R v H; Ex parte Attorney-General
[2001] QCA 174
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- R v H; Ex parte Attorney-General[2001] QCA 174
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R v H; Ex parte Attorney-General[2001] QCA 174
R v H; Ex parte Attorney-General[2001] QCA 174
COURT OF APPEAL
de JERSEY CJ
MACKENZIE J
CHESTERMAN J
| CA No 290 of 2000 | |
| THE QUEEN | |
| v. | |
| H | Respondent |
| and | |
| ATTORNEY-GENERAL OF QUEENSLAND | Appellant |
BRISBANE
DATE 08/05/2001
JUDGMENT
THE CHIEF JUSTICE: The Honourable the Attorney-General appeals against a three months recognisance without the recording of a conviction, the penalty imposed on a presently 42 year old mother of the complainant child.
At the time of the commission of the offence, which was assault occasioning bodily harm while the respondent was armed with an offensive weapon, the child was nine years old, a son, living with the respondent.
The incident involved the respondent's hitting her son with a tree branch. On the day in question, with the boy still in his pyjamas, the respondent swore at him and hit him with a wooden spoon. She then went outside the house, collected the tree branch and proceeded to hit him with it a number of times on the arms and the legs. The branch was some two to three metres long.
She then sent him off to school, only to pursue him and challenge him as to why he was not riding his bicycle. She had, in fact, confiscated that some time earlier. She then took him home and assaulted him further with the stick. He received bruises to his body.
Three days later, when the respondent delivered the boy to his father, from whom she was in a state of separation, she spoke of the incident, acknowledging that she had "gone crazy" but justifying it on the basis of the boy's previous bad behaviour. It may fairly be said that he had been a somewhat difficult child in terms of management and had exhibited some violence previously towards his mother and on Sunday, 12 December, which was a few days before this incident, he had been involved in destructive behaviour in relation to some motor vehicles.
The father took the boy to a doctor and that led to contact with the police. At that time, which was three days after the offence, substantial bruising remained visible up and down the child's legs and arms.
In the course of the sentencing the Crown Prosecutor proffered a victim impact statement prepared by the father on behalf of the complainant. The learned Chief Judge apparently read that statement and then refused to accept it, handing it back to the Prosecutor. While the statement appears to have been written from a somewhat partisan point of view in the context of the breakdown of the relationship between the parents, the statement should nevertheless, in my view, have been both received and retained by the learned Judge and marked as an exhibit, as has indeed occurred in this Court. It is important that Prosecutors be encouraged indeed to tender victim impact statements.
The content of the statement appears to have influenced the learned Judge's subsequent treatment of the sentencing process. In the course of that process, having read the statement she described it as "appalling" and went on to say that, "The attitude expressed by the child's father would provoke anybody."
The learned Judge made a number of other observations to the effect that 40 years ago such injuries were a common part of school life, that all mothers of 10 year old boys the Judge knew had lost control at some stage and that this was not a bad example of corporal punishment. Well, any corporal punishment that goes too far is bad. And it seems to me that observation sits poorly with the respondent's own concession that she had "gone crazy" and exceeded the reasonable limits of discipline.
Disciplining was indeed involved at each stage of these events, mother to child, Judge to mother. There was likewise at each stage of these events a need for some reasonable moderation in what was done and in what was said. Some of the comments made by the learned Judge were not appropriate. But that cannot distract this Court from a rational, objective approach to the issue, which is whether there is disclosed a demonstrable error in principle such as might be reflected, for example, by manifest inadequacy in the penalty imposed.
The approach rightly taken by this Court on appeals by the Attorney-General is now very well established by pronouncements in this Court in context of High Court authority.
They may be found in Everett (1994) 181 Commonwealth Law Reports 295 at 299 to 300 and in this Court Melano [1995] 2 Queensland Reports 186.
The position taken by the Attorney now is that a community- based order should have been imposed including a special condition requiring that the mother, that the respondent undergo counselling.
The merit of the appeal, or its lack of merit, may usefully be assessed by comparing the Court response below, which on any view was extremely lenient, with the lowest position, in terms of severity of penalty, for which the Attorney would now contend.
