The State of Western Australia v O'Kane - [2011] WASCA 24

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: THE STATE OF WESTERN AUSTRALIA -v- O'KANE [2011] WASCA 24

CORAM: PULLIN JA
NEWNES JA
MAZZA J

HEARD: 5 OCTOBER 2010

DELIVERED : 4 FEBRUARY 2011

FILE NO/S: CACR 24 of 2010

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
JOHN PATRICK O'KANE
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :SIMMONDS J
File No  :INS 152 of 2009

Catchwords:

Criminal law - Sentencing - State appeal against sentence - Offender convicted of murder of 4monthold son - Murder was culmination of period of physical abuse of infant - No mental condition which causally related to the offence - Previous offence of causing grievous bodily harm to another infant son - Relevance of previous offending - Minimum term of 18 years - Whether manifestly inadequate - Whether sentencing judge required to identify aggravating factors taken into account - Whether special hardship offender will suffer in prison is relevant factor in sentencing - Need for evidence of special hardship

Legislation:

Criminal Law Amendment (Homicide) Act 2008 (WA)
Sentencing Act 1995 (WA)

Result:

Appeal allowed
Respondent re-sentenced to minimum term of 23 years

Category: B

Representation:

Counsel:

Appellant: Ms L Petrusa
Respondent: Ms K J Farley

Solicitors:

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

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

Atherden v The State of Western Australia [2010] WASCA 33
Austic v The State of Western Australia [2010] WASCA 110
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Fullgrabe v The State of Western Australia [2006] WASCA 138
Houghton v The State of Western Australia [2006] WASCA 143
Kowaleff v The State of Western Australia [2010] WASCA 183
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Moody v French [2008] WASCA 67; (2008) 36 WAR 393
Pedersen v The State of Western Australia [2010] WASCA 175
Power v The Queen [1974] HCA 26; (1974) 131 CLR 623
R v Liddy (No 2) [2002] SASC 306; (2002) 84 SASR 231
Stasinowsky v The State of Western Australia [2009] WASCA 20
The State of Western Australia v Richards [2008] WASCA 134
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465

JUDGMENT OF THE COURT: This is an appeal by the State against the sentence imposed on the respondent for the murder of his 4‑month‑old son, Zach. The respondent pleaded guilty and was sentenced to life imprisonment with a minimum period of 18 years before he was eligible for parole. The State appeals against the minimum term.

