REGINA v. WILKINSON [1999] NSWCCA 248

New South Wales Court of Criminal Appeal CITATION : REGINA v. WILKINSON [1999] NSWCCA 248 FILE NUMBER(S) : CCA 60209/98 HEARING DATE(S) : Monday 9 August 1999 JUDGMENT DATE : 9 August 1999

PARTIES : REGINA v. WILKINSON, Nicole Marie JUDGMENT OF : Mason P at 25; Abadee J at 2; Simpson J at 29

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 70066/97 LOWER COURT JUDICIAL OFFICER : Wood, CJ. at CL.

COUNSEL : Crown: P.G. Berman App: R. Burgess SOLICITORS : Crown: C.K. Smith App: T.A. Murphy CATCHWORDS : CASES CITED: Lowe v. The Queen (1984) 154 CLR 606; Postiglione v. The Queen (1996-97) 189 CLR 295 DECISION : Leave to appeal refused

- 9 - IN THE COURT OF CRIMINAL APPEAL

No. 60209 of 1998 CORAM: MASON, P. ABADEE, J. SIMPSON, J.

MONDAY 9 AUGUST 1999

REGINA v. NICOLE MARIE WILKINSON

JUDGMENT

1 MASON, P: I will ask Justice Abadee to give the first reasons. 2 ABADEE, J: The applicant seeks leave to appeal against the severity of a sentence imposed by Wood, CJ. at CL. on 9 April 1998. 3 The applicant (date of birth 16 July 1977) was charged with the offence of manslaughter. After a lengthy trial she was convicted by a jury of that offence. Following two days of sentencing proceedings and the applicant exercising her right not to give evidence (which was a matter for her), Wood, CJ. at CL. sentenced the applicant to six and a half years' penal servitude consisting of a minimum term of three and a half years and an additional term of three years. Her co-accused, one Cory Campbell, initially proceeded to a trial jointly with the applicant. In the course of the trial he was granted a separate trial. Subsequently he pleaded guilty to a charge of manslaughter. 4 On 23 November 1998 Cory Campbell was sentenced by Newman, J. to penal servitude for five years and eight months comprising a minimum term of two years and two months and an additional term of three and a half years. His Honour took into account that Mr. Campbell had served 10 months in custody. Effectively the minimum term for Mr. Campbell was three years. 5 In his sentencing reasons it is to be noted that Newman, J., in accepting Campbell's plea to manslaughter of his son Keiran Wilkinson, had acknowledged that Campbell had pleaded guilty on the basis of his criminal negligence in failing properly to protect Keiran Wilkinson's well-being. This is a similar basis to the basis adopted by Wood, CJ. at CL. in the instant proceedings when sentencing the applicant, Miss Wilkinson. 6 The only issue raised in Miss Wilkinson's application for leave to appeal against sentence concerns the parity of the applicant's sentence when compared with that of the co-offender Campbell. No error of fact or law is suggested in the careful reasons for sentence and findings made by Wood, CJ. at CL. As I have said, the case against the applicant was criminal negligence in failing to properly protect the well-being of her six-months-old son Keiran as a result of which his death was found by his Honour to be accelerated. 7 The applicant was at the time of the offence a 19 year old unmarried mother. Keiran was her second child and was aged six months, as I have said, at the time of his death. The father of the child, who was a little older than the applicant, lived with the applicant in an on and off relationship over several years. They had resumed cohabitation in a flat shortly prior to the death of their child. 8 His Honour was satisfied that the applicant was an inattentive and somewhat disinterested mother. She was, however, a young woman of average intelligence. His Honour made findings of fact for the purposes of sentencing, based upon ERISP interview admissions and evidence given in her trial from family and associates. Significantly his Honour excluded from consideration the version of events given by Cory Campbell to police as it was not admissible at the trial. Newman, J., however, had the benefit of Cory Campbell's version of events when sentencing in November of 1998. Wood, CJ. at CL. received no evidence from Campbell or from the applicant in the course of the sentencing proceedings. This left his Honour to find, as he did, that he was not in a situation of knowing how or by whom the injuries causing death were occasioned. 9 This, in some respects, is similar to the situation that confronted Newman, J. when it came for his Honour to sentence Cory Campbell for the offence of manslaughter in November. His Honour, in sentencing the applicant, appeared to accept that there was an arrangement whereby Campbell largely attended to significant nappy changing and bathing activities in connection with Keiran whilst the applicant looked after his older sister. Campbell was apparently off work during the period prior to Keiran's death. 10 Returning to the actual facts in the instant case, it appears that in late July of 1996 the applicant noticed that Keiran had a bruise on his ear. Mr. Campbell suggested that this had occurred when he was accidentally kicked by his sister. On Saturday 3 August, Campbell informed the applicant that he had been involved in a fall in the shower with Keiran when bathing him. It appears that subsequently the applicant noticed two other bruises over the few days with Campbell giving innocent explanations as to how such occurred. On Wednesday 7 August the applicant noticed that Keiran was pale and not behaving normally. She wanted to take him to a doctor but Campbell disagreed. There was some argument. She decided not to leave the premises. On Thursday 8 August it appears that Keiran was seen to be all right but was constipated. The applicant left the premises. She later returned and observed that Keiran was really pale, moaning and groaning. 11 On Friday 9 August the child was worse and was not eating or drinking. She feared that something was really wrong. About this time she and Campbell smoked cannabis. About 4.00 pm that day it was discovered that Keiran had ceased breathing. Resuscitation was attempted. Whilst involved in this activity the applicant persuaded Campbell to inform the police that the fall in the shower had occurred on the Wednesday rather than the Saturday. 12 His Honour found, that whilst it had to be recognised that the prisoner did not know of the full extent or even the nature of the various injuries found post mortem, nevertheless the signs that something was very seriously wrong with the child were obvious to her. The post mortem established that death was attributable to multiple injuries. The poor child had clearly suffered a number of bruises or abrasions to his face, had an extensive fracture of the skull, haemorrhages and serious internal injuries, including a laceration of the liver. Different bruises were present on the front of the abdomen. There was also a recent spiral fracture of the right tibia which was assessed to be some two to three weeks in age. As I have said, his Honour concluded that the signs that something was very seriously wrong must have been obvious to the applicant. He also concluded that the applicant had compelling reasons to believe that the child was at risk while he remained in the same household as Campbell. He said that having regard to the matters which were apparent by the afternoon of Thursday, a reasonable person in the applicant's shoes would have taken the child to a hospital or a doctor and that her failure to do so constituted criminal negligence. He found that her failure was compounded by her neglect on the following day by her decision to use a substance which would have further impaired her ability to care for the child, or to make sensible judgments, in relation to the child's protection. 13 His Honour found that the Crown had also proved its alternative case of criminal negligence, namely that the failure to remove the child from a situation of suspected risk of serious harm constituted criminal negligence. The objective criminality was to be determined upon the basis of her negligence in not responding to a situation of risk and medical crisis which the child faced. His Honour also specifically found that the true situation was that the applicant had chosen to ignore the dangers which were known to her. He said that the reason was her concern that either she or Campbell, or perhaps both of them, might get into trouble if they took the child to a doctor or hospital with the bruisings and signs of illness that were then evident. In simple terms, his Honour found that she preferred the interests of herself and Campbell to those of the child. 14 Whilst accepting that she had displayed some distress to the police on the afternoon of her son's death, his Honour concluded that she had shown little by way of remorse for her own misconduct subsequently. His Honour noted she was not entitled to any discount in this regard. 15 In the sentencing proceedings before Newman, J., his Honour had regard to the sentencing remarks that were made by Wood, CJ. at CL. when sentencing the present applicant. His Honour specifically found that Campbell, by reason of his guilty plea albeit somewhat belated, was nevertheless entitled to some leniency for that plea of guilty. His Honour further found that there was some genuine remorse on the part of the applicant in respect of his involvement in the death of the young child Keiran. 16 These matters are of course matters that immediately can be noted as distinguishing the sentencing exercise involving the present applicant, Miss Wilkinson, from the sentencing exercise involving Mr. Campbell. His Honour found that there were important subjective considerations in respect of Campbell. He was, at the time of sentencing, aged 22, in full-time employment. His Honour would also have been fully cognisant of the fact that the applicant in this case would have been sentenced by Wood, CJ. at CL. on the basis that because of her involvement with looking after the child she would have been denied the employment opportunities that Mr. Campbell had. Nevertheless, Newman, J. found that Campbell had all the earmarks of being a useful member of society. 17 At the end of the day it rather appears that although Newman, J. concluded that Campbell was in a better position to observe the parlous state of the deceased child's health than the applicant Miss Wilkinson, and found that the culpability of Campbell was objectively greater than hers, (and even putting aside whether or not that is necessarily a valid distinction), his Honour, in the result, concluded that because of Campbell's plea of guilty he was entitled to a discount to which the present applicant was not. His Honour took that matter into account. Indeed his Honour said, at p.9, that whilst he believed the prisoner was more culpable than Nicole Marie Wilkinson, the present applicant, his plea of guilty caused, in his view, a situation of equipoise as occurring between Wilkinson and Campbell. 