R v WAO[2012] QCA 56

SUPREME COURT OF QUEENSLAND

[1] MUIR JA:  I agree that leave to appeal should be refused for the reasons given by Applegarth J.

[2] MARGARET WILSON AJA:  I agree with the order proposed by Applegarth J and with his Honour’s reasons for judgment.

[3] APPLEGARTH J:  On 25 November 2011 the applicant was convicted on his pleas of guilty to two counts of cruelty to a child under 16 years of age.  He had been jointly charged with his wife, Ms NBR, in respect of their child, T, who had been in their care (“the child”).  The first count was of having caused harm to the child by failing to provide her with adequate food between 31 December 2009 and 24 June 2010.  The second count was of having caused harm to her by failing to provide her with medical treatment on diverse dates unknown during the same period.

[4] Ms NBR, who also pleaded guilty the same day, was sentenced on each count to concurrent terms of imprisonment of two and a half years with release on parole after having served one third or 10 months of that period.  The applicant was sentenced to 18 months imprisonment on each count, to be served concurrently, with a parole release date after serving six months. 

[5] The applicant submits that the sentence was manifestly excessive in that he should not have been required to serve a term of actual imprisonment.  Alternatively, he submits that, having served a period of more than 100 days since 25 November 2011, he should be released forthwith.  He relies on the fact that Ms NBR was the primary caregiver, his role in the offences, his previous good character, the lack of apparent long-term injury to the child, the steps he has taken since his arrest and the absence of a pressing need for personal deterrence. 

The circumstances of the offences

[6] Remarkably, the other four children in the care of the applicant and his wife, and who were aged between nine years and one year at the time, were nourished and taken to the doctor when ill.  Only the child T was cruelly neglected.  She was between three and a half and four years of age at the time the offences were committed.  Early in her life she had been sent to live with Ms NBR’s mother and other family members in Melbourne.  The child stayed in Melbourne for about six months before returning to live with her parents in Brisbane.  During 2008 some of Ms NBR’s family members observed that the child was being treated differently from her other children.  Because of these concerns she stayed in late 2009 with Ms NBR’s sister in Melbourne.  She returned home to her parents in January 2010. 

[7] On 22 June 2010 Ms NBR’s brother visited her and the applicant at their home.  He had not seen the child for several months and he was proactive in seeking her out.  He found her asleep in her room and became alarmed at her appearance.  She was shockingly thin.  An argument ensued between the child’s uncle and her parents about her state of health.  He threatened to contact the Department of Child Services.  Later that night he and his partner took the child into their care and on the morning of 23 June 2010 he took her to the Mater Children’s Hospital. 

[8] On admission the child was found to be suffering from severe malnutrition and dehydration, and untreated scabies.  She weighed 11.3 kilograms, which placed her body mass index below the third centile for her age.  The obvious cause of her malnutrition was a lack of food and fluid.  She had not been adequately fed and it would have taken six months to reach her severe state.

[9] The child was noted to be at a high risk of death as a result of severe malnutrition and dehydration.  The development of her neurological skills was delayed.  The longer term consequences, both physical and psychological, of her neglect have yet to be established.

[10] The child responded to the care she was given in hospital.  She gained 3.4 kilograms in 12 days.  After being released from hospital she was cared for by a family member, and then was placed in the care of a Ms B, who is associated with Ms NBR’s extended family.  Ms B provided a victim impact statement about the child’s development and behavioural problems.

[11] Children’s Services and police commenced an investigation on 24 June 2010.  Their investigations showed that the child had not been treated in any medical centre or hospital between November 2009 and June 2010, whereas the other children in the family had been treated by the family doctor during this time.  The different treatment given to the child compared to her siblings included being placed in a bedroom of her own.  Ms NBR initially told police that the child had received a full diet and had eaten most of her meals.  Later, however, she told a doctor of her neglect of the child and that she had appreciated that she was not looking after her well enough.

[12] The sentencing judge accepted that Ms NBR was the primary caregiver to the children.  The applicant was employed during the relevant time.  Typically he would commence work at around 2.30 pm and would work until at least midnight and often later.  He would come home and sleep until around midday.  He noticed a change in his wife’s behaviour towards the child and noticed that she was not being cared for. 

[13] On one occasion he raised his concerns over the child’s condition and suggested to Ms NBR that the child should see a doctor.  This was only a few weeks before the child’s uncle visited in June 2010.  On that occasion the applicant said that his wife “bit his head off”.  When later asked by a psychologist why he did not take the child to the doctor himself, he said that he never thought of it.  It was not something he saw himself doing.  He said that his wife was the one who took the children to the doctor.  He said he thought that his wife would “wake up”.  He said that he could see that the child was very thin but he did not realise the full extent of the problem.

