SJMD v The State of Western Australia [No 2]
[2018] WASCA 99
•19 JUNE 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SJMD -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2018] WASCA 99
CORAM: MAZZA JA
BEECH JA
HEARD: 10 MAY 2018
DELIVERED : 19 JUNE 2018
FILE NO/S: CACR 59 of 2018
BETWEEN: SJMD
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: TROY DCJ
File Number : IND 38 of 2017
Catchwords:
Criminal law and sentencing - Offence of knowingly failing to protect child from harm - Sentence of 18 months' immediate imprisonment - Whether judge took into account irrelevant consideration - Whether implied error as to type or length of sentence - Turns on own facts
Legislation:
Children and Community Services Act 2004 (WA), s 101(1)
Result:
Leave to appeal refused on all grounds
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | Mr S B Watters |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | Fort Legal |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Cross v The State of Western Australia [2018] WASCA 86
Page v The State of Western Australia [2018] WASCA 76
PES v The State of Western Australia [2014] WASCA 96
SV v The State of Western Australia [2014] WASCA 123
The State of Western Australia v TIK [2009] WASCA 122
JUDGMENT OF THE COURT:
The appellant applies for leave to appeal against the sentence of 18 months' immediate imprisonment imposed upon her conviction, after a plea of guilty, on a charge of having the care and control of a child, and engaging in conduct knowing that the conduct might result in the child suffering harm as a result of neglect, contrary to s 101(1)(a) of the Children and Community Services Act 2004 (WA) (the Act).
For the reasons that follow, in our opinion, none of the grounds of appeal has any merit. Leave to appeal on each ground must be refused and the appeal dismissed.
Legislative provisions
Section 101 of the Act creates an offence of failing to protect a child from harm. It states:
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 Act provides definitions for 'emotional abuse', 'harm' and 'neglect', stating:
(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;
neglectincludes 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.
The facts
The complainant was the biological infant daughter of the appellant and her de facto partner and co-offender, Hayden Shane Brooks.[1] The appellant and Mr Brooks shared a bedroom with the complainant at the house of Mr Brooks' parents.[2] The complainant was aged between seven to nine weeks at the time of the offending.
[1] ts 63.
[2] ts 63.
There were no difficulties for the first two weeks of the complainant's life.[3] However, thereafter, Mr Brooks stopped going to work and lost his job.[4] Arguments would develop with Mr Brooks' parents, following which the appellant and Mr Brooks would retreat into their bedroom and cease contact for a couple of days or so.[5]
[3] ts 63.
[4] ts 63.
[5] ts 63.
Mr Brooks' mother had care of the complainant from around 10.00 am until the mid‑afternoon.[6] The appellant and Mr Brooks would remain in their bedroom and regularly smoked cannabis.[7] If Mr Brooks' mother raised any concerns as to the complainant's welfare, Mr Brooks would keep the complainant in their bedroom for a couple of days, thus depriving her of contact.[8]
[6] ts 63.
[7] ts 63.
[8] ts 63.
On 4 May 2016, when the complainant was seven weeks old, the appellant and Mr Brooks took her to Kinross Medical Centre.[9]
[9] ts 65.
The general practitioner, Dr Lim, observed that the complainant was failing to thrive, had respiratory distress and was suffering weight loss, abnormal irritability and sunken eyes.[10] She weighed 4.1 kg, reduced from 4.2 kg the previous week.[11]
[10] ts 66.
[11] ts 66.
Such were the general practitioner's concerns that she determined that the complainant needed immediate review at the Joondalup Health Campus Emergency Department.[12] The general practitioner provided a referral for examination by the paediatric team and advised the Emergency Department of the referral by phone.[13] The sentencing judge found that the appellant understood from the general practitioner that the complainant had to be taken immediately to the hospital.[14] Mr Brooks said that he would 'go up now' but the complainant was not taken to the Emergency Department at this time.[15]
[12] ts 66.
[13] ts 66.
[14] ts 68.
[15] ts 66.
