Criminal law - State sentence appeal - Deprivation of liberty of foster child - Reckless conduct resulting in physical, emotional and psychological abuse - Assault on the child - Sentences manifestly inadequate - Whether totality principle misapplied

Children and Community Services Act 2004 (WA)

Sentencing Act 1995 (WA)

Cook v The Queen [2001] WASCA 16

House v The King [1936] HCA 40; (1936) 55 CLR 499

Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447

Kometer v The State of Western Australia [2005] WASCA 131

Krencej v The Queen [1999] WASCA 20

Longbottom v The State of Western Australia [2008] WASCA 203; (2008) 51 MVR 224

Mill v The Queen (1988) 166 CLR 59

Seroka v The State of Western Australia [2006] WASCA 284; (2006) 168 A Crim R 469

The State of Western Australia v Goodin [2008] WASC 116

Thorn v The State of Western Australia [2008] WASCA 36

2 PULLIN JA: This is a State appeal against the sentence imposed in relation to the two respondents. Leave to appeal was granted earlier by Miller JA. The male respondent (TIK) pleaded guilty to all three counts and the female respondent (SNK) pleaded guilty to the first two counts in the indictment which read:

(1) Between 1 November, 2005 and 9 November 2007 at Perth TIK and SNK being persons having the care or control of a child ... engaged in conduct reckless as to whether such conduct may have resulted in [the child] suffering harm as a result of physical, emotional or psychological abuse [contrary to section 101(1) of the Children and Community Services Act 2004].

(2) Between 19 October 2007 and 9 November 2007 at Butler TIK and SNK unlawfully detained [the child] [contrary to s 333 of the Criminal Code].

(3) On 8 November 2007 at Butler TIK unlawfully assaulted [the child] and thereby did him bodily harm [contrary to s 317(1) of the Criminal Code].

And that TIK was in a family and domestic relationship with [the child].

3 TIK was sentenced to 2 years 8 months' imprisonment on each of counts 1 and 2 which were ordered to be served concurrently and sentenced to 6 months on count 3, making a total of 3 years 2 months. SNK was sentenced to 2 years 8 months on each of counts 1 and 2, to be served concurrently.

4 The child was born to a friend of SNK. The friend surrendered the child into the care of SNK as she left hospital. The respondents took on the responsibility for caring for him as though he were their natural child. The facts as found by the sentencing judge reveal a case of appalling neglect and abuse of the child who was 6 years and 9 months old in November 2007. At approximately 2 pm on Friday, 9 November 2007 the police with two staff members from the Department of Child Protection attended at the respondents' house. The respondents were not there. There were five other children of the family, three of whom were natural children of the respondents and the two elder of whom were children of SNK by another man. The children were all at the house but the victim could not be found in the house. One of the other children told the officers that they thought the victim was out with the respondents. The child was eventually found in a portacot, or travel cot, in the darkened

garage which was attached to the home. The only light into the garage was sunlight coming under the garage door. The garage was used as a storage area.

5 The cot in which the child was located had a piece of wooden MDF board across the top with holes drilled into the MDF board. A rope ran through the holes and around the cot securing the board to the top of the cot. This was designed to, and did, prevent the child from getting out of the cot. The existence of this lid made it impossible for the child to stand up. He was found sitting with his knees to his chest. He did not speak until spoken to. He had been in the cot since the evening of the night before. According to TIK, he had let out the child for half an hour in the morning and then put him in the cot again with the lid tied on when the respondents went out. The child said to the police that he was thirsty and hungry and needed to go to the toilet. Inside the cot the police found a screwdriver, a silver coloured saucepan, a hairbrush and a white quilt. He later explained that he had been given the screwdriver so that he could bang on the saucepan to alert the respondents when he needed to go to the toilet. The child was removed from the cot. He was observed to have bruising on his back and forehead, he was pale and cachetic, and extremely underweight for a boy his age and height.

6 The respondents told police they had put a lock on the freezer and locked up other food in the house so that the child could not get access to it. The child, when he was fed, was fed separately from the other family members and sometimes fed on a board in the cot. He was not fed at every mealtime and he was fed an inadequate amount.

