SV v The State of Western Australia

[2014] WASCA 123

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SV -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 123

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2014] WASCA 123
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:48/2013	Heard:	4 FEBRUARY 2014
Coram:	McLURE P PULLIN JA MAZZA JA	Delivered:	18/06/14
No of pages:	37	Judgment Part:	1 of 1
Result:	Appeal allowed Appellant resentenced
Category:	B
PDF Version

Parties:	SV THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law Appeal against sentence Recklessly failing to protect a child from suffering harm Express errors of fact Sentencing inconsistent with mental element charged Manifest excess Totality principle Turns on own facts
Legislation:	Children and Community Services Act 2004 (WA), s 101(1)(b) Sentencing Act 1995 (WA), s 6, s 9AA, s 11(1)
Case References:	Eves v The State of Western Australia [2008] WASCA 7 Fernandes v The State of Western Australia [2009] WASCA 227 Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 PES v The State of Western Australia [2013] WASCA 202 R v De Simoni (1981) 147 CLR 383 R v Hassett (1994) 76 A Crim R 19 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 Roffey v The State of Western Australia [2007] WASCA 246 SV v The State of Western Australia [2013] WASCA 208 Tanner v The State of Western Australia [2013] WASCA 142 The State of Western Australia v TIK [2009] WASCA 122 Wilson v The State of Western Australia [2010] WASCA 82 Zimmerman v The State of Western Australia [2009] WASCA 211

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SV -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 123 CORAM : McLURE P

PULLIN JA
MAZZA JA

HEARD : 4 FEBRUARY 2014 DELIVERED : 18 JUNE 2014 FILE NO/S : CACR 48 of 2013 BETWEEN : SV

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : McCANN DCJ

File No : IND 399 of 2012

Catchwords:

Criminal law - Appeal against sentence - Recklessly failing to protect a child from suffering harm - Express errors of fact - Sentencing inconsistent with mental element charged - Manifest excess - Totality principle - Turns on own facts

Legislation:

Children and Community Services Act 2004 (WA), s 101(1)(b)

Sentencing Act 1995 (WA), s 6, s 9AA, s 11(1)

Result:

Appeal allowed

Appellant resentenced

Category: B

Representation:

Counsel:

Appellant : Mr A Robson
Respondent : Mr J A Scholz

Solicitors:

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

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

Eves v The State of Western Australia [2008] WASCA 7
Fernandes v The State of Western Australia [2009] WASCA 227
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
PES v The State of Western Australia [2013] WASCA 202
R v De Simoni (1981) 147 CLR 383
R v Hassett (1994) 76 A Crim R 19
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
Roffey v The State of Western Australia [2007] WASCA 246
SV v The State of Western Australia [2013] WASCA 208
Tanner v The State of Western Australia [2013] WASCA 142
The State of Western Australia v TIK [2009] WASCA 122
Wilson v The State of Western Australia [2010] WASCA 82
Zimmerman v The State of Western Australia [2009] WASCA 211

1 McLURE P: I agree with Mazza JA.

2 PULLIN JA: Mazza JA has summarised the facts. I agree with his summary.

Ground 1

3 The trial judge, just before imposing sentence, directed himself about the offence for which he was sentencing. He said:

So in my opinion, the sentencing range for counts 1 and 2 must begin at the upper end of the range for cases which are not a worst case of their kind; in other words, the upper end of six and two-third years. The lack of overt malice and callousness as occurred in TIK is the only thing that saves [the appellant] from the maximum starting point. This is a case of gross criminal indifference with very great harm.

4 The sentences were then imposed.

5 Earlier, his Honour had said in what appeared to be a flight of rhetoric:

The remedial actions for the three children have been very well resourced and very well intentioned but they are no substitute for what these children had taken from them. I find that the offences were contumelious, certainly after April 2007 and definitely after December 2007 and they were deliberately and secretively carried out with full knowledge of the consequences which would ensue and the alternatives that were available. The offending was quite brazen really, it was an atrocious breach of trust in every case particularly the two twins.

6 That might have been overlooked in view of what his Honour said just before the sentences were imposed and on the basis that his Honour corrected himself just before imposing the sentence.

7 However, after sentencing, counsel asked whether his Honour made a finding that the offender proceeded with full knowledge of the offending and of the consequences of the conduct. His Honour then said, 'Yes, I did. I can read you the passage from my notes.' Counsel then pointed out that just before the sentences were imposed his Honour had talked about recklessness 'which was the word in the indictment' and his Honour said, '[m]y thinking is that recklessness can occur when a person knows what the consequences are'.

8 Ground 1 should therefore be upheld for the reasons given by Mazza JA. However, that does not mean that the appeal should be allowed. An appeal will not be allowed if no other sentence should be imposed. No other sentence should be imposed. The sentences and the total sentence imposed by the sentencing judge were and was lenient. The offences have caused immense harm to the three victims. The likelihood is that one and probably two of them will never fully recover from the effects of the neglect.

9 The appellant was the mother of the children and was present at all times. Her 'criminal indifference' as the judge described it was extremely serious.

10 I agree with Mazza JA in relation to the other grounds.

11 The appeal should be dismissed.

12 MAZZA JA: This is an appeal against sentence.

13 On 9 November 2012, the appellant pleaded guilty at a trial listing hearing in the District Court to three offences of engaging in conduct 'reckless that it may result in [the named child] suffering harm as a result of neglect, namely the failure to provide, arrange or allow the provision of adequate care for [the named child]' contrary to s 101(1)(b) of the Children and Community Services Act 2004 (WA) (the Act). The appellant has three children: twin sons, B and P, born on 24 May 1999, and another son, A, born 27 April 2007. The victim in count 1 is B, in count 2, P, and count 3, A.

14 On 5 February 2013, a lengthy sentencing hearing took place. On 7 February 2013, the appellant was sentenced to the following immediate terms of imprisonment:

Count 1 (complainant B): 2 years' imprisonment

Count 2 (complainant P): 3 years' imprisonment

Count 3 (complainant A): 9 months' imprisonment

15 His Honour ordered that the terms of imprisonment on counts 1 and 2 be served cumulatively and the term of imprisonment on count 3 be served concurrently with the other terms. Accordingly, the total effective sentence was 5 years' imprisonment. The learned sentencing judge made a parole eligibility order and backdated the sentences to commence on 5 February 2013.

16 Despite her pleas of guilty, the appellant appealed against her convictions. Leave to appeal was refused and the appeal was dismissed: SV v The State of Western Australia [2013] WASCA 208.

The grounds of appeal

17 The grounds of appeal are as follows:

1. The learned sentencing Judge erred in law in sentencing the Appellant in a manner inconsistent with the mental element of the offences she was convicted of.

Particulars
(a) The Appellant was convicted of engaging in conduct reckless that it may result in harm to her children; and

(b) The learned sentencing Judge sentenced the Appellant on the basis of a mental element higher than that charged, namely knowingly causing harm.


2. The learned sentencing Judge erred in fact in relation to:

(a) The sequence and nature of contact between the Department of Child Protection and the Appellant; and

(b) The state of health of the children.


3. The individual sentences imposed were manifestly excessive as to their type and also as to the length of imprisonment imposed, having regard to the circumstances of the offences, the principle that imprisonment is a sentence of last resort, the Appellant's pleas of guilty, her personal circumstances and sentencing standards.

4. The total sentence imposed was disproportionate to the total criminality having regard to commonality of the offences and to all the circumstances of the case and the personal circumstances of the Appellant.

18 Leave to appeal has been granted in respect of grounds 1 and 4. The question of leave with respect to grounds 2 and 3 was referred to the hearing of the appeal.

Background

19 The appellant was born in Thailand on 1 January 1967. She was 46 years of age when she was sentenced. She was educated to year 12 level in her homeland. She came to Australia at the age of 19 years and settled in Darwin, where she worked in the hospitality industry. In 1998, she met and formed a relationship with GR. GR is the father of B, P and A. The appellant maintained her relationship with GR until 2008.

