R v WXZ[2024] QSC 216

SUPREME COURT OF QUEENSLAND

1. [1]
   WXZ, you pleaded guilty before me on 21 August 2024 to two counts on an indictment, namely:

“1. That on or about the twenty-third day of May, 2020 at Cannon Hill in the State of Queensland, WXZ unlawfully killed ZYV.

And the offence was a domestic violence offence; and

2. That between the twenty-eighth day of August, 2018 and the twenty-fifth day of May, 2020 at Brisbane in the State of Queensland, WXZ having the lawful care of BZX, a child under the age of 16 years, caused harm to him by failing to provide him with adequate food and care, when it was available to WXZ from her own resources, when WXZ knew or ought reasonably to have known that the failure would be likely to cause harm to BZX.

And the offence was a domestic violence offence.”

2. [2]
   Count 1 is an offence of manslaughter contrary to s 303 of the Code and count 2 is one of cruelty to a child under 16 years, an offence created by s 364.
3. [3]
   Count 1, manslaughter, carries a maximum of life imprisonment and count 2 carries a maximum of 7 years’ imprisonment.  Both are offences that in some circumstances may carry a serious violent offence declaration.
4. [4]
   On 2 September 2024, you pleaded guilty before me to one summary charge which had been transmitted to this Court from the Magistrates Court.  That charge was:

“That on the 25^th day of May 2020 at Cannon Hill in the State of Queensland [you] unlawfully had possession of a dangerous drug namely cannabis.” 

