NJP v The State of Western Australia - [2025] WASCA 67

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   NJP -v- THE STATE OF WESTERN AUSTRALIA [2025] WASCA 67
CORAM:   MAZZA JA
MITCHELL JA
ARCHER JA

HEARD:   22 APRIL 2025
DELIVERED          :   9 MAY 2025
FILE NO/S:   CACR 30 of 2024
BETWEEN:   NJP
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 - Sentencing - Child neglect offences - Whether a miscarriage of justice arose because the sentencing judge took into account facts that were inconsistent with the particulars relied upon by the State and the agreed basis on which the appellant pleaded guilty - Whether sentencing judge erred in fact by attributing all of the complainants' medical conditions to the actions of the appellant - Whether head sentence of 5 years' immediate imprisonment was manifestly excessive - Whether total effective sentence of 7 years' imprisonment infringes the first limb of the totality principle

Legislation:

Children and Community Services Act 2004 (WA), s 28, s 101

Result:

Leave to appeal granted
Appeal allowed
Appellant resentenced

Category: D

Representation:

Counsel:

Appellant	:	D N Ryan
Respondent	:	B M Murray

Solicitors:

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

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

LJP v The State of Western Australia [2024] WASCA 102
MEN v The State of Western Australia [No 2] [2020] WASCA 138
Ninyette v The State of Western Australia [2025] WASCA 52
RMM v The State of Western Australia [2018] WASCA 183
RMM v The State of Western Australia [2018] WASCA 183 (S)
SV v The State of Western Australia [2014] WASCA 123
The State of Western Australia v TIK [2009] WASCA 122

JUDGMENT OF THE COURT:

Introduction

On 31 August 2022, the appellant and her husband were each convicted, on their pleas of guilty, of three offences against s 101(1)(b) of the Children and Community Services Act 2004 (WA) (CCS Act) with which they were jointly charged on indictment. The three charges each related to one of the couple's three children, who it is convenient to refer to by the pseudonyms Alice, Brian and Charles.
Each charge alleged that, between specified dates, the appellant and her husband, being persons having the care or control of the relevant child, engaged in conduct reckless as to whether such conduct may have resulted in the child suffering harm as defined in the CCS Act. Count 1 related to conduct alleged to have occurred between 1 July 2012 and 18 February 2020 in relation to Alice. Count 2 related to conduct alleged to have occurred between 9 June 2017 and 18 February 2020 in relation to Brian. Count 3 related to conduct alleged to have occurred between 5 July 2013 and 18 February 2020 in relation to Charles.
It will be necessary to consider the way in which the charges against the appellant were particularised in greater detail below. At this stage it is sufficient to note that the conduct ultimately alleged by the State was that the appellant provided and/or administered medication to the children, when she knew or should have known such medications were unnecessary and unsafe, and subjected the children to excessive use of opiates, including oxycodone, tramadol and tapentadol.
On 24 February 2023, the sentencing judge sentenced the appellant to a total effective sentence of 7 years' imprisonment, comprised of the following individual cumulative sentences:
Count 1 (Alice):             5 years' imprisonment
Count 2 (Brian):            1 year's imprisonment (reduced from 3 years' imprisonment for totality)
Count 3 (Charles):         1 year's imprisonment (reduced from 4 years' imprisonment for totality)
These sentences commenced from the date they were imposed, as the appellant had not spent any time in custody on remand. The appellant was made eligible for parole.
Also on 24 February 2023, the appellant's husband was sentenced to a total effective sentence of 4 years 6 months' immediate imprisonment. However, some 7 months later, the husband instituted an appeal against his convictions and sentences. He was granted bail on 19 February 2024 after the State indicated it would concede the appeal against conviction. On 20 May 2024, this court allowed the husband's appeal against his convictions, set aside his convictions and substituted verdicts of acquittal. In essence, this was on the basis that the husband did not understand the nature of the charge and the facts relied on by the State at sentencing did not support any of the convictions.[1] The husband was not alleged to have made any medication available to his children. Rather, he was alleged to have been reckless in continuing to permit the appellant to take responsibility for the medication for the children in that he ought to have been more diligent in ensuring the appropriate level of medication was given, and only medication prescribed for the children was given to them. The court found that the conduct alleged by the State was not reckless for the purposes of s 101 of the CCS Act and the husband did not intend to admit that he had been reckless.
[1] LJP v The State of Western Australia [2024] WASCA 102.
On 22 March 2024 (some 13 months after being sentenced) the appellant instituted the current appeal against sentence. There was some delay in preparing the matter for hearing, to which the time taken to prepare the final version of the appellant's case contributed. Applications for an extension of time in which to appeal, for leave to appeal and to adduce additional evidence in the appeal were referred to the hearing of the appeal.
The appellant appeals against sentence on six grounds.[2] The first three grounds are that:[3]
1. The learned sentencing judge took into account matters of fact that were inconsistent with the particulars relied upon by the State and the agreed basis upon which the appellant pleaded guilty, thereby resulting in a miscarriage of justice.
2. The learned sentencing judge made an error of fact by attributing the complainants' medical conditions to the actions of the appellant.
3. The learned sentencing judge made an error of fact by finding that the complainants were scarred for life as a result of the actions of the appellant.
[2] Ground 4 was abandoned at the hearing of the appeal.
[3] Ground 1 was amended to this form at the hearing of the appeal.
Ground 5 alleges that the individual sentence imposed on the appellant for count 1 was manifestly excessive. Ground 6 contends that the appellant's total effective sentence infringed the first limb of the totality principle. Ground 7 relates to the proposed additional evidence.
In our view, grounds 1 and 2 are established. This makes it unnecessary to determine the other grounds. We would resentence the appellant to a total effective sentence of 5 years' immediate imprisonment.
To explain how the sentencing process miscarried it is necessary to describe in some detail the circumstances in which the charges arose, the formulation of the charges and their particularisation, and the findings made by the sentencing judge.