20 The twins were born at King Edward Memorial Hospital (KEMH) in Perth. At about that time, the appellant was diagnosed with borderline personality disorder. That diagnosis has been subsequently doubted. In any event, the learned sentencing judge found that, at all material times, she had either recovered from any such disorder or was in remission from it (ts 143).

21 After the birth of the twins, the appellant returned to Darwin. In 2003, they took up residence in Perth.

22 The charges in the indictment allege that the three offences occurred between 1 June 2006 and 11 November 2008. 11 November 2008 is the date on which the three children were taken into the care of the Department for Child Protection (DCP). Of course, the offending in respect of A (count 3) did not begin until after his birth in April 2007.

Summary of the statement of agreed facts

23 The facts of the offending were the subject of an agreed statement of material facts which was read to the learned sentencing judge in the proceedings on 5 February 2013. The agreed statement is long and detailed. It may be summarised in this way.

24 Very shortly after A's birth, the appellant discharged herself from KEMH. Subsequent attempts by the hospital to locate her failed. On 24 July 2007, the DCP received a referral from the KEMH social work department in relation to the appellant and her family. A DCP case worker, Rachel Taylor, attempted to contact and locate the family. Eventually, on 21 December 2007, the appellant took B, P and A to the DCP's Perth office, where they were seen by Ms Taylor. According to the agreed statement, the children 'appeared pale and globally delayed'. The twins did not speak and were not enrolled at school. Ms Taylor became concerned about the appellant's ability and motivation to cater for the children's medical, educational and social needs. The appellant could not provide any evidence to establish that the children were up to date with their medical needs, educational requirements or that they had attained age-appropriate social and developmental milestones. The appellant was advised that she needed extensive support and to work with DCP in addressing their concerns. The appellant said she would cooperate.

25 After this meeting, Ms Taylor was unable to locate the appellant again, despite extensive attempts to do so. It was ascertained that the twins were still not enrolled in school. Ms Taylor made inquiries with GR's mother, but she stated that she did not know where the appellant and the children were.

26 On 3 July 2008, a concerned neighbour telephoned the DCP. Further inquiries revealed that the concerns were in respect of the appellant and the children. At this time, the appellant and the children were living at an apartment in East Perth. Those premises were leased to GR. The landlords evicted GR at the end of July 2008. They found two of the upstairs bedroom windows were locked and that the windows in the attic were covered in alfoil. They noted that all of the bedroom doors had deadbolts on them.

27 On 2 October 2008, Ms Taylor and a police sergeant went to another address in East Perth. GR answered the door and denied that any children were living at the premises. After Ms Taylor entered the premises, she observed the appellant and the three children huddled in a rear bedroom. Although the apartment was tidy, there were few child-appropriate toys or stimuli. GR said that the appellant and the children were not his relatives and were simply boarding there. Initially, the appellant did not identify GR as the children's father. She was unable to explain why she had not addressed the concerns voiced by Ms Taylor in their meeting on 21 December 2007.

28 The children were observed to be very frightened and anxious. They appeared to have no social skills, they could not communicate properly and they failed to exhibit age-appropriate milestones. A was being breastfed, but the appellant appeared not to be producing milk. The appellant was advised to attend hospital immediately with the children so that they could have a thorough medical checkup. The appellant said that the children did not need to go to hospital as they were all healthy.

29 The twins were spoken to in private. They did not answer questions and were very wary. P did not speak at all, while B spoke in whispers and stated that he did not know who the man in the hall (GR) was. The twins were observed to be very pale and lacking in physical energy.

30 Eventually, the appellant confirmed that GR was the children's father. She said that he was mentally unwell and that she was concerned for his wellbeing. The appellant agreed to start the twins at school and to meet their medical and social needs. It was evident at this time that the victims spent most of their time locked in their room and were rarely allowed to leave the house. They were not being provided with the opportunity to socialise with other children. The twins had, up to this point, never been enrolled in, or attended, school. The children were unable to identify familiar objects or animals, and had not had normal childhood experiences such as going to the zoo, a park or a swimming pool. The twins did not know what a teenager was, had never touched an animal or played in a playground and did not know what a giraffe or a fire engine looked like.

31 On 3 October 2008, a psychological assessment of the twins was conducted by a psychologist, Moira Buckley. She concluded that they 'exhibited delays in all areas of development and showed evidence of serious and emotional disturbance'. As to A, she said that he 'may also have some delays in his development and he exhibits signs of insecure attachment with his mother'.

32 The twin boys were noted to have physical strength and motor skills well below their age level. For example, they were unable to push a door open, take the lid off a plastic take-away container, move a chair or write their names. They did not know the alphabet or familiar concepts such as what a dolphin was. They made unusual drawings of pregnant aliens and locked doors. They exhibited obsessive compulsive tendencies and a preoccupation with germs.

33 Ms Buckley further concluded that:

P, B and A's developmental and emotional and psychological wellbeing has been severely impacted by their experiences within their family. The children are at great risk of further developmental and psychological problems if they continue to be exposed to these influences.

34 On 6 November 2008, GR's psychiatrist informed the DCP that GR had been assessed and was to be admitted to Graylands Psychiatric Hospital as GR had stated that he was concerned about the continual harm he posed to the children. GR was subsequently admitted.

35 A DCP caseworker visited the appellant on 7 November 2008 to discuss these matters with her. The caseworker noted that the appellant was overly concerned for GR's wellbeing. She further noted that the twins were not at school; according to the appellant, they had a cold. The caseworker observed the children to be fatigued and dehydrated. She described their skin to be pale and clammy, and their lips dry and cracked.

36 On the same day, the children were taken by the DCP to Princess Margaret Hospital for a medical assessment. A DCP team leader, Robert Russell, had to support both P and B into and out of the car in which they were transported, as their leg muscles were underdeveloped and could not support their weight. Both boys struggled to walk the short distance from the car to the hospital. At Princess Margaret Hospital, all three children were examined by Dr Alice Johnson. The appellant gave Dr Johnson a history which included that GR was very controlling of the children, verbally abusive to her and was paranoid about the children going out of the house or to school. The appellant reported that they stayed inside the house most of the time and had little physical exercise.

37 In Dr Johnson's opinion, the twins had suffered neglect which resulted in muscle weakness and a vitamin D deficiency. With respect to A, she said that he was very underweight for his age and that he had iron deficiency anaemia and a vitamin D deficiency. She said that the most likely cause for these conditions was an inadequate diet.

38 On 10 November 2008, Mr Russell visited the appellant, who told him that she was upset that the children had been medically assessed. She did not appear to accept that they were in need of medical attention.

39 On 11 November 2008, the three children were removed from the appellant's care by the DCP and placed with foster carers. They have been in care ever since. Child protection proceedings were initiated by the DCP. The appellant consented to a 2-year protection order for each child in favour of the DCP. In due course, the DCP applied for protection orders until each child reached the age of 18 years. On 6 February 2012, one week before the commencement of a scheduled hearing in the Children's Court, the appellant consented to the making of these orders.

40 Since being taken into the care of the DCP, the children's physical, educational and mental conditions have been regularly assessed.

41 At the time that the twins were taken into care, they were 9 years old. Both twins were significantly physically underdeveloped for their age, were suffering from a vitamin D deficiency and were unable to read, write or draw at a level acceptable for their age. When they were removed, neither had the ability to walk up and down stairs, to walk unsupported on uneven surfaces or climb steps and both lacked the physical strength to pick up a basketball from the ground or lift their arms above their heads to wash their hair. They complained of muscle soreness from walking around. After six to eight weeks of various programs, the twins' gross motor skills improved a little.

42 In relation to B, on 20 January 2009, a physiotherapist noted, amongst other things, that B had a motor skill level equal to a 6-year-old. Later assessments revealed marked improvement in his physical development. An occupational therapist noted that in the six months since B had been taken into care, the developmental delay in gross motor skills first observed had been rapidly reversed.

