R v J[1998] QCA 143

COURT OF APPEAL

DAVIES JA

PINCUS JA

DOWSETT J

CA No 456 of 1997

THE QUEEN

v.

J Applicant

BRISBANE

DATE 17/03/98

JUDGMENT

DAVIES JA:  The applicant pleaded guilty in the District Court on 14 November last to one count of grievous bodily harm and one of assault occasioning bodily harm.  The first offence was alleged to have occurred on dates between 25 December 1996 and 5 April 1997 and the second on 25 February 1997.  The victim in each case was the applicant's 18-month-old daughter B. The applicant was 27 at the time of commission of these offences and is now 28.  She was sentenced to five years imprisonment in respect of the grievous bodily harm and one years imprisonment in respect of the assault occasioning bodily harm.  The learned sentencing Judge added a recommendation for parole after two years.

Although the notice of appeal seeks to appeal against both of those sentences Mr Farmer, who appears for the applicant today, has informed us that the appeal is limited to that against the five year term for grievous bodily harm. 

The applicant has no prior criminal record.  The case is a most unusual one in that, it appears, the applicant deliberately injured her infant child in circumstances in which there is neither any clear view as to motive or any clear view that she suffered any identifiable mental disorder.  Indeed, in the latter case, as I will mention a little later, the view seems to be to the contrary.

The most serious injuries inflicted by the applicant on the young child were caused by inserting her finger in the child's anus on numerous occasions thereby causing damage to her bowel and rectum.  This occurred over a substantial period in circumstances in which it would have been obvious to almost anyone who was doing it that it caused the child excruciating pain.  As a result the child required intensive care and for a time her condition was life-threatening.  She may require major reconstructive surgery in the future entailing surgical removal of scarred and diseased areas of the rectum and replacement of part of the bowel.  The gastroenterologist who examined the child thought it difficult to anticipate the likely outcome of her bowel injuries.

The child also suffered, at the applicant's hands, injuries to the oesophagus consisting of lesions caused by two separate acts.  It is unclear what caused these but it was accepted in the applicant's plea of guilty that it was deliberate acts of the applicant.

The applicant herself had an unfortunate childhood.  How unfortunate it is difficult to say because, as Dr Reddan, a psychiatrist who examined her on many occasions reported, the applicant tried to present herself in a virtuous light and was not a reliable historian.   But it appears that she was a member of a large family of step children from different relationships and that she had an unhappy relationship with her stepfather who may possibly have sexually assaulted her.

She had a specific learning disability which impeded her schooling and may have led to her dysfunctional relationship with her siblings, her mother and later, her husband.  However, there was no evidence that she was intellectually disabled or that she had any mental disorder.  Rather, the label applied to her condition "Munchausen by proxy" and "Factitious disorder by proxy" are more appropriately descriptive of a pattern of behaviour than of any mental disorder.  The causes of this behaviour are apparently unknown.  Possible causes, in this case, were thought by the psychiatrists to include a feeling of lack of self-worth because, in consequence of her specific learning disability she was thought to be dumb; a desire to receive attention, admiration or sympathy; and a way of dealing with angry feelings by proving doctors and nurses wrong and by frustrating them in their attempts to make the child well again.  She had apparently, a few years earlier, nursed her son through the course of a severe infant illness including mental disabilities which resulted in his early death.  This resulted in severe depression in the applicant for a time although it does not appear from the psychiatrist's reports that this was a cause of her conduct.

What does seem to be clear is that the applicant is apparently emotionally detached from the harm caused to her child.  She is neither upset nor remorseful about it.  Indeed, she does not appear to appreciate how appalling her conduct was.  As the learned sentencing Judge quite rightly said, this reflects both her lack of remorse and her poor prospects of rehabilitation.

It follows from what I have said that she is not in need of psychiatric care.  What she apparently needs is support by those who can give her a sense of self-worth and, perhaps, some employment which will do so.  Indeed, Dr Reddan thought that she was not amenable to psychiatric treatment as she doubted her capacity to bond in a one to one relationship with any therapist.

In determining a sentence to be imposed on the applicant I think the learned sentencing Judge took all relevant matters into account.  On the one hand, that is against the applicant, he took into account that over a sustained period she inflicted cruel and painful injuries upon her infant child with results that were life threatening and with a disability which may be permanent.  Moreover, they were not inflicted in circumstances which often exist in cases of injuries inflicted on young children in which events have caused the offender to lose self-control.  Rather they were inflicted here in callous disregard for the pain which she was plainly inflicting on the child.  Finally against the applicant, as I have already mentioned, is her emotional detachment from her conduct and denial of it for a time which is indicative both of lack of remorse and of poor prospects of rehabilitation. 