The sentence

[14] The applicant was aged 26 at the time the offences were committed and aged 28 at the time of sentence. His father had been an alcoholic and his parents had fought when he was growing up.

[15] The sentencing judge accepted in the applicant’s favour that, in addition to seeing the child caring responsibility to be primarily his wife’s, given the family violence in his background, the applicant was prone to take a passive approach.  However, the sentencing judge also observed that the fact remained that the applicant, as the father of the child, had responsibilities towards her for her care, and to ensure that she did not come to harm.  Given the serious symptoms that were obvious from the photographs that were tendered in evidence, the sentencing judge found that it must have been clear to the applicant that the child was suffering serious symptoms.  Yet other than raising the need to take her to the doctor he did nothing more.  The sentencing judge described the applicant as being “wilfully blind to the situation of the child” and having abrogated his responsibilities to ensure that she was properly fed and received proper medical attention.  The applicant’s behaviour towards the child was said to be “a serious failure of [his] responsibilities for her well-being resulting in the harm that was caused to her”. 

[16] The sentencing judge noted in the applicant’s favour that he was extremely remorseful for what had occurred, entered an early plea of guilty and lacked any relevant criminal history.  There was no suggestion that the applicant had not acted appropriately in relation to his other children and stepchildren.  The applicant had a good work history, and was said to have recognised the need to obtain assistance with parenting and engaged in a positive and proactive way with the Kurrama Association. 

[17] There was no suggestion that the applicant was suffering from any depressive illness that might in some way have explained his neglect.

[18] The sentencing judge accepted that personal deterrence was of less significance than it might otherwise have been because of the applicant’s behaviour since the offence but that a sentence that reflected the need for general deterrence was appropriate. 

[19] The applicant’s counsel upon the sentence had submitted for a sentence of between 18 months and two years imprisonment, but that the sentence be wholly suspended.  The sentencing judge declined to suspend the sentence, and considered that both Ms NBR and the applicant should have the benefit of assistance from the probation and parole authorities upon their release from prison. 

The appeal

[20] The applicant submits that he should not have been required to serve a term of actual imprisonment.  Alternatively, the period that he has served and which presently exceeds 100 days is said to be appropriate to take into account the mitigating circumstances and to impose an appropriate sentence based upon the need for general deterrence. 

[21] The offence of cruelty relates to failures or omissions, desertion or leaving a child without means of support.[1]  Comparable cases are relatively few.  Upon the hearing of the appeal the Court was provided by counsel for the respondent with a table of cases.  None was said to be closely comparable to the present case.  Cases can be found in which non-custodial sentences have been imposed.  R v WX[2] was such a case.  However, its circumstances were quite different.  The applicant in that case was unable to cope with the demands of caring for a small child because of his own psychological disintegration, which was so severe that it prevented him from caring for himself.  The five year old child left in his care was not provided with adequate clothing, accommodation and care.  But there was no evidence that she was malnourished and she did not require any medical attention.  The offender’s psychological state in that case was such that “the claims of personal and general deterrence as factors influencing the appropriate sentence” were less than would otherwise be the case and a term of imprisonment of 10 weeks was set aside.

[22] In this matter there is no challenge, nor could there be, to the head sentence of 18 months imprisonment.  The mother of the child deliberately neglected her and failed to provide the food, care and medical treatment that she was able to provide to her four other children.  The applicant, knowing of this, did nothing that prevented the child’s decline.  The child might have died had her uncle not intervened.  The trial judge correctly described the applicant’s conduct as a serious failure in his responsibilities for the child’s welfare, resulting in the harm that was caused to her.

[23] The various factors that went in the applicant’s favour, including his lesser role in the commission of the offences, his care of the other children and the absence of a pressing need for personal deterrence, were reflected in the sentence that was imposed.  There remained, as the sentencing judge observed, the need for a sentence that operated by way of general deterrence.  The sentencing judge did not err in requiring the applicant to serve part of his sentence in custody.  The sentence of 18 months imprisonment was at the lower end of the range contended for by the applicant’s counsel upon sentence.  The primary judge did not err in requiring the applicant to serve one third of this period of imprisonment before being released on parole.  Fixing a parole release date after one third of the sentence had been served was a proper exercise of discretion. 

[24] No error has been demonstrated.  The sentence was not manifestly excessive.  It follows that there is no basis to grant the application and to substitute a lesser term of actual custody, being the period that the applicant has already served.  I would therefore refuse the application for leave to appeal against sentence.