Court of Appeal (WA)|2003-12-10|Before: Mr J, Miller J, McKechnie J, Wallwork AJ

"S" v The Queen [2003] WASCA 309 (10 December 2003)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : "S" -v- THE QUEEN [2003] WASCA 309

Criminal law - Sentence - Attempting to pervert the course of justice - Sentence of 2 years' imprisonment - Offender mother of a disabled child - Medical evidence that child required both parents - Whether sentence ought to have been suspended

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

1 MILLER J: At the hearing of this application for leave to appeal, the Court granted an extension of time within which to appeal, granted leave to appeal, allowed the appeal, and varied the sentence of 2 years' imprisonment imposed upon the appellant by substituting for it a suspended term of imprisonment, being a term of 2 years' imprisonment suspended for 2 years. The Court undertook to give reasons for decision and these are my reasons.

2 The appellant was tried in the District Court at Perth on an indictment which alleged that on 5 October 2001 at Warnbro, she and another attempted to pervert the course of justice by falsely creating evidence that W admitted having sexually penetrated M.

3 After trial by jury, the appellant was convicted of the offence and sentenced by Nisbet DCJ to a term of imprisonment of 2 years with eligibility for parole. The sentence dated from 1 May 2003.

4 The appellant's notice of appeal sought leave to appeal against the sentence on the following grounds:

"1. The sentence imposed was manifestly excessive in that the learned trial Judge failed to give due weight to those facts necessary to give rise to a suspended term of imprisonment.

2. The learned trial Judge failed to give sufficient weight to the fact that the appellant has a child in need who is dependent upon her."

5 The offence committed by the appellant was undoubtedly a very serious one. The facts outlined by the learned sentencing Judge revealed that in September - October 2001, W had attempted suicide in a country town and had been found by M, the 7-year-old son of the appellant and W. W had custody of M, but there had been a long and bitter Family Court dispute over the issue.

6 W was taken to hospital and transferred to Perth and a social worker took charge of M. The social worker packed various items for the boy, including his father's mobile telephone. M was then collected by the appellant and her partner, who was her co-accused. M returned with the appellant to reside with her and on 4 October 2001 she took him to the Child Protection Unit at Princess Margaret Hospital in consequence of certain disclosures he had made to the appellant about alleged sexual abuse. On 5 October 2001, the appellant, in company with others, made use of W's mobile telephone to send text messages to a number of people whose names and telephone numbers were stored in the memory of the mobile telephone, those messages reading, "I can't handle life. I can't forgive myself for having sex with my own son, [M]."

7 Police were called in to investigate the matter, but their investigations revealed that the messages had been sent from an area in the metropolitan area at a time when W was in hospital and could not have been responsible for sending the messages. The investigation ultimately revealed the appellant's involvement in the offence.

8 The learned sentencing Judge rightly took the view that the appellant was the instigator of the crime. He described the offence as a premeditated attempt to pervert the course of justice which was "carried into devastating effect and (tainted) forever the police investigation into M's alleged complaint". His Honour pointed out that the appellant had apparently made the alleged disclosure for extraneous purposes, including reprisal for her loss of the custody battle in the Family Court.

9 Having set out the circumstances of the offence, the learned sentencing Judge then turned to matters personal to the appellant. He noted that she had a minor police record and a number of children. One of those was the boy, M, to whom reference has been made. Another was a son, A, who was the son of the appellant and her co-accused. There was also a daughter aged 10 years. The appellant shared the custody of her son, A, with her co-accused, but had the sole care of her daughter. M had, by the time of the hearing, returned into the care of his father.

10 The learned sentencing Judge made reference to the fact that the appellant's son A was a severely disadvantaged child. He accepted evidence before the Court to that effect from Dr John D Hobday. His Honour pointed out that A attended a special needs school and each of A's parents took a very active role in his care. He concluded on this point with these words:

"I accept that if I send you both to prison [A] will suffer and I am mindful of what the Court of Criminal Appeal has had to say about this type of situation but in another connection in the case of Nguyen.

Nevertheless, the needs of others, innocents who might be adversely affected by any sentence I impose on each of you, are still subservient to the interests of justice as a whole."