Uncontroversial background facts

The following uncontroversial background facts were agreed at the sentencing hearing and/or found by the sentencing judge and explain how the charges arose.
The appellant and her husband have three children: Alice, who was born in May 2005 and twin boys, Brian and Charles, who were born in May 2008. Alice was aged between 7 and 14 years at the time of the offending against her. Brian was aged between 9 and 11 years at the time of the offending against him. Charles was aged between 5 and 11 years at the time of the offending against him. The appellant was aged between 29 and 37 years at the time of the offending.[4] The appellant and her husband had care or control of the children until 18 February 2020, when the children were taken into care by the Department for Child Protection and Family Support (Department).[5]
[4] Amended Statement of Material Facts pars 1 - 5 (White AB 159 - 160).
[5] Amended Statement of Material Facts par 10 (White AB 161).
All three children have been diagnosed with Ehlers-Danlos syndrome (hypermobile type). This is a condition that affects the connective tissues of the body and is generally characterised by hypermobility, tissue fragility and increased skin extensibility. Symptoms can also include increased fatigue and muscle and joint pain.[6]
[6] Amended Statement of Material Facts par 6 (White AB 160).
On 27 October 2008, Alice was referred to Dr Murray, a consultant rheumatologist at Princess Margaret Hospital (PMH), and Dr Whitewood, an orthopaedic surgeon, after the appellant claimed that she had hypermobile, painful knees. Alice was subsequently diagnosed with Ehlers-Danlos syndrome.[7]
[7] Amended Statement of Material Facts par 7 (White AB 160).
On 8 December 2011, Charles was diagnosed with Ehlers-Danlos syndrome by Dr Murray at the PMH Rheumatology Clinic. On 2 April 2013, Brian was diagnosed with Ehlers-Danlos syndrome by Dr Murray at the PMH Rheumatology Clinic.[8]
[8] Amended Statement of Material Facts pars 8 - 9 (White AB 160 - 161).
On 6 February 2020, the appellant and her husband attended an outpatient clinic appointment with Alice at Perth Children's Hospital (PCH). Alice was admitted to the hospital with chronic pain and one of the doctors referred the children to the PCH Child Protection Unit due to concerns about 'fabricated or induced illness proxy'. The PCH Child Protection Unit then referred allegations of criminal neglect to the WA Police Child Abuse Squad for investigation. On 18 February 2020, the children were taken into the care of the Department, and the appellant and her husband were arrested.[9]
[9] Sentencing ts 168.

The charges

The appellant and her husband were jointly indicted on three counts of offending against s 101(1)(b) of the CCS Act, one count relating to each child. At the time of the offending, s 101 provided:
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.
(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) of the CCS Act defined 'emotional abuse' to include psychological abuse and being exposed to family violence. 'Harm' was defined in s 28(1) in the following terms:
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[.]
Although the particularised dates of the offending were different, and those dates were amended during the proceedings, each charge was in the following common form:
Between [dates] at Perth, [the appellant] and [her husband], being persons having the care or control of a child, namely [the child's name], engaged in conduct, reckless as to whether such conduct may have resulted in [the child] suffering harm as a result of physical abuse, and/or emotional abuse and/or neglect as defined in [s 28(1) of the CCS Act].
The indictment did not give any particulars of the conduct which was the subject of each charge or the nature of the harm about which the accused were reckless.
On 10 February 2022, the prosecution provided written particulars of each charge, which identified a broad range of conduct against the appellant. The following particulars in relation to Alice are generally reflected in the particulars relating to Brian and Charles. Paragraph 2 of the particulars summarised the appellant's conduct as being:
(a)She provided false and/or exaggerated information to medical professionals about [Alice's] symptoms which resulted in [Alice] being provided unnecessary medical treatment;
(b)She provided and/or administered medications to [Alice], when she knew or should have known such medications and medical treatment were unnecessary and unsafe;
(c) She provided and/or administered medical treatment to [Alice], when she knew or should have known such medical treatment was unnecessary and unsafe;
(d)She obtained and/or provided medical equipment to [Alice], when she knew or should have known such medical equipment was unnecessary.
Paragraph 3 of the particulars alleged that, from the date of Alice's birth in May 2005 until 18 February 2020, the appellant took or caused Alice to be taken to various medical institutions on at least 329 occasions. These attendances related to claimed respiratory problems, abdominal pain, constipation, allergies and, from 2009 onwards, the majority of these attendances related to pain, injuries or treatment associated with Ehlers-Danlos syndrome. Paragraph 5 of the particulars alleged that the only reasonable inference was that many of these visits were undertaken by the appellant to seek to obtain medical treatment for Alice which Alice did not need and which the appellant knew she did not need. Paragraph 7 alleged that, from Alice's diagnosis with Ehlers-Danlos syndrome on 27 October 2008, the appellant made false or exaggerated claims that Alice was undergoing joint dislocations or subluxations, and/or general pain, to medical professionals on many particularised occasions. Paragraph 8 of the particulars alleged that, on several occasions during this period, the appellant coached Alice to tell doctors she was in pain or to play out symptoms. Paragraph 9 of the particulars alleged that the purpose of these false and exaggerated claims by the appellant was to obtain unnecessary medical treatment, surgery, pain medication and medical equipment for Alice.
Paragraph 10 of the particulars alleged that, on multiple occasions following Alice's diagnosis of Ehlers-Danlos syndrome, the appellant provided or administered prescription medication to Alice contrary to prescriptions or medical advice on many particularised occasions.
Paragraph 11 of the particulars alleged that, on multiple occasions following Alice's diagnosis of Ehlers-Danlos syndrome until 2020, the appellant physically manipulated Alice's knees, shoulders, wrists and elbows in circumstances where she knew or should have known this was unnecessary. Paragraph 12 of the particulars alleged that, on occasions following Alice's diagnosis of Ehlers-Danlos syndrome, the appellant acquired or provided Alice with medical equipment that she knew or should have known was unnecessary, including a wheelchair, splints and crutches.
Paragraph 19 of the particulars alleged that, as a result of the conduct of the appellant and her husband, Alice suffered harm including:
(i) Psychological harm, including:
(a) The belief that she was seriously unwell;
(b) The belief that she was in serious pain;
(c) The belief that her joints frequently dislocated and needed manipulation and relocation when they did not;
(d) The belief that she required more surgery;
(e) The belief that she required pain relief;
(f) Suicidal ideation;
(ii) Physical harm, including:
(a) Bruising and discomfort from joint manipulations;
(b) Dependence on a wheelchair;
(c) Dependence on pain relieving medication;
(d) Opiate addiction;
(e) Surgical scarring;
(f) Difficulty walking;
(g) Muscle wastage;
(h) Being subjected to unnecessary treatments;
(i) Being subjected to unnecessary surgical procedures.
(emphasis added)
Part of the evidence on which these particulars were based were two reports by Dr Alice Johnson, a consultant paediatrician at PCH. In her first report, provided under cover of a letter dated 31 March 2020 (first report), Dr Johnson formed the opinion that the children had been subject to fabricated or induced illness by proxy (also known as medical child abuse) and that they had suffered significant physical and emotional harm as a consequence.[10] In that report, Dr Johnson said:
Due to years of medicalisation, and inappropriate and unnecessary treatments, the children have developed strong beliefs they are seriously unwell when they are not. They have been encouraged to believe their joints frequently dislocate and need relocation which is not the case, and have been taught they are seriously unwell and will be for the rest of their lives. They have an abnormal reliance on medications and have become significantly distressed when withdrawing or limiting these medications has been raised because they believe they are necessary for their survival. Assessments to date all indicate all of these children have the capacity to live a normal healthy life. Their abnormal illness behaviours are a consequence of persistent fabrication of symptoms by [the appellant] and [her husband], and encouragement/reinforcement by their parents to take on a sick role which in my opinion constitutes severe emotional abuse.
[10] First report pages 82 - 86 (Prosecution Brief 281 - 285).
In her second report of 28 October 2021, Dr Johnson observed:[11]
[Alice, Brian and Charles] are siblings previously seen by [the Child Protection Unit at PCH] due to fabricated or induced illness by proxy. Prior to being taken into care, they had multiple diagnoses, multiple symptoms and were on multiple medications (including potentially harmful medications). Since being taken into care, they have come off all their medications, are symptom free and have an active normal life. They are healthy children who happen to have hypermobile joints, but no other associated medical conditions.
The improvement in their health and well-being since being taken into care is dramatic. The children have gone from being extremely 'unwell' (or being portrayed as such) to being completely healthy, normal children with no medical issues. This confirms my previous opinion that they were subject to fabricated or induced illness by proxy by their parents (mainly [the appellant]) for years. Whilst the children do have hyper-mobile joints, this is a common condition found in about 5% of the general population.
It is my opinion that the other diagnoses were made by doctors based on false reporting of symptoms by the children's parents, and that in fact, the children never had most of those conditions. Some of the diagnosed conditions, such as anxiety, are likely to have been a side effect of the emotional and physical trauma that the children were subject to for many years.
[11] Report of Dr Johnson dated 28 October 2021, pages 3 - 4 (Prosecution Brief 1211 - 1212).