7 The child was taken to the Princess Margaret Hospital and on 12 November 2007 he was examined by a paediatric registrar Dr Tan. Dr Tan had access to records of the Princess Margaret Hospital which revealed that the child had been taken there by the respondents in October 2005. On examination Dr Tan found that the child was suffering from severe malnutrition and failure to thrive. Dr Tan, by reference to records from 2005 concluded that he had stopped thriving and growing at about 4 1/2 years of age, which was when he was examined at the Princess Margaret Hospital in 2005. On 12 November 2007 he was 109 cm tall and weighed only 12.8 kilos. By examining the 2005 records, Dr Tan was able to point out that there had been no significant increase in the victim's height since 2005 and that he had lost 4.3 kilograms in weight since he was weighed on 10 November 2005. His height on 12 November 2007 put him between the first and third percentile for children of his age and his weight on that day put him well below the first percentile. Blood tests showed that he had low calcium, phosphate and potassium levels. Dr Tan reported that this was likely to be due to nutritional deficiency. Diffuse bone demineralisation was demonstrated. The child had a low vitamin D level which suggested either a nutritional deficiency, a lack of exposure to sunlight, or both. The boy had multiple bruises including facial bruises over the right temple, right upper eyelid, left temple and nasal bridge. There were numerous other bruises to other parts of his body, as well as scratches and abrasions. Dr Tan reported that these were more than one would expect from regular, accidental, injury. Dr Tan reported that there was evidence of old fractures of the fourth and fifth right metatarsals which he concluded may have been accidental or inflicted. His opinion was that the latter injuries would have been very painful and limited the child's walking significantly and that medical attention should have been sought in relation to them. The nutritional deficiencies also required medical attention. Dr Tan concluded that the 'cachectic appearance, nutritional deficiencies, and the presence of multiple injuries in this child are in keeping with child abuse in the form of inflicted injury and severe neglect'.

8 On the day he was rescued photographs were taken of the child. They provide images of the extremely emaciated condition the child was in.

9 A report from the Education Department informed the sentencing judge that the child attended kindergarten and pre-primary school up until some time in 2006. At the commencement of 2006, SNK had said to the school authorities that the respondents were concerned that the child had an eating disorder. However, the school reported that at pre-primary school there was no apparent symptoms of such a syndrome.

10 In November 2006, SNK removed the child from school and in February 2007 registered an application for home schooling. An initial meeting was arranged for 20 June 2007, and at SNK's request, postponed to 6 August 2007. When an officer of the department attended their house on this date, he was unable to obtain a response to his knocks on the door.

11 As the sentencing judge observed, the removal of the child from the school system and his isolation from his family deprived him of normal social and emotional development. Given the manner in which he was kept at home, this denial of the opportunity to attend school was an integral part of the emotional and psychological abuse that he was exposed to.

12 A report dated August 2008 of Clinical Associate Professor Peter Winterton, who was the Medical Director of the Child Protection Unit at Princess Margaret Hospital, was provided to the sentencing judge. The report revealed that the child was admitted to the Princess Margaret Hospital for mild cardiac failure in January 2008 (that is two months after he was rescued), and this was a consequence of his malnutrition. Professor Winterton was of the view that, had the child's neglect continued beyond November 2007, then he 'may well have died'. Associate Professor Winterton reported that it was important in understanding the significance of the victim's neglect that the improvement in his condition since his rescue be noted. His body mass index in February 2008 (ie just three months after he was rescued from the garage) had moved from 10.71 to 19.25. This shifted the child from well below the first percentile to the 95th percentile. Associate Professor Winterton also said in his report that:

Considering the level of neglect, malnourishment, and biochemical abnormalities, it would be expected that this child will take a significant length of time to recover, if ever, to a normal stage.

13 Professor Winterton's opinion was that the child suffered a significant developmental delay as a consequence of his social isolation, lack of nutrition, and emotional abuse.

The conduct the subject of count 1 - conduct reckless resulting in harm

14 Section 101(1) of the Children and Community Services Act 2004 provides that:

a person who has the care or control of a child and who engages in conduct -

(a) ...

(i) physical abuse;

...

(iii) emotional abuse;

(iv) psychological abuse ...

(b) reckless as to whether the conduct may have that result,

is guilty of a crime, and is liable to imprisonment for 10 years.

15 Section 101(2) of the Act states that in s 101(1) 'engage in conduct' means:

(a) to do an act; or

(b) to omit to do an act.

The word 'harm' is defined in that subsection to have the meaning given to that term in s 28(1) of the Act. In s 28(1) 'harm' in relation to a child 'means any detrimental effect of a significant nature on the child's wellbeing'.