Fifteen days later, on 19 May 2016, the appellant took the complainant to the Emergency Department.[16] At this stage, she was nine weeks old. By that time, the complainant's condition had deteriorated markedly. She had to be taken by ambulance to the Princess Margaret Hospital for a comprehensive examination, which was undertaken by Dr Maley, a paediatrician in the Child Protection Unit. Upon skeletal examination, it was determined that she had sustained at least 35 fractures to her body.[17] The fractures were in various stages of healing.[18] At least 23 were rib fractures.[19] Each long bone in her body had at least one fracture.[20]
[16] ts 66.
[17] ts 66.
[18] ts 66.
[19] ts 66.
[20] ts 66.
Examination also revealed a bruise on the complainant's right ear, several small scratch marks on her nose, a small 1 cm abrasion to her right jawline, a subconjunctival haemorrhage to her left eye and significant swelling in her left thigh.[21] The complainant was treated with pain medication, including oral morphine.[22] Dr Maley's report concluded that the complainant had been subjected to her injuries on numerous occasions over a period of time.[23]
[21] ts 66; report of Dr Maley, pages 2, 5.
[22] ts 66; report of Dr Maley, page 4, 6.
[23] ts 66; report of Dr Maley, pages 5 ‑ 6.
The complainant was taken into foster care on 24 May 2016. She attended weekly medical appointments, including X‑rays, blood tests, scans and reviews, until her injuries had healed on 22 June 2016.[24] As of 19 July 2017, the complainant was described as a happy and content toddler, in good general physical health and meeting all developmental milestones.[25] There were no indicators of psychological stress or trauma at that time.[26] The sentencing judge found it impossible to conclude that there would be any long-term adverse effect to the complainant from the abuse she suffered in her first nine weeks of life.[27]
[24] ts 67
[25] ts 67.
[26] ts 67 - 68.
[27] ts 68.
After their arrest, the appellant and Mr Brooks both participated in police interviews, during which they admitted to regular drug use during the relevant period.[28] It was also clear from their interviews that, at that time, the appellant and Mr Brooks were falsely claiming an extra Centrelink payment, something of which they did not want the authorities to learn.[29]
[28] ts 22 - 23.
[29] ts 75.
The appellant's personal circumstances
The appellant was 22 years old at the time of the complainant's birth.[30] The complainant was her first child.[31]
[30] ts 73.
[31] ts 73.
The appellant met Mr Brooks in 2014 and began a de facto relationship almost immediately.[32] The appellant and Mr Brooks were mutually affectionate to each other, but Mr Brooks was controlling and, at the very least, verbally aggressive.[33] As the sentencing judge put it, the appellant and Mr Brooks' 'joint occupation appear[ed] to be the consumption of cannabis'.[34]
[32] ts 79.
[33] ts 73.
[34] ts 73.
The judge accepted the following statements in the appellant's psychological report:
1.She was an emotionally immature young woman who struggled to operate independently.[35]
2.She did not suffer from any severe mental health or personality problems.[36] She was anxious but it was difficult to say whether that anxiety was longstanding or specifically triggered as a result of her situation at the time.[37]
3.There was no reason to believe that she would re-offend.[38] From this, the sentencing judge accepted that the appellant's risk of reoffending was very low.[39]
4.She complained of domestic violence at the hands of Mr Brooks, although there was no independent evidence to support this assertion.[40]
[35] ts 79; psychological report, page 5.
[36] ts 80; psychological report, page 7.
[37] ts 80; psychological report, page 7.
[38] Psychological report, page 11.
[39] ts 80.
[40] Sentencing remarks, ts 79 ‑ 80; psychological report, pages 6, 10.
Sentencing remarks
Serious features of the appellant's offending
The judge observed that the State relied on two aspects of the appellant's conduct as constituting her offending. First, the appellant's failure to take the complainant to the Joondalup Emergency Department on 4 May 2016, given her condition, as noted by Dr Lim in the appellant's presence on that day, and given Dr Lim's specific instructions to do so.[41] Secondly, the appellant's failure to take the complainant to the emergency department at any stage prior to 19 May 2016, 'over which period [the complainant's] health deteriorated still further as a consequence of her suffering the injuries noted by Dr Maley'.[42]
[41] ts 72.