11 The learned sentencing Judge concluded that the offence was the most serious example of an attempt to pervert the course of justice that he had seen, save for offences in the higher category associated with perjured testimony. He considered there was a need for "a strong general deterrent in sentencing for crimes such as this" and a need to show the community that conduct of this type would not be tolerated.

12 His Honour made reference to the fact that every day of the week people are sent to prison in the justice system, depriving their families of their support, care and attention and it is not unusual for parents of young, school-aged children, even those with special needs, to be sent to prison. His Honour concluded that the seriousness of the offence could only be reflected in a sentence of imprisonment to be served immediately by the appellant. His Honour pointed out that he would have started with a sentence of 3 years' imprisonment, but because of the particular circumstances of A he was prepared to show leniency by reducing that sentence to 2 years' imprisonment, to be served immediately.

13 The co-offender was treated differently. The learned sentencing Judge found that he had the least culpability of all and, as he was one of the primary caregivers of A, the sentence imposed upon the appellant would be ameliorated if he at least was free to supervise the care of A. He was sentenced to a term of imprisonment of 2 years suspended for 2 years.

14 It is important to appreciate what the evidence of Dr Hobday was. In a report dated 4 April 2003, the doctor had written:

"I feel extremely strongly, that to disrupt their care of [A] would be very substantially detrimental to the child. I think it would put him back to a level which he probably never will recover from.

I would ask that some suitable arrangement be made so that these two parents can continue the care of [A]."

15 Subsequent reports of Dr Hobday, which were accepted by the Court for the purpose of the appeal, do not advance the position any further.

16 There was also before the learned sentencing Judge a report from the principal of Malibu School, to the following effect:

"[A] is a five year old boy with an intellectual disability who attends Malibu School Pre-Primary.

Malibu School is a specialist school for students with disabilities, intellectual and physical, sensory impairments and autism. We are a full age range school with students attending four year-old Kindy Program through to eighteen-year-old students on a Vocational Education Training Program.

[A] enrolled at Malibu in 2002 and attended our four-year-old program two days a week.

This year he is a full-time, five days a week, pre-primary student.

[A] exhibits symptoms of Autism Spectrum Disorder. He responds very well to routine and familiar people but is uncertain and agitated with new people, new activities and new situations and can become tearful and stressed.

He is responding well to the program in pre-primary, beginning to speak in three to four word sentences, follows simple one concept instructions and beginning to be independent with routines in the classroom, looking after his belongings, self care skills, dressing and undressing and mealtime management. The focus of his program is language development/communication."

Malibu values parents as partners in the education process. [A]'s parents are very supportive and involved with school programs, always attending meetings with staff concerning [A]'s progress and follow through with suggestions, ideas and programs at home."

17 It is important to appreciate that Dr Hobday expressed the very firm view that the appellant's son, A, required the care of not one, but both parents. He stated unequivocally that to disrupt the dual parental care of the child would be to his very substantial detriment and would indeed "put him back to a level which he probably (would) never recover from".

18 When the learned sentencing Judge considered Dr Hobday's opinion, he noted only that if both parents were sent to prison, A would suffer. Dr Hobday had in fact gone much further than this. He had expressed a strong view that disruption of A's care by the imprisonment of either or both parents would be very substantially detrimental to the child and would put him back to a level from which he would probably never recover. In my view, the learned sentencing Judge underemphasised Dr Hobday's assessment.

19 The learned sentencing Judge's decision to impose upon the appellant a term of imprisonment to be served immediately was, of course, an exercise of discretion in relation to which full regard must be had by this Court. It would be wrong for the Court to simply exercise its discretion in a manner different from that of the sentencing Judge. This was made clear by the High Court in Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ, at [15], as follows:

"The principles according to which an appellate court may interfere with such a discretionary judgment by a sentencing judge are well established. In their application to a Crown appeal against sentence they were summarised in R v Allpass and R v Clarke. Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice."

20 However, in this case I have come to the view that the learned trial Judge erred in the exercise of his discretion in sentencing the appellant to a term of imprisonment to be served immediately, because his Honour failed to give sufficient weight to the profound disabilities suffered by the child, A, and the medical opinion in relation to his future if he was deprived of the parental care of both parents.