Background

The respondent had formed a relationship with Zach's mother, Sylvia Shilling, about two years prior to Zach's birth. In the course of that relationship, Ms Shilling had conceived another child with the respondent, but the child had died in the womb. Zach was conceived not long after the stillbirth. Approximately two months before Zach was born the respondent moved in with Ms Shilling and two of her children (a boy aged 18 years and a girl aged 16 years at the time of sentencing) from a prior relationship.
Zach was born on 9 September 2008 by caesarean section. Subsequently Ms Shilling experienced complications following an infection arising from the caesarean section and was re‑admitted to hospital. The respondent began caring for Zach at that point. He continued to manage Zach's care after Ms Shilling returned home from hospital in order, he said, to isolate Zach from the risk of infection.
At about the time the respondent undertook Zach's care, the respondent lost his job as a truck driver. He also had substantial debts. The respondent's case was that he was under significant stress at that time.
About two months before Zach's death the respondent began to physically abuse him. The respondent told a psychologist who interviewed him after his arrest that the abuse began by 'flicking' his son, and escalated to punching Zach 'in the head', slapping him, and pressing his fist into Zach's stomach [Evans report page 3]. The respondent described choking Zach and said on at least one occasion Zach 'passed out' [Jordan report page 5]. The respondent admitted that he had deliberately kept Zach away from Ms Shilling in order to conceal his injuries. The respondent did not seek medical attention for Zach at any stage.
The respondent said that on the day before Zach's death he had bent Zach's head back and forth and heard a 'crack'. The respondent said that after that assault Zach began having seizures which started approximately 12 hours before his death. He reported seeing Zach twitching in the early morning of 5 January 2009 and then witnessed Zach pass away. The respondent said that after Zach died he placed his body, certain baby supplies and a car seat in the boot of his car and drove to the respondent's mother's house in Langford.
The appellant's case in relation to the occasion of Zach's death was a little different. On the appellant's case, on 4 January 2009, the day prior to Zach's death, the respondent transferred Zach's car seat from Ms Shilling's car to his own because he intended to take Zach to see the respondent's mother. On 5 January, Ms Shilling left the house early. The respondent telephoned her later that morning to say that he was taking Zach to visit his mother. The appellant's case was that at some point during the journey from the respondent's residence in Hillman to the respondent's mother's house, the respondent inflicted a fatal blow to Zach's skull.
What is not in issue is that either before or during the journey to his mother's house, the respondent put Zach's body into the boot of his car. On the evening of 5 January, he telephoned Ms Shilling and told her all was well with Zach. The respondent stayed at his mother's house for two days with Zach's body in the boot of the car. On 8 January 2009, Ms Shilling learned from the respondent's mother that she had seen the respondent but not Zach. Ms Shilling became concerned and alerted police.
On 9 January 2009, the respondent was apprehended by police near Pinjarra. He later participated in a video record of interview in which he admitted killing Zach. The next day he took police to the site where, on 7 January 2009, he had buried Zach's body.
The post‑mortem reports concluded that Zach died as a result of the combined effects of recent traumatic brain injury and hypoxic ischaemic encephalopathy. The primary judge found that that was caused by blunt force applied to the top of Zach's head. The primary judge did not, as between the two versions before him, make a finding as to the precise circumstances of Zach's death but noted that the effect of the respondent's plea of guilty and his other admissions was that he admitted causing Zach's death. His Honour considered that in the circumstances the differences in the versions of events did not have a significant bearing on sentencing.
The details of the physical abuse of Zach revealed by the respondent are consistent with the post‑mortem reports and a report prepared by Professor Winterton, a medical director of the Child Protection Unit at Princess Margaret Hospital. The post‑mortem reports concluded that there were recent injuries to Zach's skull and bleeding around the brain. They also recorded fractures to the first to ninth ribs on the right side and sixth to ninth ribs on the left side, and evidence of a past injury to the fifth thoracic vertebra. Professor Winterton concluded that those injuries showed signs of healing consistent with the injuries having occurred at least 10 to 14 days prior to death.
Professor Winterton's report further revealed bilateral fractures to the tibias of both lower limbs from a traction torsion type injury. The time of those injuries could not be determined with any certainty. Professor Winterton reported that the injuries to Zach's legs were of the kind normally seen when children are 'extremely roughly handled'. There were also fractures in Zach's right arm, to the lower right radius and ulna, which Professor Winterton said could have occurred at the time of, or shortly before, Zach's death. He said the fatal blow to Zach's skull could have been caused by a 'severe blow'. He concluded 'this child has been sadly subjected to multiple episodes of inflicted injury during the short span of his life' [WAB 151].
The respondent was charged with murder and, on 31 August 2009, a trial date was fixed. At a status conference on 5 November 2009 the respondent pleaded guilty to the charge. He was sentenced by the sentencing judge on 5 February 2010 to life imprisonment with a minimum period of 18 years before becoming eligible for parole.

Sentencing remarks

The sentencing judge set out the material facts relating to the offending. His Honour said he accepted that the respondent did not intend to kill Zach and that there was no premeditation to the physical abuse. He said it was clear that there was no question of sexual abuse of Zach.
His Honour noted that the respondent had pleaded guilty, although not at the first opportunity but following an initial plea of not guilty and after a trial date had been set. He concluded that the sentence should be reduced for the plea of guilty, although not to the extent that it would have been had the plea been made earlier. The sentencing judge also referred to what he described as the evident great remorse in the video record of interview, the respondent's offer to plead guilty to manslaughter and the assistance he provided to police in locating Zach's body.
The sentencing judge then turned to factors personal to the respondent. His Honour observed that the respondent, who was 40 years of age at the time of the offence, had had a severely troubled childhood, including the breakdown of the relationship between his biological parents and a very difficult relationship with both his biological father and stepfather. The respondent had encountered severe bullying at school and had suffered sexual abuse as a child by two different perpetrators. The respondent had left school at about the age of 17 and had held various unskilled jobs. His Honour noted that in his teens the respondent had begun the use of a number of illicit drugs but by the time of his relationship with Ms Shilling his use was limited to cannabis.
His Honour noted that the respondent had a relationship in his late teens from which he had a son, but the relationship had subsequently broken down. Later, in New South Wales, the respondent had had a relationship from which he had a daughter who had died at the age of 3 months of a rare genetic disease. Shortly afterwards the respondent had a son from that relationship. During the fifth and sixth months of that son's life the respondent had physically abused him. The respondent was subsequently convicted in the District Court of New South Wales of seven counts of grievous bodily harm and sentenced to 4 years' imprisonment. On a Crown appeal, that term was increased to 6 years with a minimum term of 2 years.
The sentencing judge observed that that offending had strong parallels with this offending. In both cases, it involved serious abuse of an infant son in the respondent's care following the recent loss of another baby. In both cases the respondent was aware of what he was doing, could not understand it, concealed it, and did not seek help for it. His Honour found that the earlier offending had showed the respondent that he had a dangerous propensity and how it could progress. His Honour said that account had to be taken of that offending as relevant to the need for personal deterrence and the protection of the community.
His Honour noted that the two psychological and two psychiatric reports before him revealed no clinical levels of psychopathy and no psychotic illness. One report mentioned evidence of long‑term depression although other reports indicated there was no clear depressive episodes associated with the offence. The sentencing judge observed that one of the psychological reports assessed a 'moderate' risk of violent reoffending and one of the psychiatric reports said there was a 'considerable risk' of violence if the respondent found himself in a similar situation in the future.
In determining the minimum term, his Honour said he took into account the circumstances of the offence including the respondent's awareness of the wrongfulness and danger of his conduct and also the behaviour towards Zach over the period leading up to his death, including caring for him alternating with abuse of him. His Honour went on to say that he also had to consider what he accepted would be the special burden for the respondent in prison, involving the difficulties of including him in certain violence programs and dangers to him.
On the basis of the matters to which he had referred, and allowing for the plea of guilty, his Honour set a minimum term of 18 years before the respondent would be eligible for parole.