16 The prosecutor informed the court that the conduct referred to in count 1 was:

(a) the failure to provide proper or sufficient nutrition;

(b) the failure to provide proper or sufficient medical care;

All of this conduct had a detrimental effect of a significant nature on the child's wellbeing.

17 The physical abuse referred to in this charge was physical harm which resulted from the failure to provide proper or sufficient nutrition. This resulted in the diffuse bone demineralisation, the failure to thrive, and the overall threat to his life because of the severity of the lack of nutrition. The physical harm flowing from the assault the subject of count 3 was not relied upon as conduct supporting count 1 in the indictment. The emotional and psychological abuse resulted from his separation from other children as a result of his withdrawal from school and the isolation from the other family members. The conduct of both accused was charged not as intentional conduct, but conduct 'reckless as to whether such conduct may have resulted in the child suffering harm as the result of physical, emotional or psychological abuse'.

18 How long the conduct had been in progress was an area of contention before the sentencing judge. The sentencing judge concluded it was not necessary for him to have a trial of the issues on this question. He concluded that over whatever period the neglect and abuse occurred, it was a sufficiently long enough period to cause not only severe malnutrition but a significant retardation of the child's physical development. His Honour held that it was certainly over much longer than three or four weeks.

The conduct the subject of count 2 - deprivation of liberty

19 The conduct in relation to count 2, deprivation of liberty, was the intentional unlawful conduct involved in detaining the child in the portacot so that he could not escape. The child was not confined all the time but he was regularly confined at night time and sometimes in the daytime. This conduct took place over the period of time identified in the indictment.

The conduct the subject of count 3 - assault

20 On or about 8 November 2007, which is the day before the child was rescued, TIK assaulted the child causing bodily harm. This assault involved pushing him violently in the head. Either the blow was so severe that it caused bruising to the child's forehead or it forced him up against other objects to cause the bruising. This blow was particularly serious given the victim's weakened emotional and physical state at the time.

21 The child was interviewed on 13 November 2007 by police officers from the Child Interview Unit. His interview, which was recorded on DVD, provides insight into the isolation and discomfort he experienced while he was deprived of his liberty, and the effect of the mistreatment. He described how he became very weak and lacked muscle strength. As a result of this, he was unable to get out of the cot without assistance. The sentencing judge said that the child described poignantly how he became bored, upset and angry about his confinement.

22 Both of the respondents were interviewed by police at a police station and the interviews were recorded on DVD. TIK was also interviewed on 9 November 2007 at the house in the afternoon after the child was rescued and this was also recorded on DVD. Both of the respondents claimed that the child had been confined to protect him from self-harm. This harm, the respondents said, arose from him seeking to access food at all times of the day and night. They cited one occasion when he fell out of the top bunk of a bed and on another occasion cutting himself when opening a can of food.

23 SNK said she took the child to a dietician but this apparently produced no satisfactory results in her mind. SNK said she came up with the diagnosis of a disorder called Prader-Willi Syndrome by searching the Internet. TIK worked on a fly-in fly-out mine site and SNK said in her interview that when TIK had returned home the week before 9 November 2007 she left him to deal with the 'problem' of the child. She said she wanted to focus on her daughter who around that time underwent an operation.

24 Prader-Willi Syndrome is a genetic disorder, which if a person suffers from it, can lead to eating disorders. There was no evidence that the child had the Prader-Willi Syndrome. When the child had been taken by SNK to the Princess Margaret Hospital in 2005, this 'diagnosis' had been excluded.

25 SNK said in the police interview that she became resentful of the child. She said in the police interview that she began locking cupboards to prevent the child obtaining food and that:

I resented that, because in the back of my mind I always knew that he wasn't my child and just felt like I had taken on more than I could. ... Then I made his bedroom out in the shed, so that way he was away from everything, you know. I sat the children down and I said to them, 'I want to find [the child] a new mummy and daddy'.

26 TIK admitted that he had constructed the lid in a way which could be secured to the portacot and that he had secured the child in the portacot in the period before the child was rescued. SNK admitted that, at least on one occasion, she had placed the child in the portacot and placed the lid on it, although she said she did not secure the lid. TIK said that the saucepan and screwdriver were in the cot so that if the child wanted to go to the toilet he could bang on the saucepan. They admitted that when the child was fed it was intermittently and not with the rest of the family. Sometimes he was fed in the cot on a board.

