R v RMW

HOEBEN CJ at CL: This was a difficult case. For the reasons set out by Bellew J the offending was serious and a proper application of sentencing principles should have resulted in a fulltime custodial sentence. When considering whether to re-sentence, this Court has to look at the circumstances as they presently are. Accordingly with some reservations, I agree with Bellew J that the residual discretion should apply and the Crown appeal be dismissed.

DAVIES J: I agree with Bellew J.

BELLEW J: On 4 March 2015, following the entry of pleas of guilty in the Local Court, RMW (“the respondent”) was committed for sentence to the District Court in respect of the following offences:

The offending in count 1 was contrary to s. 39 of the Crimes Act 1900 (NSW) (“the Act”) and carried a maximum penalty of 10 years imprisonment. The offending in count 2 was contrary to s. 41 of the Act and carried a maximum penalty of 5 years imprisonment. The offending in each of counts 3 and 4 was contrary to s. 61 of the Act and carried a maximum penalty of 2 years imprisonment.

On 4 March 2016 the respondent was sentenced in the District Court as follows:

The Crown now appeals against the sentences imposed upon the respondent on the grounds more fully set out below.

A statement of facts was tendered before the sentencing judge and was in the following terms (noting that names have been anonymised so as not to identify the respondent’s child who was the victim of her offending):

It should also be noted that on the hearing of this appeal the Crown tendered an extract of the DVD footage taken on 5 July 2013. I have viewed that footage.

The respondent gave oral evidence on sentence. In the course of her evidence in chief (at T10 L41-44), when asked why she had administered Chloral Hydrate to KW contrary to the medical advice that she had been given, the respondent said:

Commencing at T20 L7 the respondent was again asked about her purpose in administering Choral Hydrate. She replied:

The effect of the Crown’s cross-examination of the respondent (commencing at T30 L43) was, at least in part, to challenge her assertion that she intended nothing more than to induce KW to sleep. In the course of that cross-examination, the sentencing judge intervened (at T32 L45):

Commencing at ROS 5, the sentencing judge said:

Further, at ROS 11, his Honour said:

The Crown submitted that it was apparent from his findings that the sentencing judge had equated a loss of consciousness with sleep. It was submitted that it was not reasonably open to the sentencing judge to reach such a conclusion.

Importantly, the Crown submitted that it was an element of the offending in each of counts 1 and 2 that the respondent intended to injure KW. It was submitted that an intention to induce sleep could not amount to an intention to injure and that accordingly, his Honour’s conclusions were at odds with the fundamental basis upon which the respondent’s pleas of guilty to the offending in counts 1 and 2 had been entered. The Crown pointed out that the word “injure” was not defined for the purposes of ss. 39 or 41 of the Act, and that its meaning had not been the subject of any judicial consideration. However, the Crown pointed to the dictionary definition of “injure” as including “physical damage to a person’s body”. Whilst the Crown accepted that an “injury” need not be permanent, it was submitted that it must be more than something that is merely transient. The Crown submitted that sleep does not physically damage a person’s body and could therefore not have constituted an “injury” for the purposes of the offending in either of counts 1 or 2.

In these circumstances, the Crown submitted that in sentencing the respondent on the basis that she only intended to induce KW to sleep, the sentencing judge had failed to sentence the respondent on the basis of the pleas that she had entered. It was submitted that this error affected the entirety of the sentencing process and lead to a situation where the sentencing judge had sentenced the respondent on an incorrect basis.

Counsel for the respondent submitted that the findings of the sentencing judge as previously set out were open, and were completely consistent with the finding which had been urged upon him by the Crown Prosecutor who appeared on the sentence proceedings. In these circumstances, it was submitted that the Crown’s submissions in this court represented a departure from the way in which the matter had been conducted at first instance.