Grounds of appeal

There are five grounds of appeal:
1.The learned sentencing judge erred in law in imposing a minimum non‑parole period of 18 years which resulted in a sentence that was so inadequate as to manifest error. The 18 year period:
a.failed to adequately reflect the serious nature of the offence and the circumstances in which it was committed;
b.failed to adequately reflect the need for general deterrence;
c.failed to adequately reflect the need for personal deterrence;
d.failed to adequately reflect the need for punishment for offending of this nature; and
e.demonstrated an undue regard for the personal circumstances of the respondent.
2.The learned sentencing judge erred in law by failing to specify the aggravating factors, particularly the age of the victim, the respondent's relationship with the victim, the prior physical abuse of the victim, the nature of the fatal blow, the concealment of the offending, the failure to seek medical or any help for the victim, the maltreatment of the victim's body following death and the respondent's known propensity to inflict serious harm on infant male children; and by failing to explain the impact of such aggravating factors in the sentencing process.
3.The learned sentencing judge erred in law by giving undue weight to the respondent's psychological difficulties, absent any diagnosed psychiatric illness.
4.The learned sentencing judge erred in law by treating as mitigatory, when such matters had little or no relevance, the following: - the respondent's initial care for the victim, the absence of planning and premeditation in relation to the physical abuse of the victim, the absence of sexual abuse of the victim and the fact that the respondent had offered to plead guilty to manslaughter.
5.The learned sentencing judge erred in law by taking into account anticipated hardship the respondent might suffer in prison without inviting submissions or hearing evidence on that issue.
On 5 May 2010, McLure P granted the appellant leave to appeal on grounds 1 and 4. The application for leave to appeal on grounds 2, 3 and 5 was referred to the hearing of the appeal.