The sentencing judge's findings about the respondents' awareness of the child's deteriorating condition

27 The sentencing judge found that both TIK and SNK reached the point where they no longer wanted the child as part of the household and resented his presence. They both persisted in the view that he had a genetic disorder although they had no evidence to support this view. To isolate him, they placed him in the garage and then kept him in the small cot in which he was found. The child was not allowed out of the cot to join other members of the family at meal times and he was fed intermittently and, obviously, most inadequately. Both respondents were aware of his deteriorating condition. Both respondents were aware that he had lost a considerable amount of weight. Both of them ought to have been aware of the substantial psychological harm they were inflicting upon the child. In the end, they were both content that, by the arrangements they had made, the child's influence on the other members of the family would be minimal. SNK in particular wanted to give priority to her natural children at the extreme expense of the complainant child's condition. TIK was equally a party to this arrangement and, in the last week prior to the child being rescued, he was the principal supervisor of the child. (It is also pertinent to note that this was not a case of persons with a hopeless inadequacy in the ability to care for children. The other children were properly fed, attended school, if they were of school age, had access to medical care and were housed in bedrooms with usual facilities.)

28 The sentencing judge took into account the requirements of the Sentencing Act and noted that neither party had been able to identify any comparable cases in relation to count 1 which might guide in the imposition of penalty. The offence in count 1 was an offence created on 1 March 2006 when s 101 and other sections of the Children and Community Services Act 2004 (WA) commenced.

29 The sentencing judge referred to mitigating factors in relation to SNK. His Honour said they were the plea of guilty (which his Honour correctly noted was a major mitigating factor); that the other children had been taken away as a result of this offence and placed in the care of the Department; that there was no prior history of offending; and that there had been cooperation with the police. His Honour also took into account that SNK was as a parent 'not coping with the pressures of parenting', and that she had faced difficulties in the relationship with TIK. It must be observed however, that the submission that SNK was not coping with the pressures of parenting is of slight value as a point in mitigation, if it is a point in mitigation at all, because she did not mistreat the other children in the house. This was a case of selective mistreatment of the victim.

30 His Honour said that the mitigating factors in relation to TIK were the plea of guilty, which was once again regarded as a major mitigating factor; the fact that he had suffered from depression and some alcohol problems; that the other children were taken away from him as a result of this offence; that he had no significant prior history of offending; that he had a good work history; and that he had cooperated with the police.

The sentencing judge's conclusions concerning sentence

31 In reaching the appropriate sentence in relation to counts 1 and 2, his Honour concluded that immediate imprisonment was the only appropriate sentence and noted that the offences should be placed 'at the upper end of seriousness'.

32 His Honour then said that in relation to both respondents, that on counts 1 and 2:

I believe that the appropriate starting point is a term of imprisonment of 5 years and 4 months. Both of you have pleaded guilty on the basis of an expedited committal; that is a fast-track plea, and I believe that for this plea a reduction of 25% should be given ... This leaves a net sentence on each matter of 4 years' imprisonment.

I am required by law to then further reduce this sentence by one-third under the provisions of the Sentencing Legislation (Amendment and Repeal) Act 2003 ... this reduces each sentence to 2 years and 8 months.

33 His Honour said in relation to count 3 against TIK:

I believe that the starting point is a term of imprisonment of 12 months which I again reduce by 25% for your plea of guilty to 9 months and then by a further one-third under the provisions of the Sentencing Legislation (Amendment and Repeal) Act 2003 to 6 months.

34 His Honour then considered issues of totality and said:

[T]he totality principle ... requires me to ensure that the aggregate of the sentences imposed is a just and appropriate measure of the total criminality involved. In this case the deprivation of liberty charge is a part of the conduct which the State relies upon in relation to counts 1 and I believe that the sentences therefore on counts 1 and 2 should be concurrent.

In relation to you [TIK] I conclude that the act of assault was over and above the criminal behaviour which has been demonstrated by you and your wife in relation to counts 1 and 2. Although it may be argued that it involved a part of the abuse suffered by the child, I conclude that it was a separate criminal activity. Accordingly, the sentence for count 3 will be cumulative on counts 1 and 2.

35 Both were made eligible for parole. The sentence was backdated to 26 October 2008 for TIK and in the case of SNK, the sentence was backdated to 17 October 2008.

36 The State appeals on the ground that the sentencing judge erred in law by imposing sentences in relation to counts 1 and 2 which were manifestly inadequate, and erred in law by ordering that both of those sentences be served concurrently. No complaint is made about the sentence on count 3 or the fact that it was ordered to be served cumulatively on the other sentences.