5. [5]
   You have been in custody since 3 June 2020, a period now of over four years.  Upon your arrest, you were charged with the murder of ZYV and cruelty to BZX.  Committal proceedings were heard on 7 December 2021.  There was cross-examination of the pathologist who performed the autopsy on ZYV and there was also cross-examination of five police officers. That cross-examination was relevant to the lawfulness of recorded interviews in which you had participated.
6. [6]
   On 11 May 2022, you offered to plead guilty to the manslaughter of ZYV and to open discussions with the aim of pleading guilty to the charge concerning BZX.
7. [7]
   An indictment was presented in July 2022 charging you with the murder of ZYV and cruelty to BZX and then you brought applications for pre-trial rulings.  In July 2024, your co-accused, Mark James Dunn, had his case referred to the Mental Health Court. 
8. [8]
   Negotiations then led to the Crown accepting the pleas that you subsequently entered on 21 August 2024.
9. [9]
   Although your pleas of guilty were entered over four years after you were arrested, the delay is explained.  You can hardly be criticised for defending a murder charge which the Crown then discontinues.  It is unrealistic to expect you to have pleaded guilty to the charge alleging cruelty to BZX while the murder count hung over your head.  You indicated a willingness to plead guilty to the manslaughter of ZYV over two years ago and the pre-trial applications which you brought were all steps taken in defence of the murder charge.
10. [10]
    For reasons I will explain, there are aspects of the offending against both children which appear callous.  It seems that you were quite content to pursue your family life to the exclusion and neglect of ZYV and, to a lesser extent, BZX.  However, your pleas of guilty taken in the context of the psychological evidence which is now before me leads me to conclude that the pleas of guilty were entered not only in order to assist with the administration of justice but also out of genuine remorse for your offending.  I take the pleas of guilty into account on that basis.
11. [11]
    You were born in South Australia on 8 April 1977.  At the time of ZYV’s death, you were 43 years of age.  You are now 47.
12. [12]
    You have a criminal history in South Australia for offences which can be described loosely as shoplifting.  The latest conviction is over 10 years old.  This prior history is irrelevant to the offences charged on the indictment and I will ignore them.
13. [13]
    The summary offence to which you have pleaded guilty also has no real relevance to the offending reflected in the indictment.  If anything, the fact of minor drug use corroborates the psychological evidence that you were struggling to function in the household.  I intend to convict you of that offence but take no further action.  That offending is not reflected in the sentences I will impose today in any way.
14. [14]
    As earlier noted, your co-accused is Mark James Dunn.  Mr Dunn was married to Naomi, who died on 3 November 2015.  Mr Dunn and Naomi were the biological parents of both children mentioned on the indictment; ZYV, who was born on 28 October 2015, shortly before Naomi’s death, and BZX, who was born on 15 August 2012.
15. [15]
    You had been a good friend of Naomi’s.  After her death, you commenced a relationship with Mr Dunn.  At this time, you were living in South Australia and Mr Dunn was living in Brisbane.  You moved to Brisbane in 2017 and cohabitated with him.
16. [16]
    Living with you were ZYV and BZX, whom I’ve already said are the children of Naomi and Mr Dunn.  You brought two of your children into the new family, being Tahlia, who was 19 years of age in 2020, and Mitchell, who was 11 in 2020.  Noah, your son to Mr Dunn, was born on 31 August 2018.
17. [17]
    There is evidence of statements made by you to others which suggested that you were proud to be involved in raising the children of Naomi, your deceased friend.  ZYV was born with Down Syndrome and while living in South Australia she had a number of other health problems.  When she came to Queensland she thrived.  Her last known medical review on 2 July 2018 reported her gaining weight.
18. [18]
    You have consented to the sentence proceeding on the basis of a statement of facts in relation to count 1 and another statement of facts in relation to count 2.  While I understand those facts are agreed, the inferences which may be drawn from those facts are not. 
19. [19]
    There is no doubt that you were in the role of stepmother to ZYV and BZX.  Both you and Mr Dunn were caregivers to both.
20. [20]