The disposition of the appeal

Ground 1

Under s 90(1) of the Sentencing Act 1995 (WA), a court sentencing an offender to life imprisonment for murder must either set a minimum period of at least 10 years to be served before the offender is eligible for release on parole or order that the offender must never be released. The sentencing judge found that this was not a case where the appropriate order was that the offender must never be released [47]. That finding is not challenged. The appellant contends, however, that the non‑parole period of 18 years is manifestly inadequate.
The non‑parole period is the minimum time that a judge determines justice requires that the offender must serve having regard to the circumstances of the case: Power v The Queen [1974] HCA 26; (1974) 131 CLR 623, 629. The circumstances of the case is a reference to all relevant sentencing factors including the circumstances of the offence, all aggravating and mitigating factors, and the offender's antecedents. The minimum time will be determined by reference to achieving the recognised sentencing objectives including punishment, retribution and deterrence (both personal and general): Stasinowsky v The State of Western Australia [2009] WASCA 20 [72] ‑ [73].
It was submitted by the appellant that the murder of an infant by his or her natural father would ordinarily place the offence at the upper end of the scale by reason of the vulnerability of the victim. In this case the offending was even more serious because the respondent was aware that he had a propensity intentionally to inflict grievous bodily harm on his infant male children. He did not have any identified mental illness yet, knowing of the risk, he did nothing to prevent his maltreatment of Zach.
It was submitted that the fact the respondent did not intend to kill Zach, as opposed to an intention to inflict a life threatening injury, has little or no effect in reducing the respondent's culpability. There had been repeated instances of serious physical abuse and, given Zach's age, there was obviously a very thin line between such serious abuse and a life threatening injury.
It has often been pointed out that there is no single correct sentence. Sentencing involves the exercise of a discretion and judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357, 371.
It is also clear that an appellate court may not intervene simply because it would have exercised the sentencing discretion differently from the sentencing judge: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]. It may intervene if there is a material error of fact or law. Error may be inferred if the result is unreasonable or unjust: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 324 ‑ 325.
On this ground of appeal, the appellant submits that error is to be inferred because the sentence is unreasonable or unjust. We accept that submission.
The circumstances of this offence were very serious. Whichever view is taken of the way in which the fatal injury occurred, it involved the deliberate infliction of serious bodily harm on a 4‑month‑old infant who was entirely at the mercy of the respondent. It was the culmination of a sustained period of serious physical abuse of Zach.
In light of the circumstances of the offence, the respondent's previous offending in New South Wales is a relevant consideration. It is necessary to describe that offending in more detail.
In 1994, the respondent was charged, and pleaded guilty in the District Court of New South Wales, to seven counts of causing grievous bodily harm to his then infant son, Thomas O'Kane. The circumstances of that offending, as described in the sentencing remarks in the District Court, were markedly similar to the present case. The respondent and his de facto wife had previously had a daughter who died several months after her birth from a birth defect. The respondent's relationship and his life were said to deteriorate after his daughter's death. In the fifth and six months of Thomas's life the respondent mainly attended to him. During that period he resisted the suggestions of his de facto wife that Thomas be taken to the doctor. On 2 August 1994, the respondent left the caravan they were living in and did not return. Later that day his de facto wife took Thomas to hospital where he was found to have fractures in his upper right arm, lower right arm, lower left arm, ribs, left leg and right leg, and scratches to his left eye causing blindness and injuries to his right eye caused by a 'direct blow'. The medical evidence was that the fractures were caused by direct blows, shaking and twisting, and compression to the chest. The injuries were inflicted on several different occasions. After his arrest, the respondent told a psychiatrist that he could not work out why he had done it and that he did not mean to do it. The sentencing judge found that the respondent was deeply remorseful and ashamed of his conduct.