Was there a risk of sentencing twice on the same evidence?

37 There was some discussion at the hearing of the appeal as whether the respondents were sentenced in contravention of s 11(1) of the Sentencing Act 1995. That subsection reads:

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

In Pearce v The Queen (1998) 194 CLR 610, McHugh, Hayne and Callinan JJ said that the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common [40]. Section 11(1) refers not to the elements of the offence, but to the evidence necessary to establish the commission of the offence.

38 In this case the evidence to prove the conduct identified by the prosecution and set out above in relation to count 1, was not the evidence which was necessary to prove counts 2 or 3. The evidence to prove the conduct of causing physical harm which is part of the conduct constituting count 1, did not include evidence of the assault by TIK which is the subject of count 3. Furthermore, the evidence to prove count 1 as particularised by the prosecutor, was not evidence which proved count 2. Count 1 referred to reckless conduct which may result in harm, whereas count 2 involved evidence of the deliberate conduct involved in unlawfully detaining the child by imprisoning him in the cot for extended periods of time. Thus, the sentencing judge correctly proceeded by sentencing for each offence and then considering the issue of totality. See Longbottom v The State of Western Australia [2008] WASCA 203; (2008) 51 MVR 224 per Steytler P [6], Wheeler JA [57] and Miller JA [94].

39 The appellants submitted that the sentences in relation to counts 1 and 2 were manifestly inadequate. This is a submission which means that although there is no discoverable error, the sentences are upon the facts, unreasonable or plainly unjust, which permits this court to infer that in some way there has been a failure properly to exercise a discretion reposed in the sentencing judge. See House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505.

40 The appellant correctly submits that it is well established that in order to determine if a sentence is manifestly inadequate, it is necessary to view it within the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to the crime, the place which the criminal conduct occupies on the scale of seriousness of crimes of that type, and the personal circumstances of the offender (see The State of Western Australia v Wallam [2008] WASCA 117 [39]).

41 The maximum sentence in relation to count 1 is fixed by s 101(1) of the Children and Community Services Act 2004 (WA), which is 10 years' imprisonment. The maximum penalty in relation to count 2 is 10 years' imprisonment. The maximum penalty on count 1 is the same whether the conduct is wilful or reckless. The State acknowledges that, although a deliberate or wilful act will be generally viewed as more serious than a reckless act, the consequences of the conduct must take primacy. In other words the heinousness of the conduct in a particular case depends not on the statute defining the offence but on the facts of the case. See Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447 at 452. The appellant correctly pointed out that abuse of the kind revealed here can be difficult to detect. That is demonstrated by the length of time it took for the offending in this case to be discovered by the authorities. The case involved a serious case of reckless conduct by both respondents and a serious case of unlawful detention. The appellant submitted that there was no feature of the facts or the respondents' personal circumstances that warranted the sentence imposed by the sentencing judge. The appellant ultimately submitted that the sentences on counts 1 and 2 were manifestly inadequate.

42 Both respondents submit that because the charge in count 1 was one of recklessness rather than a deliberate or wilful act, that the offence should not be regarded as being in the worst category, and that sentences were not manifestly inadequate. They both submit that the mitigating factors meant that the sentences imposed were appropriate sentences. Counsel for SNK submitted that she was less culpable than TIK because it was submitted that she had taken some steps to seek alternative care of the child. Although appointments with a welfare organisation to discuss the issue had been made, clearly nothing of practical effect had occurred, or been caused to occur, by SNK. The child was indisputably living in circumstances of appalling abuse and neglect at the time he was rescued.

Whether there was any difference in the culpability of the respondents

43 There was no significant distinction between culpability of the two appellants. It is true that TIK took more responsibility for the child in the last week before the child was found, but on SNK's own admission, she completely abandoned the care of the child in the last week knowing how he was being treated. Before that they were equally guilty of the conduct which is the subject of count 1. In relation to count 2, it was TIK who made the lid and usually tied the lid on but SNK had also placed the child in the cot in the garage and placed the lid on it on at least one occasion and she was a party to TIK's conduct. They were therefore equally responsible for the conduct the subject of count 2. Both were therefore equally culpable in relation to counts 1 and 2.