    What is also clear is that from ZYV’s last medical appointment in July 2018 until her death, she deteriorated.  Over that time, you were a significant caregiver and Mr Dunn had ceased interacting with his wider family.  ZYV became isolated from the outside world and therefore, it is difficult to make any particular findings about her condition over the period of time over which she deteriorated. 
21. [21]
    However, immediate neighbours were not even aware of ZYV’s existence, although one resident of the street observed a toddler outside the house about 6 months prior to ZYV’s death.  This may have been ZYV, or it may have been Noah.
22. [22]
    You were active on social media but ceased posting photographs of ZYV from about the time of Noah’s birth in August 2018.
23. [23]
    In June 2019, your family was at Dreamworld and a photograph of that outing was posted to social media.  ZYV was not in the picture and you told a friend that she was at an aunty’s house.  That is unlikely, and it is more likely that ZYV was at home alone.
24. [24]
    Your daughter Dayle visited your home in August 2019.  She saw all of the children except ZYV who was not even present at Noah’s birthday party.  On 1 September 2019, she saw ZYV in a highchair and ZYV appeared to her “small and skinny compared to her son”. She did observe though, that ZYV was responsive.  You said that you had a meeting with a dietician from the hospital for ZYV.  That was likely untrue. 
25. [25]
    Visits were made by your niece, Tamikah, between mid-2019 and March 2020.  ZYV was not seen and you said that she was with Mr Dunn’s family.  Again, that was unlikely to be true.
26. [26]
    Mr Dunn was the primary carer of ZYV.  He attended to her needs except when he was at work, when you were expected to take over.
27. [27]
    In February 2019, Mr Dunn commenced work at InfraBuild and was away from the house between 8:00 pm and 6:00 am.  Mr Dunn slept during the day.  Mr Dunn’s shifts later changed to 2:00 pm to 10:00 pm and you were responsible for ZYV’s care during the day. 
28. [28]
    ZYV was left home, for at least short periods, alone in the period late 2019 to the time of her death.
29. [29]
    The house in which you were living has both an upstairs and a downstairs area.  In about March 2020, you and Mr Dunn moved into the downstairs area while the children slept upstairs.  BZX and ZYV each occupied a bedroom, but access to ZYV’s bedroom was through BZX’s.  The delineation of ZYV’s room was a bedsheet hung up in the doorway between the two rooms. 
30. [30]
    Your contact with ZYV in the days leading up to her death is unclear. 
31. [31]
    Your daughter Tahlia called emergency services on 25 May 2020.  ZYV was then deceased.  Mr Dunn told police that ZYV had died on Saturday 23 May 2020.  You were told of the death on the 25^th.
32. [32]
    ZYV was the subject of an autopsy and the Crown tendered photographs which show the condition she was in.
33. [33]
    ZYV was emaciated.  She weighed 6.52 kilograms, being 45 per cent less than the 5^th percentile for a child of the same age with Down Syndrome, although it may be that she lost up to 1 kilogram of weight following her death.  In July 2018, at her last known medical consultation, she weighed 10.8 kilograms.  The evidence was that at 4 and a-half years of age, had she continued to be nourished and continued to grow normally, she would have weighed somewhere between 13.6 and 15 kilograms.
34. [34]
    The medical evidence describes severe muscle wastage and almost complete absence of subcutaneous fat in her limbs and torso with bones being prominent.  The photographs which were tendered before me lead to the inevitable conclusion that anyone who took the time to see her in the weeks before her death would have realised that she was chronically undernourished.
35. [35]
    In addition, ZYV was infested with lice and the infestation was so severe that the lice had colonised areas of her chest.  There was hair loss and obvious abnormalities in her skin.  She had sustained severe pressure sores on her lower back and one sore on each hip.  The photographs show these as open weeping wounds.
36. [36]
    ZYV’s body was dirty and her fingernails were long and black from dirt.
37. [37]
    In summary, ZYV was a picture of gross neglect and effective abandonment.
38. [38]
    There was intervention by support agencies as early as July 2017.  ZYV was “sickly” and listless and spent a week in hospital.  She seemed to recover by the time of her last known medical check in July 2018.
39. [39]