21 Generally speaking, hardship caused to the child of an offender is not a circumstance to be taken into account in the sentencing process. However, when the degree of hardship is exceptional if the parents of a child or a parent of the child is imprisoned, different considerations apply. In R v Stewart (1994) 72 A Crim R 17, Franklyn J (at 21), put it this way:

"Generally, hardship caused to an offender's children is not a circumstance to be taken into account. The authorities are clear, however, that it may be taken into account when the degree of hardship that imprisonment will involve is exceptional or when the offender is the mother of young children, or where imprisonment will result in the children being deprived of parental care. In all cases, however, it depends on the gravity of the offence and the circumstances of the case."

22 Much the same was said by Murray J in Hodder v The Queen (1995) 15 WAR 264 at 287, as follows:

Where serious offences are committed, it is inevitable that more severe punishment will be involved and that will be expected in almost every case to cause hardship to innocent persons associated with the offender and the commission of the offence, as victims or otherwise. It is right then that only in an exceptional case, quite out of the ordinary, should the hardship which a proper sentencing disposition will occasion to innocent third parties be allowed to substantially mitigate the court's sentencing disposition. The court should not lose sight of the fact that the hardship occasioned by the sentencing process is, in truth, caused by the offender who commits the offences and visits upon himself or herself the punishment of the court. Even so, the court should, as it was put by Wells J in Wirth, be prepared to draw back in mercy where it would, in effect, be inhuman to refuse to do so."

23 In Commonwealth prosecutions, the Court is required to take into account the probable effect that any sentence imposed on an offender would have on any of the person's family or dependants: s 16A(2)(p) Crimes Act 1914 (Cth). In the context of this legislation, in Nguyen v The Queen [2001] WASCA 119; (2001) 160 FLR 284, Wallwork J at [70] - [71] said:

"In this case s 16A(2)(p) of the Crimes Act requires the Court to take into account the probable effect that any sentence would have on any of the person's family or dependants. It is obvious from the pre-sentence report that the youngest child in particular is being very badly affected by his mother's imprisonment. This is to be expected.

In my view, it is not an appropriate response to this family's situation to say, as some courts have said in the past, that the offender should have thought of that beforehand. The children are innocent of any wrongdoing and should not be so gravely disadvantaged. Their rights are most important in a case like this as young children in this society are to be protected as far as possible. Every effort should be made to see that they are not deprived of parental care."

24 More recent cases in which the general principles have been expressed are Dodd v Hoogewerf [2002] WASCA 15 (Miller J) and Adams v The Queen [2003] WASCA 91 (Scott, Templeman and Hasluck JJ).

25 In R v Hinton [2002] NSWCCA 405; (2002) 134 A Crim R 286, the respondent was a customer service operator in Centrelink and thus employed by the Commonwealth. Over a period of some 9 months she received allowances for each of 16 identities she had created for the purpose of defrauding the Commonwealth, receiving a sum in excess of $78,500. She pleaded guilty to 16 counts of defrauding the Commonwealth and was sentenced to imprisonment for 2 1/2 years, in relation to which she was released upon entering into a recognisance to be of good behaviour for the period of 2 1/2 years.

26 The respondent had a 4-year-old child who suffered from severe behavioural and emotional problems. Evidence was given to the sentencing Court that separation of the child from the mother would be likely to be experienced by the child as traumatic and would result in an escalation of her distress and behavioural and emotional problems.

27 The Court of Criminal Appeal considered that notwithstanding the exceptional circumstances found by the sentencing Judge in respect of the situation of the respondent's child, a suspended sentence was inappropriate punishment to denounce the criminality of the respondent, particularly in light of the period over which the offences were committed and the breach of trust involved. Howie J (with whom Wood CJ at CL and Sully J agreed) said at [35]:

"Although his Honour was justified by reason of the exceptional circumstances he found to avoid imposing a full-time custodial sentence as would normally be required, there had to be some form of actual imprisonment that the respondent was required to serve. The leniency involved in a suspended sentence could not in this case adequately reflect the objective seriousness of the offences committed or the need for general deterrence."

