- Unreported Judgment
COURT OF APPEAL
CA No 167 of 2018
DC No 656 of 2018
FRIDAY, 28 SEPTEMBER 2018
MORRISON JA: On 28 June 2018 the applicant pleaded guilty to two charges of unlawful assault against children who were in his care. The first was an unlawful assault on a two year old girl, the daughter of a woman with whom the applicant was in a relationship. The second, seven months later, was an unlawful assault on a five year old boy, the son of a different woman with whom the applicant was having a relationship. Each of the offences was a domestic violence offence.
The applicant was sentenced to imprisonment for two years and three months on the count involving the two year old girl. In respect of the count involving the five year old boy he was sentenced to imprisonment for 12 months. The terms of imprisonment were cumulative and 300 days of pre-sentence custody was declared. The parole eligibility date was fixed at 1 October 2018.
The applicant seeks leave to appeal against the sentences on the grounds that they are manifestly excessive. The applicant seeks to contend that too much weight was placed on the following factors:
his criminal history which, though relevant, was dated, with offences of violence occurring when he was only a teenager;
the seriousness of the injury to the two year old girl and the fact that he was on bail were aggravating features; however, the sentences imposed cannot be justified having regard to comparable cases; and
although some unquantified reduction was given as a result of imposing cumulative sentences, those sentences in themselves were either excessive or an insufficient reduction was allowed.
An agreed schedule of facts was tendered at the sentencing hearing. No additional matters were put forward as to the circumstances of the offending. It revealed that the assault against the two year old girl occurred at a time when the Department of Child Safety had implemented a safety plan under which the applicant was to have no contact with the child. It was put in place because the child kept turning up to day care with unexplained bruises and injuries. However, the plan was not complied with by either the complainant’s mother or the applicant.
On 17 January 2017 the applicant drove the mother to collect the child from child care. At that time the girl was in good health. Half an hour later the applicant parked the car and the mother left to tend to some business for a period of four minutes. While alone with the girl the applicant struck her on the left leg with sufficient force to cause a fracture. When the mother returned she observed the girl had been crying, had puffy eyes and redness to the face. The applicant lied about what had happened.
Half an hour later again the applicant parked the car at a shopping centre. The mother took the child from the car seat but when she placed her on the ground to walk the girl immediately displayed difficulties walking on her left leg. Ultimately, she was taken to hospital where an X-ray revealed a buckle fracture, that is, one side of the leg was fractured, to her shin bone.
CCTV footage confirmed that the girl had been left alone with the applicant for four minutes and the difficulty she had walking afterwards. In a pretext call between the mother and the applicant, the applicant said that he had threatened to smack the girl when she became upset after the mother left the car. In a subsequent interview with police the applicant lied, saying the girl must have been injured at child care, and that he denied striking or hitting her at any time.
The assault carried out against the five year old boy was different. It occurred on 15 August 2017 when the applicant had collected the boy and his sister from school. The boy was seated in the far back row of the vehicle on the driver’s side. His sister was in the middle row in the middle seat. On the way home the applicant questioned the boy about a lolly wrapper which he had found under the boy’s pillow. The boy did not respond. Having received no response to a further three questions about the wrapper, the applicant said something to the effect of “If you don’t answer me I’m going to climb back there and punch you in the face”. The boy remained silent.
The applicant pulled over to the side of the highway, got out of the car and opened the back door. He then reached over the side and punched the boy to his left eye. The boy began to cry and sustained significant bruising and swelling to his eye.
The applicant drove the children home at which time he instructed the boy to apply ice to his eye and not to fall asleep. He subsequently tried to convince the boy and his sister that the injury had occurred when he struck the boy’s arm in such a way that the boy had struck himself in the eye. He told the same lie to the boy’s mother.
Medical examination of the boy revealed bruising and swelling around the left eye, the result of a high-impact punch injury. Scans revealed no fractures, but some minor internal thickening. The applicant was interviewed by police and admitted hitting the boy, but told the same lie about hitting his elbow, thereby forcing the boy’s hand into his own eye.
The applicant was born in July 1988 and was therefore 28 to 29 at the time of offending and 30 at sentence. The applicant had an extensive criminal history commencing when he was about 18. His various offences included stealing, public nuisance, trespass, breach of a probation order, carnal knowledge of a child under 16, burglary and unlawful possession of a motor vehicle. There were also offences of violence with two charges of assault in 2007.