[42] ts 73.
The sentencing judge further found that:
1.The complainant, as a nine‑week‑old baby weighing little more than 4 kg, could not have been more vulnerable.[43]
2.The conduct of the appellant amounted to a profound breach of trust, given that she was the complainant's mother.[44]
3.It was inconceivable that the appellant was unaware of the extent to which the complainant was suffering and she must have known that the complainant was in severe pain as a result of many injuries.[45]
4.The appellant must have known that the complainant 'was being deliberately injured'.[46]
5.By failing to take the complainant to hospital for 'as much as 15 days', the appellant 'wilfully exposed her to prolonged physical abuse and obvious pain'.[47]
[43] ts 73.
[44] ts 73.
[45] ts 73
[46] ts 73.
[47] ts 73.
The sentencing judge found that, in delaying treatment of the complainant, the appellant was partially motivated by a desire to preserve existing Centrelink benefits.[48] Part of the reason that the appellant did not take the complainant to the hospital immediately was that in doing so her financial situation was likely to be exposed.[49]
Proof of mitigating and aggravating factors
[48] ts 75.
[49] ts 75.
As they bear on the merits of ground 2, we set out in full the following remarks of the judge as to questions of burden of proof of, and the consequences of absence of proof of, mitigating and aggravating factors:[50]
[50] ts 74 ‑ 75.
The State have no[t] endeavoured to establish which of you, either acting alone or in combination with the other, caused these numerous physical injuries. Deliberately causing [the complainant's] injuries does not form part of the criminality, that by your pleas of guilt you acknowledge. As I have noted, the pleas of guilty to this offence involve an acceptance that you engaged in conduct, namely failing to bring [the complainant] to hospital for the urgent medical assistance she so obviously needed.
In relation to other facts which are not encompassed or covered by your guilty pleas, I may not take facts into account in a way that is adverse to your interests, or which are aggravating circumstances, unless those facts have been established beyond reasonable doubt.
Conversely, if there are circumstances which I propose to take into account in your favour, or are mitigatory circumstances, it is enough that they be proved on the balance of probabilities.
If neither is proven, I must proceed to sentence you on the basis, that neither of the competing possibilities is known.
As the sentencing judge, I must do my best to find the facts which determine the nature and gravity of your offending, including the facts which inform your moral culpability.
Even so, it is sometimes not possible for a sentencing judge to ascertain everything which is relevant, especially where as is the case here, there are guilty pleas and no evidence has been offered on the plea.
Where that occurs, I must proceed on the basis of what is proved and leave to one side, what is not proved to the requisite standard.
…
The pleas of guilty do not establish the non‑core facts, which must be found by me, where a non‑core fact is aggravating, then my finding must be on the criminal standard of beyond reasonable doubt.
His Honour was not satisfied on the balance of probabilities that either the appellant or Mr Brooks did not inflict any of the complainant's injuries.[51] In the absence of evidence on the plea, the sentencing judge found himself unable to reach any conclusion as to the respective roles of the appellant and Mr Brooks in causing the complainant's numerous injuries, other than that they were both equally responsible and equally culpable for the offending.[52]
[51] ts 76.
[52] ts 76.
The sentencing judge was also not satisfied that the appellant's failure to attend the hospital from 4 May 2016 until 19 May 2016 was because of coercion from Mr Brooks, falling short of duress.[53]
Mitigating factors
[53] ts 76.