Ground 1 - the sentence on count 1 - error of law

44 The sentencing judge's observation that count 1 was at the upper end of seriousness, is not reflected in his starting point of 5 years 4 months' imprisonment. This case involved reckless conduct of the utmost seriousness. The child had been subjected to conduct which if it had continued may have resulted in the death of the child and the conduct may have left him with permanent physical damage. He had been reduced to a skeleton, denied proper medical care, was often isolated from the family, and was denied proper schooling. There are no other cases suggesting a range of sentences for this offence but the fact that it was an offence of the utmost seriousness means that the starting point used by the sentencing judge was bound to produce a manifestly inadequate sentence after applying the discount allowed for a plea of guilty (which was appropriate) and taking off one-third (which was correct under the sentencing law as it then stood). The sentencing judge therefore erred in law. Ground 1 must be upheld and the sentence on count 1 set aside.

Ground 2 - the sentence on count 2 - error of law

45 Even if the victim had been provided with all nutritional and educational requirements, the unlawful detention in the cot without company, entertainment or access to amenities was a deprivation of liberty of a very serious kind. The maximum sentence for unlawful detention is 10 years' imprisonment and the sentencing judge said this was a case of the utmost seriousness, which it certainly was. This type of offence is most commonly committed in conjunction with a robbery offence or a sexual assault offence. The cases of Krencej v The Queen [1999] WASCA 20; Cook v The Queen [2001] WASCA 16; Kometer v The State of Western Australia [2005] WASCA 131; Seroka v The State of Western Australia [2006] WASCA 284; (2006) 168 A Crim R 469; Thorn v The State of Western Australia [2008] WASCA 36 and The State of Western Australia v Goodin [2008] WASC 116 reveal sentences (in post-transitional terms) ranging from 1 year 4 months to 3 years 4 months' imprisonment for deprivation of liberty charges. Two of the cases (Seroka and Cook) reveal sentences imposed after pleas of not guilty and in the other four cases there were pleas of guilty. However, the deprivation of liberty in each case was for one relatively short period of time and in circumstances markedly different from this case. There can be no tariff for this type of offence because the circumstances and length of detention can vary markedly. In this case the detention occurred repeatedly over a three week period. The sentence of 2 years 8 months' imprisonment arrived at after allowing for the discount for the plea of guilty and the one-third reduction as was then required under the Sentencing Act was manifestly inadequate. Ground 2 must be upheld and the sentence on count 2 set aside.

46 Finally, the appellant submits that the sentencing judge erred in making the sentences on counts 1 and 2 concurrent. The totality principle requires the total effective sentence to bear a proper relationship to the overall criminality of all the offences viewed in their entirety, and having regard to the circumstances of the case. These circumstances include those referable to the offender personally. The totality principle also requires that the court not impose a 'crushing' sentence which is a sentence that destroys any reasonable expectation of a useful life after release.

47 The State correctly submits that the deliberate conduct of the respondent in detaining the victim in the cot was a separate and distinct offence of the failure to protect the child from harm, due to a reckless conduct. It was TIK who accepted that he was the person who had constructed the lid with that purpose in mind and SNK by her plea of guilty accepted that she was also criminally responsible even if she did not tie up the rope. The conduct in failing to provide the victim with food and medical care, and generally failing to protect him from harm, was an extremely serious offence, but the behaviour of depriving the victim of liberty was an escalation of the respondents' general attitude of resentment towards the child and a deliberate choice to physically and socially isolate him from the rest of the family. To class them as one transaction of criminal behaviour was to ignore the distinction between the two offences. The sentencing judge therefore erred in law in ordering that the sentences on counts 1 and 2 should be served concurrently. Ground 3 should be upheld.

48 In relation to counts 1 and 2, both appellants were, as already mentioned, equally culpable. In resentencing on counts 1 and 2, a sentence must be imposed which is commensurate with seriousness of the offences. The seriousness of the offences must be determined by taking into account the statutory penalty, the circumstances of the commission of the offences, (including the vulnerability of the victim), any aggravating factors, and any mitigating factors. The court must not impose a sentence of imprisonment unless it decides that the seriousness of the offence is such that only imprisonment can be justified.