28 However, the Court varied the sentence by directing that it be served by way of periodic detention. Unfortunately, that sentencing option is not available in Western Australia. Had it been, it may well have been a suitable option for the learned sentencing Judge to have considered in this case.

29 The position in this State seems therefore to be that in an exceptional case, "quite out of the ordinary", when hardship would otherwise be occasioned to innocent third parties, the Court's sentencing disposition can be substantially mitigated. As Murray J pointed out in Hodder v The Queen (supra) at 287, the Court will, in certain circumstances "be prepared to draw back in mercy where it would, in effect, be inhuman to refuse to do so."

30 This case is, in my opinion, just such an example of the need to draw back in mercy and impose upon the appellant a sentence which will serve to both indicate the seriousness of the offence committed by the appellant, but at the same time ameliorate the problems which would otherwise be suffered by the severely disadvantaged child of the appellant and her partner should he be deprived of the care of both parents. That sentence, in my view, is a sentence of 2 years' imprisonment to be suspended for a period of 2 years.

31 It is for these reasons that on the hearing of the appeal I was of the view that leave to appeal should be granted, the appeal allowed and the sentence imposed by the learned sentencing Judge varied by suspending it for a period of 2 years, effective from the date of hearing of the appeal.

32 MCKECHNIE J: The judgment of Miller J completely expresses the reasons for which I joined in the decision of the Court to vary the sentence by imposing a suspended term of imprisonment.

33 No argument was addressed to the Court on the United Nations Convention on the Rights of the Child. In the absence of argument, it is difficult to see the relevance of the Convention in the present case. Specific rights, in the event of separation following imprisonment of a parent, are provided by Article 9.4, but the right to information about the whereabouts of the absent parent has no present relevance. I leave the issue of the Convention until full argument in a proper case.

34 With respect to those who think differently, I consider that the decision of Franklyn J in Stewart v The Queen, unreported; CCA SCt of WA; Library No 940081; 21 February 1994 correctly states the applicable principles.

35 My agreement with Miller J is expressly on the basis that different considerations apply because the degree of hardship in this case is exceptional.

36 WALLWORK AJ: Miller J has stated the facts of this matter in his reasons for judgment and also the conclusions which the Court unanimously reached on 6 November 2003.

37 In Dodd v Hoogewert [2002] WASCA 15, a decision concerned with a woman assaulting a public officer and taking cannabis into a prison, Miller J (at [11]; [15] - [22]) discussed some of the decided cases concerning whether it is always necessary to sentence persons to imprisonment for serious offences. Generally and with respect I agree with those reasons of his Honour. I also refer to the reasons of Burt CJ in James (1985) 14 A Crim R 364 at 366 where amongst other things, his Honour said, "The question is whether in all the circumstances no other sentence is appropriate". See also Sentencing Act (WA), s 6.

38 I would like to add that the questions of whether a person deserves to be imprisoned for a serious offence and the effects of a possible sentence of imprisonment on the offender's "family or dependants", for example young children, involve quite different considerations. Children in Australia are entitled to proper protection whatever that requires: The United Nations Convention on the Rights of the Child, entered into force for Australia, 16 January 1991; Pt 1, Article 3, 8 and 23.. It can be a serious derogation of a child's rights to order a particular offender go to prison.

39 With respect to those who think differently, the different considerations have not been sufficiently separated in some of the relevant decisions in various States of Australia. Section 16(A)(2)(p) of the Commonwealth Crimes Act was passed by the Federal Parliament to legislate for the correct position. In my view the provisions of that section should be applied in State Courts without any "riders" to the clear words of the section: Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 per Mason CJ and Deane J at 287. The position in the UK can be seen from the decided cases of Whitehead v R [1996] 1 Cr App R 111, Franklyn v R (1981) 3 Cr App R 65, Haleth v R (1982) 4 Cr App R 178 and Vaughan v R (1982) 4 Cr App R 83.

"S" v The Queen [2003] WASCA 309

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (56 paragraphs)

"S" v The Queen [2003] WASCA 309 (10 December 2003)

Parties

Cases Cited (6)