The sentencing judge identified the following mitigating factors:
1.The appellant's youth, being 22 years old at the time of the offending.[54]
2.The appellant's guilty plea which, although not entered at the first reasonable opportunity, attracted a 15% discount, pursuant to s 9AA of the Sentencing Act 1995 (WA).[55]
3.The appellant's lack of comparable offending, in light of which the sentencing judge treated her, effectively, as a first offender.[56]
4.The appellant's cooperation with police through participating in a record of interview, although her cooperation was less than complete.[57]
5.The appellant's remorse, demonstrated by the rehabilitative steps she had taken since her arrest, which dissipated the need for specific deterrence.[58] These steps included (1) domestic violence counselling; (2) drug and alcohol rehabilitation and counselling, leading to her ceasing cannabis use; (3) parenting courses and assessments; and (4) psychology sessions.[59]
6.The appellant's decision to voluntarily desist from the offending by taking the complainant to the hospital, rather than waiting to be discovered by authorities.[60]
[54] ts 78.
[55] ts 76 - 77.
[56] ts 77.
[57] ts 77.
[58] ts 77.
[59] ts 78.
[60] ts 77 ‑ 78.
The sentencing judge had regard to character references describing the appellant as a nurturing, caring, responsible, attentive and loving mother.[61]
Disposition
[61] ts 78.
The sentencing judge noted that the maximum penalty for s 101 of the Act is the same whether the conduct is wilful (under s 101(1)(a)) or reckless (under s 101(1)(b)). His Honour considered that a deliberate or wilful act, knowing that the child may suffer harm, will generally be viewed as more serious but that the consequences of the conduct must take primacy.[62]
[62] ts 82.
The sentencing judge identified that there is no range of sentences customarily imposed for offences contrary to s 101 of the Act.[63] His Honour noted the lack of authorities as to the standards of sentencing imposed for offences of this type, identifying only two appellate authorities considering this section: The State of Western Australia v TIK and SV v The State of Western Australia.[64] The sentencing judge distinguished TIK.[65] His Honour noted the observation in SV that general deterrence is a matter of importance in order to protect children from harm.[66] His Honour stated:[67]
I specifically have regard to that when I consider the proposition that's advanced to me that it would be against [the complainant's] best interests for me to contemplate passing a sentence of immediate imprisonment.
[63] ts 82.
[64] ts 82; The State of Western Australia v TIK [2009] WASCA 122; SV v The State of Western Australia [2014] WASCA 123. PES v The State of Western Australia [2014] WASCA 96 was also concerned with s 101 of the Act but, as explained below at [48], it provides no guidance as to standards of sentencing for offences against that section.
[65] ts 82.
[66] ts 82, citing SV v The State of Western Australia [167].
[67] ts 82.
In deciding not to suspend the appellant's term of imprisonment, the sentencing judge stated:[68]
The law is clear that I must not impose a sentence of imprisonment unless the seriousness of the offence is such that only imprisonment can be justified. In this case there is no argument about that. But I must be positively satisfied it is not appropriate to suspend or conditionally suspend a term of imprisonment before that term can be ordered to be served immediately.
I must first determine whether imprisonment is warranted, and then as a separate exercise determine whether the term of imprisonment can be suspended before imposing a term of imprisonment to be immediately served.
For the reasons that I have pointed out in some considerable detail in these sentencing comments, … I'm quite convinced that your conduct is such as to preclude any sentence other than immediate imprisonment.
[68] ts 83.
Grounds of appeal
The appellant's grounds of appeal are to the following effect:
1.The sentencing judge erred when he failed to identify, adequately, or at all, the specific 'harm', as defined in s 28(1) of the Act, that may have resulted due to the appellant's conduct.
2.The sentencing judge erred in having regard to the irrelevant factor that the appellant had not satisfied him on the balance of probabilities that she did not inflict any of the complainant's injuries.
3.The length of the term of imprisonment imposed was, in all the circumstances, manifestly excessive.
4.In all of the circumstances, a sentence of immediate imprisonment was outside the range of a sound sentencing discretion.