43 With respect to P, the physiotherapist's observations on 20 January 2009 revealed that he had gross motor skills equal to that of a 3 to 4-year-old. Over time, he also showed a rapid improvement in all areas of his physical development.

44 In relation to the twins' vitamin D deficiency, medical examinations showed that their diet and absorption abilities were normal and that the vitamin D deficiency that had been observed was a result of a lack of exposure to sunlight due to spending large amounts of time indoors.

45 After B and P were placed in the care of the DCP, they began school. Initially, neither was able to attend on a full-time basis because they lacked the physical stamina to withstand a full day of schooling. The twins were enrolled in year 5 due to their age, but the work they produced was of a standard expected from a kindergarten or grade 1 level student. The twins' mental ability was assessed when they began school. Both achieved a result which placed them within a mentally-impaired range. Since then, their performance has improved and they have shown that they possess the ability to learn.

46 On 24 March 2009, the twins were psychiatrically examined. In the opinion of Dr Prue Stone, the twins were extremely anxious and suffering from generalised anxiety disorder as a result of the profound changes in their lives, having had little experience with normal childhood activities. She noted that they were particularly anxious about their health and the risk of becoming sick after contact with new people. She noted that they had trouble sleeping. P continued to see Dr Stone, as he presented with continued anxiety and violent thoughts and expressions, the latter stemming from P having been exposed to violent video games while in the appellant's care.

47 A was approximately 18 months old when he was removed from the appellant's care. He was assessed at that time to be developmentally delayed, both physically and mentally. Initially, he was underweight, limp, lacking energy, inactive and very frail. He was not eating solids. After his removal, he gained weight, began eating solid food, was verbalising and was comparably quite robust. In 2009, he was diagnosed as having global developmental delay with particular problems in expressive communication.

48 Later assessments of the children revealed further improvements. A psychologist, Ms Sian Trigwell, observed in 2011 that B had demonstrated vast improvements in all areas, but that he was still not at chronological age-appropriate levels for most things. She noted that he continued to experience particular difficulties with self-esteem and lacked the ability to self-regulate his emotions. Ms Trigwell said that B was cognitively intact for his age but, despite making progress at school, struggled academically. She observed that B had made significant physical gains and that his emotional resilience had improved. B was said to have made significant gains since being taken into care, but remained well behind his peers and had significant outstanding treatment needs.

49 Ms Trigwell noted that P had also made vast improvements in all areas, but was still not at chronological age-appropriate levels for most things. P was still struggling academically. Like his twin brother, P had made significant gains since being taken to care, but was well behind his peers and had outstanding treatment needs.

50 Dr Stone assessed B and P on 2 November 2011. She noted that both boys were still unusual in their presentation, particularly P. Compared to when she first met them in 2009, they were less anxious, though she observed that each remained generally anxious, especially P. Dr Stone noted that the twins 'remain significantly delayed cognitively' and observed, in P's case, 'some on-going autistic-like symptoms'.

51 In relation to A, Ms Trigwell noted 'vast improvements in all areas of difficulties'. Further examination did not support the initial assessment of global developmental delay. A showed rapid improvements in all areas of concern and had 'continued to thrive'.

52 The appellant was interviewed by police officers from the Child Abuse Squad on 8 January 2010. A summary of that interview was included in the statement of agreed facts. That summary was to this effect:

(a) The appellant said that she was the main caregiver for the children and that she was a good mother.

(b) She admitted that the twins had never been to school.

(c) She claimed that she had been trying to home-school the twins.

(d) She said that she had never prevented the children from going outside, but implied that they did not want to do so.

(e) She said that she took the children out on occasion.

(f) She denied that the children were in need of care, and she did not accept the physical state the children were in when removed from her.

(g) She said she loved the children.

(h) She denied that any other person ever exerted control over her or forced her to act in a certain way.

53 The statement of agreed facts also included a section entitled, 'defence instructions'. I assume that the prosecution took no issue with these instructions. They were to the effect that although GR did not live with the appellant during the period of the offences, he was a frequent visitor and had had 'input' into how the children were raised. It was said that GR was very anxious about the children not being too exposed to the sun, that he regularly expressed concern about them getting dirty outside and heavily promoted hand-washing. GR was also anxious about the children being lost or hurt when they went out to play. It was further said that GR was, at times, difficult to communicate with due to his mental health.

54 It was also said that the appellant never hit the children or deliberately hurt them.

55 The statement of agreed facts summarised the harm suffered by the children in these terms:

The extensive harm suffered by the three victims/children whilst in [the appellant's] care included physical, psychological and emotional harm as a result of neglect due to the fact that [the appellant] engaged in conduct reckless that it may result in the victims suffering harm as a result of neglect by failing to provide, arrange or allow for the provision of adequate care for the victims.

While in the care of [the appellant], the victims spent most of their time locked in their room and were rarely allowed to leave the house and were not provided with the opportunity to socialise with other children. The twin victims had never been enrolled in or attended school and the children had not been exposed to or engaged in normal childhood activities and experiences.

Other sentencing materials

56 In addition to the agreed statement of facts, the learned sentencing judge was provided with an extensive sentencing brief and other materials in excess of 600 pages in length. Much of this material had been complied by the DCP in connection with the proceedings in the Children's Court for protection orders. This material included a number of expert reports, most notably a psychological assessment of the appellant and the three children by Dr Gregory Dear, dated 30 January 2011, with a short addendum report dated 9 September 2011. The learned sentencing judge was particularly impressed by Dr Dear's opinions. He described Dr Dear's report as being 'the best psychological report I've ever read … from a forensic point of view' (ts 144).

57 In his report of 30 January 2011, Dr Dear said that B and P both 'displayed significant psychological problems, primarily pertaining to difficulty regulating their emotions and consequential difficulties regulating their behaviour'. He noted that P, in particular, showed significant difficulties managing his anger. P expressed 'violent fantasies' which were 'of significant concern'. Dr Dear wrote that B and P 'displayed significant emotional immaturity and social reasoning well below what is normal for boys of their age'. Dr Dear said that while the twins' psychological problems were consistent with 'children who had early attachment difficulties and/or emotional neglect', he said that he was 'not in a position to defensibly assert the actual cause of their problems'. Later in his report he said that GR's mental health problems were 'likely to have contributed to any abuse or neglect that the boys suffered'. Dr Dear observed that the 'strange attitudes' held by P were 'seemingly derived from his father'.

58 With respect to A, Dr Dear said that he appeared to be 'developing normally', apart from 'some indications of confusion in his mind regarding who [his] mother is and how he should relate to her'.

59 With respect to the appellant, Dr Dear said that, after a thorough examination over a long period of time (12 months), he was 'unable to find any evidence of psychological disturbance that would warrant the diagnosis of a psychological disorder'. He said that she had 'not presented as depressed, psychotic or otherwise mentally ill' and he found no evidence of either an obsessive compulsive disorder or subclinical obsessive or compulsive tendencies. Nevertheless, Dr Dear said that he found that the appellant had 'some psychological deficits' which he summarised as:

(a) an impaired understanding of emotions and consequential limited capacity to emphasise with others' emotions and emotional needs; and

(b) a somewhat impaired capacity for social reasoning.

60 Dr Dear reported that the deficits were similar to, but not as severe as, some aspects of disorders such as mild autism or schizoid personality traits. Dr Dear considered the possibility that the appellant was psychopathic. He made no conclusion to that effect. He summarised the appellant's psychological state as follows:

In conclusion, [the appellant] presents as a shy woman, somewhat lacking in confidence, and with a deficient comprehension of her own and other people's emotions. That deficit makes it difficult for her to understand and respond appropriately to her sons' emotional needs and is likely to impact negatively on their social and emotional development. [The appellant's] overall psychological presentation is likely to make her vulnerable to being led by a partner or other close person in her life who is confident and assertive or is controlling and abusive. Despite this psychological deficit, a prolonged and comprehensive psychological evaluation of [the appellant] failed to identify sufficient evidence of psychological disorders (either personality disorder or mental illness).

