act. Each offence concerned one of his three children.
All three charges were in essentially the same form:
Between [date] and [date] at Perth, [the appellant] being a person having the care or control of a child, namely [X], engaged in conduct, reckless as to whether such conduct may have resulted in [X] suffering harm as a result of physical abuse and/or emotional abuse and/or neglect as defined in section 28(1) of the Child and Community Services Act 2004.
The appellant had one daughter and twin sons. Count 1 related to the appellant's daughter. It alleged that the appellant engaged in the relevant conduct between 1 July 2012 and 18 February 2020. Count 2 concerned one of the appellant's twin sons. That conduct was alleged to have occurred in the period between 9 June 2017 and 18 February 2020. Count 3 related to the appellant's other twin son. The appellant was alleged to have engaged in the relevant conduct between 5 July 2013 and 18 February 2020.
The basis on which the appellant was alleged to have committed all three offences was different when compared to the basis on which his wife was said to have committed offences contrary to s 101(1)(b) of the CCS Act. However, they were jointly charged.

The sentencing proceedings

To understand why we were satisfied that the appellant's appeal against conviction should be allowed, it is necessary to explain what took place at the sentencing proceedings.
The appellant and his wife pleaded guilty in the District Court on 31 August 2022. However, the pair were not sentenced until 24 February 2023.
At the first sentencing hearing on 9 December 2022, the State prosecutor read aloud a lengthy and detailed statement of material facts. In summary, it was alleged that at the time of the alleged offences, the appellant's daughter was between 7 and 14 years of age, his son was between 9 and 11 years of age, and his other son was between 5 and 11 years of age. All three children had been diagnosed with EDS.
Although it did not form part of the facts relied on by the State, it was common ground that the appellant's wife had also been diagnosed with EDS.
During the period of the offences, when the appellant and his wife both had the care or control of all three children, they were alleged to have engaged in conduct, reckless as to whether that conduct may result in the relevant child suffering harm as a result of physical abuse, emotional abuse, and/or neglect.
In relation to the appellant's wife, the State alleged that on several occasions she engaged in conduct where she made medications available to each of the three children, in circumstances in which those medications were not prescribed, or where the provision of it to her children was contrary to prescription or medical advice. The medications included substances such as prednisolone, pregabalin, oxycodone, tramadol, Panadeine Forte, diazepam and tapentadol, and Endone.
Although the appellant was jointly charged with his wife, he was not alleged to have actually made any medications available to his children. Instead, the appellant was alleged to have engaged in the following conduct:
Having regard to the awareness in [his wife's] conduct and the harm [X] was suffering, [the appellant] was reckless in his conduct in continuing to permit [his wife] to take responsibility for the medication for [X] in that[1] he ought to have been more diligent in ensuring the appropriate level of medication was given, and only medication prescribed for [X] was given to [them].
[1] Having regard to the amended statement of material facts from which the prosecutor was reading, the transcript of the sentencing proceedings on 9 December 2022, which records that the State prosecution said, 'And that', as opposed to 'in that', is wrong.
This was the basis on which the appellant was ultimately sentenced.[2]
[2] ts 166.
The State alleged that because of the conduct engaged in by both the appellant and his wife, all three children suffered psychological and physical harm. In particular, the State alleged the children came to believe that they were in serious pain that required pain relief, and they developed addictions and dependencies on pain‑relieving medication.
It was alleged that the children's mother caused that harm by a combination of her 'conduct and behaviours'.[3] Importantly, it was also alleged that the appellant caused that harm because he 'was reckless in not being diligent and taking an active involvement when he ought to have known better'.[4]
[3] ts 89.
[4] ts 89.
It is critical to understand that at the sentencing proceedings it was common ground that the appellant only became aware that his wife had been providing unprescribed medication to their children on 6 February 2020. On that date, the appellant and his wife attended at the Perth Children's Hospital with their daughter for an outpatient appointment.
According to the unchallenged explanation provided in the plea in mitigation by the appellant's then counsel, the appellant became concerned about his daughter after he witnessed an incident take place between his wife and medical professionals when they were at the hospital. It was only when the appellant raised those concerns with his wife later that day that he first learnt she had been providing their daughter with unprescribed medication. The appellant's counsel informed the sentencing judge that this caused a 'significant rift' in his relationship with his wife.
In his affidavit, the appellant said that he first became aware that his wife had been providing unprescribed medication to one of his sons when he was interviewed by police on 26 March 2020. It is not clear when he first became aware that his wife had also been providing unprescribed medication to their other son. We infer that this also occurred after 6 February 2020.
At sentencing, the State alleged that the appellant's wife engaged in further conduct relating to the provision of medication after 6 February 2020. In that regard, the State alleged that on 13 February 2020, the appellant's wife 'requested more tramadol for [X] when it was not required' and further that, 'on or about 18 February 2020 [she] provided [X] with an additional 10 ml of oxycodone in addition to 5 mg oxycodone three times daily prescribed to [them]'. However, the State did not allege that the appellant knew that his wife had engaged in that conduct.
In seeking to persuade the sentencing judge that the appellant's culpability was less than that of his wife, the appellant's counsel submitted that the appellant had relied on his wife to provide the day‑to‑day care for their children. Counsel submitted that one of the reasons why the appellant relied on his wife to deal with the children's medical issues was because she herself had been diagnosed with EDS.
The appellant's counsel also made the following submissions about the appellant's level of culpability:[5]
He feels that had he appreciated the circumstances that he would have spoken up. But that he didn't know about those circumstances until that incident at the hospital. His position is that he ought to have done so. He ought to have made more inquiries. That's where he sees - and that's our submission. That's where we see the culpability lying in relation to him.
Your Honour, we say in addition, where it's said that [the appellant's wife] was demanding more medication, the only factual evidence of [the appellant] being present where that was an issue was that last incident. And that's because [the appellant] says he simply wasn't at the majority of those appointments or attendances at the hospital.
His position was usually that he was at work, he'd get a call, they'd already be at the hospital. And he was doing one of two things, either meeting up with them after they'd been seen and he needed to potentially ask questions, or just to simply pick the kids up from the hospital. So his involvement in that regard was limited. As I say, he feels that he ought to have asked more questions. (emphasis added)
[5] ts 118.
Later, in answer to a question from the sentencing judge, the appellant's counsel said the following:[6]
So he was aware that they'd been prescribed those things. And his clear instructions to me about his involvement with the use of medication - and this is also in his interview - that he only gave medication in one of two circumstances.
That is, if the child came to him and said they needed pain medication, he would go to the cupboard where the pain medication was kept. And if there was medication that was prescribed on the box to the child, then he would be prepared to give it, only in accordance with what was on the box.
The other circumstance was where his wife told him that here, [one of the children] needs their medication now, here it is. And it was given to him as the tablets to give, or the liquid to give. There was no, in his view, from what he knew at that time, giving an amount over what was prescribed. (emphasis added)
[6] ts 126.
None of these submissions were ever challenged by the State prosecutor who appeared at sentencing.

