Criminal law - Application for leave to appeal against conviction - Recklessly failing to protect a child from suffering harm

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

Criminal Appeals Act 2004 (WA), s 40(1)(e)

Applications to admit additional evidence dismissed

Borsa v The Queen [2003] WASCA 254

Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132

Windie v The State of Western Australia [2012] WASCA 61

3 MAZZA JA: This is an application for leave to appeal against conviction.

4 The appellant was convicted on her own pleas of guilty to three counts of recklessly failing to protect a child from suffering harm contrary to s 101(1)(b) of the Children and Community Services Act 2004 (WA).

5 She was sentenced to a total effective term of immediate imprisonment of 5 years with eligibility for parole. The appellant has been given leave to appeal against this sentence. That appeal has not yet been heard.

6 The single ground of appeal upon which the appellant relies, alleges that there has been a miscarriage of justice in that:

(a) the pleas of guilty were not attributable to a genuine consciousness of guilt;

(b) the appellant disputed key parts of the prosecution case against her; and

(c) the pleas of guilty were motivated by the prospect of a suspended sentence.

7 For the reasons that follow, I have not been persuaded that the proposed ground of appeal has reasonable prospects of succeeding. Leave to appeal must be refused and the appeal is to be taken to have been dismissed: Criminal Appeals Act 2004 (WA) s 27(1), (2) and (3).

8 The victims of the offences are the appellant's three sons: BV and PV, twins born in May 1999, and AV, born in April 2007. The children's father is GR. With respect to all three children, the offending was alleged to have occurred between 1 June 2006 and 11 November 2008. Given AV's date of birth, the offending would be taken to have commenced from his date of birth. GR was charged with the same offences as the appellant. However, he was subsequently found to be unfit to plead.

9 The agreed facts upon which the appellant was sentenced are lengthy, but may be summarised in this way. On 24 July 2007, the Department of Child Protection (DCP) received a referral from the King Edward Memorial Hospital social work department in relation to the appellant and her family. The appellant had discharged herself from hospital after the birth of AV, and attempts by the hospital to locate her had failed.

10 On 21 December 2007, the appellant took her three children to DCP offices in Perth. At the time, the twins were 8 years old and AV was aged 8 months. The children appeared pale and globally delayed. The twins did not speak and were not enrolled at school. The DCP caseworker was concerned about the appellant's ability and motivation to cater for the children's medical, educational and social needs. The appellant was advised that she needed extensive support and to work with DCP in addressing their concerns. At this point, the appellant said she would cooperate. Despite this indication of cooperation, in the months that followed, the appellant was unable to be located. The twins were still not enrolled in school.

11 On 3 July 2008, a concerned neighbour telephoned the DCP in relation to the appellant, GR and the children, who were living at an address in East Perth. Later that month, the lease of the premises was terminated. The landlords discovered that two of the upstairs bedrooms were locked, and the windows in the attic were covered in alfoil.

12 On 2 October 2008, a DCP caseworker and a police sergeant went to the address at which the appellant, GR and the three children were residing. GR gave a false name and the appellant did not identify GR as the children's father. The appellant was unable to explain why she had not addressed the concerns expressed to her by the DCP in December 2007.

13 The children were observed to be very frightened and anxious. They appeared to have no social skills, could not communicate properly and failed to exhibit age-appropriate milestones. AV was breastfeeding, but the appellant appeared to not be producing milk. A DCP officer advised the appellant to attend hospital with the children immediately, so that they could be given a thorough medical check-up. She refused to do so.

14 The twins, when spoken to, did not answer questions. They were observed to be very pale and lacking in physical energy. When formally interviewed, BV spoke in whispers and stated that he did not know who the man in the hall (GR) was. PV did not speak at all.

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

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

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

18 Ms Buckley further concluded that '[PV], [BV] and [AV]'s developmental and emotional and psychological wellbeing has been severely impacted by their experiences within their family. The children are at great risk of further developmental and psychological problems if they continue to be exposed to these influences'.

19 On or about 6 November 2008, GR was admitted to Graylands Psychiatric Hospital after expressing concerns about the harm he posed to the children.