61 The appellant's psychological functioning was also assessed by Ms Wendy Wager in a report dated 15 December 2012. In that report, Ms Wager noted that the appellant had 'limited insight as to her own psychological processes and [GR's] alleged mental health issues'. Ms Wager noted that the appellant did not present with criminal tendencies or a history of antisocial or sadistic behaviour. According to Ms Wager, the appellant actually presented as the opposite. As a result, Ms Wager expressed the view that:

[It] is difficult to imagine that [the appellant] knowingly and willingly neglected her children to the extent that their intellectual, social and physical development was impeded to such a significant degree.

The history of the criminal proceedings

62 The DCP formally referred allegations of criminal neglect by the appellant (and presumably GR) to the WA Police Child Abuse Squad on 19 January 2009. As I have already mentioned, on 8 January 2010, the appellant was interviewed by police. In February 2010, the matter was referred by the police to the Director of Public Prosecutions. In January 2011, the DPP recommended that charges be preferred. On 27 January 2011, the appellant was arrested and charged. Although it is not clear as to when, GR was also arrested and charged. The appellant (and I presume GR) were initially charged on a prosecution notice with an offence contrary to s 101(1)(a) of the Act; that is, with an offence that each of them engaged in conduct knowing that it may result in the children suffering harm. The appellant was not committed for trial to the Perth District Court until 4 April 2012. The committal proceedings were adjourned several times by consent in order to await the outcome of the child protection proceedings instituted by the DCP. The indictment filed against the appellant on 28 June 2012 charged her with committing offences contrary to s 101(1)(b) of the Act; that is, that she engaged in conduct reckless that it may result in the children suffering harm: AB 48. On that day, the proceedings were again adjourned, this time to allow GR's case to, in effect, catch up with the appellant's.

63 On 26 October 2012, the court was informed that there was a possibility that the appellant would plead guilty to the charges. A further adjournment was granted to enable the parties to negotiate. On 9 November 2012, the appellant entered her pleas of guilty.

64 Prior to the proceedings on 5 February 2013, GR was found to be unfit to stand trial, a finding not contested by the State.

The sentencing proceedings - 5 February 2013

65 At the outset of the proceedings on 5 February 2013, his Honour said that he had read the 'mass' of material which had been provided to him. The prosecutor then read the statement of agreed facts. The appellant's experienced defence counsel then delivered his plea in mitigation. At this point, defence counsel took no issue with the statement. No issue was taken with the expert reports and, in particular, with Dr Dear's reports (ts 92). It was conceded that the appellant lacked insight into what had occurred. Defence counsel did not disagree with the proposition put to him in argument by his Honour that the case warranted imprisonment, but he ultimately submitted that a suspended term of imprisonment was the appropriate disposition.

66 Defence counsel made the following points:

1. The appellant was not prepared to accept that she did anything deliberately knowing that harm would be caused to the children (ts 77).

2. GR was 'very controlling' (ts 83) and that, while the appellant was responsible for the children's care, it was relevant that she was 'somewhat cowed in her relationship with him' (ts 86).

3. The appellant was in a 'vulnerable' situation because she had no family support in Perth apart from GR, no extended family and was not equipped with 'the [psychological] tools' to raise the children appropriately.

4. It was relevant to consider GR's mental health because, it was submitted, he imposed his will and his 'odd views of the world' on the children (ts 92).

5. The appellant had pleaded guilty.

6. There was a considerable delay between the commission of the offences and the sentencing which was relevant because it enabled the court to see how the children had recovered (ts 105).

7. As the children were now in the care of the DCP until the age of 18 years, the appellant did not pose a danger to them or the public at large in the future.

67 Defence counsel submitted that, as a case of recklessness, it was less serious than a case involving conduct with the intention of inflicting harm on the victim (ts 89).

68 In reply, the prosecutor observed that the prosecution notices were framed differently to the indictment, in that the indictment pleaded recklessness rather than knowledge (ts 113). The prosecutor acknowledged that the pleas of guilty were 'a great benefit to the administration of justice' because of 'how big the trial would have been' (ts 113).

69 The prosecutor also acknowledged that there had been a four-year delay since the cessation of the offending and that this was 'of benefit to [the appellant]' because, in the case of the twins, although they suffered significant harm, they were both showing 'marked and rapid improvement from the state that they were in when they were taken into care' (ts 116). In the case of A, the effluxion of time had seen him develop and thrive. It also demonstrated 'that it was the neglect and the situation the children were in that caused the state they were found in' (ts 116).

70 The prosecutor accepted that GR 'had a role to play in this matter', but made the point that the appellant had gone 'to ground' after Ms Taylor's attempted intervention in December 2007.

71 The prosecutor submitted that the harm suffered by the twins was more serious than that suffered by A (ts 118).

72 The prosecutor concluded her submissions by describing the case as 'highly unusual'. She characterised the offences as being 'a very serious example of neglect' (ts 123). As to disposition, the prosecutor made it clear that she did not concede that a suspended sentence was appropriate. However, she submitted that if his Honour decided to impose a suspended sentence, it should be with conditions (ts 123).

73 At the conclusion of the proceedings on 5 February 2013, the learned sentencing judge declined to renew the appellant's bail and remanded her in custody for sentence on 7 February 2013.

Sentencing proceedings - 7 February 2013

74 On 7 February 2013, defence counsel took issue with whether the children had been locked in their bedrooms and an allegation that the appellant did not buy toys for them. His Honour said that he would find that the children were only occasionally confined to their rooms and that he had gathered that the appellant had bought toys for the children (ts 127, 128). His Honour then proceeded to deliver his sentencing remarks.

The sentencing remarks

75 The learned sentencing judge began his sentencing remarks by incorporating into them the statement of agreed facts. However, he added that he felt free to make his own findings and that he apprehended that there was not complete agreement between the appellant and the prosecution in relation to everything that was contained in the statement.

76 His Honour found that the three children were kept indoors at home 'virtually 24 hours a day, seven days a week, throughout the offending period'. He said that they were occasionally locked in a room. He described the children as living 'in secret'. He found that B and P were both denied all forms of schooling and that all three children were denied 'sunlight, proper activity and opportunities for socialisation with other people'. He said that the children were well-dressed and that their home was tidy, though sterile. While B and P were slightly undernourished when taken into the care of the DCP, his Honour found that they were not starved. He said that A's undernourishment at that time was due to the appellant's overreliance on breastfeeding. His Honour acknowledged that the appellant occasionally took the children to her GP for medical treatment.

77 His Honour described the children as being, in effect, under 'house arrest'. He said that they were subjected to the 'constant obsessions' of the appellant and GR. He found that, as a result, the children developed 'bizarre ideas' about health and hygiene and were 'effectively brainwashed' by the appellant and GR about those matters.

78 His Honour made findings as to the condition of the children at the time of their apprehension by the DCP and their subsequent treatment and progress that were consistent with the contents of the statement of agreed facts.

79 It is clear that his Honour had particular concerns about P. He described him as having expressed some 'highly dangerous thoughts and beliefs', but observed that they had begun to resolve by early 2011 (ts 134).

80 His Honour acknowledged that the children had made 'significant progress in all relevant areas since they were rescued', particularly A. He said that the current position was that the children were physically much healthier, but that B and P were still a long way behind age-appropriate milestones educationally, emotionally and psychologically, adding that they had been diagnosed as suffering from anxiety.

81 His Honour found that B and P have, and will suffer, serious long-term harm as a result of the offending, including throughout their adult life. This was especially so for P. As for A, while he has thrived, his Honour was of the view that he would always be at risk, 'because of the dysfunctional start in his life and having been taken into care for virtually his entire childhood' (ts 135).

82 His Honour summed up the situation by describing the case as 'an appalling case of criminal child neglect which involved years of deprivation of fundamental childhood care' (ts 136). His Honour then posed the rhetorical questions 'why or how did this happen and should [the appellant] be demonised for it?'.