Grounds of appeal

The appellant relied on two grounds of appeal, which were in the following terms:
1A miscarriage of justice occurred because the pleas of guilty of the appellant in counts 1 ‑ 3 were brought about by his error or misunderstanding of the law and do not prove genuine consciousness of guilt.
Particulars
1.1The appellant erroneously understood his being negligent about or ignorant of his wife's conduct in overmedicating his children was reckless conduct and that he was guilty of engaging in conduct reckless as to whether his children would suffer harm from conduct of his wife of which he was unaware.
1.2 The appellant instructed his counsel he had no awareness of his wife's conduct.
1.3 The appellant's lack of awareness of his wife's conduct provided a defence to the charges that was inconsistent with guilt as he could not be reckless in relation to facts about which he had no knowledge: R v Crabbe (1985) 156 CLR 464.
1.4 The appellant understood he was reckless because he ought to have been aware of his wife's conduct.
1.5 The appellant would not have pleaded guilty if he understood that the circumstances of his admitted culpability were not sufficient to prove the offence in law.
1.6 There is a miscarriage of justice because the appellant has been convicted of charges to which he has a defence.
2The learned sentencing judge erred by not recognising the discrepancy between the appellant's pleas of guilt and the facts admitted at sentencing which fell short of establishing the mental element of counts 1 ‑ 3 as a matter of law, or alternatively did not establish that he had engaged in any conduct which was capable of being regarded as reckless in law.
Particulars
2.1Appellant's counsel at sentencing put to the court the appellant was culpable on the basis he did not know about his wife's conduct but should have known about it.
2.2 Appellant's counsel at sentencing put to the court the defence understanding was the prosecution did not dispute that the appellant was unaware of his wife's conduct, and the prosecution did not join issue or contradict this submission after it was made.
2.3 The error of the learned sentencing judge caused a miscarriage of justice because the appellant was sentenced for offences prior to his guilt being established in law.