The appellant's pleas of guilty

Shortly prior to the proposed pre-recording of the children's evidence, negotiations took place between the appellant's counsel and the State. On the first day of the proposed pre-recording, 31 August 2022, the appellant's counsel and the State agreed on a basis on which the appellant would plead guilty to the charges.
At the hearing on 31 August 2022, the prosecutor indicated that 'the matter has been resolved'. He presented a substituted indictment in which 'the commencement date for each of the three counts has simply changed to reflect the nature of the negotiations'. The prosecutor indicated that the pleas by the appellant would be 'in relation to the medications that were administered by her during the period of the offence' which appeared at par 10 of the particulars for Alice and in equivalent paragraphs of the particulars for the other children. The prosecutor said that this was 'the basis on which the State ... will accept and has accepted the pleas'.[12] The appellant then pleaded guilty to the three counts of the substituted indictment and convictions were recorded for those offences.[13]
[12] Sentencing ts 58 - 59.
[13] Sentencing ts 60 - 62.

The amended statement of material facts

The parties subsequently agreed upon an amended statement of material facts.
Consistently with the basis on which the appellant pleaded guilty to the offences, par 11 of the amended statement of material facts identified the conduct as being the appellant providing and/or administering medications to the children when she knew or ought to have known that such medications were unnecessary and unsafe, and subjecting the children to excessive use of opiates, including oxycodone, tramadol and tapentadol.
The amended statement of material facts then identified occasions on which medications were administered to each child. Paragraph 12 stated that on multiple occasions following Alice's diagnosis of Ehlers-Danlos syndrome, the appellant 'provided or administered prescription medication to [Alice] contrary to prescriptions or medical advice'. Paragraphs 15 and 18 respectively stated that on occasions following Brian's and Charles' diagnosis of Ehlers-Danlos syndrome, the appellant 'provided or administered prescription medication to [Brian and Charles] without and/or contrary to prescriptions or medical advice'. Each of pars 12, 15 and 18 identified an inclusive list of specific occasions on which the alleged conduct had occurred.
Paragraph 21 of the amended statement of material facts identified the harm about which the appellant was reckless in the following terms:
The result alleged by the State is the harm suffered by the victims as a result of the offenders' conduct, the offenders being reckless as to whether such conduct may have resulted in the victims suffering such harm, namely a dependence on pain relieving medication. (emphasis added)
Paragraphs 22 - 27 of the amended statement of material facts stated that, as a result of the conduct, all of the children suffered:
(a)psychological harm, including the belief that they were in serious pain and the belief that they required pain relief; and
(b)physical harm, including a dependence on pain relieving medication and opiate addiction.
The psychological harm suffered by Brian and Charles also included a belief that they were constantly suffering headaches and neurological problems.

Sentencing hearing

The sentencing hearing took place on 9 December 2022. The prosecutor began by reading the amended statement of material facts.[14]
[14] Sentencing ts 84 - 90.
The sentencing judge observed that the facts read by the prosecutor did not say what the children were like when they were taken into care and what they were like at the time of sentencing.[15] The prosecutor answered that question by reference to the State's written sentencing submissions under the heading 'Impact on victims',[16] which referred to Dr Johnson's reports. The written submissions noted, among other things, Dr Johnson's observations that the children had not used wheelchairs since being taken from their parents.[17] In response to a question from the sentencing judge, the prosecution did, however, accept that the diagnosis of Ehlers-Danlos syndrome was correct.[18] The prosecutor also said that:[19]
And I should say, your Honour, for completeness that in relation to the agreed statement of material facts, the State does incorporate the other materials in the brief that specifically pertain to the over-administration of medications. (emphasis added).
[15] Sentencing ts 90.
[16] Outline of State's Submissions as to Sentence (State's sentencing submissions) [29] - [30] (White AB 173 - 174).
[17] State's sentencing submissions [30] (White AB 173 - 174).
[18] Sentencing ts 91 - 93.
[19] Sentencing ts 97.
A copy of a victim impact statement by Brian, which described the harmful academic, physical and psychological effects of his upbringing, was provided to the court. The effects described by Brian included, but were not confined to, the effects of medication.
The sentencing judge engaged with defence counsel for the appellant and the appellant's husband during their sentencing submissions, anticipating some of the factual findings which her Honour subsequently made in relation to the children's condition and the offenders' contribution to that condition.
After the pleas in mitigation, the prosecutor identified by reference to medical reports in the brief when the children were operated upon. Alice received operations on five occasions: arthroscopies on 23 February 2015, 22 April 2015 and 5 September 2016 and operations on her left knee on 10 December 2018 and 1 July 2019. Brian received arthroscopies to the right knee on 2 May 2016 and the left knee on 26 June 2017. Charles received an arthroscopy to the left knee on 5 December 2013, an arthroscopy to the right knee on 26 February 2018 and an operation to the left femur on 18 November 2019.[20]
[20] Sentencing ts 153 and reports of Mr Colin Whitewood dated 13 March 2020.
The prosecutor also referred to a report of a physiotherapist who treated the children from January 2017 to December 2019, Kate Johnston, in relation to advice given about wheelchair use. In doing so, the prosecutor noted that the use of wheelchairs was not the subject of particulars.[21] Ms Johnston's report, which referred to Alice usually using a wheelchair and Charles often doing so, stated:[22]
[The appellant] was very persistent in her pursuit of wheeled mobility for all three children. When it was explained that this did not align with best practise and did not fall within funding criteria, she would express her frustration at this and continue to provide her justification of why this equipment was needed (pain management, increasing independence, allowing pacing [later described as the modifying of daily routines and activities to ensure that people are able to achieve their required daily activities]).
[21] Sentencing ts 154.
[22] Report of Kate Johnston (Prosecution Brief 398).