83 Having described the neglect and the consequences to the children, his Honour then turned to the question of the appellant's culpability.

84 His Honour dealt first with the role of GR. His Honour found that GR's 'chronically bizarre, paranoid and obsessional ideas and controlling type of personality established the regime of neglect and brainwashing that occurred' (ts 136). He further found that GR had a great deal of influence over what happened, but said that the appellant willingly supported GR's 'regime'. He emphasised that the appellant was the sole physical carer for the children.

85 His Honour observed that the appellant did not physically abuse the children or engage in sadistic and cruel behaviours, or embark upon deliberate antisocial training. He accepted that, in her emotionally dysfunctional way, the appellant loved and still loves the children and had provided food, clothing 'and occasional medical attention' (ts 137).

86 His Honour found the appellant was not subjected to physical or financial abuse by GR (ts 145). His Honour expressed the opinion that the appellant was fully competent to make choices and that the conduct which constituted her offending 'were her free choices' (ts 145). His Honour stressed that after A was born, and definitely by late 2007 (when she met with Rachel Taylor), it must have been apparent to the appellant that she should send the twins to school and let the boys play and socialise like other children. His Honour was satisfied that the appellant had 'set her face against officialdom' and 'defiantly went her own way' (ts 145). Further, his Honour found the offences to be 'contumelious' and that 'definitely after December 2007', the appellant acted deliberately with full knowledge of the consequences. He described the offending as 'brazen' and 'an atrocious breach of trust' (ts 149).

87 His Honour had regard to the following mitigating factors:

1. The plea of guilty which he described as 'greatly [facilitating] the administration of justice' and '[vindicating] the victims' (ts 146).

2. GR's role in the offending. His Honour accepted that he held 'some sway' over the appellant (ts 147).

3. The appellant's vulnerability in that she lacked support in the community. Against this, his Honour found 'that no later than December 2007' she had available to her community based supports (ts 147).

4. The effluxion of time since the offences came to light. His Honour acknowledged that in the four years since the children had been taken into care, 'the victims and offender alike have had rehabilitation' (ts 147). He noted that the appellant had improved her circumstances and that she had allowed the DCP 'to do their job'. His Honour said that he did not think that the effluxion of time was a particularly important mitigating factor.

5. His Honour noted that the appellant was a virtual first offender (her only conviction being a drink driving offence committed in early 2011).

88 In deciding to impose immediate terms of imprisonment, his Honour acknowledged that personal deterrence was not a significant factor in the case (ts 149). However, he said that general deterrence was a very important factor.

89 His Honour found that there was no remorse and 'no room for clemency of any kind in this case' (ts 149). The latter statement appears to be inconsistent with mitigating factors his Honour identified.

90 His Honour found that the three offences were not the worst cases of their kind, although he said that counts 1 and 2 (involving the twins) 'were pretty close to the margin'. He described the case as being one of 'gross criminal indifference with very great harm' (ts 151).

91 With respect to counts 1 and 2, his Honour said the 'starting point' was 5 years' imprisonment. He reduced that term by 9 months, pursuant to s 9AA of the Sentencing Act 1995 (WA), to take account of the pleas of guilty. He then reduced the terms further by 3 months for the other mitigating factors. Thus before taking into account totality, his Honour said he would have imposed terms of 4 years' imprisonment on counts 1 and 2 (ts 151).

92 With respect to count 3, his Honour said that his 'starting point' was 12 months' imprisonment which he reduced by 2 months for the plea of guilty and 1 month for other matters, resulting in a term of imprisonment of 9 months.

93 His Honour then turned to the question of totality. His Honour observed that there were three victims, but one course of criminal conduct which he said escalated after April 2007 (ts 151). His Honour said that substantial accumulation was called for. He said that the appropriate overall sentence was 5 years' imprisonment. To achieve that figure, he reduced the sentence he would otherwise have imposed on count 1 to 2 years' imprisonment and on count 2 to 3 years' imprisonment and ordered that those terms be served cumulatively. He imposed a higher sentence on count 2 to reflect his finding that P was the most damaged victim. He ordered the sentence on count 3 to be served concurrently with the two other sentences.

94 After his Honour passed the sentences to which I have just referred, the prosecutor raised with his Honour the question of whether he intended to make a finding that the appellant had acted with full knowledge of the consequences of her conduct (ts 152). His Honour indicated that he had.

95 The exchange which took place is as follows:

AUSTIN, MS: Your Honour,I don't wish to go backwards. I should have perhaps asked at the time. Did your Honour make a finding that, at some stage, the offender did proceed, with full knowledge of the offending, of the consequences of her conduct?

McCANN DCJ: Yes,I did. I can read you the passage from my notes.

AUSTIN, MS: Yes, your Honour. Because you did go on and talk about recklessness, obviously, which was the word in the indictment.

McCANN DCJ: I did. My thinking is that recklessness can occur when a person knows what the consequences are.

AUSTIN, MS: Yes, of course, your Honour. I've written down, of course, that you did make a finding that, at some stage - and I think it was after at least the DCP had intervened - she proceeded with full knowledge of - - -

McCANN DCJ: Yes. Thechildren weren’t going to school.

AUSTIN, MS: Yes. Of the consequences. Thank you, your Honour.

McCANN DCJ: Yes, she knew the children weren't going to school.

AUSTIN, MS: Yes. I just wanted to clarify that, your Honour. Thank you (ts 152 - 153).

96 Defence counsel then, in effect, raised with his Honour the point now made in ground 1 in this appeal. Defence counsel queried whether his Honour had, in substance, sentenced the appellant for an offence contrary to s 101(1)(a) of the Act, adding, 'I'm not sure, with respect, your Honour can … find her … guilty of something … above what she's pleaded to' (ts 153).

97 The following exchange then took place:

McCANN DCJ: I have found that she was reckless. Now - - -

FREITAG, MR: The phrase, your Honour, 'deliberately carried out, with full knowledge of the consequences,' does suggest 1(a), 'knowing that the conduct may result in the child suffering harm.' That's my concern. And it may be that that's not - - -

McCANN DCJ: Yes.

FREITAG, MR: - - - anything that can be - - -

McCANN DCJ: Sorry, I have also used words such as indifference - - -

FREITAG, MR: I - - -

McCANN DCJ: - - - gross indifference.

FREITAG, MR: I agree.

McCANN DCJ: I'm just making findings of fact. She knew the children would suffer harm if they didn't go to school. She deliberately didn't send them to school. These are facts. I can't ignore those facts. As a result, she's admitted to be, and I find that, she was reckless.

Anyway, it's the harm that I've look at in the end.

FREITAG, MR: And I've mentioned that. That's all I can do is mention that at this stage.

McCANN DCJ: Well, thank you for raising it. And I don't mind you doing it like this. It's not an easy case. But at the end of the day, it's the damage that affects the outcome as much as anything else (ts 153 - 154).

Comment on the sentencing remarks

98 The sentencing remarks require some comment.

99 Sentencing remarks should be objective, balanced and couched in moderate language. To do otherwise may invite the appearance of unfairness and partiality and give rise to error: Tanner v The State of Western Australia [2013] WASCA 142 [160].

100 It is plainly evident from the sentencing remarks, read as a whole, that his Honour felt strongly about the appellant's offending. The language he used is, at times, forceful, dramatic and condemnatory. With great respect to his Honour, some of the language that was used went too far in its characterisation of the appellant's conduct.

101 The evaluative rhetorical question 'should [the appellant] be demonised for [her conduct]?' was apt to mislead as to the purpose of the sentencing proceedings and to give an appearance of unfairness. The sentencing process is not about the demonisation of an offender. It is about the imposition of a sentence, according to law, which is commensurate with the seriousness of the offence: s 6 of the Sentencing Act.

102 There is a further matter. It is not disputed that the twins have significant psychological problems. It appears from the sentencing remarks that the sentencing judge found that these problems have been largely caused by the appellant. Although not a ground of appeal, the expert evidence is not to this effect. Dr Dear, who appears to be the only expert who deals with the question of causation, was not able to, as he put it, 'defensibly assert the actual cause of the problems'.