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

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

22 In Dr Johnson's opinion, both twins had suffered neglect which resulted in muscle weakness and vitamin D deficiency due to a lack of exposure to sunlight and lack of normal childhood activity. With respect to AV, she said that he was very underweight for his age and had iron deficiency anaemia and a vitamin D deficiency. She said that the most likely cause for these conditions was an inadequate diet.

23 On 10 November 2008, a DCP officer visited the appellant who said that she was upset that the children were medically assessed and appeared not to accept that they were in need of medical attention.

24 On 11 November 2008, the children were removed from the appellant's care and placed with foster carers. They have been in foster care ever since.

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

26 With respect to AV, at the time that he was placed with the foster carer, he was underweight, limp, lacking in energy and was very frail. He was not eating solid food, although he was 18 months old.

27 In the statement of agreed facts, the harm suffered by the children was encapsulated as follows:

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

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

28 On 8 January 2010, the appellant was interviewed by detectives from the Child Abuse Squad. During this interview, the appellant said that she was the main caregiver for the children and that she was a good mother. Further:

(a) The appellant admitted that the twins had never been to school.

(b) She claimed she had been trying to home school the twins.

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

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

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

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

29 The effect of the appellant's statements in the interview was that she denied engaging in conduct knowing that the conduct may result in her sons suffering harm as a result of neglect.

30 In due course, the appellant was committed to the District Court for trial. On 28 June 2012, an indictment was filed alleging, not that the appellant knew that her conduct may result in the children suffering harm, but that she was 'reckless' as to that potential result. On 9 November 2012, she pleaded guilty to those charges. She was, at all relevant times, represented by counsel.

31 The appellant was remanded on bail for sentence to appear again on 5 February 2013.

32 Between the appellant entering her pleas of guilty and her appearance on 5 February 2013, the State and her counsel conducted negotiations as to the facts upon which the appellant was to be sentenced. Those negotiations resulted in the agreed statement of material facts to which I have already referred. The statement includes text under the heading 'defence instructions'. It is clear that counsel had sought instructions from the appellant as to the facts upon which she was to be sentenced. Those instructions were included in the statement of agreed facts.

33 On 5 February 2013, the appellant appeared before his Honour McCann DCJ. The proceedings were lengthy, commencing at 10.59 am and concluding at 3.08 pm, although the luncheon adjournment intervened. The statement of agreed facts was read to his Honour. The appellant's experienced counsel, Mr Freitag, made lengthy submissions. Mr Freitag explained that prior to the appellant entering her pleas of guilty, there had been negotiations between the State and the defence which resulted in an agreed set of facts (ts 78). It is clear that Mr Freitag's submissions were being made on instructions from the appellant. He submitted to his Honour that the appellant's conduct was not designed to hurt the children, but there had been 'an element of recklessness in [her] behaviour' (ts 90). He told his Honour that the appellant did not accept that the children were locked in their rooms for lengthy periods every day, but it was accepted that they were kept in the house (ts 91). His Honour gave, and defence counsel took, the opportunity to take instructions from the appellant during the luncheon adjournment. Counsel submitted that a conditional suspended imprisonment order was the appropriate disposition (ts 106). The State prosecutor submitted that ordinarily a term of immediate imprisonment would be warranted, although there were unusual features about the case, including the delay between the offending and sentencing (ts 122 - 123).

34 His Honour adjourned the proceeding to 7 February 2013. He refused to extend bail, stating, in effect, that immediate imprisonment was the only appropriate sentence. When the proceedings resumed on 7 February 2013, defence counsel said that he had spoken to the appellant. During the course of those submissions, Mr Freitag said:

I spoke to [the appellant] again about how she felt about the offences and whether she felt sorry for what had occurred and she tells me that she does feel sorry for what has occurred.

I think also to an extent she wishes that the matters had been ventilated in a trial and she would have [had] a chance to give some evidence in a trial and that [may be] a discussion she wants to continue with me after these proceedings are over. But I'm of the view that the plea of guilty was appropriate and I certainly had instructions for it to be entered at the time it was entered. She, I think - some of the facts that have been raised and some of the submissions that have been made - was unhappy with the position that had been taken by the State in relation to, for example, locked bedroom doors.