Circumstances of offending found by the sentencing judge

At the beginning of the sentencing judge's remarks on 24 February 2023, her Honour observed that the prosecutor had summarised the circumstances of the offending and the appellant's counsel had accepted those facts on her behalf. The sentencing judge also said:[23]
I can also tell you that I have read most of the sentencing brief which contains the medical reports in respect of your children.
[23] Sentencing ts 160.
The sentencing judge incorporated the prosecutor's statement of material facts into her sentencing remarks and then summarised those facts consistently with the amended statement of material facts.[24]
[24] Sentencing ts 160 - 167.
Her Honour noted the following specific incidents, which were referred to in the amended statement of material facts, in relation to Alice:[25]
[25] Sentencing ts 162 - 164.
1.In or about July 2012, the appellant commenced Alice on prednisolone (a steroid medication) in circumstances where this medication was not prescribed to her. When Alice presented at the Joondalup Health Campus Emergency Department on 11 July 2012, the appellant was advised to cease administering that drug to her. Alice was 7 years of age when the appellant administered this steroid medication to her without medical guidance and without any regard to the unwanted effects this medication might have on her.
2.On 15 April 2015, the appellant contacted the Complex Pain Clinic at PMH, telling them that Alice had experienced increased pain in her arms that day and that she had increased Alice's dose of Lyrica to an extra 75 mg at lunchtime without consulting her doctor. Alice was 9 years of age when the appellant unilaterally, without medical advice, increased the level of medication her daughter was to receive without any regard to the unwanted consequences of doing so.[26]
[26] The sentencing judge's remarks refer to Alice being 10 years of age on 15 April 2015 (sentencing ts 162 - 163) however as Alice was born in May 2005 she would have been 9 years old.
3.On 14 May 2015, Alice stated in a CPT assessment that she needed oxycodone to sleep. The implication of a 9-year-old requesting to have oxycodone to sleep was that the appellant had been providing her 9-year-old daughter with this strong opioid without medical guidance and without any regard to the unwanted effects this medication might have on her.
4.On 14 July 2015, the appellant gave Alice 50 mg of tramadol at the PMH Emergency Department when the Emergency Department registrar told the appellant that there was no cause for hip pain in Alice and that, upon examination, Alice displayed a normal range of hip movement. Alice was 10 years of age when the appellant unilaterally, without medical advice, increased the level of medication her daughter was to receive, again without any regard to the unwanted consequences of doing so.
5.On 26 April 2018, the appellant again attended at the PMH Emergency Department, reporting that Alice had knee pain, and requested a new script of tramadol as the appellant had run out and could not get into the general practitioner. Upon examination, Alice appeared to be well, and a doctor noted concerns about the appellant's drug-seeking behaviours. A script for tramadol was provided on that occasion. At this time Alice was 12 years of age.
6.In or about August 2018, the appellant administered up to four to six Panadeine Forte from the appellant's own supply to Alice, in addition to diazepam (a benzodiazepine), up to one to two nights per week. This was done despite these drugs not being prescribed to Alice. At this time Alice was 13 years of age.
7.On 26 August 2018, the appellant requested a script for tramadol from the PCH Emergency Department, stating that Alice was in pain and having spasms. The impression of the rheumatology consultant was that Alice was using too much tramadol and a further script was not provided. The appellant insisted on the script and refused to leave until one was provided, or Alice was admitted. The appellant was then provided a script for a 24-hour supply of tramadol which she threw back at the doctor. Alice was 13 years of age at this time.
8.On 17 October 2018, the appellant presented with Alice at the Joondalup Health Campus and requested pain relief for her. Panadeine Forte was refused. Alice was then charted for oxycodone and the appellant administered 5 mg of this medication to Alice before nursing staff were able to administer it. Alice was then presented with three 5 mg tablets of oxycodone which the appellant increased to five 5 mg tablets of oxycodone. Alice was 13 years of age at that time.
9.In November of 2018, the appellant provided Alice with Panadeine Forte that was not prescribed to her, in addition to her prescribed pain medication. Alice was 13 years of age at this time.
10.In or about September 2019, the appellant increased the dosages for Alice from 50 mg of tapentadol twice daily to 100 mg twice daily, and more than two tramadol (the equivalent of 80 mg of that drug) daily. Both of these medications were being administered above previously agreed dosages and beyond the time frame for a short-term increase in relation to surgery, without prescriptions or medical advice to do so. Alice was 14 years of age at this time.
11.At about the start of October 2019, the appellant provided Alice with additional Panadeine Forte not prescribed to her. Alice was 14 years of age at this time.
12.Between November 2019 and January 2020, the appellant provided Alice with 50 mg of tapentadol twice per day when her prescription was for 50 mg once a day. Alice was 14 years of age at this time.
13.On 24 January 2020, the appellant requested that Alice be prescribed more opiates at the PCH Emergency Department. Alice was 14 years of age at this time.
14.On at least one occasion in late January or early February 2020, the appellant provided Alice with 100 mg of tapentadol, being some of the appellant's friend's higher dose, twice daily. This was the equivalent of four times the amount Alice was prescribed. Alice was 14 years of age at this time.
15.On 6 February 2020, the appellant administered a syringe containing approximately 5 ml of liquid oxycodone to Alice in circumstances where this was not prescribed to her. Alice was 14 years of age at this time.
16.On 13 February 2020, the appellant again requested more tramadol for Alice when it was not required. Alice was 14 years of age at this time.
The sentencing judge noted the following specific incidents, which were referred to in the amended statement of material facts, in relation to Brian:[27]
1.On 10 June 2017 at the Joondalup Health Campus, the appellant stated that she had been giving Brian oxycodone for complex migraines without a prescription. He was nine years of age at this time.
2.On an occasion in 2019, the appellant applied fentanyl patches that were not prescribed to Brian to his legs. Brian was 11 years of age at this time.
3.On an occasion in late 2019 or early 2020, Brian approached the appellant claiming to be in pain. The appellant then provided Brian with a tablet containing oxycodone which was not prescribed to him and which the appellant knew was not prescribed to him. Brian was 11 years of age at this time.