General principles in relation to appeals against sentence

103 Before turning to the grounds of appeal, I will briefly describe the general principles applicable to this appeal.

104 The jurisdiction of this court to intervene and re-sentence the appellant is not enlivened unless the appellant demonstrates a material error on the part of the sentencer. The relevant principles are not in any doubt and were described by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2]. They do not need to be repeated.

105 I will deal with ground 2 first, then grounds 1, 3 and 4.

Ground 2 - Alleged material errors of fact

106 A material error of fact is one that affects or is capable of affecting the sentence actually imposed by the sentencing judge: Fernandes v The State of Western Australia [2009] WASCA 227 [10] (McLure P, with whom Owen & Wheeler JJA agreed).

107 It is alleged that his Honour made material errors of fact in respect of three matters, being:

1. the appellant's contact with the DCP after A's birth;

2. the involvement of the DCP team leader, Robert Russell; and

3. the state of health of the children when they attended at Princess Margaret Hospital on 7 November 2008.

Alleged error of fact 1 - Contact with DCP after A's birth

108 With respect to the first alleged factual error, the appellant drew this court's attention to the following two statements made by his Honour during the course of the sentencing remarks:

[The appellant] quit the hospital with [A] deliberately so as to put herself beyond the reach of the social workers, knowing that interference could only occur if the social workers got involved because, as she has admitted, she was already abusing the children and had been for some time when A was born (ts 139).

109 And later:

A whole year or more was lost after the social workers at King Edward Memorial Hospital first became involved and [the appellant] decamped and, of course, a whole year was lost after the DCP became involved in 2007 (ts 150).

110 Although the submissions made on behalf of the appellant on this point are not entirely clear, it appears that the appellant takes exception to the findings that she deliberately avoided social workers after A's birth and that 'a whole year' was lost because of this.

111 In support of these submissions, the appellant pointed to various parts of the prosecution brief which show that the appellant contacted the DCP on 3 August 2007 to indicate that she was visiting Darwin, and again on 17 October 2007 to indicate that she was residing in Bunbury. The appellant further pointed to the fact that she attended at the DCP office with the children on 21 December 2007. The appellant also referred to the witness statement of Rachel Taylor and noted that there is no specific statement to the effect that she made an express request that the appellant attend any specific program or keep her updated as to her current address. The appellant observed that a DCP Action and Outcome Report in connection with that meeting noted that 'all children appear well and healthy' (AB 191).

112 The factual findings that the appellant seeks to impugn are inferences his Honour drew from matters contained in the statement of agreed facts. As to that statement, his Honour was entitled, in the absence of any challenge by defence counsel, to rely (but was not bound to do so) on the facts contained in it. His Honour was also entitled to draw inferences from those facts, but any such inference must be drawn having regard to the principles in R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 [27] (Gleeson CJ, Gaudron, Hayne & Callinan JJ). In my opinion, it was open to his Honour to make the findings he did.

113 The sentencing materials (AB 191) indicate that the appellant, while contacting the DCP to tell them that she was not in Perth, did not inform the DCP of their precise whereabouts and gave a misleading impression as to the health of the children. In the DCP Action and Outcome Report with respect to the meeting on 21 December 2007 (AB 193) it is noted that the appellant agreed to work with the DCP in addressing its concerns about the children's medical, educational and social needs. It is evident that after that meeting the appellant did not make good that promise and that the appellant did not keep in contact with the DCP. It was not until August 2008 that information was provided to the DCP which ultimately enabled it to locate the appellant and the children and visit them on 2 October 2008. By then, more than a year had elapsed since A's birth and more than nine months had elapsed from the meeting on 21 December 2007.

114 I accept that there is a contradiction between the Action and Outcome Report with respect to the meeting on 21 December 2007 where it was noted that 'all children appeared well and healthy' (AB 191) and the statement of agreed facts in which it was said that the children 'appeared pale and globally delayed'. The latter statement, which was included in the statement of agreed facts, was not challenged in the proceedings below. This court is unable to now resolve this contradiction one way or the other. The onus is on the appellant to establish error. The appellant has failed to do so.

Alleged error of fact 2 - Robert Russell

115 In his sentencing remarks, his Honour said, in connection with the DCP's visit on 2 October 2008:

Robert Russell, the DCP team leader in attendance, advised [the appellant] to attend the hospital immediately with the children so that they could have a thorough medical check-up. [The appellant] stated that the children did not need to go to the hospital as they were all healthy (ts 141).

116 The appellant pointed to Robert Russell's deposition dated 21 September 2009. In that document, Mr Russell said that the first time that he came into contact with the appellant and her family was on 6 November 2008, and on that occasion he advised the appellant to take the children to hospital for a check-up (AB 183 - 184).

117 The respondent accepts that his Honour's remark that the date of Mr Russell's visit was on 2 October 2008 appears to be an error. While it may be accepted that the statement made by his Honour was erroneous, the source of any error was the statement of agreed facts. The error now identified by the appellant is minor in nature and could not, on any reasonable basis, be said to have been material to the sentencing outcome. I note that, while Mr Russell did not attend the appellant's home on 20 October 2008, a male caseworker, Mr Nowak, did (AB 175). Whoever and whenever the request was made for the appellant to take the children to hospital, the one thing that is clear is that she failed to do so.

Alleged error of fact 3 - The state of the children's health on 7 November 2008

118 As I have already mentioned, on 7 November 2008 the DCP intervened and the children were taken to the Princess Margaret Hospital for a medical assessment. The statement of agreed facts was to this effect:

Robert Russell from DCP had to support both P and B into and out of the car as their leg muscles were underdeveloped and could not support their weight. Both twin boys struggled to walk the short distance from the car to the hospital. The 19-month-old child A was carried.

119 In his sentencing remarks, his Honour said:

When they were rescued in November 2008 by the Department of Child Protection … B and P were unable to walk properly and had to be supported when they walked, they could not weight-bear by themselves when they were walking … (ts 130).

120 The appellant now asserts (having not challenged the matter before his Honour) that the finding that the twins had difficulty walking without assistance was not supported by the medical examination on the same day conducted by Dr Alice Johnson.

121 Dr Johnson's report revealed that B had:

(a) flat feet;

(b) 'some unsteadiness on his heel-toe test'; and

(c) poor muscle development.

122 With respect to P, he too had 'flat feet' and was observed to have some difficulty with heel-toe walking. Like his brother, he was observed to have 'poor muscle development'.

123 These observations are consistent with the twins being unable to walk properly and having to be supported when they walked.

124 In any event, whether or not the twins were able to walk properly and had to be supported when they walked on 7 November 2008 is not a matter of material importance, particularly when it has never been challenged that the twins were substantially physically underdeveloped on 7 November 2008 and thereafter.

125 I note that the appellant's written submission contend, for the first time, that the reason the twins had difficulty walking on 7 November 2008 was that they were reticent about being taken to hospital. This cannot be tested now and is no more than conjecture.

126 Ground 2 has no reasonable prospects of success. I would not give leave to appeal in respect of it.

Ground 1 - Did his Honour sentence the appellant in a manner inconsistent with the mental element charged?

127 The appellant submitted that, although she had been convicted of engaging in conduct reckless as to whether it may result in the children suffering harm, his Honour had erroneously sentenced her on the more culpable basis that she had known that her conduct may cause harm. The appellant pointed to various parts of his Honour's sentencing remarks to support this proposition. It was submitted that the alleged error was material to the sentencing outcome, in that had the appellant been convicted of recklessness 'an intensive supervision order or a suspended sentence of imprisonment was warranted' (AB 9).

128 The respondent's written submissions were to the effect that, although his Honour found that 'at some point' the appellant had knowledge of the consequences of her conduct, his 'overall finding' was that the appellant had acted recklessly. However, in oral submissions before this court, counsel for the respondent accepted that, having regard to this court's decision in PES v The State of Western Australia [2013] WASCA 202 (which was delivered after the appellant was sentenced and after it had filed its written submissions in this appeal), his Honour erred by sentencing the appellant in a manner inconsistent with recklessness (appeal ts 27 - 28). Despite this error, the respondent submitted that it was not material to the outcome.