I indicated to [the appellant] I hadn't conceded that on her behalf and she says, 'Well, look, they weren't locked in their bedrooms.' And I said, 'Well, look, I haven't conceded that.' I don't know what finding of fact your Honour's going to make in respect of that.

McCANN DCJ: I can tell you now my finding is going to be that they were only occasionally confined to their rooms - locked in the rooms. You disputed it; I'm not going to have a trial of issues about it (ts 126 - 127).

35 Mr Freitag went on to say that the appellant disputed an allegation that she did not buy toys for the children.

36 Mr Freitag asked his Honour to reconsider his previously expressed position that immediate terms of imprisonment must be imposed.

37 Mr Freitag indicated that the appellant was prepared to speak on her own behalf, but his Honour indicated that he did not wish to hear from her personally (ts 128).

38 The appellant submitted that she did not consciously accept her guilt to the charges and misunderstood them. She said that she did not agree with 'key prosecution allegations' and only pleaded guilty to further her prospect of receiving a suspended sentence.

39 In support of this appeal, the appellant has applied, pursuant to s 40(1)(e) of the Criminal Appeals Act 2004 (WA), to admit additional evidence in the form of her affidavit sworn 7 May 2013.

40 As the appellant explained to this court during the hearing of her application, that affidavit was designed to answer some matters raised in an affidavit in child welfare proceedings before the Children's Court. The appellant in her affidavit disputes or explains some of the factual matters that were set out in the statement of agreed facts. The parts of her affidavit most relevant to the present proceedings are between pars 109 and 117:

In regards to the pleas of guilty, I thought that I was pleading guilty [to] not taking the children to school.

I am now confused about the meaning of 'reckless' in relation to my charge as the Judge did not determine it as less than dangerous.

My previous lawyer advised me that 'reckless' is something less than dangerous. I am unsure now if my lawyer has explained this to me properly or not. I would say that my previous lawyer did not because now I would refuse to plead guilty because I did not understand what 'reckless' would lead me to.

In regards to my previous lawyer, I was not advised that I would get five years in prison before I was sentenced.

I do not agree with the prosecution statement of facts that was presented to the court.

The lawyer who represented me at the sentencing said to me that if I agreed to plead guilty he would request a suspended jail term.

I asked him what this meant and he explained that it was 'not having to go to jail' with a condition that if you did something wrong you would go to jail.

This was the reason I pleaded guilty to the charges.

I do not agree with the allegations made by the State.

41 This court may allow an appeal against conviction consequent upon a plea or pleas of guilty. The onus is on the appellant to demonstrate that there would be a miscarriage of justice if the convictions were not set aside. The categories of cases in which this court will allow an appeal against conviction when a plea of guilty has been entered are not closed. However, there are three recognised circumstances which will justify, by themselves or in combination, the setting aside of a plea of guilty. They are:

1. where the appellant did not understand the nature of the charge or did not intend to admit guilt; or
2. if upon the admitted facts the appellant could not, in law, have been guilty of the offence; or
3. where the plea of guilty was obtained by improper inducement, fraud, intimidation and the like: Borsa v The Queen [2003] WASCA 254 [20]; Windie v The State of Western Australia [2012] WASCA 61 [31].

42 I will deal with these factors shortly, but it is convenient to immediately exclude a factor which would not justify this court setting aside the pleas of guilty, namely, that the appellant entered her pleas of guilty in order to improve the prospect of her receiving a suspended sentence. As the High Court explained in Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, a plea of guilty may be entered for reasons other than a belief in one's guilt, including where the plea is entered in the hope of obtaining a more lenient sentence: Dawson J (157). The entry of a plea of guilty on such a ground nevertheless constitutes an admission to all of the elements of the offence, and a conviction entered upon that basis will not be set aside unless a miscarriage of justice is established.