4.On an occasion in late 2019 or early 2020, the appellant permitted Brian to administer oxycodone from a syringe without supervision. Brian was 11 years of age at this time.
5.On or about 18 February 2020, the appellant provided Brian with an additional 10 mg of oxycodone in addition to the 5 mg of oxycodone three times daily already prescribed to him. Brian was 11 years of age at this time.
[27] Sentencing ts 165.
The sentencing judge noted the following specific incidents, which were referred to in the amended statement of material facts, in relation to Charles:[28]
1.On or about 6 July 2013, the appellant gave Charles prednisolone without a prescription. This was reported to the Joondalup Health Campus on 7 July 2013. Charles was five years of age at this time.
2.On an occasion in or about April 2018, the appellant provided Charles with 2.5 mg of Endone, which had not been prescribed for him. This was reported on 30 April 2018. Charles was nine years of age at this time.
3.On 12 May 2018 at the PMH Emergency Department, the appellant provided Charles with half of a 5 mg oxycodone tablet, the other half of which she took herself. Charles was 10 years of age at this time.
[28] Sentencing ts 165.
The sentencing judge then noted that oxycodone, tramadol and tapentadol are all opiate based medications that are used to manage severe pain which in children is most commonly post-operative pain. Her Honour observed:[29]
Oxycodone is particularly potent, at least twice the potency of morphine and is rarely used other than in the post-operative period. [Alice, Brian and Charles] have been commenced on opiates after elective surgical procedures and not by one of the teams at [PMH] or [PCH].
Rather than ceasing these medications after a short period of time as would normally happen post-surgery, opiate use had continued for years. Given that these three children do not have severe joint disease, the ongoing opiate use is extremely concerning or was extremely concerning. [The appellant] increased the children's opiate doses without medical advice up to a dangerous level at times.
In fact, in August 2018 [Alice] was taking Tapentadol 100 milligrams twice daily, Tramadol, 50 milligrams up to eight times a day which was only prescribed at 50 milligrams four times a day and Panadeine Forte up to six times a day which was equivalent to 100 milligrams of morphine per day which is a dangerous level for an adult with a marked increased risk of death.
[29] Sentencing ts 167.
The sentencing judge then made the following findings as to the children's condition 20 months after they were taken into the Department's care:[30]
[Alice], 20 months after she was out of your care, has not used a wheelchair since being taken out of your care. She was able to walk normally, run, take part in activities including trampolining and netball.
She has had no joint dislocations, no pain and other symptoms and is on no medication. [Alice] has been excellent at school in her attendance. [A]lthough she has a heart issue, other than that, she has no health issues.
[Brian] 20 months after being taken out of your care, he hasn't used a wheelchair since leaving [PCH] and is very active and able to run and take part in sports with no difficulty. [Brian has] had no joint dislocation, no pain and no episodes of passing out. [Brian] is now on no medications and he has also had an excellent attendance at school.
[Charles] has not used a wheelchair since leaving [PCH], very active and able to run and take part in sports including fencing with no difficulty. He has no pain and no other symptoms and he's no longer on any medication and he has excellent school attendance and the children have all been weaned off, completely off their medications.
(emphasis added)
[30] Sentencing ts 167 - 168.
After referring to various matters, including the children's dependence on their parents, the sentencing judge made the following findings:[31]
You both relied on the tender ages of your children - and they were tender, they were young - and the trust that those children had in you as their parents to commit these offences in the way that you did. And what you did was that you left these children in wheelchairs, doped up on drugs they should never have been taking. In reality what you were doing over these years, you were poisoning these children, and they had no idea that what their parents were doing was wrong. And you did this three times over and for years.
I must take into account the impact your offending has had on the victims. I have received one victim impact statement from one of the children which I have read. Your offending has had enormous impact on your three children. You have basically taken away their ability to live normal lives. You left them getting around in wheelchairs when they didn't need to. You left them with opioid dependence at tender ages when they should never have had those addictions. You've left them believing that they were so much sicker than they were in truth.
You, their parents, have scarred your children for life. You, their parents, have left your children to find their way back to some normality. To say that your offending conduct has had an adverse impact on the victims, on your children has been significant and far reaching and really is just an understatement.
(emphasis added)
[31] Sentencing ts 170 - 171.
Later, in referring to a report of Dr Phil Watts, a private psychologist, in relation to the appellant, the sentencing judge observed:[32]
Perhaps one of the concerning features of Dr Watts' report is the observation that the children's medical needs were complicated and that there was a need for medication. I am assuming that Dr Watts was told this by either of you. If I'm correct about that, then this statement just highlights the ongoing issues that you have. This is a statement of justification and minimisation of your behaviour.
Lest there be any doubt about it, the combined conduct of both of you resulted in your children ending up in wheelchairs and under the influence of strong opioids, addicted to opioids, when they should not have been. So their complicated medical issues were a product of what you had done.
Rather than giving them every chance to live a normal life, you imprisoned them into a life that had very little quality. You exposed them to great danger to their lives by giving them medication they should not have had, but also medication in doses that were dangerous[.]
(emphasis added)
[32] Sentencing ts 173 - 174.

Subsequently, in highlighting some aggravating features of the offending, the sentencing judge observed:[33]
Your offending has caused significant physical, emotional and psychological harm to all three children and particularly in the case of [Alice], your offending had the very real potential to cause the death of that child. When one stands back and looks at the totality of your conduct, both of you in effect, poisoned your children for years and in doing so, you left them with the legacies of physical, emotional and psychological harm that any loving, caring parent would never have done.
[33] Sentencing ts 178.

