Stanley v C[1997] QCA 296

COURT OF APPEAL

McPHERSON JA

WILLIAMS J

BYRNE J

CA No 192 of 1997

J H STANLEY 

v. 

C Applicant

BRISBANE

DATE 15/07/97

JUDGMENT

WILLIAMS J:  The applicant pleaded guilty in the Magistrates Court at Cairns to a charge that he unlawfully assaulted V and thereby did her bodily harm.

V was a five-year-old girl who was in fact the daughter of the applicant.  The applicant and the child's mother had been living apart for some time.  Pursuant to arrangements which existed at the time the applicant had access by way of possession of the child on each alternate weekend.

On the occasion in question, according to statements made by the applicant to investigating police officers, the child soiled her pants on a number of occasions over the weekend she was in his custody.  He became frustrated and, to use his words, he "slapped the child in the face".  He apparently told the investigating police that he did not believe that punishment to be excessive considering the actions of the child.  The blow to the child's head caused some bruising which was apparent for some hours at least after the incident in question.

Because it was a deliberate blow to the head of a five-year-old child it was in my view a particularly serious offence.  It is also relevant to have regard to the applicant's previous convictions for assault in the domestic situation.  He pleaded guilty to two charges of unlawful assault in the District Court at Cairns on 20 November 1989.  It was agreed that those charges involved assaults on family members.

On each charge he was placed on probation for a period of two years with a condition that he undergo psychiatric counselling as required.  The material does not disclose specifically what counselling, if any, he received and his response to it.

On 1 April 1992 he was dealt with in the Cairns Magistrates Court for an offence of assault occasioning bodily harm.  On this occasion the complainant was the young girl's mother.  He was convicted and fined $600 on that particular occasion.  There was a fine option order of 100 hours community service annexed to that order.  It also appears from the record that the solicitor who appeared for the applicant informed the Magistrate that there had been a domestic violence order in operation which had expired some months prior to the assault on N.

Against that background the Magistrate recorded a conviction and ordered that the applicant be imprisoned for a period of four months.  That conviction and sentence was recorded on 4 May 1997.  On 20 May 1997 the applicant was granted bail and has been on bail since.

For the applicant, Mrs McGinness stressed the fact that though there were the previous convictions for assault none of those incidents involved violence towards the child and that this was an isolated blow struck in circumstances of frustration.

In my view notwithstanding those matters, this offence did call for a custodial sentence.

That is particularly so in my view when one has regard to the previous convictions and the fact that after the warnings that those convictions and sentences should have given the applicant he was unable on this occasion to control his anger.

As I have already said, a deliberate blow to the head of a child is a particularly serious matter and experience in these Courts demonstrates that often such a blow can have far more serious consequences than were imagined by the perpetrator of the incident.

I would accept that four months was a sentence towards the top of the sentencing range in all the circumstances but in my view it was not manifestly excessive.  In the circumstances, I would refuse the application for leave to appeal against sentence.

McPHERSON JA:  I agree.

BYRNE J:  I agree.

McPHERSON JA:  The order is that the application for leave to appeal is refused.

McPHERSON JA:  What about a warrant?

MR BULLOCK:  Yes.  I'd ask that a warrant issue, Your Honour.

McPHERSON JA:  Mrs McGinness?

MRS McGINNESS:  Yes, Your Honour.

McPHERSON JA:  Warrant?

MRS McGINNESS:  Yes, Your Honour.  I have no-----

McPHERSON JA:  Seven days.

MRS McGINNESS:  Yes, Your Honour, seven days I'd ask for, for it to lie and we'll inform the applicant.

McPHERSON JA:  It is further ordered that a warrant issue for the arrest of the applicant but that that warrant lie in the Registry for a period of seven days or until further order.