R v RMW [2016] NSWCCA 211 (5 October 2016)

Last Updated: 10 October 2016









Court of Criminal Appeal



Supreme Court New South Wales

JUDGMENT

INTRODUCTION

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: (1) administering a poison to KW, namely Chloral Hydrate, so as to endanger the life of KW, with intent to injure KW (count 1);

(2) administering poison with intent to injure KW (count 2);

(3) assaulting KW (count 3); and

(4) assaulting KW (count 4). 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: (a) Count 1 – imprisonment for 1 year and 10 months to commence on 4 March 2016 and to be served by way of an Intensive Corrections Order;

(b) Count 2 – imprisonment for 1 year to commence on 4 March 2016 to be served by way of an Intensive Corrections Order;

(c) Count 3 – imprisonment for 3 months to commence on 4 March 2016 to be served way of an Intensive Corrections Order; and

(d) Count 4 – imprisonment for 3 months to be commence on 4 March 2016 to be served by way of an Intensive Corrections Order. The Crown now appeals against the sentences imposed upon the respondent on the grounds more fully set out below.

THE FACTS

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):

Background



1. The offender was born on 14 January 1980 (now 35 years of age). She is married to PW and they have two children – the victim KW (DOB: 1 February 2006, now 9 years of age) and LW (DOB: 11 September 2003, now 12 years of age). The two children are now under the Parental Responsibility of the Minister until they reach the age of eighteen years. They are presently in the care of their maternal grandmother, RW.



2. KW was born at Gosford Hospital on 1 February 2006 suffering severe oxygen starvation at birth. She was transferred to Liverpool Hospital Neonatal Intensive Care Unit where she experienced complications lasting eleven days. These complications included Neonatal seizures, meconium aspiration and severe respiratory distress.



3. These early complications left KW with brain damage, developmental delay of about three years, epilepsy and cerebral palsy. In March 2010, KW had a Percutaneous Endoscopic Gastronomy (PEG) tube inserted into her stomach due to concerns with her aspiration of food.



4. KW came under the care of the Paediatric Neurology Department at John Hunter Hospital on 18 October 2007 when she was twenty months old. She remains under their care, in particular under the care of Dr Robert Smith, Paediatric Neurologist.



5. During the years prior to the offences, KW had been confined to a wheelchair most of the time, fed by way of the PEG tube and was on a range of medications to assist with sleeping, control of epilepsy and the associated side effects of those medications.



6. From the time that KW first came under the care of the Paediatric Neurology Team until the arrest of the offender on 5 July 2013, KW was admitted to the John Hunter Children’s Hospital on forty four occasions. Thirty five of these admissions were unplanned/emergency admissions. Not all presentations at Hospital had an obvious or apparent medical cause. After excluding medical possibilities and acquiring other opinions from peers in the medical community, the medical team considered induced illness and/or poisoning. Over time, Dr Smith became increasingly concerned that the offender was inducing further illness in KW by poisoning her with overdoses of prescribed, or previously prescribed, medication.



7. On 3 April 2013, KW suffered a seizure which resulted in her losing consciousness and falling into a coma. She was transported by ambulance to Wyong Hospital and later transferred to John Hunter Hospital where she remained in Intensive Care in a coma state for over four weeks. Dr Smith states that the severity of this coma measured by length and initial severity/depth culminated in an extremely life-threatening situation. KW was unconscious, intubated and ventilated for three weeks.



8. After she came out of the coma, KW was transferred to a general ward and then suffered an unexplained dramatic relapse back into a coma on 4 May 2013. KW also had frequent intermittent periods of agitation without coma during recovery. These events all increased the medical team’s suspicion of poisoning. Documentation showed that periods of reduced consciousness followed closely the administration of either medication or fluids via the PEG tube by the offender. Suspicion was also increased by the fact that the offender almost never left the child’s bedside.