As I have noted, the offending in count 1 was contrary to s. 39(1) of the Act which is in the following terms:

For the purposes of s. 39(1)(c), count 1 to which the respondent pleaded guilty alleged that she intended to injure KW. By her plea, the respondent admitted that this was her intention.

The offending in count 2 was contrary to s. 41 of the Act which is in the following terms:

For the purposes of s. 41(b), count 2 to which the respondent pleaded guilty alleged that she intended to injure KW. By her plea, the respondent admitted that this was her intention.

His Honour’s findings with respect to the respondent’s intention are not entirely clear. In the highlighted parts of the passages extracted from the sentencing remarks which appear in [12] above, his Honour variously referred to KW falling asleep, and the respondent acting as she did in order to induce KW to sleep, before making reference to the respondent deliberately inducing a loss of consciousness in KW.

Moreover, it is not entirely clear whether, in making the observations that he did in those passages as to the respondent’s intention, his Honour was referring to the offending in count 1, the offending in count 2, or both. Further confusion arises from the fact that although the respondent asserted that she intended to do no more than put KW to sleep, when asked by the sentencing judge himself why she acted as she did, the respondent said she was not sure, and wasn’t thinking straight. There was no reference to, much less any analysis of, these particular aspects of the respondent’s oral evidence by the sentencing judge.

Reading the sentencing remarks as a whole, I am left to conclude from the highlighted passages set out in [12] above that his Honour accepted the respondent’s evidence in chief, and found that in respect of the offending in each of counts 1 and 2, the respondent had acted as she did with the intention of putting KW to sleep. If that was his Honour’s finding, it was one which was completely at odds with the respondent’s admission, by her pleas of guilty, that she intended to injure KW. Whilst the term “injure” is not defined for the purposes of either ss. 39 or 41, as a matter of common sense sleep could not amount to an injury. The evidence which was elicited from the respondent that in administering the Choral Hydrate she intended nothing more than to put KW to sleep, should have been met with an objection by the Crown, and rejected. It was entirely inconsistent with the pleas of guilty which had been entered by the respondent.

I am also unable to accept the submission of counsel for the respondent before this court that his Honour’s finding was in accordance with that which was urged by the Crown on sentence, and that the position of the Crown before the court therefore represents a departure from its earlier position. A fair reading of the transcript of the Crown’s cross-examination of the respondent before the sentencing judge makes it clear that the Crown challenged the respondent’s evidence. Nothing said by the Crown in the course of submissions to the sentencing judge even remotely suggested that his Honour should make the finding that he appears to have made. On the contrary, in the course of final submissions the Crown (at T18 L20-21) specifically reminded the sentencing judge of the fact that the offences were committed with intent to injure KW.

Ground 1 is made out.

Commencing at ROS 3, the sentencing judge said the following:

The Crown acknowledged that a finding as to the objective seriousness of offending was essentially a matter for a sentencing judge, and was a matter in respect of which an appellate court would be reluctant to interfere. However, the Crown submitted that the sentencing judge’s conclusion as to the objective seriousness of the present offending was not reasonably open in circumstances where the respondent:

The Crown further submitted that the distinction drawn by the sentencing judge between the circumstances of the present case, and cases where individuals administered “heroin or actual poison”, reflected a failure to take into account the fact that once the prescription for Chloral Hydrate was withdrawn by KW’s treating specialist, the respondent’s possession of it became an offence contrary to s. 16(1)(d1) of the Poisons and Therapeutic Goods Act 1966 (NSW).

Counsel for the respondent submitted that the assessment of the objective seriousness of the offending was wholly a matter for the sentencing judge. It was further submitted that the sentencing judge was entitled to have regard to the fact that the respondent had intended that any effect of the administration of the Chloral Hydrate upon KW be temporary. Counsel also pointed to the fact that at least in respect of the offending against s. 39, KW was in hospital and had medical care immediately available to her.