Ground 1
Ground 1 and the appellant's submissions in support of the ground assert that the judge failed to identify, adequately or at all, the specific harm that may have resulted from the appellant's conduct.[69] Further, the appellant submits that the judge made no finding that any of the injuries from which the complainant was suffering when taken to hospital on 19 May 2016 were inflicted during the 15‑day period.[70] It is also implicit in the appellant's assertions that the judge 'failed' to find what harm might result from the appellant's conduct that she submits that the judge was obliged to make such a finding.
[69] Appellant's submissions [35], [36], [37], [39].
[70] Appellant's submissions [37].
It is, to say the least, doubtful that, in all cases concerning s 101(1)(a), a judge would be obliged to make a finding as to the harm that an offender knew might be suffered by the child as a result of the offender's conduct. It is not necessary to determine any such question in this appeal. That is because, contrary to the appellant's repeated assertions, the judge made specific findings as to the relevant harm. The judge found that the appellant must have known that the complainant was being deliberately injured and was in severe pain as a result of the injuries.[71] Further, the judge found that, by failing to take the complainant to hospital for 15 days, the appellant knowingly permitted her to suffer harm in the form of her severe pain from her injuries without medical treatment for those injuries.[72]
[71] ts 73.
[72] ts 73.
Moreover, contrary to the appellant's submission, when the sentencing remarks are read as a whole, it is clear that the judge found that, in the period from 4 May to 19 May, the complainant suffered the injuries noted by Dr Maley in her report.[73] The following features of his Honour's remarks, taken together, preclude any other reasonable reading of the sentencing remarks:
1.The judge stated that, in the period from 4 May to 19 May, '[the complainant's] health deteriorated still further as a consequence of her suffering the injuries noted by Dr Maley in her report'.[74] This is an express finding that the complainant suffered the injuries during the period from 4 May to 19 May. It refers to the complainant suffering the injuries, not suffering from the injuries. Contrary to the appellant's submission,[75] the remarks cannot sensibly be read as meaning that the injuries had occurred prior to 4 May and then, from 4 May to 19 May, the complainant's health deteriorated (in an unspecified way) because during that period she was suffering from the injuries.
2.The judge found that, during the 15‑day period, the appellant must have known, and therefore knew, that the complainant 'was being deliberately injured'.[76] This is a finding that the appellant knew that injuries were being sustained during the period in question. Contrary to the appellant's submission,[77] the phrase the complainant 'was being deliberately injured' is not 'equally ... open' to interpretation that she was being deliberately injured by not being taken to hospital. In finding that the appellant knew that the complainant was being deliberately injured, the judge was not describing the appellant's conduct in not taking the complainant to hospital. Rather, the judge was identifying a circumstance that magnified the appellant's criminality in not doing so.
3.The judge found that, during the 15‑day period, the appellant 'wilfully exposed [the complainant] to prolonged physical abuse and obvious pain'.[78] The reference to prolonged physical abuse plainly reveals that the judge considered that injuries were being inflicted during this period. The appellant's submission to the contrary is without substance.[79]
4.Moreover, the judge found that the wilful exposure to prolonged physical abuse and pain occurred for 'as much as 15 days'.[80] That language reflects the fact that, the later in the 15‑day period that a particular injury was sustained, the shorter the period for which the appellant allowed the complainant to suffer ongoing pain from that particular injury. The appellant accepted that the phrase 'as much as 15 days' makes sense if the judge was referring to the infliction of the complainant's injuries.[81]
[73] ts 66, 73.
[74] ts 73.
[75] Appeal ts 27 ‑ 28, 33.
[76] ts 73.
[77] Appeal ts 30.
[78] ts 73.
[79] Appeal ts 30.
[80] ts 73.
[81] Appeal ts 30.
Ground 1 is without substance. We would refuse leave to appeal in respect of the ground.
Ground 2
Ground 2 asserts that the judge had regard to the irrelevant factor that the appellant had not satisfied him on the balance of probabilities that she did not inflict any of the complainant's injuries. The appellant submits that the judge had regard to an irrelevant factor, namely who caused the initial injuries to the child.[82] The cause of the injuries was, the appellant submits, irrelevant to determine what harm, if any, the complainant may have suffered if she was not taken to the hospital to be treated for those injuries.[83]
[82] Appellant's submissions [45].