9. In addition to the 3 April 2013 admission, KW has suffered twelve unexplained life threatening coma episodes with no unified medical explanation.



10. Dr Smith was so concerned about the possibility of the offender inducing illness in the victim that he sought the help of the police. A referral was made to the Joint Investigation Response Team (JIRT) on 6 May 2013. By letter dated 8 May 2013, Dr Smith outlined his concerns to JIRT and requested the assistance of police to investigate those concerns.



11. A police investigation commenced and on 9 May 2013, a surveillance device warrant was issued permitting the placing of a surveillance device into the hospital room occupied by KW. During this hospital admission, the assaults committed by the offender were captured on the surveillance device.



Common Assault – 14 May 2013 – s.61



12. At about 12.31pm on 14 May 2013, the offender and KW were in the hospital room. KW was on her hospital bed trying to reach out to a portable DVD player sitting on the table over her bed. KW tried to pick up the DVD player but accidentally dropped it on to the floor. The offender grabbed KW by the arm and pushed her back onto the pillow before hitting her across the face. The offender said angrily “Don’t touch it”. KW put her hands to her head and then lay motionless. The offender said “Now you’ve broken it.” The offender shoved KW back roughly and pulled the sheet over her.



13. KW was seven years of age at the time of this offence and in hospital having recently awoken from a lengthy life threatening coma.



Common Assault – 16 May 2013 – s.61



14. At about 8.06am on 16 May 2013, the offender and KW were in the hospital room. KW was in her hospital bed and the offender was feeding her some cereal. The offender handed the container of dry cereal to KW and turned away. KW put her arm out and the container flopped sideways on the bed causing the cereal to spill out. The offender turned back, saw this and hit KW to the face with the back of her hand. The impact caused KW’s head to jerk backwards. The offender said “that’s enough” and KW cried. The offender angrily said “Don’t throw it.” KW continued to cry and rubbed her head. A nurse entered the room and said “Oh, we’re having a bad day.” The offender said “Yes, just a lack of sleep”. KW had been observed to sleep from 8.15pm to 8am the night before.



15. KW was seven years of age at the time of this offence and in hospital having recently awoken from a lengthy life threatening coma.



Use poison so as to endanger life with intent to injure 4on 5 July 2013 – s.39



16. During the police investigation, the offender continued to complain to medical staff about the poor sleeping habits of KW. The medical staff therefore arranged for KW to be admitted to John Hunter Hospital on 3 July 2013 for the purposes of a sleep study. A surveillance device was installed in the hospital room that KW was placed in.



17. Following KW’s admission to hospital, her sleep patterns were monitored by the staff and no issues were identified. KW appeared to have a full and restful night’s sleep on both 3 July and 4 July.



18. At around lunchtime on Friday 5 July 2013, the offender was informed that she was going home for the weekend and was to return to Hospital on Monday afternoon to be admitted to the specialist sleep unit for a fully monitored overnight visit. The offender had believed that KW would be spending the weekend in hospital.



19. The Officer in Charge of the investigation, Detective Senior Constable Donna Waite was monitoring the surveillance device during the afternoon of 5 July 2013. KW was calmly sitting in her bed reading a book. The offender then commenced feeding KW through her feeding tube. At around 2.26pm, the OIC observed the offender pour an unmeasured quantity of liquid directly from a bottle into KW’s PEG tube. At 2.27pm, the offender again poured an unmeasured quantity directly from the bottle into the PEG tube. At the time, the OIC was on the telephone to Dr Smith and conveyed what she was witnessing to him.



20. At around 2.31pm, a nurse entered the room and assisted the offender with a blockage of the PEG tube. The offender flushed the PEG tube with water. After the nurse left the room at around 2.34pm, the offender again poured an unmeasured quantity of liquid directly from the bottled into the PEG tube. The offender then placed the bottle into a sealed bag and concealed it. She flushed the tube again and at around 2.35pm made a notation in the log she had been keeping.