The respondent was sentenced in the District Court to 4 years' imprisonment. That was increased on appeal to 6 years' imprisonment, with a minimum term of 2 years. The Court of Criminal Appeal of New South Wales said that the main reason that sentence was 'so low' was because the respondent would have to serve his sentence under strict protection.
The respondent is not to be punished again in the present case for that past criminal conduct. Nor is the prior offending an aggravating factor in the current offence: s 7(2) Sentencing Act. But it is relevant for the reasons explained by the High Court in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465, as follows:
[T]he antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell (1970) AC 642, at p 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind (477).
In this case, the prior offending demonstrates that this offence was not an uncharacteristic aberration and that the respondent has a dangerous propensity to mistreat young infants in his care. It also illuminates the respondent's moral culpability.
The respondent was aware from his previous offending of his potential weaknesses and inability to cope in circumstances such as those in which he found himself following Zach's birth. Despite that, the respondent did nothing to avoid a situation arising where he might inflict serious physical harm on Zach as he had inflicted on his son, Thomas, in the past. On the contrary, he again assumed the care of the infant and not only did he fail to disclose his previous abuse of Thomas to Ms Shilling, but he deliberately deceived her by telling her that his imprisonment in New South Wales had been for armed robbery. He thus deprived her of the opportunity to take precautions to avoid a recurrence of similar conduct in respect of Zach. Moreover, when the abuse started to occur with Zach - abuse which the respondent later described as being the same as with Thomas - not only did the respondent do nothing to put Zach out of harm's way but he deliberately kept Zach away from Ms Shilling so that she would not see the harm he was inflicting. And at no stage of the abuse in the two months leading up to the murder did the respondent seek any medical help for Zach. Tragically, the abuse that culminated in Zach's murder was thus able to continue unchecked.
It is apparent that the respondent had a very difficult childhood but there is nothing in his past or in his mental state that might account for offending of this nature. The psychological and psychiatric reports indicate that the abuse was precipitated by feelings of anger towards Zach which did not have an obvious cause. From those reports it appears that although the respondent has antisocial personality traits, with a lack of capacity for guilt and remorse and emotional limitations, he does not have any psychotic illness or an affective illness, such as major depression. In her report, Ms Martin, a forensic psychologist, explained (as did the other reports) the many stressors present in the respondent's life at the time of the offending, but concluded 'however it does not explain his apparent cruel and sadistic treatment of both of his sons'.
In short, the psychiatric and psychological reports do not indicate any mental illness or psychological difficulties which relevantly impaired the respondent's mental functioning so as to reduce the blameworthiness or culpability of his conduct. There is no evidence of any relevant mental condition which was causally related to the offence.
A psychiatrist, Dr Febbo, considered there was a 'serious risk' of violence towards young children if the respondent found himself in a similar situation in the future. Ms Martin considered there was a 'moderate risk' of violent reoffending generally.
In determining whether a minimum term is inadequate, it is of some assistance to consider the minimum term imposed in other cases. For that purpose we have had regard to a number of cases decided under the previous legislative regime and also the cases decided in respect of the new offence of murder (with which the respondent was charged) introduced by the Criminal Law Amendment (Homicide) Act 2008 (WA). But there are obvious limitations involved in such comparisons. The offence of murder is committed in a wide variety of circumstances and the sentencing considerations can vary markedly. Ultimately, each case must depend upon its own facts.
In addition, in view of the legislative changes made by the Criminal Law Amendment (Homicide) Act, the assistance to be derived from considering the minimum term imposed in cases of homicide prior to that Act is more limited still. The number of cases decided on appeal in relation to the new offence of murder is limited. This court has had occasion to consider the adequacy of the minimum term imposed in four cases. They are Atherden v The State of Western Australia [2010] WASCA 33, Pedersen v The State of Western Australia [2010] WASCA 175, Austic v The State of Western Australia [2010] WASCA 110 and Kowaleff v The State of Western Australia [2010] WASCA 183. They reveal a range of minimum terms from 14 to 26 years but none of those cases is comparable to the present case. Indeed, counsel was unable to refer to any case which is comparable to this case and our own research has not revealed any.
As we have said, this is a very serious case in light of the utter helplessness of the victim and the respondent's previous physical abuse of his other son, Thomas. Apart from a somewhat belated plea of guilty, there is little by way of mitigation. The respondent has demonstrated a propensity to physically abuse his infant male children in a callous, cruel and life‑threatening manner. While the respondent showed remorse for this offence in his record of interview (a DVD which, as requested by the appellant's counsel, we have viewed), he failed to show any inclination to take any steps to prevent it occurring and actively concealed his abuse of Zach until after its tragic outcome.
We consider, with respect, that the minimum term of 18 years set by the sentencing judge was manifestly inadequate. We would allow this ground of appeal.

Ground 2

This ground of appeal appears to attack the form of the sentencing judge's reasons rather than the result. The appellant notes that the sentencing judge specifically referred at [21] to the obligation to take aggravating factors into account and the appellant does not point to any aggravating factor which ought to have been, but was not, considered. Rather, as we understand the appellant's complaint, it appears to be contended that the aggravating factors should have been specifically identified as such.
In our view, there is no merit in this ground. It is the case that where a court reduces the sentence it would otherwise have imposed because of a mitigating factor it must state that fact in open court: s 8(4) Sentencing Act. However, where the court takes into account aggravating factors in determining the appropriate sentence there is no such requirement or any requirement specifically to identify the aggravating factors. As the appellant does not contend that the sentencing judge overlooked any relevant aggravating factors, this ground of appeal must fail.
Having said that, in our view it is desirable when sentencing an offender that the sentencing judge does specifically identify, as such, the aggravating factors (if any) which he or she is taking into account so that there can be no doubt as to what has been considered and they can be readily identified.
We would refuse leave to appeal on ground 2.

Ground 3

The sentencing judge said at [41] of his reasons:
On balance, I consider that the professional material tends to confirm the need for the protection of the public while highlighting the role and need for rehabilitation if seriously undertaken. The material also qualifies to an extent but certainly not entirely what might otherwise be drawn from the episodes leading up to this offending that I have described.
In its written submissions, the appellant submitted:
The propensity to offend in this way has been clearly established by the criminal history (reasons at [35]). There was no evidence that the respondent was suffering from a psychiatric illness, an aspect conceded by his counsel (T 45.3). Stress appeared to trigger his violence towards the victim. However, the whole population suffers from stress from time to time. While the learned sentencing judge appears to have accepted the need for the protection of the public which necessarily arises (reasons at [41]), there was no basis to then qualify that finding later in the reasons at [41].
At the hearing of the appeal, counsel for the appellant (who was not the author of the written submissions) submitted that the sentencing judge had erred in giving weight to psychological difficulties of the respondent referred to in the psychological reports, in circumstances where the authors of those reports had concluded that the respondent was not suffering from any psychiatric illness which contributed to the offence (ts 19). Counsel said that the appellant's complaint was directed to the first sentence in [41] (ts 24).
We must say, with respect, that we are uncertain what the appellant intends by this ground of appeal. The sentencing judge noted at [37] that the psychiatric and psychological reports showed no diagnosis of clinical levels of psychopathy and showed no psychotic illness having been diagnosed. His Honour observed that in one report there was evidence consistent with long‑term depression and with post‑natal depression, which was not normally associated with males but on which there was some literature. He went on, however, to say that there were other reports indicating there were no major depressive episodes associated with the offence. We are unable to find in his Honour's sentencing remarks any indication that he took into account psychological difficulties of the respondent, as contended by the appellant.
We do not consider there is any substance in this ground and we would refuse leave to appeal.