129 Section 101 of the Act is as follows:

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; or

(iv) psychological abuse; or

(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). (emphasis added)

130 The terms 'harm' and 'neglect' are defined in s 28(1) of the Act in these terms:

28. When child is in need of protection

(1) In this section -

harm, in relation to a child, means any detrimental effect of a significant nature on the child’s wellbeing;

neglect includes failure by a child’s parents to provide, arrange, or allow the provision of -


(a) adequate care for the child; or

(b) effective medical, therapeutic or remedial treatment for the child.

131 The elements of the offence created by s 101(1) of the Act include:

(a) knowledge by the accused that conduct he or she engages in 'may result in the child suffering harm' as a result of physical, emotional, sexual or psychological abuse or neglect; or

(b) alternatively, recklessness by the accused as to whether his or her conduct may have that result.

132 The meaning of 'reckless' in the context of s 101(1) of the Act was considered by this court in PES. In that case, Buss JA (with whom McLure P and I agreed) held that the word 'reckless' connoted that the accused wilfully or deliberately shut his or her eyes to, or excluded from contemplation, whether the alleged conduct may result in the child suffering harm of the kind specified in s 101(1). Buss JA further stated that if an accused has actual 'foresight' or actual 'awareness' that his or her conduct may result in a child suffering harm as a result of abuse or neglect of the kind specified in s 101(1), then he or she will have actual knowledge that the conduct may have that result: PES [20] - [24].

133 As a general proposition, intentional conduct is regarded as more culpable than reckless conduct: R v Hassett (1994) 76 A Crim R 19, 26 - 27 (Ashley J) and in the context of s 101(1) of the Act, see The State of Western Australia v TIK [2009] WASCA 122 [41] and [49] (Pullin JA, with whom Wheeler & Miller JJA agreed).

134 In order for the appellant to make out ground 1, she must establish that the sentencing judge in fact sentenced her on the basis that she had engaged in conduct knowing that it may result in the children suffering harm and, if he did so, that it constitutes a material error.

135 Before addressing these issues, it is necessary to deal with an anterior question. The appellant's argument assumes that it was not open to his Honour to sentence the appellant on the basis of knowledge when she was charged with being reckless. Is this assumption correct?

136 Section 6(2)(b) of the Sentencing Act requires a sentencer to take into account the circumstances of the commission of an offence in gauging the seriousness of an offence. On the face of it, this provision appears to allow his Honour to sentence on the basis of knowledge if the facts established it. However, in the context of s 101(1) of the Act, knowledge and recklessness are elements of the offence created by that subsection. In Zimmerman v The State of Western Australia [2009] WASCA 211, McLure P held that s 6(2)(b) does not apply where one of the circumstances of the offending is an element of an offence that has been charged, but not proven against an offender [20].

137 In Zimmerman, neither Owen nor Pullin JJA specifically addressed the point made by McLure P. I respectfully adopt McLure P's conclusion. It would, in my view, be contrary to basic sentencing principle for an offender to be sentenced on a basis inconsistent with the elements of the offence for which he or she has been convicted, whether that be by verdict of the jury (as to which see R v De Simoni (1981) 147 CLR 383, 392 (Gibbs CJ)) or a plea of guilty.

138 There is also, in my opinion, an issue of fairness to be considered. The appellant was originally charged with engaging in conduct knowing that it may result in harm. The Director of Public Prosecutions declined to proceed on this basis and charged the element of recklessness. In these circumstances, it would be unjust for a sentencer to sentence on the basis of the element of knowledge.

139 To return to the question I posed, in my opinion, it was not open to his Honour to sentence the appellant on the basis of knowledge. Did his Honour in fact sentence the appellant on that basis?

Statements made by his Honour

140 The appellant pointed to the following statements made by his Honour in support of ground 1 (where indicated, the emphasis is the appellant's):

(a) 'There is no evidence of any impairment or cognition at this time or any time. She made clear choices to ignore her duty of care as explained to her by the Department of Child Protection and took active measures to avoid detection and remediation. In all the circumstances, including her behaviour after the offences, I am satisfied that she set her face against officialdom and defiantly went her own way knowing of the certainty of harm to her children' (ts 145).

(b) 'However, these offences were committed over a very lengthy period of time and involved chronic recklessness. So to say in a blithe manner, this is a first offence, is to ignore the reality of the situation that the offending was carried out, criminal behaviour was considered and deliberate and took place over a very lengthy period of time' (ts 147 - 148).(c) 'The remedial actions for the three children have been very well resourced and very well intentioned, but they are no substitute for what these children had taken from them. I find that the offences were contumelious, certainly after April 2007 and definitely after December 2007 and they were deliberately and secretively carried out with full knowledge of the consequences which would ensue and the alternatives that were available. The offending was quite brazen really, it was an atrocious breach of trust in every case particularly the two twins' (ts 149).

(d) In the dialogue between his Honour and counsel reproduced at [95] - [97] of these reasons, the appellant relied on several statements made during the course of that exchange, being:


(i) his Honour's confirmation that he had made a finding that the appellant proceeded with full knowledge of the consequences of her conduct (ts 152);

(ii) his Honour's statement that 'recklessness can occur when a person knows what the consequences are' (ts 152);

(iii) his Honour's statement that 'she knew the children would suffer harm if they didn't go to school. She deliberately didn't send them to school. These are facts. I can't ignore those facts. As a result, she's admitted to be and I find that she was reckless' (ts 154).

141 It cannot be ignored that his Honour also used language consistent with recklessness in his sentencing remarks. For example, his Honour referred to the appellant's 'highly reckless neglect' (ts 149). At another point, his Honour described the case as being one 'of gross criminal indifference with very great harm' (ts 151). I have already referred to the portion of his Honour's sentencing remarks where he described the offences as involving 'chronic recklessness' (ts 147). When the matter was raised with his Honour, he affirmed that he had found that the appellant had acted recklessly.

142 I have carefully considered the whole of what his Honour said. I am acutely aware that the broad context was that he was sentencing the appellant for offences alleging recklessness. Nevertheless, and with great respect to his Honour, I have reached the conclusion that he fell into error.

143 As PES makes clear, s 101(1) of the Act concerns an offender's conduct and the offender's state of mind as to the consequences of that conduct to a child in his or her care or control. If an offender has actual awareness that his or her conduct may result in harm to a child, that is knowledge. As to the consequences, it is plain that his Honour regarded the appellant as knowing that her conduct may result in harm to the children. This is borne out by his use of such expressions as, '[the appellant] went her own way, knowing of the certainty of harm to her children' (ts 145) and, '[the offences] … were deliberately and secretively carried out with full knowledge of the consequences' (ts 149).

144 The dialogue after the sentences were pronounced, in my opinion, confirms rather than denies that his Honour regarded the appellant as knowing that her conduct may result in harm to the children. His Honour confirmed the finding that the appellant proceeded with full knowledge of the consequences. The statement 'recklessness can occur when a person knows what the consequences are' is contrary to what this court said in PES. The finding that the appellant knew that the children would suffer harm is self-evidently a finding of knowledge.

145 Further, and in any event, for his Honour to have sentenced the appellant on the basis of knowledge, in the circumstances of this case, was a breach of procedural fairness. The appellant pleaded guilty to an offence involving the element of recklessness. Her counsel emphasised, in the course of his plea in mitigation, that she denied engaging in conduct knowing that it may result in her children suffering harm. The respondent never joined issue with the appellant on this point. Indeed, it was the prosecution who raised with his Honour whether his Honour made a finding of knowledge. In the course of the parties' oral submissions, his Honour did not indicate that he was considering making a finding of knowledge and thus the appellant was denied the opportunity to make submissions on the point. By the time the matter was raised, it was too late.