It was further submitted that the sentencing judge was entitled to take into account that the use of the Chloral Hydrate did not represent something in the nature of an experiment by the respondent with a new and unknown drug, but occurred in circumstances where it had been administered under prescription over a period of four years, in a way which the respondent had found efficacious as far as KW was concerned.

Counsel for the respondent also relied upon paragraph [39] of the statement of facts. It was submitted that such paragraph encompassed “the quantification of the degree of endangerment” in which KW had been placed as a consequence of the respondent’s actions. Counsel stressed that any danger was expressed in terms of it being potential, as opposed to actual.

The characterisation of the degree of objective seriousness of an offence is a matter “classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts.” It follows that this Court will be very slow to determine such matters for itself, or to set aside a judgment made at first instance by a sentencing judge exercising a broadly based discretion. Whether this Court will intervene depends upon whether or not the particular characterisation which a sentencing judge gives to the circumstances of the offence is one which is open: Mulato v R [2006] NSWCCA 282 per Spigelman CJ at [37]. Notwithstanding such constraints, the present is a case in which this Court must intervene.

The sentencing judge did not articulate, in any precise terms, his findings as to the objective seriousness of the offending. However, it would appear from reference to the “lowest level of seriousness” that he found that the respondent’s offending, in respect of all four counts, fell at that level. If that was his Honour’s finding, it was one which, for the reasons which are set out below, was not open, and which was completely contrary to the preponderance of the evidence.

It would appear that the bases for his Honour’s finding were that:

Further, although not expressly stated, it would appear that part of the basis of his Honour’s finding that the offending was at the lowest level of seriousness was his earlier determination that the respondent intended to do no more than put KW to sleep. For the reasons already explained, that finding was erroneous.

His Honour made no reference at all to a number of the matters set out in [28] above. All of those matters were relevant to an assessment of the seriousness of the respondent’s offending. They supported a conclusion that such seriousness, in respect of all counts, fell at a substantially higher level than that found by his Honour.

His Honour also appears to have completely overlooked the danger in which KW was placed as a consequence of the respondent’s offending in counts 1 and 2. Contrary to the submissions advanced by counsel for the respondent before this court, this was a case in which the offending in counts 1 and 2 placed KW in actual, as opposed to potential, danger. Part of the evidence on sentence (to which the sentencing judge did not refer) was a report of Dr Robert Smith dated 12 January 2015. Dr Smith is a Paediatric Neurologist who has been involved with the treatment of KW since October 2007. When asked to comment about the offending of 5 July 2013 (i.e. the offending contrary to s. 39) Dr Smith stated:

Dr Smith’s opinion was entirely consistent with the fact that within a short time of the Chloral Hydrate being administered on 5 July, KW was rendered unconscious.

Further, the finding of the sentencing judge that the respondent was “well acquainted” with the medication and its administration, along with his finding that it was the respondent’s view that it was the only medication which assisted KW to sleep, completely overlooked the fact that the respondent was also aware (as set out in the facts at [36]-[38]) that Dr Smith had ceased the administration of Chloral Hydrate in April 2013, and had informed the respondent in about May 2013 that he “never wanted (KW) to have Chloral Hydrate again”. That medical advice formed an important part of the background to the respondent’s offending. In these circumstances, the fact that the respondent’s familiarity with the medication, and her views as to its benefits for KW, were not to the point. The more important consideration was that she was well aware of the fact that KW’s treating specialist had determined, obviously in KW’s best interests, that Chloral Hydrate was not to be administered at all. Seized of that awareness, the respondent nevertheless administered it to KW in the hospital, on a number of separate occasions, in doses which, although unmeasured, were obviously large. Having done so, and in circumstances where the facts record (at [22]) that KW became “agitated, shrieking and thrashing around in her bed”, the respondent proceeded to deliberately mislead nursing staff at the hospital by informing them that KW had previously been otherwise “happy and alert”.