[83] Appellant's submissions [47].
There is no merit in the appellant's complaint. The judge was well aware that the causing of the complainant's injuries was not part of the criminality of the appellant's offending.[84] The judge plainly and correctly understood that the appellant's criminality lay in:
(a)failing to take the complainant to hospital on 4 May 2016, when instructed to do so by Dr Lim; and
(b)continuing to fail to take the complainant to hospital until 19 May 2016.[85]
[84] See, for example, ts 24 and 74.
[85] ts 72 ‑ 73, 74.
In the course of the plea in mitigation on behalf of the appellant, the sentencing judge observed that if a particular offender wished to advance, as a mitigating factor, that they were not responsible for causing any of the injuries, they would bear the onus of establishing that on the balance of probabilities.[86] In his sentencing remarks, the judge made the general observations as to questions of burden of proof of, and the consequences of absence of proof of, mitigating and aggravating factors that are set out in [21] above. His Honour observed that he was not satisfied on the balance of probabilities that the appellant did not inflict any of the complainant's injuries.[87] That meant that the asserted fact that the appellant did not cause the injuries was not to be taken into account in mitigation in her favour. It did not alter, or detract from, the judge's correct recognition that the criminality of the appellant's offending lay in her failure to take the complainant to hospital, not in the causing of the complainant's injuries. It is clear from the sentencing judge's remarks set out at [21] that he would put to one side any matter of which he was not satisfied to the required standard.[88]
[86] ts 32, see also ts 65.
[87] ts 76.
[88] ts 74 ‑ 75.
For these reasons, ground 2 has no reasonable prospect of succeeding. Leave to appeal on this ground must be refused.
Grounds 3 and 4
Grounds 3 and 4 can be dealt with together. Both allege that the sentence imposed was manifestly excessive; ground 3 as to length and ground 4 as to the type of sentence.
The appellant's submissions on ground 4 repeat the assertion made by ground 1 that the judge failed to make any finding as to the harm that the complainant may have suffered as a result of the appellant's conduct.[89] For the reasons already given, we reject that contention.
[89] Appellant's submissions [104], [109].
The appellant also repeats the submission that there was no finding that the child suffered any injuries during the 15‑day period.[90] As we have said at [32] above, the judge found that the injuries noted by Dr Maley were suffered during the period between 4 May 2016 and 19 May 2016.[91] Ultimately, the appellant accepted that if such a finding was made by the sentencing judge, the sentence imposed was 'within range'.[92] Thus, our conclusion on the judge's finding that injuries were suffered during the 15-day period is fatal to grounds 3 and 4, as conceded by the appellant.[93] Nonetheless, we add the following reasons for our conclusion that grounds 3 and 4 are without merit.
[90] Appellant's submissions [112].
[91] ts 66, 72 ‑ 73.
[92] Appeal ts 37.
[93] Appeal ts 37.
The following general principles are well established:
(1)Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
(2)In order to determine whether a sentence for an individual offence is manifestly excessive, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.
(3)The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
(4)When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
The appellant points to the following further matters in support of her contention that the sentence of 18 months' immediate imprisonment reveals implied error:
(1)The criminality of the appellant's offending was at a low level on the spectrum of seriousness for offending of this nature.[94]
(2)The appellant's conduct in committing the offence was not malicious.[95]
(3)The appellant did eventually take the complainant to hospital.[96]
(4)The appellant's youth, as a 22‑year‑old, inexperienced mother.[97]
(5)The appellant's attempts at rehabilitation.[98]
(6)The appellant's plea of guilty, for which she was given a 15% discount.[99]
(7)The appellant's remorse and low risk of reoffending.[100]
(8)The appellant's lack of prior comparable offending.[101]
(9)The appellant's degree of cooperation with the police.[102]
(10)Sentences imposed in broadly comparable cases.[103]
[94] Appellant's submissions [59].