43 It is evident from the record that the charge was amended as a result of negotiations on behalf of the appellant. It is inconceivable that such negotiations would have occurred without the appellant's instructions and without the difference between the concepts of knowledge and recklessness being explained to her. Her affidavit does not say that her counsel failed to discuss the concept of recklessness with her. Rather, she is unsure if he explained it 'properly'. Her uncertainty on this point is an insufficient basis to establish a miscarriage of justice. There is no reasonable basis upon which this court could conclude that the appellant did not understand the nature of the charge, or did not intend to admit guilt.

44 On the material before this court, there is no basis upon the admitted facts to conclude that the appellant could not in law have been found guilty of the offence. While it is true that the appellant did not, at the sentencing hearing nor now, admit all of the facts alleged against her, the unchallenged evidence, particularly the expert evidence, clearly showed that the appellant was guilty of the offences.

45 Finally, there is nothing to indicate that the pleas of guilty were obtained by improper inducement, fraud, intimidation or the like.

46 In her affidavit and in her oral submissions before this court, the appellant said that she had not read the statement of agreed facts. On the material before this court, it seems most unlikely that she was unaware of the contents of the document, especially as it incorporated, in part, her instructions to her legal advisers. In any event, the statement of agreed facts was read in its entirety to the learned sentencing judge on 5 February 2013. The appellant was not sentenced until 7 February 2013, and it is clear from the transcript that, in the meantime, the appellant spoke to Mr Freitag indicating her disagreement with some of the things that had been said in the sentencing proceedings. Mr Freitag conveyed those matters to the learned sentencing judge on 7 February 2013. It is also of relevance that on 7 February 2013, counsel confirmed with his Honour that the pleas of guilty that had been entered by the appellant were appropriate and that he 'certainly had instructions for [them] to be entered at the time [they were] entered' (ts 127).

47 The appellant's affidavit of 7 May 2013, insofar as it bears upon issues relevant to this appeal, could not arguably establish a proper foundation for this court to set aside the convictions. I would refuse to admit it into evidence.

48 The appellant has failed to demonstrate any arguable miscarriage of justice. The proposed ground of appeal has no reasonable prospect of success. Leave to appeal should be refused and the appeal must be dismissed.

Postscript - The appellant's further application to admit evidence

49 At the hearing of the application, the appellant sought a further opportunity to put before the court evidence to support her proposed ground of appeal. An order was made requiring any application to admit further evidence to be filed by 7 August 2013. Compliance with that order was extended to 14 August 2013. On 8 August 2013, the appellant filed an application seeking to admit into evidence a further affidavit sworn by the appellant on that day.

50 The further affidavit repeats the general assertions made in the earlier affidavit that she did not, in fact, agree with the statement of agreed facts and that she did not see the document, nor was she aware of its contents 'before the sentencing date' (pars 4 and 83). She again says that she did not understand the charges (par 80).

51 The appellant also deposes to various aspects of the statement of agreed facts and asserts that they are wrong or that she disagrees with them.

52 She also annexes seven documents (annexures A to G). Six of those documents, annexures B to G, have no relevance whatever to the ground of appeal. Annexure A is an extract of an affidavit sworn by Rachel Taylor, a DCP officer, on 7 September 2011. In part, that affidavit refers to what appears to be DCP case notes concerning the appellant, the children and GR between 24 July 2007 and 11 November 2008. The appellant highlights a notation dated 21 December 2007 which commences with the words, 'All children appeared well and healthy'. This notation, she says, contradicts that part of the statement of agreed facts which refers to the children visiting the offices of the DCP that day and appearing 'pale and globally delayed'.

53 On its face, there appears to be a contradiction between the documents. Assuming that the notes are correct, this does not lead to the conclusion that the appellant could not, in law, have been guilty of the offences. There still remains a compelling body of evidence which shows the appellant's guilt.

54 In this regard, the appellant does not, in either of her affidavits or otherwise, attack the expert testimony particularising the harm suffered by the children which was caused by the neglect of the appellant and GR.

55 As with the earlier affidavit, and generally for the reasons I have given in relation to the earlier affidavit, I would refuse to admit the affidavit sworn 8 August 2013 as evidence in this appeal.

1. The applications of the appellant to admit additional evidence are dismissed.
2. Leave to appeal is refused.
3. The appeal is dismissed.