Moreover, and whilst it may well have been the case that the respondent was, as his Honour described, “at the end of her tether”, she was present in the hospital at the time of her offending in counts 1, 3 and 4. Accordingly, she had available to her a substantial network of immediate support of which she could have availed herself at any time without any difficulty.

Further, his Honour approached the assessment of the respondent’s offending in what might be described as a “global way”, with an apparent emphasis on the offending in counts 1 and 2. The offending in those counts was of an entirely different kind to that in counts 3 and 4, which involved the respondent engaging in gratuitous and completely unjustified violence upon an ill and helpless 7 year old child and, having done so, failing to afford the child any degree of comfort.

In all of these circumstances, the apparent finding of the sentencing judge that the offending fell at the lowest level of seriousness was not open.

Ground 2 is made out.

At ROS 9, the sentencing judge said the following:

The references by the sentencing judge to those sections were obviously references to sections of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Act”). There were no references in his Honour’s reasons to any specific provisions of s. 21A in terms of mitigating and aggravating factors.

The Crown submitted that it was clear from the facts that KW was a person of extreme vulnerability who was reliant upon the respondent for the most basic of her needs. In the Crown’s submissions, that vulnerability arose from the fact that KW:

It was submitted that as a consequence of those factors, the respondent was in a significant position of trust.

The Crown submitted that the vulnerability of the victim, and the position of the trust of the respondent, were significant aggravating factors pursuant to ss. 21A(2)(l) and 21A(2)(k) respectively of the Sentencing Act, which the sentencing judge was required to take into account in imposing sentence.

The Crown submitted that the passage of the remarks of the sentencing judge which I have extracted at [45] above represented the sole reference to aggravating and mitigating factors prescribed by the Sentencing Act. It was submitted that the sentencing judge had completely failed to refer to the position of trust held by the respondent, the breach of that position, and the extreme vulnerability of KW. In these circumstances, the Crown submitted that the statement of the sentencing judge that he had “considered” the aggravating and mitigating circumstances for which provision is made in s. 21A of the Sentencing Act was insufficient, and that his Honour had paid little more than “mere lip service” to the requirements of that section.

The Crown further submitted that the failures of the sentencing judge in these various respects were heightened by the fact that KW’s vulnerability, and the respondent’s associated abuse of her position of trust, were arguably the most significant aggravating factors in the case. It was submitted that in such circumstances, there was an obligation upon the sentencing judge to expressly refer to them and that in the absence of having done so, this court should infer that he had failed to take them into account. This, it was submitted, resulted in the sentences being infected by error.

Counsel for the respondent submitted that notwithstanding the fact that the sentencing judge had not made any “formulaic recitation” of aggravating and mitigating factors, his remarks on sentence nevertheless clearly demonstrated that he was “alive to these considerations”. It was submitted that the entire case was litigated on the basis of the relationship of mother and child, and the effect of the respondent’s role as caregiver upon her. It was submitted that in circumstances where issues of trust and vulnerability underlay the entirety of the case advanced on behalf of the respondent, the error asserted by the Crown was not made out.

The significance of particular mitigating and aggravating factors in the sentencing process will necessarily vary. However on the facts of the present case, KW’s vulnerability, the respondent’s position of trust, and her breach of that position, were obviously significant aggravating factors.

In R v Mills [2005] NSWCCA 175; (2005) 154 A Crim R 40 Wood CJ at CL (with whom Grove J and Hoeben J (as his Honour then was) agreed) observed (at [39]):

More recently, in RCW v R (No 2) [2014] NSWCCA 190; (2014) 244 A Crim R 541, R A Hulme J (with whom Bathurst CJ and Adams J agreed) said (in the context of the relevant considerations on sentence which are set out in s. 16A of the Crimes Act 1914 (Cth)) at [58]:

In the present case, the sentencing judge failed to make any reference to, much less specifically identify, what were arguably the two most significant aggravating factors in the sentencing process. That failure occurred in circumstances where in his closing submissions, the Crown Prosecutor (at T24 L31-32) specifically referred to KW’s vulnerability as being a relevant consideration on sentence.