21. The offender then placed KW into a wheelchair and left the room. At around 2.45pm, the Nursing Unit Manager entered the hospital room occupied by KW and located the bottle used by the offender. It was identified as Chloral Hydrate, a sedative that Dr Smith had previously prescribed KW to assist her sleeping. After KW’s April admission for the life-threatening coma, Dr Smith and others had directed the offender not to use Chloral Hydrate anymore. Dr Smith had been very clear in directing that Chloral Hydrate not be used on KW because the medical team had concerns at that stage that it was involved in her coma episodes.



22. At around 3.15pm, the offender and KW returned to the room and it was clear that KW’s demeanour had changed. The offender lifted KW onto the bed. KW was agitated, shrieking and thrashing around in her bed. After a period of time, she became quieter and still.



23. At 3.16pm, the offender drew up an unmeasured quantity of Chloral Hydrate from the bottle with a syringe and injected it into KW’s PEG tube. The offender then concealed the bottle and flushed the syringe. The offender remained calm and controlled throughout the commission of this offence.



24. The offender then changed KW’s nappy and called for the nurse at 3.18pm. A nurse entered the room and the offender said “Can we test her obs? I was coming down anyway because she’s gone real doey, sleepy, just funny.” The offender laughed. The offender said “She’s just really doey, sleepy, slurred speech ... She’s glassy eyed, she was happy and alert.” By 3.28pm, KW was non-responsive.



25. At 3.29pm KW’s medical team including Dr Smith attended the room. The offender said “She just started to go all funny about twenty minutes ago, all dopey and funny.” Whilst the medical team were present, KW’s condition deteriorated to the point where at around 3.40pm she was unconscious.



26. At 3.52, the offender was arrested in the hospital room. Once she was removed from the room to be transported to Waratah Police Station, medical staff drained the contents of KW’s stomach and she was moved to another room for observations. KW was initially profoundly unresponsive/comatose to the point that an intensive care consultation was requested at about 5pm. During that period she became less comatosed and was therefore observed on the ward until she roused at around 11.30pm later that night. KW was discharged from Hospital on 9 July 2013.



27. The now empty 200ml bottle of Chloral Hydrate was located in a makeup bag inside the offender’s handbag hanging in the wardrobe of the hospital room.



Interviews with the Offender



Administer poison with intent to injure charge – s.41



28. At 3.52pm, the offender was arrested and later transported to Waratah Police Station. She participated in a lengthy interview from 6.41pm to 8.32pm where she denied all the allegations despite being informed of the existence of the surveillance device in the hospital room.



29. During the course of the first interview, the offender stated that the Chloral Hydrate was stopped “’Cause the doctor thinks that it could be contributing to the coma states. It’s not a drug that you’re supposed to be using long term.” She further stated that “it was stopped two months ago. But we haven’t used it within that two month period.” Shortly after that, the offender stated that she had used it “probably three or four times” since KW’s discharge in May.



30. During the course of an interview with Psychologist Theresa Lindfield on 23 October 2013, the offender stated that she may have used Chloral Hydrate on KW after May 2013 up to a dozen times.



31. When asked during the first interview with police why she had used Chloral Hydrate after being told not to by Dr Smith, she states “Just ‘cause she won’t sleep and can’t get her to sleep. Don’t know what else to do. Know that she’s had it before.” The offender then admits that the last time she administered it was the Tuesday night prior to her arrest.



32. After the first interview, the offender was returned to the custody area and sometime later asked to speak to the OIC again. The offender participated in another interview at 9.46pm where she told police “I gave KW Chloral Hydrate this afternoon.”



33. The offender made the following admissions in her second interview:



That she gave KW about 15mls of Chloral Hydrate.



She was tempted to give her more but the bottle was empty.



“I thought she’d go have a sleep and then we can have a rest this afternoon that we’d be able to stay at the hospital and they’d help us and I can go home on my own.”