That, it seems to me, is a probation order with a requirement for counselling. Yet there is no evidence before the Court, it seems, that there is - will likely be recurrence of this sort of outburst on the part of the respondent.
It may be, as was discussed during the submissions, that the imposition of a probation order would lead to very little perceived need for counselling.
When looked at in that light one must ask whether the imposition of a good behaviour bond for which, incidentally, the prescribed period has now expired, was so far below an appropriate penalty to warrant this Court on an Attorney's appeal interfering.
In my opinion that test cannot, in this case, be satisfied. None of this is intended to send any signal to the community that this sort of unrestrained lack of discipline on the part of a parent is acceptable. But in circumstances where there is no evidentiary basis for a conclusion that the respondent needs ongoing counselling, or that there is any risk of recurrence of this sort of misbehaviour on her part, it seems to me that the good behaviour bond which was imposed by the Chief Judge cannot be condemned as so far out of the range as to warrant disturbance on this appeal.
In these circumstances it seems to me that the Attorney, in appealing, was likely more concerned with the message being sent to the community by this sort of response in the District Court than particular concern for the position, in terms of penalty, of the respondent.
The former concern is, in my view, adequately met by a statement that this sort of ill-disciplined response by a parent to a child is intolerable. I would dismiss the appeal.
MACKENZIE J: I agree with what the Chief Justice has said. The basis upon which the Attorney appealed was that a good behaviour bond sends the wrong message to the community.
The sentencing range contended for in the written outline was from a community-based order with special conditions for counselling to an intensive correction order. The intensive correction order was not sought in the oral submissions and it was simply a community-based order that was contended for.
The specific reference to probation with conditions for anger management counselling tends to suggest that there was an emphasis, as well as on the aspect of sending the wrong message, upon remedial treatment for the particular offender.
The material in the record does not suggest that the respondent had an ongoing problem in that regard. The matter was before the Court as a case where an accumulation of circumstances had led to the violence that was inflicted on the child. I use the word "violence" advisedly because that is what it was. It reached a level which was unacceptable and beyond any proper view of responsible punishment.
While it is possible to see that other outcomes may have been imposed and could not have been successfully challenged by an accused person who appealed against those outcomes, that is not the test on an Attorney-General's appeal as the Chief Justice has explained.
An Attorney-General's appeal is in a special category and the tests have, in my view, not been met in this case. The Chief Justice has expressed what I might call the need for an appropriately detached and objective approach by Judges during the sentencing process and has explained why there were certain remarks made in the course of this sentence which might be thought not to have achieved that standard.
Nevertheless, for the reasons given by him I also think that the appeal must be dismissed.
CHESTERMAN J: I agree that the appeal should be dismissed and with what has been said by the Chief Justice and by Mr Justice Mackenzie. I would add one point.
The material before this Court revealed for the first time a dispute as to the facts attending the offence committed by the respondent. The disputed facts did not emerge earlier because the learned Chief Judge indicated early in her approach to the matter that she intended to deal with the matter as she did and consequently did not hear from counsel appearing for the respondent.
The material put before this Court shows that the severity of the attack and the degree of force used was less than had been put before the Chief Judge. That version of the facts has been outlined by the Chief Justice.
Mr Meredith who appears for the appellant accepts, quite fairly, that this Court must deal with the matter on the basis of the facts put forward by the respondent. They are that the child exhibited substantial psychological and behavioural problems. They meant that he was a difficult child to manage. He had, before this event, himself been violent towards his mother and had assaulted her on two occasions.
The events which precipitated the attack were that the child with two other children had vandalised three cars within a small community. This caused a great deal of anxiety for the respondent and distress in the community. The damage involved a sum of about $2,000.
The respondent's account of the incident is that the child, who at the time was wearing full length, relatively thick pyjamas, was told to face the wall. She picked up a stick which she estimated to be about two and a half feet long and she struck the child three times behind his thighs and then four further times, once on the left upper arm, once on the right upper arm, once on the left thigh and once on the right thigh. The child apparently had engaged in self harm and not all the bruises that were seen on him when examined medically were the result of the respondent's force.
As I say, I agree that the appeal should be dismissed for the reasons already given. The facts that I have outlined add to the force of those reasons.
THE CHIEF JUSTICE: The appeal is dismissed.
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