    I accept that Mr Dunn had primary care of ZYV.  I do not accept that you were unaware that ZYV had effectively been abandoned.  It is impossible, in my view, for a healthy 4 and a half year old child, albeit one who suffers Down Syndrome, to be in a house without making their presence felt.  That is the way of toddlers and young children.  The fact that in late 2019 you and Mr Dunn were prepared to leave her alone at home strongly suggests that her mobility was then impaired and you knew it.  That was at least 3 months before her death.  It is obvious from the evidence that ZYV’s decline took months and it is obvious from the evidence that she was not being included as part of the family. I find that you were aware of ZYV’s deteriorating condition from late 2019 at the latest.
40. [40]
    Statements were made to police that you and Mr Dunn were aware of ZYV’s declining condition but feared seeking help as that might lead to the removal of your children.  The alternative course, the one you adopted, was to completely neglect her, a course which inevitably led to ZYV’s death.
41. [41]
    This is a shocking case where you, as the mother figure to ZYV, have preferred your own interests to that of fulfilling your obligations to her.  As a result, she has died at 4 and a half years of age in a state of filth and squalor, infested with parasites and bearing open sores.  Even in death, no attempts were made to protect her as her body showed evidence of having been predated upon by rodents.
42. [42]
    You were also in the position of de facto mother to BZX.
43. [43]
    I accept again that Mr Dunn was the primary caregiver to BZX.  However, you introduced yourself at the school as BZX’s stepmother, and did have conversations about BZX’s care with those at the school.
44. [44]
    Concerns were raised by BZX’s school to the Department of Child Safety in March 2019.  He was obviously hungry, his uniform was dirty and there were personal hygiene issues.  He was seen fossicking through other students’ lunch boxes for leftovers.  The tuckshop convener, obviously concerned for BZX’s welfare, was taking steps to feed him.
45. [45]
    In April 2019, correspondence expressing concerns about BZX was sent to Mr Dunn.  You were present at a subsequent meeting at the school where these concerns were discussed.  It is said that you were aggressive at that meeting, but I make no final findings about the significance of that.  The point is that professional people within the education system, people whose job inherently involves the care of children, were expressing concerns to you about BZX.  This must have alerted you to the problem, but it seems that no remedial action was taken.
46. [46]
    Upon ZYV’s death, BZX was assessed.  He was suffering malnutrition with evidence of faltering growth.  He had skin disorders and was infested with headlice.
47. [47]
    Fortunately, after being removed from your care, he has recovered, at least physically.
48. [48]
    I have the benefit of a report by Dr Dadirai Gara and a report of Dr Luke Hatzipetrou.  Dr Gara is a psychologist who saw you upon the referral of your treating psychiatrist, Dr Kailash Kedia, for the purposes of an assessment of your cognitive functioning.  Dr Kedia had diagnosed you with suffering a severe depressive episode with psychotic symptoms.
49. [49]
    Dr Gara found that your IQ fell within the extremely low range.  Your general cognitive abilities are in the borderline range and that affects your ability to sustain attention, concentrate and exert mental control.  All this leads to you having difficulty with all aspects of executive function, including initiating problem-solving or activity.  Dr Gara observed “this profile suggests significant problem-solving rigidity combined with emotional dysregulation”. 
50. [50]
    Dr Hatzipetrou is also a psychologist.  He saw you for the purposes of the preparation of a forensic report.  Dr Hatzipetrou explained that you had a compromised childhood, limited education opportunities and fell pregnant at the age of 16 years.  It seems the only paid employment that you have held was working in a fruit shop for a couple of months when you were about 16.
51. [51]
    For various reasons, you had difficulties forming friendships and you were socially isolated.
52. [52]
    You have had a number of intimate relationships and some of these have resulted in domestic violence.  I take into account the fact that you are a victim of domestic violence.
53. [53]
    By 2015, you were showing signs of depression and this of course has been exacerbated by the death of ZYV.  You have been a user of cannabis to manage your depression.  You have in your life had problems with alcohol from time to time but this was under control in the months leading up to ZYV’s death.  You were more reliant on cannabis than alcohol at relevant times to the current case.  
54. [54]
    Dr Hatzipetrou recorded a series of events that had impacted upon your relationship with Mr Dunn and your ability to function.
55. [55]
    Dr Hatzipetrou concluded:

“Prior to the child’s death, [WXZ]’s capacities for social reasoning and sound judgment, which in turn, impacts on her decision-making abilities, was likely to be impaired. Furthermore, [WXZ]’s capacity to identify and manage her emotional responses (self-regulation) was likely to be also compromised.

Given the collective impact of an untreated depressive disorder perpetuated by erroneous beliefs stemming from her mixed personality traits and her borderline intellectual functioning, [WXZ]’s capacity to understand the nature of her actions, in particular, failing to provide necessities for life, was likely to be impaired.

On the balance of probabilities, [WXZ]’s ability to identify the inherent risks associated with her capacity to provide adequate nutrition and hydration to the child victim was likely to be impaired.

In light of the clinical history and presentation, [WXZ] had not considered the child victim was likely to die as she had formed perceptions that Mr Dunn was responsible for the child. However, at that juncture, [WXZ] had not been sensitive to the child’s needs, given the reported description of the home environment and evidence that the child had been losing weight, making noises and had been mostly confined to the room. WXZ’s  behaviour or lack of action reflected the inadequacies of her parenting abilities which had likely been affected by the confluence of the listed factors.”

56. [56]
    I accept that your capacity for sound reasoning and judgement were impaired and that no doubt affected your decision-making.  I also accept that your ability to properly appreciate the risks to ZYV had also been impaired.
57. [57]
    However you were, in my view, well aware of two things.  Firstly, you were well aware that ZYV was being grossly neglected.  You must have realised that because ZYV was not active in the household.  She was effectively confined to her room, at least for a period.  Secondly, you were well aware that your and Mr Dunn’s neglect of ZYV was significantly impacting her health.  That explains the comments that you made about not wanting to seek help for fear of losing all the children.  Having said that, and assessing the culpability of your neglect and effective abandonment of ZYV, and the denial to her of the necessities of life and proper care, I have taken into account the matters that the psychologists have identified which impaired your ability to carry out your duties to ZYV.
58. [58]
    Since being in custody, you have been busy attempting to improve yourself.  You have worked under a trade instructor in prison with many duties using industrial lockstitch machines and others.  It is reported that you have “a very good understanding in garment construction, clothing repairs and quality control” and you have been involved in the training of other workers.  You have been working nine 4-hour shifts per week and reports of your performance are good.  You have completed the “QCS Resilience Program – Build Don’t Break” and a course in anger management.  You have completed a Certificate I in skills for Vocational Pathways which involves, amongst other things, mathematical calculations.  You have obtained a First Aid Certificate and completed various subjects towards a Certificate II in Hospitality.  You have enthusiastically participated in and completed a parenting course called the “Bringing Up Great Kids Program”.  You have also completed a course which teaches you the skills required to successfully acquire and maintain a residential tenancy.
59. [59]
    This all shows insight into your limitations and an eagerness to improve yourself.
60. [60]
    It is notorious that sentences for manslaughter vary widely.  That is the product of the seemingly endless variety of acts or omissions which can constitute manslaughter and the myriad of different circumstances in which those acts or omissions are committed.
61. [61]
    I have been referred to numerous comparative sentences where offenders have been convicted of manslaughter of children in their care.  In deference to the principles of equal justice, there should be consistency in sentencing.  Comparative sentences may assist in determining patterns of sentencing in similar cases and thus, aid in achieving consistency.^[1] However, it is not the function of a sentencing court to reconcile available comparative sentences either with each other or with the sentence that is to be imposed.  The function of comparative sentences is that they are a yardstick or a benchmark against which the sentence which is to be imposed may be judged.
62. [62]
    For many years, cases such as R v Chard; Ex -parte Attorney-General (Qld)^[2] and R v Walsh^[3] were considered useful comparatives.  As was observed in R v O'Sullivan and Lee; Ex-parte Attorney-General (Qld), the use of those cases as comparatives was misplaced as legislative amendments have been made which affect sentencing.  Both counts to which you have pleaded guilty are domestic violence offences as defined by the Penalties and Sentences Act 1992.  That fact is a specific aggravating feature. 
63. [63]
    Another relevant issue here is the impact of Part 9A of the Penalties and Sentences Act. 
64. [64]
    Both offences for which you have been convicted appear in Schedule 1^[4] and are therefore those which might be the subject of a serious violent offence declaration.  If the sentence is more than 5 years but less than 10, a discretion arises to make a declaration that the offence is a serious violent offence and would therefore require you to serve 80 per cent of the sentence before being released on parole.  In R v Free; ex-parte Attorney-General^[5], the Court of Appeal explained that the making of a serious violent offence declaration is not the second step in a two-step process where the sentence is set and then a determination is made as to whether a declaration should be made.  Rather, the object is to impose a just sentence having regard, in an integrated process, of both the head sentence and any declaration.  That approach is, with respect, consistent with what the High Court observed 50 years ago in Power v The Queen^[6].  There, the Court was considering provisions of legislation in the Australian Capital Territory which enabled a court to fix a non-parole period.  The Court held that as part of the sentencing process, the sentencing judge was obliged to consider what time a prisoner ought remain in custody as part of the punishment.
65. [65]
    A serious violent offence declaration is mandatory if the sentence imposed is 10 years or more.  It is now well established that as mitigating circumstances in those cases cannot be reflected by an early parole order, they must be reflected in a reduction of the head sentence.  It is also the case that a sentencing judge may elect to postpone parole from the statutory halfway mark without “the automatic imposition of a requirement that 80 per cent of the sentence be served in actual custody” which is the consequence of a serious violent offence declaration being made.^[7]
66. [66]
    Here, there was not violence towards ZYV as was evident in cases like R v O'Sullivan and R v Randall and not the calculated plan as appeared in R v Simpson^[8].  There, a child’s father took him to a park near a river and abandoned him with the obvious danger that he would fall in the river and drown.  Comparing R v Randall with the current case demonstrates the difficulties with comparatives in this area of the law.  Randall was a case involving an act of extreme violence.  Randall punched his infant son in the abdomen destroying organs and causing his death.  There is no such act of extreme violence here.  However, Randall’s act was spontaneous.  It was a single act and his offending took a second or so.  While there is no violence here, the criminal negligence perpetrated against ZYV occurred over several months.  It went on and on while ZYV deteriorated with you doing nothing meaningful to assist her.
67. [67]
    I have had regard to the comparative sentences which have been drawn to my attention and used them as a yardstick to the extent they are useful, given the limitations I have explained.
68. [68]
    I have gained assistance from R v Pesnak^[9]. There, the Court of Appeal observed that in criminal negligence cases, a major factor is the assessment of the extent to which the breach of duty departed from reasonable community standards.  Here, that departure was very substantial.
69. [69]
    The mitigating circumstances here include:

1. you were sexually abused as a child;
2. you suffered domestic violence;
3. your intellectual capacity and your emotional state impaired your abilities to deal with the situation of ZYV’s declining health;
4. you pleaded guilty and showed true remorse;
5. you have taken significant steps towards rehabilitation;
6. there was no actual violence perpetrated by you upon ZYV; and
7. you were, one way or another, influenced by the actions of Mr Dunn who appears to be the primary caregiver for ZYV.

70. [70]
    The aggravating circumstances here include:

1. ZYV was very young, only four and a half years of age;
2. as she suffered from Down Syndrome, she was particularly vulnerable;
3. the neglect of her was, as I have described, shocking;
4. the neglect occurred to your knowledge over several months;
5. you had ample opportunity to take action to help her and you did not; and
6. at least in part, your inaction is explained by selfish considerations in that you knew that if you sought help for ZYV you would be faced with a challenge to you continuing to have custody of the other children.

71. [71]
    In addition, there is the neglect of BZX.  Again, the neglect occurred over months.  Again, he suffered, but fortunately not as much as ZYV.  Again, there was ample opportunity for you to seek help and to care for him properly and you did not.
72. [72]
    The Crown seeks a sentence of 12 years’ imprisonment in relation to count 1 and 2 years in relation to count 2.  Your counsel submits that a sentence of 9 to 9 and a half years on count 1 is appropriate and a concurrent term of 6 months in relation to count 2 should be imposed with parole eligibility from the date of sentence, given that you have already served over 4 years imprisonment.
73. [73]
    But for the mitigating circumstances, I would have sentenced you to a term of imprisonment exceeding 10 years and made the mandatory serious violent offence declaration.  The offending against ZYV is a very bad case of severe neglect over a relatively lengthy period of a vulnerable child with catastrophic consequences. 
74. [74]
    A sentence which involves you only serving 4 and a half years does not, in my view, reflect the criminality of your behaviour and gives too much weight to mitigating circumstances which must be taken into account in reducing the head sentence for the reasons I have already explained.
75. [75]
    In relation to count 1 on the indictment, you are sentenced to a term of imprisonment of 9 and a half years. In relation to count 2 on the indictment, you are sentenced to a term of imprisonment of 2 years.  Those sentences are to be served concurrently.
76. [76]
    In relation to the summary charge, you are convicted but I take no further action for the reasons I have previously explained.
77. [77]
    I declare the period that you have been in presentence custody from the 3 of June 2020 to 5 of September 2024, a total of 1556 days, as time served on those sentences.
78. [78]
    I direct that you be eligible for parole on 3 June 2026 which results in you serving 6 years in actual custody.
79. [79]
    Convictions are recorded.