“I just wanted her to have a rest so I could have a rest and I just wanted people to help so we’d be able to stay at the hospital longer ‘cause, I think they’re gunna send us home this afternoon, I didn’t wanna go home.”



“I just thought she would ... sleep this afternoon like she normally had at home with that dose and just sleep and been OK.”



The 200ml bottle of Chloral Hydrate emptied today was possibly issued by the pharmacy on 27 May 2013 and since then she had given it to KW on five separate occasions.



“... I knew that I shouldn’t have given her Chloral and Robert (Dr Smith) said not to give it ...”



She does not recall hitting KW in the face.



34. A search warrant executed at the home of the offender on 5 July 2013 resulted in police locating another 200ml bottle of Chloral Hydrate at the home.



Chloral Hydrate and Endangering Life



35. Use of Chloral Hydrate on KW was commenced on 7 March 2009. A dose of 1 gram at night was commenced after a smaller dose of 500mg was not as successful. The largest dose KW was on was 12mls in September 2011.



36. Dr Smith describes Chloral Hydrate as being a good hypnotic frequently used in Paediatrics. Normally it would be used to foster good sleep patterns and then weaned if possible. The medical team developed concerns that continued use in KW may have been implicated in subsequent coma and/or withdrawal symptoms. Dr Smith recommended slow weaning off Chloral Hydrate commencing 8 January 2012. The offender was involved in the discussions about this process. By May 2012, KW was prescribed 8mls per night and by November 2012, 3mls per night. It was finally stopped during her April 3 2013 admission.



37. On 17 May 2013, Dr Smith wrote on KW’s chart that KW was “NOT FOR CHLORAL”.



38. Dr Smith and other members of the Neurology team had several discussions with the offender during which they clearly stated that they never wanted KW to have Chloral Hydrate again. The offender was resistant to this move which is why Dr Smith emphasised it in his entry in the medical notes.



39. Dr Smith states that the pouring of the medication directly into the PEG tube is “inappropriate, inaccurate and potentially extremely dangerous.” He further stated that it is “unpredictable and dangerous. For this reason it would have endangered the life of KW. Also at a time when the medical team had concerns that any administration of Chloral Hydrate may have been influencing the coma and was dangerous for KW. We had strongly and repeatedly advised RMW not to give Chloral Hydrate for this reason.”



40. Dr Smith states that a dose of 15mls would likely produce deep sleep/unconsciousness. The risk of side effects such as suppressed breathing becomes higher with such doses.



41. Professor William Allender provided an expert report stating that “Chloral hydrate may cause respiratory depression, depression, convulsions, arrhythmias, coma and if, sufficient of the drug is ingested, death. The risk is increased in the presence of other central nervous system depressants such as amitriptyline.” KW was being administered amitriptyline at the time.



42. The contents of KW’s stomach on 5 July and blood serum samples were analysed with the results indicating that Chloral Hydrate was present. The blood contained approximately 17mg of trichloroethanol per litre. Chloral Hydrate is rapidly converted to Trichloroethanol in the body. Therapeutic blood trichloroethanol concentrations range from 1.5 to 15mg/L whilst toxic concentrations generally range from 40mg/L. A wide range of blood trichloroethanol concentrations of 20 to 240mg/L, median of 119mg/L, have been reported for 14 cases of death due to Chloral Hydrate overdosage.



Current Status of KW



43. KW was removed from her mother’s care after the offender was arrested. She was in the care of her father, with the assistance of the offender’s parents, for a short time until he was arrested on unrelated matters.



44. Dr Smith is unable to provide an opinion on the extent of any permanent damage to KW as a result of the extended use of Chloral Hydrate on her. Dr Smith has concerns that the admission in April 2013 where KW needed prolonged resuscitation at the home is highly likely to have caused permanent neurological injury. Dr Smith thinks it is unlikely that they will be able to measure objectively the long term effect of repeated coma.