Some details were given in relation to his past offending. The conviction for assault occasioning bodily harm in 2007 occurred when he was only 18. He and 10 other young men approached a high school student. For reasons unknown, the applicant commenced to punch the student a number of times, pushed his head into a car and then kicked him when he was on the ground. The applicant only stopped when school staff intervened. The other conviction for assault in 2007 occurred when the applicant pushed a deputy principal up against a fence to prevent him from intervening in a school fight.
The learned sentencing judge was also told some other factors relating to the applicant, without objection from the Crown. His mother and father were drug addicts and alcoholics and spent time in and out of prison. He had no relationship with his father, but a good relationship with his mother. His mother was currently in prison in relation to drug-related matters. The offences related to his inability to control his temper. Notwithstanding his use of illegal drugs at some point, he had no drug convictions.
A number of certificates were tendered on the applicant’s behalf showing that he had obtained employment positions within prison and displayed a good attitude towards his employment, being polite and courteous with staff and others. He had achieved certificates in two courses performed while in prison.
The learned sentencing judge reviewed the circumstances of the offences. He described that conduct as being “beyond the comprehension of any right-minded member of society”, particularly noting that the second offence occurred at a time when he was on bail for fracturing the leg of the two year old girl. His Honour observed that the applicant had demonstrated that he was unfit to be near children and either incapable of controlling his temper or, alternatively, enjoyed the infliction of harm on young people. His Honour characterised the behaviour as “offensive in the extreme”.
The learned sentencing judge referred to the victim impact statement provided by the mother of the two year old girl. Quite apart from the psychological hurt caused by that, the statement indicates that as a consequence the child was removed from her care by Child Safety and placed in the care of her grandmother. That necessitated a number of difficulties because the mother had to move house so she could live with the grandmother in order to see her daughter. The learned sentencing judge noted that the mother’s anguish was compounded by the fact that at a committal proceeding there was cross-examination of her.
The learned sentencing judge took into account the following factors:
the plea of guilty was a timely one;
issues of personal and general deterrence loomed large, as did public denunciation of “such disgraceful behaviour”;
the fact that the applicant had a relevant criminal history, having been before criminal courts on prior occasions for a variety of offences including offences of violence;
the applicant had been the recipient of a variety of sentencing options, including terms of actual imprisonment; however, none of those sentences seemed to have had a rehabilitative effect upon the applicant;
the 300 days spent in pre-sentence custody;
he was still in a relationship with the mother of the five year old boy;
the applicant had a dysfunctional upbringing, with dysfunctional parents, and his mother was currently in prison;
he seemed to have an inability to control his temper, but there was no suggestion that he had undergone any counselling in that regard; and
the applicant had ceased drug usage when he was younger and had not consumed alcohol for a long time.
The learned sentencing judge expressed his reasons as follows:
“In my view, cumulative sentences are called for in this case, given that you offended in respect of count 3 whilst you were on bail for count 2 and further given that count 2 was an offence of a very similar nature to count 3. As I indicated to counsel, the submission that a sentence of 18 months imprisonment in respect of count 2 in my view is manifestly inadequate, in the circumstances. As I intend to order cumulative sentences, I will ameliorate the sentence that I otherwise would have considered to be appropriate for each of these offences considered individually to some extent.”
A sentence is not established to be manifestly excessive merely if the sentence is markedly different from sentences in other cases. It is necessary to demonstrate that the difference is such that there must have been a misapplication of principle or that the sentence is “unreasonable or plainly unjust” (Hili v The Queen (2010) 242 CLR 520. See also R v Tout  QCA 296 at paragraph 8). In R v Pham (2015) 256 CLR 550 it was stated:
“Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.”
It is true to say that the applicant’s criminal history was dated in respect of the offences involving violence. However, the circumstances of each of those exhibited gratuitous violence even at an early age. That, combined with the concession that the current offences related to an inability to control the applicant’s temper, justified the learned sentencing judge taking them into account. There is no basis to conclude that unjustifiable weight was attributed to that criminal history, with the learned sentencing judge simply observing that the applicant had been before the courts on prior occasions for a variety of offences including those of violence, and had been the recipient of a variety of sentencing options which did not seem to have had a rehabilitative effect upon him.