Where the sentencing process miscarried

In this complex case, it seems to us that the sentencing process has miscarried due to a failure to properly account for the differences between the particulars of the offending as formulated in February 2022 and the particularised offences to which the appellant pleaded guilty. The difference in the seriousness of the particularised offences was marked.
The offences particularised in February 2022 involved a broad range of conduct by the appellant which caused the unnecessary debilitation of her otherwise healthy children. To the extent that medical professionals had made diagnoses and prescribed medication, they were influenced by the misleading reports of symptoms which the appellant had made and caused her children to make. Harm alleged to have resulted from that course of conduct included impacts such as muscle wastage, dependence on wheelchairs, and being subjected to unnecessary treatment and surgical procedures.
Confining the particulars to the provision of medication significantly reduced the seriousness of the offence. The State no longer alleged that the medical diagnoses of and treatment by health professionals were a product of the appellant's offending conduct. Nor was it alleged in the particulars that the confinement of the children to wheelchairs was either part of the offending conduct or a consequence of the offending conduct. These allegations in the earlier particulars were removed. The sentencing exercise under the confined particulars involved a parent of a child diagnosed with complex medical issues providing or administering medications which she knew or ought to have known were unsafe, by providing or administering prescription medications contrary to prescriptions or medical advice, and subjecting the children to excessive use of opiates.
It is also significant that the prosecutor (who was not counsel appearing for the State on appeal) only incorporated into the State's statement of material facts materials in the brief 'that specifically pertain to the over-administration of medications'.[34] It follows that material on the prosecution brief which did not specifically pertain to the over-administration of medication - such as the overuse of mobility aids - did not form part of the material from which the sentencing judge could properly make factual findings.
[34] Sentencing ts 97.
Given this reduction in the scope of the prosecution case, there was a danger in the sentencing judge reviewing the material, including medical reports, in a very large prosecution brief. It would be expected that material in that brief would support the broader prosecution case as particularised in February 2022. Dr Johnson's reports fell into that category. However, the appellant had pleaded guilty to offences with much more narrowly confined particulars. The appellant could not be properly sentenced on the broader particulars even though there might be material on the prosecution brief, not admitted by the appellant and not incorporated into the statement of material facts, which could support a finding of the circumstances alleged in the broader particulars.
The danger could have been avoided by the prosecutor identifying with specificity those parts of the prosecution brief that remained relevant to the narrowed particulars. This was not done. Indeed, the State's submissions to the sentencing judge drew her Honour's attention to matters which had been relevant to the broader particulars, but which were not relevant to the narrower particulars. The State's written submissions set out, under the heading 'Impact on victims',[35] Dr Johnson's observations that the children had not used wheelchairs since being taken from their parents.[36] This was relevant to the allegations in the broader particulars that the offending included providing wheelchairs to the children when she knew or should have known that wheelchairs were unnecessary, and that one of the consequences of the offending was that the children were dependent on wheelchairs. However, both of those allegations were deleted from the narrowed particulars. By relying on Dr Johnson's observation that the children had not used wheelchairs since being taken from their parents, and drawing it to her Honour's attention, the risk that the sentencing judge would sentence the appellant on a basis that was inconsistent with the withdrawal of those allegations was increased.
[35] State's sentencing submissions [29] - [30] (White AB 173 - 174).
[36] State's sentencing submissions [30] (White AB 173 - 174).
It seems to us that this risk manifested itself in the present case. When the sentencing judge's remarks are considered as a whole, it seems to us that her Honour did proceed on the basis that all of the children's medical issues were caused by the appellant's conduct. This can be seen particularly in relation to the findings about wheelchair use quoted at [47] - [49] above, made in terms which attribute that wheelchair use to the appellant.
On appeal, counsel for the State submitted that the passages of the sentencing judge's remarks referring to wheelchair use involved the judge drawing an inference that the provision of medications was a cause of the wheelchair use. He submitted, in effect, that the agreed fact that the provision of medication caused the children to believe that they were in serious pain, combined with the cessation of wheelchair use immediately after the children were taken into care, supported that inference. Understood in that way the sentencing judge's findings concerned only the effects of the particularised conduct involving the provision of medication.
We accept that the sentencing judge's remarks are capable of being construed in that way. If they were so construed, then the finding would have involved an error of fact of the kind alleged by ground 2. To say that the wheelchair use was caused by the appellant's offending conduct is to allege an aggravating factor which the State bears the onus of proving beyond reasonable doubt. The State did not attempt to discharge that onus because it withdrew from the particulars its allegation that the use of medication was a cause of the children being confined to wheelchairs, and did not incorporate material on the prosecution brief relating to wheelchair use into its statement of material facts.
It is not obvious that the misuse of painkilling medications would have the effect of confining a patient to a wheelchair. The sentencing judge did not identify, and the parties have not pointed this court to any, medical evidence of such an effect. This is an area where some expert evidence was required to establish a causal link between the provision of medication and wheelchair use beyond reasonable doubt. It is an area where the intuition of persons without the required medical expertise may well be unreliable. As we have noted, the material on the brief relating to the use of mobility aids was not incorporated into the statement of material facts and did not form part of the factual material placed before the sentencing judge.
The material on the brief that was referred to by the prosecutor, noted at [36] - [40] above, suggested possible causes of wheelchair use which did not involve the administration of painkilling medication. The passage of Ms Johnston's report quoted at [40] above indicates that the appellant was insistent on wheelchair use, and the children's use of wheelchairs might have been caused by the forceful expression of their mother's views. The records of Alice's last admission to PCH on 6 February 2020, set out in Dr Johnson's first report, include observations which count against drawing a direct correlation between the provision of medication and wheelchair use. Those records report the appellant and her husband telling their children to use their wheelchairs when they did not appear to require them.[37] Alice is reported to be walking well on 21 February 2020 after pain medications were reduced, rather than ceased.[38] Alice is reported to be spending more time in the wheelchair after her medication is reduced to tapentadol once a day.[39] Alice is also reported to have been using her wheelchair for long distances due to reported fatigue rather than pain.[40]
[37] Notes for 07/02/2020 and 15/02/2020 at pages 35 - 36 of the first report (Prosecution Brief 234 - 235).
[38] Notes for 20/02/2020 and 22/02/2020 at page 36 of the first report (Prosecution Brief 235).
[39] Notes for 28/02/2020 and 05/03/2020 and 06/03/2020 at page 37 of the first report (Prosecution Brief 236).
[40] Notes on Alice's current state at page 38 of the first report (Prosecution Brief 237).
In these circumstances, it was not open to the sentencing judge to be satisfied beyond reasonable doubt that the provision of medication caused the children's wheelchair use in the absence of some medical evidence to that effect.
In any event, immediately prior to the appellant pleading guilty to the offences, the State withdrew particulars alleging that the children suffered harm in the form of wheelchair dependence and that the appellant provided unnecessary medical equipment. Even if the sentencing remarks are construed in the manner suggested by counsel for the State, the findings about the wheelchair use represent a departure from the agreed particularisation of the offences to which the appellant pleaded guilty.
The problem is also manifest in the sentencing judge's treatment of Dr Watts' psychological report, which cannot be explained in the manner suggested by counsel for the State in relation to the findings about wheelchair use. Dr Watts' views as to the children's complex medical needs was based on his review of medical information rather than what the appellant had told him. This is evident in his statement, at par 30 of his report, that:
As is well documented in the medical information, these three children have complex and difficult medical needs and did require various medications and treatments. (emphasis added)
This statement was plainly correct, as the children had been given medical diagnoses of complex medical conditions and prescribed medication, including opiates, and given treatments which medical professionals considered to be justified. Since the confinement of the particulars of the offence, the appellant could not be sentenced on the basis that the diagnoses and treatments were a product of the appellant providing medical professionals with false information. The sentencing judge's finding, quoted at [49] above, that the children's 'complicated medical issues were a product of what you had done' was consistent with the prosecution case as particularised in February 2022 but not open on the prosecution case as particularised when the appellant pleaded guilty to the offences.