45. Dr Smith states “There has been a remarkable and enduring change unlike anything I have previously seen in my career. KW is active, alert, happy, assertive and moves with far more freedom than she ever has. I have withdrawn all of her medication with no problems. She has not had any seizures for a year. She has had no periods of coma. Her feeding tube or PEG tube has also been removed as she eats and drinks normally. She does not use her wheelchair.”



46. Once KW was taken from her mother’s care, her health improved dramatically and continues to do so. Specifically:



The PEG tube has been removed and KW is able to enjoy a normal diet.



KW has gained weight and is enjoying a more normal active lifestyle.



She does not need to use a wheelchair.

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 GROUNDS OF APPEAL

Ground 1 - The sentencing judge erred in finding that in administering the Chloral Hydrate, the respondent only intended to cause the victim to sleep in respect of the ss. 39 and 41 offences, leading to a manifestly inadequate sentence for those offences

The evidence on sentence

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:

“It’s the only thing that helped to help her sleep”.

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

“That she would go to sleep and that I could sleep and that we could stay at the hospital, get the further answers that we needed”.

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):

Q. “So, against that background why would you then give her a dose which was above the highest she’d ever had when there was that concern that it might in fact have been a drug that contributed to that four week coma, why would you do that?



A I’m unsure, I clearly wasn’t thinking straight”.

The reasons of the sentencing judge

Commencing at ROS 5, the sentencing judge said:

“I accept that (the respondent) knew that the giving of the Chloral Hydrate was acting against medical advice and that the medical advice to stop the administrations of chloral hydrate was because Dr Smith was of the view that it might possibly be implicated in causing the life threatening coma in April 2013. However, there is no actual evidence before me which establishes that Chloral Hydrate was responsible for that life threatening coma. In my view, there is insufficient evidence for me to conclude that part of the thought process of the offender at the time of her commission of the s. 39 offence was that she consciously thought that what she was about to do might endanger the life of her child and notwithstanding that thought, deliberately went ahead and did something she believed might endanger her child.



The circumstances were that the child had been admitted into hospital for the purpose of a sleep test. The third day, which was the Friday, was to be the third of about five or six days, and the expectation held by the offender was that KW would remain in the hospital over the weekend. She was told some time Friday afternoon that that was not to be the case and that KW was to be discharged that very afternoon.



On her evidence she had been administering to her daughter the Chloral Hydrate on up to 12 occasions, mostly in the month of June, it would seem, for the purpose assisting KW to sleep, and that there had been no complications arising from that use, so far as she was aware.



It seems to me that the most likely scenario, and certainly the scenario that the Crown cannot dismiss as a possibility, is that she decided at 2.30 in the afternoon that the only way that she could cause the hospital staff to change their mind about releasing KW was if KW fell asleep at that point in time.



The fact is that she administered this medication in a way which was rough in terms of the calculation, although what was subsequently found on medical examination is not inconsistent with the quantities that she indicated that she had used, namely, a total of approximately 15mls.



Whilst it is correct to say that she had information in terms of what Dr Smith’s opinion was in relation to the Chloral Hydrate, it would seem that she did not necessarily share that view and she says that she had some four years of using this substance. Given that situation, I am not satisfied beyond reasonable doubt that she did not simply consider that to administer it that afternoon would induce sleep, achieving the purpose of convincing the hospital to keep her in over the weekend for observation.



I am not satisfied beyond reasonable doubt that she contemplated that what she was doing would endanger the life of her child, and I am not satisfied beyond reasonable doubt that she determined that she would go ahead to achieve her own purpose and put the life of her child at risk.



I accept that it was still a serious thing for her do, that is to deliberately induce loss of consciousness in her child in order that the child would be allowed to stay in hospital, the reason for which being that she simply could not cope. That may in fact have been perfectly correct, that she could not cope, but there were remedies for that, other than the administration of this medication to induce a loss of consciousness” (emphasis added in each case).