Relevant principles

The principles to be applied in circumstances in which a conviction based on a plea of guilty is sought to be set aside are well established. An appellant must satisfy the court that a miscarriage of justice has occurred.
There are three well-recognised, but not exclusive, circumstances in which courts are prepared to find that a miscarriage of justice occurred. They are where the appellant did not understand the nature of the charge or intend to admit guilt, where the appellant could not in law have been guilty of the offence upon the admitted facts, and where the appellant pleaded guilty because of improper inducement, fraud or intimidation and the like.[7]
[7] Gibson v The State of Western Australia [2017] WASCA 141; (2017) 51 WAR 199 [153] ‑ [155].
By his grounds of appeal, the appellant seeks to rely on the first and the second of those circumstances. The appellant says that his counsel's submissions at sentencing, which reflected his instructions, demonstrate that he did not understand the nature of the charges. The appellant also argues that the sentencing judge erred because she did not appreciate that what was being submitted on his behalf at sentencing was inconsistent with his pleas of guilty, such that he could not have been guilty of any of the offences charged on the admitted facts. In other words, the appellant says that the sentencing judge should have refused to accept his pleas of guilty because his counsel's submissions traversed those pleas.

The application of the relevant principles

In its written submissions, the State conceded that the appellant's arguments should be accepted and that the convictions should be set aside. The State also accepted that it was appropriate for judgments of acquittal to be entered because the prosecutor who appeared at sentencing did not challenge the submissions that were made on the appellant's behalf that he was unaware that his wife had been providing unprescribed medication to any of his children until 6 February 2020.
At the hearing of the appeal, the Director also accepted that the appeal should be allowed, the convictions should be set aside, and judgments of acquittal entered, because the appellant could not in law have been guilty of the offence upon the facts relied on by the State at sentencing.
In our view, the State's concessions were properly made.
To understand why we allowed the appeal against conviction and entered judgments of acquittal, it is necessary to begin with s 101 of the CCS Act, the relevant offence‑creating provision.