Reference to the comparable cases does not support the contention that the sentences imposed were, either individually or cumulatively, manifestly excessive. R v R  QCA 305 involved a sentence of 18 months imposed after a trial on a 28 year old man with a significant criminal history for offences of dishonesty and violence. That offender did not have the benefit of remorse or an early plea of guilty. However, the offence was committed against a six month old girl, the daughter of the offender’s de facto. She suffered extensive bruising to her face and body, including one bruise around her left eye. The injuries were significantly less when compared to those inflicted on the two year old girl in the applicant’s case. On that basis R v R is of little assistance, leaving aside the fact that it was a sentence imposed after a trial and not a plea.
R v Rann  QCA 366 was a sentence imposed after a plea of guilty in respect of an assault against a sixteen and a-half month old girl. The offender was 27 and had no prior convictions. He received an 18 month sentence suspended after six months. The injuries in that case consisted of a cut to the lower lip and bruising to the face, back and abdomen. They were inflicted as a result of six separate assaults carried out over a 12 hour period. The Court reviewed R v R and King & Kordick v Styles  QCA 278. It ultimately concluded that it would not interfere in the sentence.
Once again, it can be observed that the injuries sustained in that case were considerably less than those sustained by the two year old girl in the current case, although more extensive than those inflicted on the five year old boy. There was only one victim in that case. The offender had undertaken courses in anger management and parenting and had made efforts to be a good and affectionate father. R v Rann merely determines that the sentence imposed in that case was not manifestly excessive. It does not support a conclusion that the sentences imposed in the current case were manifestly excessive.
R v Samad  QCA 63 was a plea of guilty which resulted in a sentence of three years imprisonment suspended after four months. The offences in that case were carried out over eight years by a stepfather against three of the offender’s stepchildren, all boys, two of them twins aged between nine and 17 and the other between nine and 13. The assaults were vastly different to those in the present case and resulted in the indictment including a count of torture. When that was dropped, a plea of guilty was entered. The offender was between 23 and 30 years at the time of offending and 37 at sentence. He had no prior criminal history. That short survey is sufficient to demonstrate why R v Samad is of no assistance in the present case.
Reference was also made to R v RY; ex parte Attorney-General (Qld)  QCA 437. That involved a plea of guilty to two assaults occasioning bodily harm and the imposition of a 12 month sentence to be served by way of an intensive correction order. The assaults were carried out against a five year old girl causing blood to come out of her ears, bruises to her forehead and both cheeks, and a bruise to her lower abdomen. The offender was 25 at the time of the offences and 27 at the date of sentence, and had a substantial criminal history.
The Attorney-General’s contention was that a head sentence of 18 months imprisonment with release after six months should be imposed. Having reviewed cases including R v R, this Court declined to intervene. It did so because it agreed that the learned sentencing judge’s view that “leniency at this particular stage of the [respondent]’s life might lead to reform”, was justified. In that case this Court held that the offender had shown a real willingness and ability to rehabilitate himself, and there was no suggestion of further danger to children. That review of R v RY demonstrates why it does not support the conclusion in the current case that the sentences imposed are manifestly excessive.
King & Kordick v Styles is of no utility in the present case. The decision predated a 1997 increase in the maximum penalty from three years to seven years imprisonment. Further, that applicant had no criminal history and there were significant matters in mitigation.
True it is that the learned sentencing judge did not specify the extent of the amelioration that was allowed. However, given that the sentencing process is one of instinctive synthesis, the fact that his Honour did not do so does not mean that the discretion miscarried. In my view, it is likely that the reduction was to the cumulative sentence in respect of the five year old boy. It was the less serious offence in terms of the injuries, and the submission by counsel for the applicant was that it receive 18 months, reduced to 12 for the accumulation. The learned sentencing judge disagreed with the submission that 18 months was appropriate for the other count, but not in respect of the offence against the boy.
The learned sentencing judge was, in my respectful view, correct to characterise the offending conduct as offensive in the extreme. The two assaults were carried out against defenceless children, the first fracturing the leg of a two year old, and the second resulting in a punch which was the culmination of threatening and no doubt frightening conduct towards a five year old boy. Personal and general deterrence did loom large, as did denunciation. The fact that the second offence occurred whilst the applicant was on bail for the first called for cumulative sentences of the order of those imposed. I am unpersuaded that the sentences imposed were manifestly excessive. In my view, the application to appeal against sentence should be refused.
FRASER JA: I agree.
GOTTERSON JA: I also agree.
FRASER JA: The order of the Court is that the application to appeal against sentence is refused.
- Published Case Name:
R v MCX
- Shortened Case Name:
R v MCX
 QCA 249
Fraser JA, Gotterson JA, Morrison JA
28 Sep 2018
No Litigation History