Further, at ROS 11, his Honour said:

“I am satisfied beyond reasonable doubt that she used the medication to render her daughter unconscious, which she had done on a number of occasions in the past in order to force sleep on her daughter, but that she did so on the this occasion on 5 July, not to put her daughter to sleep for the purpose of ensuring that she slept overnight, but rather to ensure that the medical staff then changed their mind and kept KW in over the weekend, and that she did that because she could not cope with the prospect of going home and the looking after her, and I accept that that decision was the culmination of the emotions of a woman who was largely responsible for a child who was developmentally delayed, suffered cerebral palsy and epileptic seizures, and who had been in and out of hospital for quite a few years, essentially for the better part of her life, seven years (emphasis added).”

Submissions of the Crown

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.

Submissions of the respondent

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.

Consideration

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

39 Using poison etc to endanger life or inflict grievous bodily harm



(1) A person is guilty of an offence if:



(a) the person administers to another person, or causes another person to take, any poison, intoxicating substance or other destructive or noxious thing, and



(b) the poison, intoxicating substance or other thing endangers the life of, or inflicts grievous bodily harm on, the other person, and



(c) the person intends to injure, or is reckless about injuring, the other person.



Maximum penalty: Imprisonment for 10 years.



(2) If on the trial of a person charged with an offence against this section the jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence against section 41 or 41A, the jury may acquit the person of the offence charged and find the person guilty of an offence against section 41 or 41A. The person is liable to punishment accordingly.

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:

41 Using poison etc to injure or to cause distress or pain



A person is guilty of an offence if:



(a) the person administers to another person, or causes another person to take, any poison, intoxicating substance or other destructive or noxious thing, and



(b) the person intends to injure, or to cause distress or pain to, the other person.



Maximum penalty: Imprisonment for 5 years.

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.

Ground 2 - The sentencing judge erred in characterising the ss. 39 and 41 offences as “at the lowest level of objective seriousness”

The reasons of the sentencing judge

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

“These offences are reasonably unique, and given that the law requires just sentences to be imposed which reflect the criminality of the particular circumstances and the particular offender, it is important not to act on suspicion, and important for me to understand that the factual basis of any sentence must be proved by the Crown beyond reasonable doubt. That means that the Crown needs to negative any reasonable factual proposition that is less serious than the one they advocate.



Even at the lowest level of seriousness, this is a serious offence. However, it is in a different category, in my view, to cases where individuals administer substances such as heroin or actual poisons.



It must be remembered that this particular substance had been administered by RMW to her daughter for approximately four years. It is clear that she was well acquainted with the medication, well acquainted with the process and with what followed the administration of the substance, and it is clear from the material that she was of the view that it was the only medication that effectively assisted KW to asleep.



There is no evidence before me of any mistreatment of KW outside of these four counts, and indeed, bearing in mind the huge number of hospital admissions over the years, it is unlikely that, if this offender was in the habit of physically abusing her daughter, there would have been no physical sign of that detected by hospital staff.



All the other evidence in terms of character evidence is that she was a loving, committed mother, and I accept that to be the case. It means that the two common assaults, which are of themselves somewhat sickening in a sense, were out of character. It is also consistent with the proposition that this lady, after some seven years, had reached the end of her tether, and perhaps handicapped by her stubborn personality and belief that she could handle it herself, found herself in a position where she clearly could not cope.



I accept that the more serious factual conclusions that the Crown asks me to draw may reflect the true position, but I am not satisfied beyond reasonable doubt that it does.”