Section 101 of the CCS Act is in the following terms:
101 Failing to protect child from harm
(1)A person who has the care or control of a child and who engages in conduct -
(a)knowing that the conduct may result in the child suffering harm as a result of any one or more of the following -
(i)physical abuse; or
(ii)sexual abuse; or
(iii)emotional abuse as defined in section 28(1); or
[(iv)deleted]
(v)neglect as defined in section 28(1);
or
(b)reckless as to whether the conduct may have that result,
is guilty of a crime, and is liable to imprisonment for 10 years.
(1A)It is a defence to a charge under subsection (1) involving conduct that may result in a child suffering harm as a result of emotional abuse comprised of exposure to family violence for the accused to prove that the accused was a victim of that family violence.
(2)In subsection (1) -
engage in conduct means -
(a)to do an act; or
(b)to omit to do an act;
harm has the meaning given to that term in section 28(1).
Section 28(1) contains several definitions that are relevant to understanding the operation of s 101 of the CCS Act. Relevantly:
28When child in need of protection
(1)In this section -
emotional abuse includes -
(a)psychological abuse; and
(b)being exposed to family violence;
harm, in relation to a child, means any detrimental effect of a significant nature on the child's wellbeing, whether caused by -
(a)a single act, omission or circumstance; or
(b)a series or combination of acts, omissions or circumstances;
neglect includes failure by a child's parents to provide, arrange, or allow the provision of -
(a)adequate care for the child; or
(b)effective medical, therapeutic or remedial treatment for the child.
Accordingly, in the circumstances of this case the elements of each of the three offences with which the appellant was charged were:
(1) The appellant had the care or control of the child.[8]
(2) The appellant engaged in conduct.
(3)The appellant was reckless as to whether that conduct may result in that child suffering from harm as a result of as a result of physical abuse, and/or emotional abuse and/or neglect.
[8] A 'child' means a person who is under 18 years of age, and in the absence of positive evidence as to age, means a person who is apparently under 18 years of age (CCS Act, s 3). There is no issue that the appellant's children were under 18 years of age at all relevant times.
There is no question that the appellant had the care or control of his three children at all relevant times.
Based on the facts relied on by the State at sentencing, the conduct the appellant was alleged to have engaged in was 'continuing to permit [his wife] to take responsibility for the medication for [each of their three children]'. Accordingly, the appellant was alleged to have been criminally responsible for an offence contrary to s 101(1)(b) as a principal offender, because he actually did the act that constituted the offence as required by s 7(a) of the Criminal Code (WA).
Having regard to what was said on the appellant's behalf at sentencing, there is no doubt that the appellant did engage in the particular conduct alleged by the State. During the period alleged in each count, the appellant did continue to permit his wife to take full responsibility for the medication for each of their children.
The focus of the grounds of appeal is on the third element of an offence contrary to s 101(1)(b) of the CCS Act, and on whether the appellant was reckless as to whether his conduct in continuing to permit his wife to take full responsibility for the medication for each of their children, may have resulted in each of those children suffering from harm as a result of as a result of physical abuse, and/or emotional abuse and/or neglect.
In RMM v The State of Western Australia,[9] this court explained that[10]
[i]n s 101(1), the word 'reckless' connotes that the accused wilfully or deliberately shut his or her eyes to, or excluded from contemplation, whether the alleged conduct may result in the child suffering harm of the kind specified in s 101(1).
[9] RMM v The State of Western Australia [2018] WASCA 183.
[10] RMM [17].
There were two main difficulties with the way in which this case was conducted at sentencing, which demonstrate that upon the admitted facts the appellant was not reckless for the purposes of an offence contrary to s 101(1)(b), and that the appellant did not intend to admit that he had been reckless.
The first difficultly is concerned with the factual basis on which it was alleged the appellant committed each of the three offences.
As we have already noted, the State alleged in relation to each offence that the appellant was reckless 'having regard to [his] awareness in [his wife's] conduct and the harm [X] was suffering' (emphasis added). Accordingly, proof of the appellant's awareness that his wife was providing unprescribed medication to their children, and that they were suffering harm as a result, was critical to the State's case that the appellant had been reckless. As the Director accepted at the hearing of the appeal, if the appellant had been unaware that his wife had been providing unprescribed medications to their children, it would not have been open to conclude that the appellant had wilfully or deliberately shut his eyes to whether his conduct in continuing to permit his wife to take full responsibility for the medication for each of their children may result in each of his three children suffering harm.[11]
[11] Appeal ts 16.
In the facts relied on by the State at sentencing, the precise basis on which the appellant was alleged to have been reckless was particularised. It was alleged that the appellant had been reckless 'in that he ought to have been more diligent in ensuring the appropriate level of medication was given, and only medication prescribed for [X] was given to [X]' (emphasis added). It is obvious that this particularisation of the appellant's alleged recklessness is completely at odds with the idea that the appellant had been reckless because he was aware of his wife's conduct in making unprescribed medications available to the children. At most, the assertion that the appellant 'ought to have been more diligent' amounted to an allegation the appellant's conduct was negligent. However, a person does not commit any offence contrary to s 101 of the CCS Act because they were negligent.
It follows that the facts relied on by the State at sentencing did not support any of the appellant's convictions. The appellant could not in law have been guilty of the offence upon those facts. This conclusion alone is enough to justify allowing the appeal against conviction.
At the hearing of the appeal, the Director candidly and commendably advised the court that after the appellant had pleaded guilty, but before sentencing took place, the State knew that the appellant's position was that he did not know that his wife had been providing unprescribed medications to their children during the charged period. The State knew this because the appellant's counsel said as much in an email that was sent on 13 October 2022.
We were told that the email included the following:
It is not accepted that [the appellant] knew, but rather, this paragraph should be limited to that he ought to have known.
We were advised that it was because of this email that the statement of material facts was amended to include the words 'in that [the appellant] ought to have been more diligent in ensuring the appropriate level of medication was given, and only medication prescribed for [X] was given to [X]'. It is unfortunate that it appears that no one appreciated that by making this amendment to the statement of material facts, the State was effectively accepting that the appellant had not committed an offence contrary to s 101(1)(b) of the CCS Act.
The second difficulty with the way in which this case was conducted at sentencing relates to the sentencing submissions that were made on the appellant's behalf, which have been reproduced earlier in these reasons.
In light of the email that the appellant's then counsel sent to the Office of the Director of Public Prosecutions on 13 October 2022, it is unsurprising that counsel also made submissions at sentencing that the appellant did not know that his wife had been administering unprescribed medications to their children.
It is unnecessary to consider the evidence adduced at the hearing of the appeal about the legal advice provided to the appellant, or the appellant's evidence about his understanding of the offence to which he pleaded guilty. The submissions that were made at the sentencing hearing on the appellant's behalf clearly demonstrate that the appellant only pleaded guilty because he erroneously believed that he was guilty of committing an offence contrary to s 101(1)(b) of the CCS Act because he ought to have realised that his wife was providing unprescribed medication to their children, which was causing them harm, and that he failed to intervene to stop that from continuing to occur.
In our view, it was plain that the appellant did not understand the nature of the charge or intend to admit guilt, and that his appeal against conviction should also be allowed on that basis.
As the facts relied on by the State at sentencing did not support any of the convictions the court determined that not only was it necessary to set aside the judgments of conviction, it was also appropriate to enter judgments of acquittal.

Conclusion

It is for these reasons that the court allowed the appeal and made the orders referred to in [11].

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LB
Research Associate to the Honourable Justice Vandongen
27 AUGUST 2024