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Court of Criminal Appeal 5 October 2016

R v RMW

[2016] NSWCCA 211

Assault & violence
CRIMINAL LAW SENTENCE CROWN APPEAL AGAINST INADEQUACY RESIDUAL DISCRETION EXERCISED

Citation: R v RMW [2016] NSWCCA 211
Court: NSW Court of Criminal Appeal
Date: 5 October 2016
Judge(s): Hoeben CJ at CL, Davies J, Bellew J

Background

The respondent, a mother, pleaded guilty in the District Court to four offences against her severely disabled nine-year-old daughter: two counts of administering poison (one of which endangered the child's life) and two counts of common assault. The child had complex medical needs including brain damage, cerebral palsy, and epilepsy, and had been subjected to repeated hospital admissions. Police installed a surveillance device in the child's hospital room after her treating paediatric neurologist raised concerns about induced illness, and the offending was captured on that device.

On 4 March 2016, the sentencing judge imposed terms of imprisonment on all four counts, but ordered that each be served by way of an Intensive Corrections Order (ICO) rather than full-time custody. The most serious count carried a maximum penalty of 10 years imprisonment; the sentence imposed for that count was 1 year and 10 months by way of ICO.

The Crown appealed, arguing the sentences were manifestly inadequate and that the sentencing judge had made multiple errors of principle.

  • Whether the sentencing judge erred in principle in imposing sentences to be served by way of ICO rather than full-time custody
  • Whether the sentences were manifestly inadequate given the nature and seriousness of the offending
  • Whether, even if error and manifest inadequacy were established, the Court of Criminal Appeal should exercise its residual discretion to decline to intervene and re-sentence

Decision

The Court of Criminal Appeal found that all grounds of appeal asserting error on the part of the sentencing judge were established. The sentences were also found to be manifestly inadequate. The Court's analysis indicated that a proper application of sentencing principles should have resulted in a full-time custodial sentence, given the serious nature of the offending against a vulnerable child.

However, the Court declined to intervene and re-sentence, instead exercising the residual discretion available to it in Crown appeals. The Court noted that re-sentencing would result in a substantial period of full-time custody. While there was no specific evidence on the precise impact, the Court accepted it was reasonable to assume that imprisonment would, at least for a period, sever the relationship the respondent had re-established with her children since sentencing.

Bellew J, with whom Hoeben CJ at CL and Davies J agreed, placed significant weight on two factors: the respondent's progress in rehabilitation since the sentences were imposed, and the partial re-establishment of her relationship with both children. The Court regarded both matters as relevant not only to the respondent but also to the welfare of the children themselves.

Hoeben CJ at CL noted he agreed "with some reservations," acknowledging the seriousness of the offending and the correctness of the conclusion that the original sentences were inadequate. The dismissal of the appeal was explicitly not intended to detract from that finding.

Orders Made

  • The Crown appeal is dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that residual discretion may be exercised to decline re-sentencing even where manifest inadequacy and multiple sentencing errors are clearly established.
  • The identification of all grounds of error and a finding of manifest inadequacy does not automatically compel intervention; the appellate court retains a discretion to weigh the current circumstances of the offender at the time of the appeal.
  • Post-sentence rehabilitation and the re-establishment of meaningful family relationships, particularly where children's welfare is engaged, can constitute sufficient grounds for a court to exercise residual discretion against intervention.
  • Where a Crown appeal has not been delayed and the inadequate sentence was not contributed to by the Crown's conduct below, those factors weigh in favour of intervention but do not override the residual discretion analysis.
  • The most serious offence (administering poison so as to endanger life under s 39 of the Crimes Act 1900) carried a maximum penalty of 10 years imprisonment; the Court's reasoning confirms this category of offending against a vulnerable child ordinarily warrants full-time custody.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 39, 41, 61
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Poisons and Therapeutic Goods Act 1966 (NSW)
- Crimes Act 1914 (Cth)

Cases
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- CMB v Attorney-General for New South Wales [2015] HCA 9; 317 ALR 230
- Franklin v R [2013] NSWCCA 122
- Mulato v R [2006] NSWCCA 282
- R v Mills [2005] NSWCCA 175; (2005) 154 A Crim R 40
- RCW v R (No 2) [2014] NSWCCA 190; (2014) 244 A Crim R 541