I am driven to the conclusion that the provisions of s. 21A of the Sentencing Act were not considered properly, if at all, by the sentencing judge. I am fortified in that view by the fact that there is an obvious, and significant, disconnect between a statement that relevant aggravating factors had been taken into account, and a finding that the seriousness of the respondent’s offending fell at the lowest end of the scale.

Ground 3 is made out.

At ROS 9, the sentencing judge said the following:

The Crown acknowledged that the extent of accumulation is a discretionary matter for a sentencing judge, in the exercise of his or her intuitive synthesis. However the Crown submitted that in the present case, not only was the criminality displayed in respect of each offence serious, the various offences themselves were discrete and independent, and had occurred on separate occasions. It was submitted that in these circumstance, one sentence could not be seen to encompass the criminality for the other offences, and that some degree of accumulation was required.

Counsel for the respondent submitted that questions of accumulation were entirely a matter within the discretion of the sentencing judge. He further submitted that sentencing judge was entitled to form the view that all sentences should be concurrent.

In determining the issue of concurrency of sentences, the question to be asked is whether the criminality of one offence can be encompassed in the criminality of the other. If not, then the sentences imposed should be at least partially cumulative, otherwise there is a risk that the sentence will fail to reflect the totality of the relevant criminality: Franklin v R [2013] NSWCCA 122 at [44] per Hoeben CJ at CL (Hall and Davies JJ agreeing) citing Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41.

Each episode of offending to which the respondent pleaded guilty reflected quite separate and distinct criminality. Count 1 involved offending committed within the hospital which, as I have pointed out, threatened KW’s life. The offending in count 2, although of the same kind as that in count 1, occurred in the home, at a time more proximate to the respondent receiving medical advice that KW was not to be administered Chloral Hydrate. The offending in counts 3 and 4 was quite different again. Although those two episodes of offending were separated in time by a period of approximately 3 hours, the criminality was of a different kind to that in counts 1 and 2.

His Honour expressed no reasons at all to explain why he reached the view that the sentences should be concurrent. In all of these circumstances, this was not a case in which wholly concurrent sentences properly reflected the totality of the respondent’s criminality.

Ground 4 is made out.

The Crown submitted that an overall sentence of 1 year and 10 months imprisonment, to be served by way of an Intensive Corrections Order, was not sufficiently adequate to recognise the objective seriousness of the offending, and the particular circumstances in which it occurred.

In terms of the offending contrary to ss. 39 and 41, the Crown repeated its earlier submissions as to the vulnerability of KW and the respondent’s abuse of her position of trust. The Crown further submitted that the offending in counts 3 and 4 had been committed by the respondent for trivial reasons, in circumstances where she had made no attempt to take any remedial action after she had struck KW.

The Crown specifically acknowledged that there was evidence before the sentencing judge to support the conclusion that the respondent was suffering from depression. However, the Crown pointed out that the sentencing judge had found that there was no causal connection between that condition and the respondent’s offending. Whilst further acknowledging that the respondent’s depressive condition was relevant to the question of general deterrence, the Crown submitted that it remained necessary to denounce the respondent’s conduct. It was submitted that notwithstanding the medical evidence, the sentence imposed was manifestly inadequate and below the range that could be justly imposed for offending of this nature, having regard to applicable sentencing standards.

Counsel for the respondent submitted that the present case was “truly unique” and that the sentencing judge had correctly approached it as one which required individual justice. Counsel stressed, in particular, that the sentencing judge could not reasonably have ignored the effect, on the respondent, of a seven year period of being the victim’s primary carer. It was submitted that taking into account all of these factors, the sentence imposed was not manifestly inadequate.