On the other hand, in the applicant's favour, she is poorly educated, suffers from a specific learning disability and has low self-esteem which was boosted apparently by praise which she received in the care which she gave her son who died in infancy.  She suffered from some deprivation and neglect as a child but apparently now has the support of her husband and, it seems her mother although her relationship with both appears to be dysfunctional.  She is in employment or, I should say, she was at sentence in employment and she was a hard worker and she had pleaded guilty.  It has also been said that, because of her learning disability, imprisonment will be more severe on her than for most people.

I do not doubt that the learned sentencing Judge was correct in imposing a gaol sentence upon the applicant nor does the applicant's counsel who has contended for a sentence of three years imprisonment with a recommendation after 12 months.  The applicant's counsel, Mr Farmer, rightly conceded before us that the sentence imposed in the present case would have been appropriate had it not been for what he describes as the applicant's mental condition but submits that having regard to that the sentence was manifestly excessive.

There are no cases which are directly comparable to this one.  The two relied on by the applicant, both here and below, are decisions of the New South Wales Court of Criminal Appeal, Bowker, (No 60486 of 1992, 31 August 1993) and O'Kane, (No 60732 of 1994, 9 March 1995).  Bowker was a woman who maliciously caused poison to be taken by one of her daughters and a noxious substance to be taken by another, each on a number of occasions.  Both were young babies.  The effects, in each case, were more serious than in this case.  However the circumstances surrounding the applicant in that case were more favourable to her in that the medical evidence given in that case was that her conduct had a driven quality, evidence of which, as was mentioned during the course of argument, is lacking in this case.  The Court thought that, because of that circumstance, the offence called for a lesser sentence than might otherwise be imposed.  An effective term of six years imprisonment was imposed because of the cumulative sentences in respect of the two offences.  Moreover, because of a different sentencing regime in New South Wales, the recommendation for parole was after four years imprisonment.  The similarity with this case was that the offender was said to have had a Munchausen by proxy syndrome.   O'Kane was an Attorney's appeal against a sentence of four years imprisonment for grievous bodily harm again involving an infant.  The injuries in that case were inflicted over a number of weeks fracturing many bones in the baby's body and causing blindness in one eye.  The respondent was the baby's natural father.  The sentence on appeal was increased to six years imprisonment with a minimum of two years.  The injuries in that case were substantially more than those in this but the applicant there showed remorse and the infliction of the injuries was, to some extent, explained though not of course excused by the respondent's drug and alcohol addictions and her personality disorder.  Smith, (CA No 29 of 1997, 10 October 1997), was also relied on by the applicant.  The appellant in that case was sentenced to five and a half years imprisonment for grievous bodily harm to a 10-month-old child of his de facto wife.  The sentence on appeal was reduced to one of four years imprisonment.  The injuries involved fractures to various bones of the child caused, it was thought, by the appellant's frustration with the child's crying.  Although he showed no remorse for his conduct references were tendered which indicated that the applicant was generally a caring person and that the offence was completely out of character.  It might be said also in the present case that the applicant's husband described her as a caring mother to the children although that is certainly inconsistent with her conduct towards B.

The injuries inflicted in Smith were somewhat comparable in severity to those inflicted in this case.  However an important difference, in my view, is that they were inflicted during a fairly short period and, it may be assumed, because the appellant in each case had lost his temper; whereas in this case they were inflicted over quite a long period by conduct apparently calculated to achieve some benefit for the applicant.

The sentence imposed in Smith, and indeed in the New South Wales cases referred to, does not, in my view, show that the sentence imposed in this case was manifestly excessive.

The learned sentencing Judge, in this case, referred to the importance of deterrence in offences of this kind.  I agree. They are often difficult to detect and to be prosecuted.  The submissions of Mr Farmer for the applicant relied heavily on what he said was the plaintiff's psychiatric condition which he submitted was a cause of the injuries.  In my view, there is nothing which would make this case analogous to those to which he referred which were cases involving diminished responsibility and the like where it could be said that deterrence was not such an important factor.  In my view, as already indicated, the facts in this case show that deterrence was an important factor.

Taking all the factors that I have mentioned into consideration I cannot be satisfied that the sentence imposed here was manifestly excessive and I would refuse the application.

PINCUS JA:  I agree.

DOWSETT J:  I also agree.

DAVIES JA:  The application is refused.