Appeal grounds 1 - 3

Appeal ground 1 contends that the sentencing judge took into account matters of fact that were inconsistent with the particulars relied upon by the State and the agreed basis on which the appellant pleaded guilty, thereby resulting in a miscarriage of justice. In our view, this ground of appeal is established.
The miscarriage of justice in this case does not arise simply because the sentencing judge made factual findings going beyond the facts agreed between the parties. Generally, a sentencing judge is not confined to the facts stated in the statement of material facts and may make other findings of fact which are supported by material before the judge subject to giving procedural fairness to the parties by giving them notice of the proposed finding and an opportunity to call evidence and make submissions in response.[41] In the present case, the sentencing judge did anticipate the findings she ultimately made in exchanges with defence counsel during the pleas in mitigation.
[41] See the discussion in RMM v The State of Western Australia [2018] WASCA 183 [198] - [205].
Rather, the miscarriage of justice arises in this case because the sentencing judge made findings of conduct, and the effect of that conduct, which went beyond that which was the subject of the particularised charges to which the appellant pleaded guilty only after the State had withdrawn allegations of that conduct. The appellant was sentenced on the basis that she caused the children to be confined to wheelchairs and that her conduct was the cause of the children's complex medical conditions. However, it was the withdrawal by the State of those allegations which, it may be inferred, induced the appellant to plead guilty to the charges. The making of factual findings which departed from the agreed basis on which the appellant pleaded guilty to the charges, and were inconsistent with the way the State confined its particularisation of the charges, constitutes a miscarriage of justice.
Further, ground 2, which contends that the sentencing judge erred in fact by attributing the children's medical conditions to the actions of the appellant, is established to any extent that the sentencing judge's remarks are construed as attributing wheelchair use, the need for the medication which was prescribed, or the surgery that was conducted, to the overuse of medication. It is unnecessary to consider the debate, recently referred to by this court in Ninyette v The State of Western Australia,[42] as to the standard of appellate review of findings of fact by a sentencing judge. For the reasons explained above, it was not open to the sentencing judge, on the material before the court, to be satisfied beyond reasonable doubt that those consequences could be attributed to the provision of medication.
[42] Ninyette v The State of Western Australia [2025] WASCA 52 [44] - [45].
Ground 3 contends that the sentencing judge erred in fact in finding that the appellant 'scarred [her] children for life'. That finding, made in the passage quoted at [48] above, appears to be bound up with the earlier finding quoted in that passage that the appellant 'left these children in wheelchairs, doped up on drugs they should never have been taking'. It must fall with the earlier finding. However, we do not accept the criticism by the appellant's counsel of the use of this language to describe the judge's conclusion (which was well-open on the evidence) that the offending conduct must have had an adverse permanent psychological impact on the children.

Other grounds

Grounds 5 and 6 allege inferred error. It is unnecessary to consider these grounds, and there is little utility in doing so given the success of the earlier grounds. For the reasons explained above, the appellant was sentenced on a factual basis that was much more serious than that which was open given the way in which the State confined the particulars of the offences to which the appellant pleaded guilty. Once this express error is identified, there is little utility in this court considering whether error is to be inferred on the different factual basis for sentencing adopted by the sentencing judge.
The proposed additional evidence on which ground 7 is based concerns evidence of ongoing issues with Alice's knees after she was taken into the care of the Department. Given the way the particulars are confined it is unnecessary for this court on resentencing to resolve a debate about the existence, nature, extent and cause of Alice's knee conditions. It is unnecessary to deal with this ground, and the application to adduce additional evidence should be dismissed on the basis that there is no utility in receiving the evidence.