49 The respondents both pleaded guilty and that was the most significant mitigating factor fully justifying a 25% discount because it facilitated the administration of justice. The other points in mitigation were those mentioned by the trial judge but they carry very little weight and warrant no extra reduction in sentence. The offences are so serious as to warrant only sentences of immediate imprisonment. Indeed, as the appellant submitted, the conduct the subject of count 1 puts it into the worst category of an offence of this kind involving reckless conduct. A case falling within the worst category enables the imposition of the statutory maximum penalty or something approaching it. See The State of Western Australia v BLM at [43] per Wheeler and Pullin JJA, Owen JA agreeing. If the conduct in this case had been deliberate, then a starting point before a reduction for mitigating circumstances would have been very close to the maximum of 10 years. In this case however, where the conviction is for reckless rather than deliberate conduct, an appropriate starting point would be 8 years' imprisonment. The discount of 25% for the plea of guilty was an appropriate discount which results in a sentence of 6 years' imprisonment.

50 In relation to count 2, this is a case of the utmost seriousness as the trial judge indicated. The deprivation of liberty charges referred to above, concern different facts and involve detention for much shorter periods. In this case the child was unlawfully detained for extended periods of time over the period between 19 October and 9 November. Although he was let out as certain times of the day, he was usually placed in the portacot with the lid on it in the early evening and kept confined there overnight. At times he was left there for much longer. For example, on the day he was rescued, he was rescued in the afternoon, having been placed in the cot early the evening before. He had no water in the cot and if he wanted to go the to toilet, he had to use a screwdriver to bang on the saucepan to try and attract the attention of one of the respondents. That was, of course, a useless exercise on a day such as 9 November when he was rescued, because the respondents had left the house with the child locked in the portacot. The method of detention also meant that the child was unable to stand in the confined quarters. A proper sentence on count 1, putting aside questions of totality, would be 4 years' immediate imprisonment.

51 There is no dispute that the sentence of 6 months for the assault on count 3 was the appropriate sentence.

52 In relation to counts 1 and 2, if the sentences were fully accumulated, then SNK would serve a total sentence of 12 years. That would result in a sentence which would have a crushing effect on the female respondent who is still below middle age. An appropriate aggregate sentence would be 7 years' imprisonment. The only way to achieve that outcome is to reduce the sentence on count 2 to 1 year and to order that that sentence be served cumulatively on the sentence on count 1. It is permissible to reduce the length of an otherwise appropriate sentence in order to achieve a correct total sentence. See Mill v The Queen (1988) 166 CLR 59 at 63. SNK should be made eligible for parole.

53 In relation to TIK, if all sentences were made cumulative, he would serve 12 years 6 months which would once again be a crushing sentence. As with SNK, the appropriate course is to reduce the sentence on count 2 to 1 year and to order that it be served cumulatively on the 6 year sentence in relation to count 1. The sentence of 6 months in relation to count 3

should be served cumulatively on the sentences on counts 1 and 2. Therefore, the appropriate aggregate sentence in TIK's case would be 7 1/2 years' immediate imprisonment. TNK should be made eligible for parole.

(a) Appeals on grounds 1, 2 and 3 upheld in each appeal.

(b) The sentences on counts 1 and 2 set aside in each instance.

(c) In relation to SNK the following sentences to be imposed:

(i) on count 1, a term of immediate imprisonment of 6 years;

(ii) on count 2, a sentence of 1 year to be served cumulatively on the sentence on count 1;

(d) In relation to TIK the following sentences to be imposed:

(i) a sentence of immediate imprisonment of 6 years in relation to count 1;

(ii) a sentence of 1 year in relation to count 2 to be served cumulatively on the sentence on count 1;

(iii) the sentence of 6 months in relation to count 3 be served cumulatively on the sentences in relation to counts 1 and 2;

55 The sentences proposed mean that SNK will have to serve a minimum period in custody of 5 years and TIK will serve a minimum period in custody of 5 years 6 months.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : THE STATE OF WESTERN AUSTRALIA -v- TIK [2009] WASCA 122 (S)

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Sentencing - Sentences backdated under the 'slip rule' - Turns on own facts

The State of Western Australia v TIK [2009] WASCA 122

1 JUDGMENT OF THE COURT: The Sentencing Information Unit, and presumably the respondents, have asked whether or not the sentences imposed by the court (see The State of Western Australia v TIK [2009] WASCA 122) in substitution for those of the sentencing judge, should be backdated to take account of the time which had been spent in custody by the respondents. The sentencing judge had made such an order. In this case the only orders made were to substitute new sentences for those imposed by the sentencing judge. This court did not disturb the order made by the sentencing judge that the sentences be backdated to commence on 26 October 2008, in the case of TIK, and 17 October 2008, in the case of SNK. It is from those dates that the sentences imposed by this court will commence to run.