18 The applicant in the present proceedings relies upon well-established principles in relation to parity submitting that by reference to such principles the applicant has not received, all other things being equal, equal justice. This argument is mounted on a number of different bases that we have been taken to by Ms. Burgess. Ms. Burgess also has submitted that when one takes into account the finding of Newman, J. in respect of the issue of culpability and the fact that the applicant here is said to have had less objective culpability than Campbell, that is a matter of telling significance on the parity issue. Ms. Burgess has also pointed out, that in this case, there was allegedly some mathematical error revealed in the determination of the sentence imposed upon Campbell. 19 The parity principle is fully discussed in the decision of the High Court in Lowe v. The Queen (1984) 154 CLR 606. It is also well discussed and fully discussed, if I may say so, in the later decision of the High Court in Postiglione v. The Queen (1996-97) 189 CLR 295 in the judgment of Dawson and Gaudron, JJ. at 301 to 302. In their judgment in Postiglione (supra), Dawson and Gaudron, JJ. pointed out that the parity principle upon which the argument in the Court was based is an aspect of equal justice. Nevertheless, as their Honours also pointed out, discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence, rather it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the offenders in question and their different degrees of criminality. 20 I have already mentioned the subject of different degrees of criminality and likewise mentioned the different circumstances of the co-offender in question, particularly set forth in the judgment of Newman, J. when sentencing Campbell for the same offence that the applicant was sentenced for. 21 The Crown, in its written submissions, submits that the principle of parity has not been infringed. It points to the significance of the plea of guilty. It points to the significance of the finding of remorse in the case of Mr. Campbell. One other thing that should be mentioned, is the utilitarian consequence of the plea of guilty in a case such as the present one. It is known that the applicant's trial took place over the period of some two weeks or so. True, as Ms. Burgess points out, part of that time would have been devoted to proceedings involving the two co-accused before a separate trial was ordered in the case of Mr. Campbell, but nevertheless the point still may be validly made that in a case involving criminal negligence there is particularly, one might think and fairly think, a utilitarian value attached to a plea of guilty. 22 Other matters besides the plea of guilty have been pointed out by the Crown in its written submissions. There is no need to repeat them. There were, in my view, many factors or a number of factors which differed between the two people sentenced for this offence. 23 As regards the applicant's submission that there was error in Newman, J. finding a situation of equipoise, in my respectful opinion that error is not made out. However, in any event, even assuming there be error - and I am not of that view that there was one - I do not see that in the result the point is made good in terms of suggesting that the principle of parity has been infringed. The decision as to whether to intervene on the basis of parity is substantially a discretionary one. When one looks at the circumstances here the view of the objective bystander familiar with the circumstances of the present case (see Lowe (supra) per Mason, J. at 613), I am unable to conclude that in all the circumstances there was an injustice to the present applicant or that in the circumstances there has been a situation where the equal justice principle has been infringed. 24 In my view, despite the submissions advanced on behalf of the applicant, I would refuse to grant leave to appeal the sentence. That is the order I would propose. 25 MASON, P: I agree with the reasons given by Justice Abadee. 26 I simply add this. Wood, CJ. at CL. referred to the heavy responsibility that rests upon a parent to care for a child who is otherwise utterly defenceless. His Honour then considered the extent to which the prisoner's criminality was reduced by the circumstance that she was persuaded against her better judgment to defer seeking treatment or otherwise to respond appropriately to the crisis that arose. In that connection his Honour gave careful consideration to the evidence of Dr. White. Had Dr. White's evidence been accepted (because he was of the opinion that the applicant suffered from a serious dependent personality disorder) then it would have raised a serious question, in my mind, as to the parity between the sentence imposed by the applicant and that subsequently imposed upon Mr. Campbell. 27 However, for the reasons given at pp.14-18 in the judgment, Wood, CJ. at CL. was not prepared to accept the diagnosis of Dr. White, although he recognised that the circumstances revealed in the evidence mitigated to a degree the objective criminality of the applicant. 28 There was no challenge to this aspect of the judgment and in my mind it is a significant factor in the parity issue. 29 I agree with the order proposed. 30 SIMPSON, J: I also agree with the orders proposed and with the reasons given by Justice Abadee and I agree with the additional remarks of the President. 31 MASON, P: Leave to appeal is refused. ********