Ground 4

The appellant submits that the trial judge erred in treating the following factors as mitigatory:
a.the respondent's initial care for the victim;
b.the absence of planning and premeditation in relation to the physical abuse of the victim;
c.the absence of sexual abuse of the victim; and
d.the respondent's offer to plead guilty to manslaughter.
We do not, however, understand the sentencing judge to have treated those matters in that way. We understand the references in his Honour's sentencing remarks to the respondent's initial care for Zach, and the absence of any planning and premeditation in relation to the physical abuse, to be part of his Honour's description of the circumstances of the offence and as excluding the existence of planning and premeditation as an aggravating factor. We do not understand them to have been treated by his Honour as factors to be taken into account by way of mitigation.
The fact that there was no sexual abuse involved was expressly mentioned by counsel for the respondent in his submissions to the sentencing judge (ts 46) and his Honour reiterated that fact not, as we read his reasons, as a matter going to mitigation, but rather as a matter that did not fall for consideration. We also do not understand his Honour's reference to the respondent's offer to plead guilty to manslaughter as being itself a factor which his Honour regarded as mitigatory, but rather it was mentioned as part of the background to the guilty plea.
We would dismiss ground 4.

Ground 5

In the concluding part of his sentencing remarks the sentencing judge said:
I consider that for [the] purpose [of setting the minimum term] I must again reflect on all the circumstances of the offending in this case and the circumstances personal to you, including your plea of guilty. I consider that I must also consider a further matter. It is what, I accept, will be the special burden for you in prison of the kind referred to in the psychological report of January 2010 where it discusses the difficulties of including you in certain violence programs in the prison. I note for this purpose what seemed to be related concerns of the Court of Criminal Appeal in setting the sentence it did in 1994 concerning certain dangers to you [49].
As we understand his Honour's comments, the 'special burden' on the respondent is the extent of the restrictions to which the respondent will be subject in prison because of the harsh treatment he might otherwise receive from others in the prison population in light of the nature of his offence.
The source of his Honour's comment appears to be a statement made in Ms Martin's report of January 2010, in which, under the heading 'Rehabilitation Issues', Ms Martin notes that the respondent 'is unlikely to benefit from the mainstream violence programs provided by the Department of Corrective Services, and in fact it may be dangerous for him to be included in these programs for safety reasons because of his offence'. Ms Martin goes on to say that the respondent is more likely to benefit from an individualised program tailored to his individual needs. She notes that the capacity of the Department to provide for his needs may be limited by the availability of suitable resources and staff. We should mention that in her report Ms Martin says that she had previously worked with the Department of Corrective Services for 10 years as a psychologist.
The sentencing judge also appears to have been influenced by the comment of the New South Wales Court of Criminal Appeal in 1995 that the sentence it imposed on the respondent was lower than it would otherwise have been because the respondent would have to serve his sentence under strict protection.
The appellant submits that in taking into account that imprisonment would impose a special burden on the respondent the sentencing judge erred in two respects; first, this was not a matter the parties addressed or on which submissions were invited and, secondly, there was no evidence that the respondent would encounter prison conditions that were more arduous than usual and therefore the deduction given on that account was entirely speculative.
The question of whether anticipated prison conditions are a relevant consideration for sentencing purposes was discussed by this court in Houghton v The State of Western Australia [2006] WASCA 143 and The State of Western Australia v Richards [2008] WASCA 134.
In Houghton, Steytler P (with whom Murray AJA agreed) observed that there appeared to be general acceptance of the principle that in cases where hardship and deprivation would be particularly aggravated by matters peculiar to the offender, that was a proper consideration to be taken into account by a sentencing judge. His Honour noted, however, that the application of that principle appeared to be variable [24]. He said:
Courts have sometimes been prepared to make allowance for the fact that an offender will be subjected to prison conditions that are more arduous than usual, for example, where the prisoner will be imprisoned in lockdown conditions (as to which see Director of Public Prosecutions v Faure (2005) 12 VR 115), solitary confinement or protective custody (as to which see Davies (1978) 68 Cr App Rep 319 and R v Boon, unreported; CCA SCt of NSW; 17 November 1983). Ordinarily, a factor of that kind has been more influential on the sentence imposed where the harsher prison conditions are not a consequence of the nature of the offence committed by the offender. So, for example, a prisoner who is in protective custody as a result of assisting police in relation to other offenders will ordinarily receive a more substantial discount, arising out of the fact that he or she is consequently required to serve a term of imprisonment in more arduous conditions (see, for example, R v Rostom [1996] 2 VR 97 and Davies, above), than will an offender who is in protective custody merely because of threats by persons connected with the victim of his or her offence (see R v Gooley (1996) 66 SASR 380 at 382 ‑ 383 per Doyle CJ) [26].