[95] Appellant's submissions [107].
[96] Appellant's submissions [113]; appeal ts 38.
[97] Appellant's submissions [27], [55], [115].
[98] Appellant's submissions [101], [102], [114].
[99] Appellant's submissions [52] ‑ [54], [116].
[100] Appellant's submissions [30], [32], [55], [117].
[101] Appellant's submissions [28], [55], [117].
[102] Appellant's submissions [29], [55], [117].
[103] Appellant's submissions [62] ‑ [98], [118], referring to The State of Western Australia v TIK; SV v The State of Western Australia and PES v The State of Western Australia.
In Cross v The State of Western Australia,[104] this Court summarised the principles relevant to whether a decision to impose immediate, as distinct from suspended, imprisonment reveals implied error. An appellant must demonstrate that the primary sentencing court's judgment, that suspension was not appropriate, was a conclusion that was not reasonably open.
[104] Cross v The State of Western Australia [2018] WASCA 86 [33] ‑ [37].
This appellant's submissions fall well short of demonstrating that. As the sentencing judge observed, the nine‑week‑old complainant could hardly have been more vulnerable.[105] As a parent of the infant complainant, the appellant occupied what might be thought to be the ultimate position of trust. The appellant knew that the complainant was in severe pain and suffering injuries, but, for 15 days, wilfully refrained from taking her to hospital. Thus, the appellant knew that her conduct would cause the complainant to continue to suffer severe pain, as she undoubtedly did. There was no evidence that mental health or mental impairment issues played any significant role in the appellant's offending. Also, there was no finding that the appellant's offending was the result of coercion (falling short of duress) on the part of Mr Brooks. In delaying the complainant's treatment, the appellant was partly motivated by her desire to maintain Centrelink benefits, a factor which the appellant accepts as seriously aggravating her offending.[106]
[105] ts 73.
[106] Appeal ts 37 - 38.
The maximum penalty for an offence against s 101(1) of the Act is 10 years' imprisonment. General deterrence is a matter to which some weight must be given in sentencing for an offence of this kind.[107]
[107] SV v The State of Western Australia [167].
The judge gave careful consideration to whether the term of imprisonment should be suspended.[108] For the reasons we have given, the conclusion that a sentence of immediate imprisonment was the only appropriate disposition was well open to the sentencing judge. Error cannot be inferred from the decision to impose a term of immediate imprisonment.
[108] ts 83.
Nor, in our view, can error in sentencing be inferred from the length of the sentence imposed, namely 18 months. We repeat what we have said in [44] ‑ [45].
The cases said by the appellant to be reasonably comparable do not assist the appellant. Three cases are an insufficient basis to establish patterns of sentences customarily imposed. Further, none of the cases is a reasonable comparator. PES v The State of Western Australia[109] provides no guidance, as the case was remitted to the District Court for resentencing on the grounds of procedural failures in the sentencing process. The offending in TIK was substantially more serious than the appellant's offending, reflected in the sentence there imposed, on appeal, of 6 years' imprisonment after a 25% discount for the plea of guilty. Nothing is to be gained by an attempt to compare the seriousness of the appellant's offending, and her personal circumstances, with the sole case of SV, in which the offending was of a very different character and occurred in very different circumstances.
[109] PES v The State of Western Australia [2014] WASCA 96.
For completeness, we also mention the recent decision in Page v The State of Western Australia,[110] in which one of the offences was against s 101(1) of the Act. Again, it provides little assistance as a comparator, as the offending conduct was of a fundamentally different character.
[110] Page v The State of Western Australia [2018] WASCA 76.
For these reasons, grounds 3 and 4 have no merit. We would refuse leave to appeal.
Conclusion
For the reasons we have given, we make the following orders:
(1)Leave to appeal is refused on all grounds.
(2)The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LW
RESEARCH ASSOCIATE/ORDERLY TO THE HONOURABLE JUSTICE BEECH19 JUNE 2018
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