146 The question which remains is whether his Honour's error was material. The maximum penalty for an offence under s 101(1) is 10 years' imprisonment, whether constituted by s 101(1)(a) or (b) of the Act. While the consequences of the conduct must take primacy, the culpability of the offender cannot be ignored. I see nothing in this court's decision in TIK to be contrary to this proposition.

147 It is clear from his Honour's sentencing remarks that he regarded the appellant's conduct as having a high degree of culpability because it was committed with full knowledge and was, as he put it, 'contumelious' behaviour. It is patent that his Honour's assessment of the appellant's culpability was affected by the errors that were made. In my opinion, the errors were material.

148 For these reasons, ground 1 has been made out. Material error has been established and this court's discretion to re-sentence the appellant has been enlivened.

Grounds 3 and 4 - Manifest excess and totality

149 In case I am wrong as to the outcome of ground 1, I will deal briefly with grounds 3 and 4. I will do so on the basis that the appellant knew that her conduct may cause harm to her children, as found by his Honour.

150 The appellant's primary submission with respect to ground 3 is that his Honour erred as to the type of sentence he imposed. The appellant submits that she should have been sentenced to a sentence other than immediate imprisonment, having regard to the seriousness of her offending, her pleas of guilty and her favourable personal circumstances.

151 This submission has no reasonable prospect of success. The maximum penalty for an offence contrary to s 101(1) of the Act is 10 years' imprisonment.

152 Based on his Honour's assessment of the appellant's culpability and the effect of the offending upon the children, it cannot be doubted that these were serious offences of their kind. Although there was no need for personal deterrence, general deterrence was a matter of importance. His Honour identified a number of mitigating factors, the most important of which was her pleas of guilty. Despite the mitigating factors, the offences were simply too serious to be dealt with other than by way of an immediate term of imprisonment.

153 I now turn to ground 4. As pleaded, it is an allegation of implied error. In effect, it is alleged that the total effective sentence of 5 years' imprisonment breached the first limb of the totality principle which requires that the total effective sentence must bear a proper relationship to the overall criminality involved in all offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Roffey v The State of Western Australia [2007] WASCA 246 [24].

154 The appellant's written submissions do not reflect the ground. The written submissions allege two express errors. First, that his Honour erred in principle by punishing the appellant twice for the commission of elements that were common to the offences. Second, that his Honour erred in law by failing to sentence the appellant in accordance with s 11(1) of the Sentencing Act which reads:

11. Person not to be sentenced twice on same evidence

(1) If the evidence necessary to establish the commission by a person of an offence under the law of this State is also the evidence necessary to establish the commission by that person of another such offence, the person may be charged and convicted of each offence but is not to be sentenced for more than one of the offences.

155 I will deal first with the argument concerning s 11(1) of the Sentencing Act.

156 The evidence with respect to each count on the indictment against the appellant, while arising from the same course of conduct, was not the same. This is apparent from the fact that the appellant's conduct resulted in harm to three different victims. Section 11(1) of the Sentencing Act has no application on the facts of this case. I now turn to the allegation of double punishment.

157 The orthodox approach to sentencing an offender for more than one offence requires the sentencer to fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence as well as questions of totality: Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 [45] (McHugh, Hayne & Callinan JJ). Further, to the extent to which offences committed by an offender contain common elements, it is wrong to punish that offender twice for the commission of the elements that are common: Pearce [40].

158 The principles enunciated in Pearce are of general application: see, for example, Eves v The State of Western Australia [2008] WASCA 7. Most cases in which the common element principle arises concern multiple offences arising out of a single act or omission. That, of course, is not the case here. In the present case, the offences were constituted by a number of acts and omissions. This is not to say that the common element principle cannot apply to an offence under s 101(1) of the Act. The common element principle would apply where the prosecution relies on the same conduct to establish offences against more than one victim. Where there is an overlap in the conduct, a sentencer must be careful to ensure that there is no double punishment.

159 In the present case, it is clear that his Honour was aware that the offences arose from the one course of criminal conduct and that totality was an important consideration. Although his Honour did not expressly refer to the common element principle, I infer that he took it into account having regard to the substantial adjustment he made to the sentences he imposed on counts 1 and 2.

160 In my opinion, the appellant has failed to establish that his Honour made either of the express errors alleged in the written submissions in support of ground 4.

161 Finally, I will deal with the allegation actually contained in ground 4, that the total effective sentence of 5 years' imprisonment infringed the first limb of the totality principle. The crucial question here is whether, having regard to all of the circumstances of the case, the total effective sentence reflected the total criminality of what the appellant did. Assuming, as I do for the purposes of this ground, that the appellant engaged in conduct knowing that it would result, and indeed did result, in her children suffering harm, I am unable to say, despite the mitigating factors identified by his Honour, that the total effective sentence infringed the first limb of the totality principle.

162 On the facts found by his Honour, grounds 3 and 4 have not been made out. I would not give leave to appeal on ground 3.

Resentencing

163 Although the appellant is to be resentenced on the basis of recklessness, nevertheless her conduct involved substantial criminal culpability.

164 Each offence occurred over a substantial period of time. Each child suffered harm physically and socially. The twins have been deprived of much of their early education and are achieving well below the level expected for their chronological age. The evidence does not allow me to draw the conclusion that the twins' psychological problems were caused by the appellant.

165 I have taken into account the mitigating factors identified by his Honour in his sentencing remarks, particularly the pleas of guilty, GR's role in the offending and the appellant's psychological deficits. I would attribute rather more weight to the last two factors than his Honour. It is clear on the evidence that GR exerted considerable control over the family, and that P's behaviour is likely to be attributable to GR. It is also clear that the appellant's psychological deficits made her vulnerable to being led by GR.

166 There is, as yet, no range of sentences customarily imposed for offences contrary to s 101(1) of the Act. The only relevant case is TIK. That case is quite different. It involved much more serious neglect by the offenders which, had it continued, may have resulted in the death of the victim.

167 Although personal deterrence is not an issue in this case, general deterrence is a matter of importance in order to protect children from harm.

168 With respect to the pleas of guilty, they were not entered at the first reasonable opportunity, but have considerable utilitarian value and obviated any need for the children, particularly the twins, to testify. Pursuant to s 9AA of the Sentencing Act, I would reduce the head sentence on each count by 15%. I would resentence the appellant as follows:

• Count 1 - 1 year 6 months' imprisonment.

• Count 2 - 1 year 6 months' imprisonment.

• Count 3 - 9 months' imprisonment.

169 In my opinion, in order to reflect the fact that there are multiple victims and that the offending occurred over a lengthy period of time, particularly with respect to the twins, some accumulation of the sentences is required. I would order that the sentences on counts 1 and 2 be served cumulatively. Having regard to totality, I would order that the sentence on count 3 be served concurrently with the sentence on count 2. I have had regard, with respect to the imposition of the sentences, to the need to ensure that the appellant does not suffer double punishment.

170 I have considered whether suspended imprisonment should now be imposed upon the appellant. In doing so, I have reassessed all of the relevant sentencing factors. Even though the appellant acted recklessly, her conduct occurred over a lengthy period of time. She was offered help by the DCP, but unjustifiably refused it. The harm to the children is considerable. Notwithstanding the mitigating factors and having regard to the need for general deterrence, it would be inappropriate to suspend the terms of imprisonment I would impose.

Orders

171 I would make the following orders:

1. Leave to appeal on grounds 2 and 3 is refused.

2. The appeal is allowed.

3. The sentences imposed by McCann DCJ are set aside.

4. The appellant is resentenced as follows:


(a) count 1 - 1 year 6 months' imprisonment

(b) count 2 - 1 year 6 months' imprisonment

(c) count 3 - 9 months' imprisonment


5. The sentences on counts 1 and 2 are to be served cumulatively and the sentence on count 3 is to be served concurrently.

6. The appellant will be eligible for parole.

7. The sentences are to be taken to have taken effect on 5 February 2013.

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