The approach of the Crown to the present appeal was, in effect, to rely upon each of grounds 1 to 4 both individually, and as particulars of the manifest inadequacy asserted in ground 5. In dealing with grounds 1 to 4, all of which I have concluded are made out, I have made reference to the relevant aspects of the offending.

For the reasons I have already expressed, the circumstances of the entirety of the respondent’s offending warranted a conclusion that its objective seriousness was of a substantially higher level than that determined by the sentencing judge. Whilst psychiatric reports before the sentencing judge set out matters which were properly taken into account in mitigation, the overall sentence imposed was, for the various reasons set out in dealing with grounds 1 to 4, manifestly inadequate. The offending required the imposition of a substantial full-time custodial sentence.

The Crown properly acknowledged that in terms of the exercise of this court’s residual discretion, the present case was a difficult one. In doing so, the Crown accepted that there was some evidence before this court of the rehabilitation which the respondent had undergone since being sentenced. The Crown also accepted that the imposition of a full-time custodial sentence would have the obvious effect of interfering with that rehabilitation.

However notwithstanding these matters, the Crown submitted that the sentences imposed were so far outside of the appropriate range that this court should intervene. It was submitted that in all of the circumstances, it was incumbent upon this court to denounce the respondent’s offending by the imposition of a full-time custodial sentence.

Counsel for the respondent relied upon the fact that a considerable period of time had now passed since the matter was determined by the sentencing judge, in which the respondent had undertaken various obligations imposed upon her by the orders which had been made. Counsel provided to the court a series of documents which, it was submitted, generally demonstrated a commitment by the respondent to the obligations which had been imposed upon her by virtue of the orders made by the sentencing judge.

Counsel for the respondent also relied upon an affidavit of the respondent of 15 August 2016 in which the respondent deposed to the fact that:

The respondent also confirmed that she continues to see both of her children whenever she is permitted to do so, and that her children display considerable warmth towards her. In that respect, the general tenor of the respondent’s affidavit is that the re-establishment of those relationships is positive, both from the point of view of the respondent herself as well as that of each of the children.

The respondent also relied upon an affidavit of Carolyn Buchanan who confirmed the respondent’s attendance for regular counselling.

It is incumbent upon the Crown to satisfy this court that the residual discretion to decline to intervene should not be exercised: CMB v Attorney-General for New South Wales [2015] HCA 9; (2015) 317 ALR 308 at [33]; [54]. In considering that question, it is relevant to observe that the imposition of the manifestly inadequate sentence in the present case was not caused or perpetuated by the conduct of the Crown before the sentencing judge, nor has there been any relevant delay in the Crown filing its Notice of Appeal or in notifying the respondent that such a step had been taken.

As the Crown properly acknowledged, the imposition of something less than a full time custodial sentence at first instance is a matter which bears upon the question of whether this court should intervene. Notwithstanding the manifest inadequacy of the sentences which were imposed on the respondent, and the numerous errors which have been identified, I have come to the view that this court should not intervene.

The affidavit evidence before this court makes it clear that the respondent has made a good degree of progress in her rehabilitation since the sentences were imposed. Even more significantly, there is evidence that although the respondent’s children have been removed from her care, she has been able to re-establish, at least to some degree, her relationship with each of them. That is obviously important to the respondent. Her impression, which I accept, is that it is also a positive factor from the point of view of each of the children.

Intervention by this court would, for the reasons I have explained, result in the imposition of a substantial sentence of full-time custody. Although there is no specific evidence before the court, it is reasonable to assume that such a step would, at least for some period of time, completely sever the relationship that the respondent presently has with her children. Even if some steps could be taken to allow the respondent to see her children in custody, the circumstances in which she could do so would obviously be less than ideal. That would, in all likelihood, result in adverse consequences, not only for the respondent but for her children as well.

It is for those reasons that I have concluded that this court should not intervene. That, of course, is not to detract from the unavoidable conclusion that the sentences imposed were manifestly inadequate, and were infected by the numerous errors that have been identified.

I propose the following order: