W, R v

Factual and Procedural Background

This opinion concerns an application by the Defendant for leave to appeal against a total custodial sentence of 5 years and 8 months imposed by the trial judge following the Defendant's guilty pleas to multiple offences committed against her children during the 1980s. The offences included wilful neglect, wilful assault, and gross indecency towards four of her children. The Defendant's spouse was similarly prosecuted and sentenced but abandoned his own appeal. The court refused leave to appeal to the Defendant and provided detailed reasons in this judgment.

The Defendant and her spouse were committed for trial in 2013 on numerous counts related to cruelty and sexual abuse of their children during the 1980s. Initially both pleaded not guilty but later pleaded guilty to a subset of the charges. The trial judge sentenced the Defendant to imprisonment and disqualified her from working with children under relevant child protection legislation. The Defendant appealed against the sentence imposed.

The children, victims of the offences, were subjected to severe neglect and abuse, including physical assault and sexual abuse by the Defendant and others. The family environment was described as dysfunctional, chaotic, and filthy, with the children suffering serious harm including arrested development, psychological trauma, and social dysfunction. The trial judge gave a comprehensive sentencing judgment, weighing aggravating and mitigating factors, and applying the totality principle to arrive at the sentence.

Legal Issues Presented

1. Whether the imposition of consecutive sentences was justified in the circumstances.
2. Whether the total sentence imposed was contrary to the totality principle.
3. Whether the sentencing judge failed to adequately consider mitigating circumstances.
4. Whether the judge failed to properly distinguish the Defendant's culpability from other offenders involved.
5. Whether the sentence resulted in an unjustifiable disparity between the Defendant and her spouse.

Arguments of the Parties

Appellant's Arguments

• The overall sentence was manifestly excessive and unjustified.
• The neglect was due to ineptitude, alcoholism, and domestic violence rather than deliberate cruelty.
• The totality of the cruelty offences should not exceed the statutory maximum for an individual offence.
• The gross indecency offences were largely limited to making the children watch sexual acts rather than direct involvement.
• Insufficient credit was given for the guilty pleas, especially given the reduction in charges and victim evidence issues.
• The sentencing judge failed to give adequate weight to mitigating factors including domestic violence, the Defendant's low intelligence, depressive illness, and attempts to care for the children.
• The sentence created an unjustifiable disparity compared to the Defendant's spouse.

Respondent's Arguments

• The appeal lacked merit and the sentencing judge properly considered the totality principle.
• The judge gave full consideration to all mitigating factors.
• The Defendant's ability to deceive social services, lack of maternal instinct, callousness, and denial of wrongdoing justified the sentence.
• The sentence was proportionate to the severity and gravity of the offences.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court of Appeal carefully reviewed the sentencing judge’s comprehensive assessment of the facts and application of sentencing principles. It acknowledged the grave nature of the offences, committed over a prolonged period against multiple children, involving neglect, assault, and sexual offences. The court noted the judge’s detailed consideration of aggravating factors such as the Defendant’s position of trust, prolonged offending, coercion, absence of remorse, and serious psychological harm to victims.

The court also noted the mitigating factors considered, including the Defendant’s lack of previous convictions, low intelligence, substance dependency, immaturity, and mental health problems. The sentencing judge’s starting points and discounts for guilty pleas were found to be appropriate and carefully calibrated.

The Court rejected the argument that the judge misdirected himself in relation to the sexual offending by others, finding that the judge properly distinguished the Defendant’s culpability and took account of her low intelligence and obliviousness to childcare aspects. The imposition of consecutive sentences for sexual offences was upheld as justified given the separate victims, occasions, and partners involved.

The court found no error in the judge’s approach to the totality principle or in the sentencing structure. It also rejected submissions that insufficient credit was given for guilty pleas, noting the late stage of pleas and the Defendant’s continued denial and lack of remorse. The disparity argument was dismissed as there was no implication of the Defendant’s spouse in sexual offences and differing circumstances applied.

Ultimately, the court concluded that the total sentence was not manifestly excessive and was proportionate to the offences and circumstances.

Holding and Implications

The court DISMISSED the Defendant's application for leave to appeal against sentence.

The direct effect of this decision is the affirmation of the 5 years and 8 months custodial sentence imposed by the trial judge. The court found no basis to reduce or alter the sentence, confirming the appropriateness of the sentencing exercise. No new legal precedent was established; rather, the decision reinforces established principles relating to sentencing in historic child cruelty and sexual offence cases, including careful application of the totality principle and consideration of aggravating and mitigating factors.