Resentencing

Given the miscarriage of justice identified above, it is necessary for this court, which has the relevant material, to resentence the appellant for the offences.
The circumstances of the offences on which the appellant should be sentenced are those set out in the amended statement of material facts.
The sentencing judge made the following unchallenged findings as to the appellant's personal circumstances. The appellant was born in August 1982, had an unremarkable upbringing and completed year 12 of school. After an unsuccessful attempt to train in childcare, the appellant had been employed as a disability support worker. She commenced her relationship with her husband at the age of 20, and they had the three children together. The appellant has no previous relevant criminal convictions. The appellant herself has a series of complex health issues, including Ehlers-Danlos syndrome, and struggles with pain.
The appellant pleaded guilty to the offences, although not at the first reasonable opportunity. The history leading to the pleas is complex and, in all the circumstances, we agree with the sentencing judge that a discount of 12% under s 9AA of the Sentencing Act is appropriate.
The maximum penalty for an offence against s 101(1) of the CCS Act is 10 years' imprisonment. The appellant was convicted of engaging in conduct reckless as to whether the conduct may result in harm to the children. This connotes that she wilfully or deliberately shut her eyes to, or excluded from contemplation, whether the alleged conduct may result in the children suffering harm.[43]
[43] See LJP [51]; RMM v The State of Western Australia [2018] WASCA 183 (S) [24]; SV v The State of Western Australia [2014] WASCA 123 [132].
The appellant was charged with being reckless as to whether the conduct may result in harm to the children. It has been observed that, generally, intentional conduct is more serious than reckless conduct. However, the consequences of the conduct will usually be of greater weight than whether the conduct was intentional rather than reckless.[44]
[44] MEN v The State of Western Australia [No 2] [2020] WASCA 138 [57].
The offending in this case was serious, although not in the most egregious category. It involved the appellant providing her children either with dangerous drugs that had not been prescribed or with dangerous drugs well in excess of the prescribed dosage. This resulted in each of her children acquiring an opioid addiction and a dependence on pain relieving medication, and wrongly believing that they were in pain and required pain relief. The offending was sustained over a period of years.
In assessing the seriousness of the offending, it is important to bear in mind that the incidents set out at [43] - [45] above were inclusive examples of pervasive conduct that was the subject of the charges. The following observations of Dr Johnson in the first report indicate the seriousness of the appellant's offending conduct:[45]
All 3 children have used opiate medications and [Alice] and [Brian] are still receiving them. Oxycodone, tramadol and tapentadol are all opiate based medications and are used to manage severe pain which in children is most commonly post-operative pain. Oxycodone is particularly potent (at least twice the potency of morphine) and rarely used other than in the post-operative period. Dr Murray has reported that use of opiates in children with joint conditions (including EDS) is extremely unusual even in those with severe joint disease. [Alice, Brian and Charles] have been commenced on opiates after elective surgical procedures (not by the Rheumatology Team, PMH or PCH) and rather than ceasing these medications after a short period of time as would happen normally post- surgery, opiate use has continued for years. Given that these 3 children do not have severe joint disease, the ongoing opiate use is extremely concerning.
Whilst in PCH during this recent admission, the children have often demanded 'oxy' as a first line for pain relief and have commented that they would receive 'oxy' at home on a daily basis. [Brian and Charles] have required very little additional pain relief during this admission and simple analgesia (such as paracetamol or ibuprofen) has been enough to manage any reported pain.
…
[The appellant] has increased the children's opiate doses without medical advice up to dangerous levels at times. In August 2018, [Alice] was taking tapentadol 100mg twice daily, tramadol 50mg up to 8 x day (only prescribed 50mg 4 x a day) and Panadeine forte up to 6 x day - this was equivalent to 100mg morphine per day which is a dangerous level for an adult with a marked increased risk of death.
(emphasis added)
[45] First report pages 84 - 85 (Prosecution Brief 283 - 284).

The appellant was not acting maliciously. She was dealing with children who had been diagnosed with complex medical conditions (which diagnoses have not been proven to be the result of wrongful conduct by the appellant). However, the nature and regularity of the appellant's conduct is inconsistent with the appellant merely attempting to provide pain relief which she subjectively (but unreasonably) perceived they needed. Further, the psychological report of Dr Watts records the following account given by the appellant:[46]
[The appellant] explained that there were times when she was so overwhelmed because of her own pain and difficulty coping that she recognises she also had occasion[s] where [she] sought to medicate as a first option. She said if she was feeling well, she may have sung to the child while holding and rocking them to deal with the pain, but on occasion lacked the patience to do so and went straight to medicating the child using whatever means seemed likely to help.
[46] Report of Dr Watts dated 26 October 2022, par 35.
It is also relevant to note that, as is recorded in the medical records referred to in Dr Johnson's first report, some of the prescriptions which the appellant did obtain were a product of her persistent aggressive bullying behaviour towards medical staff who expressed reluctance to issue the prescriptions.
We have had regard to the sentences imposed in cases referred to by the parties.[47] However, the differences between those cases and the present are such that they are of little use as comparators. As the court noted in MEN [No 2],[48] because s 101 of the CCS Act encompasses a wide variety of conduct by an offender, and a wide variety of harm to a child, other cases will often provide limited assistance in discerning the appropriate sentence for a particular case.
[47] MEN [No 2]; SV; RMM; The State of Western Australia v TIK [2009] WASCA 122.
[48] MEN [No 2] [70].
It has been recognised that in sentencing for an offence against s 101 of the CCS Act, emphasis must be given to general deterrence and the protection of vulnerable children, where offending against s 101 may often be difficult to detect.[49]
[49] MEN [No 2] [56].
We have had regard to material indicating that, since being sentenced, the appellant has made encouraging progress towards rehabilitation. She has completed a number of courses and commenced a university course. She has taken significant steps to address her own health issues. Her husband and a close friend remain ready to provide support to the appellant on her release.
The seriousness of the appellant's offending is such that terms of immediate imprisonment are the only appropriate sentencing option. A sentence of suspended or conditionally suspended imprisonment would not be commensurate with the seriousness of the appellant's offending.
In our view:
(a)a sentence of 3 years' immediate imprisonment is commensurate with the seriousness of the offence charged in count 1 relating to Alice;
(b)a sentence of 2 years 6 months' immediate imprisonment is commensurate with the seriousness of the offence charged in count 2 relating to Brian; and
(c)a sentence of 2 years' immediate imprisonment is commensurate with the seriousness of the offence charged in count 3 relating to Charles.
Although the offending arose out of the same course of conduct, some degree of accumulation is required to account for the fact that there were multiple victims. In our view, a total effective sentence of 5 years' immediate imprisonment reflects the criminality involved in all of the offending having regard to all the circumstances of the case (including those personal to the appellant). We would achieve this total effective sentence by ordering the sentence for count 3 to be served cumulatively upon the sentence for count 1 and ordering the sentence for count 2 to be served concurrently with the sentence for count 1. The sentences should be backdated to 24 February 2023 to take account of time already spent in custody. The appellant should remain eligible for parole.

Orders

As noted above, the appellant requires an extension of time to appeal, which should be granted in order to avoid a miscarriage of justice. We would grant leave to appeal on grounds 1 and 2, allow the appeal and substitute the sentences noted above. As noted above, the application to adduce additional evidence in the appeal should be dismissed.
Therefore, we would make the following orders:
1.The appellant's application for an extension of time in which to appeal is granted.
2.The appellant's application in an appeal filed on 23 July 2024, seeking leave to adduce additional evidence in the appeal, is dismissed.
3.Leave to appeal is granted on grounds 1 and 2.
4.The appeal is allowed.
5.The sentences imposed by the District Court of Western Australia on IND/227/2021 are set aside and the following sentences are substituted:
Count 13 years' immediate imprisonment
Count 22 years 6 months' immediate imprisonment
Count 32 years' immediate imprisonment
6.The sentence for count 3 is to be served cumulatively upon the sentence for count 1.
7.The sentence on count 2 is to be served concurrently with the sentence for count 1.
8.The total effective sentence of 5 years' immediate imprisonment is taken to have commenced on 24 February 2023.
9.The appellant remains eligible for parole.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LK
Associate to the Hon Justice Mitchell
9 MAY 2025