Submissions of the Crown

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:

(i) had been expressly warned by medical professionals that KW was not to be administered Chloral Hydrate because of the particular risks and dangers that it posed;



(ii) had been expressly warned by medical professionals that such risks were very severe, and included the possibility of KW suffering from comas;



(iii) chose to act completely contrary to the medical advice which she had been given, at a time when KW had recently been discharged from hospital after suffering two comas, one of which was more than four weeks in duration and which was life threatening both in its severity and degree;



(iv) administered the Chloral Hydrate to KW in imprecise doses, higher than that which had ever been prescribed, and at a time when KW was under the care of medical professionals;



(v) had acted in a way which seriously jeopardised the health and wellbeing of KW, for the purposes of ensuring that KW remained in hospital for the respondent’s own benefit;



(vii) had brought the Chloral Hydrate into the hospital in a surreptitious way; and



(viii) had lied to doctors, and to the police, about administering Chloral Hydrate to KW.

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).

Submissions of the respondent

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.

Consideration

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: (i) the offending was less serious than offending which involved the administration of heroin or poisons;

(ii) the respondent was “well acquainted” with the medication, with the process for its administration, and with the consequences of such administration;

(iii) the respondent’s view was that it was the only medication that effectively assisted KW to sleep;

(iv) there was no evidence of any mistreatment of KW outside the four counts to which the respondent had pleaded guilty;

(v) the respondent was an otherwise loving and committed mother;

(vi) the offending was out of character; and

(vii) the offending had been motivated by the fact that the respondent was at the “end of her tether” in being able to care for KW. 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:

“I have been given to understand that an unspecified and unmeasured amount of Chloral Hydrate was poured from a bottle into the PEG. We never do this as it is unpredictable and dangerous. For this reason it would have endangered the life of (KW)” (emphasis added).

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.

Ground 3 - The sentencing judge erred in failing to have regard to the extreme vulnerability of the victim and the significant breach of trust by the respondent

The reasons of the sentencing judge

At ROS 9, the sentencing judge said the following:

“I have considered s. 3A which sets out the purposes of sentence. I have considered s. 5 and determined that no sentence other than a sentence of imprisonment would be appropriate having regard to the level of seriousness. I have considered section 21A both in terms of mitigating and aggravating factors”.

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.

Submissions of the Crown

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: (i) was a child of only 7 years of age;

(ii) suffered from cerebral palsy, epilepsy, brain damage and developmental delays; and

(iii) was confined to a wheelchair most of the time, and feed by way of a PEG tube. 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.

Submissions of the respondent

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.

Consideration

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]):

“ ..... in relation to s. 21A of the Act, more is expected than lip service to the legislation. What is required is a clear identification of the relevant factors, the weight given to them, and their role in the structuring of the sentencing order: see R v Walker [2005] NSWCCA 109”.

“The use of shorthand expressions such as ‘I have taken into account all those matters set out in s. 16A’ ... do not illuminate anything of the judge’s reasoning or conclusions: see, for example, R v McNamara [2005] NSWCCA 195 at [137] (Hall J) and DBW v R [2007] NSWCCA 236 at [33] (Spigelman CJ)”.

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.

Ground 4 – The sentencing judge erred in failing to partially accumulate the sentences

The reasons of the sentencing judge

At ROS 9, the sentencing judge said the following:

“I will comply with the High Court’s decision in Pearce by imposing discrete sentences on each of the four counts but I will apply the principal of totality so that the total effective sentence represents the total effective criminality.



In my view it is appropriate in this case to impose concurrent sentences, so that the sentence imposed in relation to the section 39 offence will reflect the total criminality.”

Submissions of the Crown

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.

Submissions of the respondent

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.

Consideration

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.

Ground 5 – The overall sentence imposed was manifestly inadequate.

Submissions of the Crown

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.

Submissions of the respondent

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.

Consideration

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 RESIDUAL DISCRETION

Submissions of the Crown

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.

Submissions of the respondent

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: (a) she has engaged in regular counselling;

(b) she had commenced employment for 2 to 3 days each week in a business operated by her father; and

(c) she subsequently commenced full-time employment with another employer, and had satisfied her probationary period. 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.

Consideration

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: (1) The Crown appeal is dismissed.





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Amendments

10 October 2016 - Catchwords inserted