In that case, the court found that the effect that the offender's prospect of being deported would have on his likelihood of obtaining home leave and re‑entry release orders (assuming, without deciding, that if there was an adverse effect it was a relevant hardship) did not warrant any alteration in the sentence imposed on him.
In Houghton, Steytler P also referred to R v Liddy (No 2) [2002] SASC 306; (2002) 84 SASR 231, where the South Australian Court of Criminal Appeal was required to sentence afresh an offender who had been convicted of sexual offences against children. The offender had been a magistrate with a reputation for tough sentencing. For those reasons he was held in solitary confinement for his own protection. Somewhat different approaches were taken to this issue by the three members of the court. Mullighan J suggested that the reason the offender would encounter harsher than usual conditions in prison was relevant in deciding whether a reduction in sentence was warranted. In that case, his Honour considered that no reduction was appropriate because the offender was a member of the judiciary and that 'a sentence should not be reduced because the crime is so odious that life in prison must be in a protected environment'. His Honour observed that it was the responsibility of the prison authorities to provide appropriate care which must include a safe environment with some quality of life (261). Williams J considered that the offender was not entitled to any reduction in sentence by reason of the attitude of other prisoners to the nature of his offending, but that he was entitled to a reduction for the harsher conditions necessitated by the danger of inmates attempting to settle old scores unrelated to his crimes (269). Gray J accepted that a court may take into account that imprisonment would be more onerous for a particular offender than other prisoners, but considered that the mitigatory effect of the harsh conditions to which the offender would be subjected due to the nature of his offences and his former employment was much less than in cases such as police informers or offenders suffering from a disability (291).
In Richards, Steytler P (with whom Martin CJ, McLure JA, Buss JA and Miller JA agreed on this point) said that it was settled that in determining the duration of a custodial sentence the courts will take into account features of the offence or the offender which will result in imprisonment bearing down more severely upon the offender than upon the average prisoner [44]. His Honour pointed out, however, that it is also important to bear in mind the objective seriousness of the offence and the importance of ensuring that, after due allowance has been made for subjective factors, the punishment should fit the crime [47]. In that case, the court concluded that the special burden of imprisonment on the offender, an Aboriginal man from a remote community who was not literate in English, warranted a lesser term than would otherwise have been imposed for sexual penetration without consent but it did not justify the suspended term of imprisonment imposed by the sentencing judge. The offender was sentenced to 3 years' immediate imprisonment.

In our view, with respect, the sentencing judge erred in this case in taking into account what he described as the special burden of imprisonment on the respondent. There was no evidence as to the nature of the confinement in which the respondent would be held and no evidence that the respondent would be subject to prison conditions which were more arduous than those of the average prisoner. While Ms Martin observed that it 'may' be dangerous for the respondent to participate in mainstream violence programs in the prison because of the nature of his offence, she did not consider that those programs would be likely to benefit the respondent in any event but that he required an individualised program. Her comments did not, with respect, provide support for a finding that the conditions to which the respondent would be subject in prison would be more arduous than those of the average prisoner.
While there may be cases where it will be obvious that imprisonment would bear more severely upon the particular offender than upon the average prisoner, this, in our view, was not such a case. Offences against children, including relatively young children, which may attract the opprobrium of the general prison population, are regrettably not uncommon. The prison authorities are not unused to accommodating prisoners convicted of such offences and the court cannot, in the absence of evidence, assume that ordinarily the accommodation and treatment of such prisoners will involve hardship beyond that of the average prisoner.
As there was no evidence capable of establishing such hardship, it is unnecessary to consider whether, or to what extent, hardship is a relevant consideration where it is a result of the offences the offender has committed, rather than some factor distinct from the offending.
We would grant leave to appeal on ground 5 and allow the appeal on that ground also.

