Where an offender is charged with recklessness under s 101(1)(b) of the Children and Community Services Act 2004 (WA), the sentencing judge cannot sentence on the basis of knowledge under s 101(1)(a), even if the facts might support such a finding. Knowledge and recklessness are distinct elements of the offence, and sentencing on the basis of an uncharged higher mental element constitutes material error and a breach of procedural fairness. The distinction between knowledge and recklessness under s 101(1) is that if an offender has actual awareness that conduct may result in harm, that constitutes knowledge; recklessness connotes wilfully shutting one's eyes to whether the conduct may result in harm.
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