Re‑sentencing the respondent

As the appellant has made out grounds 1 and 5 of the grounds of appeal, we would allow the appeal and set aside the sentence imposed by the sentencing judge. It is necessary then to re‑sentence the respondent.
In Atherden v The State of Western Australia [30], Wheeler JA said that while killing with an intention to cause death will generally be more seriously regarded, it will not invariably be the case that killing with an intention to cause bodily injury of such a nature as to endanger life must be regarded, for sentencing purposes, as necessarily less serious than killing with an intention to cause death. In our opinion, although the respondent did not intend to kill his son, it is, nevertheless, an offence which justifies the imposition of a minimum term similar to that imposed in a case of deliberate killing. This is because:
1.The victim was only 4 months old.
2.The respondent was Zach's father, whose duty it was to protect and not abuse and injure his son.
3.Whatever the precise circumstances of Zach's death are, the violence perpetrated by the respondent was severe and not an isolated event. The violence was in fact a culmination of approximately two months of physical abuse of escalating seriousness.
4.The abuse occurred at a time when the respondent was responsible for Zach's care. Further, as the respondent had lied about his previous offending in New South Wales, Zach's mother had no idea of the risk posed to Zach by the respondent.
5.The respondent was aware that what he was doing was wrong and dangerous to Zach, but did not seek treatment for Zach's injuries, or seek help for himself to deal with the situation.
6.The respondent's previous offending in New South Wales increased the respondent's moral culpability for his offending against Zach, and shows a dangerous propensity to abuse very young children in his care.
7.The minimum term must reflect retribution, general and personal deterrence and the protection of society.
8.There are few mitigating factors in this case. The plea of guilty is the most important of these, although that was not entered until after the case had been set down for trial. The respondent has displayed some remorse, but that too has limited mitigating weight, having regard to his actions immediately after he killed Zach, by misleading Zach's mother and grandmother as to his whereabouts, and the way in which he disposed of Zach's body.
In Markarian v The Queen the High Court made it plain that generally speaking, a sentencing judge should take account of all relevant factors and arrive at a single result which takes due account of them all. This was qualified however, by an acknowledgement that there may be occasions when some indulgence in an arithmetical process may be preferred, particularly in simple cases where only a small number of matters need be considered (375). Where there is a plea of guilty there is often a public interest in stating the actual amount of the discount for an early plea of guilty: Fullgrabe v The State of Western Australia [2006] WASCA 138 [28] (Martin CJ, Wheeler & Roberts‑Smith JJA agreeing). As to the mitigating effect of a plea of guilty, the Court of Appeal in Moody v French [2008] WASCA 67; (2008) 36 WAR 393 set out a number of important principles relating to pleas of guilty. Some are that s 8(1) and (2) of the Sentencing Act do not have the effect that a plea of guilty must always translate into a reduced sentence. However, in all but the most exceptional cases, a plea of guilty will result in a reduced sentence. A plea of guilty is mitigatory because it evidences a willingness to facilitate the course of justice and not simply because the plea saves time and expense of those involved in the administration of criminal justice. Other mitigating features of a plea of guilty are that it usually indicates remorse and an acceptance of responsibility. Even in cases in which a plea of guilty is inevitable it will attract a discount. A fast‑track plea of guilty will usually attract the most substantial reduction, but even if the plea of guilty is not a fast‑track plea of guilty, some reduction should usually be made for a plea even if it is late and even if unaccompanied by any real remorse: Moody v French [38].
In this case, the plea of guilty does result in the minimum term being fixed at a level lower than would have been the case if the appellant had been convicted after trial but it is a case where it is not appropriate to specify the amount of the reduction because there are too many factors bearing on the fixing of an appropriate minimum term.
In our opinion, having regard to all of the circumstances of the case, an appropriate sentence is life imprisonment with a minimum period of 23 years before the respondent is eligible for parole. We agree that the sentence should be back‑dated to commence on 9 January 2009.

Conclusion

We would:
1.allow the appeal on ground 1 of the grounds of appeal;
2.refuse leave to appeal on grounds 2 and 3;
3.dismiss ground 4;
4.grant leave to appeal on ground 5 and allow that ground of appeal;
5.set aside the sentence imposed by the sentencing judge; and
6.re‑sentence the respondent to life imprisonment with a minimum term of 23 years before he is eligible for parole.