R v Morris; ex parte Attorney-General
[2004] QCA 463
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- Unreported Judgment
- Appeal Determined (QCA)
- R v Morris; ex parte Attorney-General[2004] QCA 463
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R v Morris; ex parte Attorney-General[2004] QCA 463
R v Morris; ex parte Attorney-General[2004] QCA 463
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Court of Appeal | |
PROCEEDING: | Sentence Appeal by A-G (Qld) |
ORIGINATING | District Court at Cairns |
DELIVERED ON: | 3 December 2004 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 15 November 2004 |
JUDGES: | McMurdo P, McPherson JA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDERS: |
|
CATCHWORDS: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – where respondent sentenced to 2 years imprisonment for torture – where respondent pleaded guilty – where mistreatment occurred over a protracted period – where respondent had recent prison sentence for breach of domestic violence order – whether sentence manifestly inadequate Criminal Code 1899 (Qld), s 320A Geddes v The Queen (1999) 106 A Crim R 14, considered R v Burns [2000] QCA 201; CA No 399 of 1999, 30 May 2000, considered R v Mah [2004] QCA 198; CA No 78 of 2004, 8 June 2004, considered |
COUNSEL: | D Meredith for the appellant A J Moynihan for the respondent |
SOLICITORS: | Director of Public Prosecutions (Queensland) for the appellant Legal Aid Queensland for the respondent |
[1] McMURDO P: I agree with Philippides J’s reasons for allowing the appeal and increasing the sentence imposed at first instance to four years imprisonment with a recommendation for post-prison community based release after 18 months.
[2] What makes the offence of torture more serious than the offence of assault occasioning bodily harm is the element of intentional infliction of severe pain or suffering. Here the injured complainant was a six year old, completely vulnerable girl child in Mr Morris’ care. Fortunately the child’s mother complained on her behalf to police so that the child was not further physically or psychologically injured. The particular of the torture charge, which involved kicking the child to the head and knocking her down and across the room so that her head struck the wall, was especially serious because of its potential to cause the child serious injury or even death. Mr Morris’ lack of insight into the wrongfulness of his actions is of concern. The sentencing principle of general and particular deterrence is apposite here. Mr Morris remains in contact with the complainant’s mother, also the mother of his own children. There is likely to be further contact with the mother and complainant when he is released back into the community. The sentence proposed by Philippides J will ensure that the community, the complainant, her family and Mr Morris benefit from the supervision and control he should receive under the parole order upon release into society.
[3] I agree with the orders proposed by Philippides J.
[4] McPHERSON JA: I agree with the reasons of Philippides J and with the orders which her Honour has proposed.
[5] PHILIPPIDES J: On 2 August 2004, the respondent was convicted on his plea to one count of torture occurring between 25 August and 27 December 2003 and sentenced to 2 years’ imprisonment. A declaration was made as to 218 days having already been served. The respondent was also sentenced, upon his plea, to 6 counts of breaching a domestic violence order, being incidents concerning the offence of torture. In addition, he was sentenced on his plea to one count of behaving in a threatening manner and of obstructing police on 7 December 2003. That concerned an occasion where police were called to deal with a domestic dispute. The respondent, who was in an intoxicated state, assaulted the complainant’s mother, threatened a neighbour who had become involved and obstructed police. No further punishment was imposed in respect of any of these matters.
[6] The Attorney-General brings this appeal against the sentence of 2 years’ imprisonment imposed on the respondent for the count of torture. The ground on which the appeal is brought is that the sentence imposed was manifestly inadequate, in that it failed to reflect the gravity of the offence, generally and in this case in particular, failed to sufficiently take into account the aspect of general deterrence and placed too much weight on factors going to mitigation.
[7] “Torture” is defined as “the intentional infliction of severe pain or suffering on a person by an act or series of acts done on 1 or more than 1 occasion” (Criminal Code s 320A). The maximum period of imprisonment for the offence is 14 years.
[8] The respondent, who is 30 years of age, is the stepfather of the complainant. At the time of the offences the respondent was 29 years of age and the complainant six years old. The respondent and the complainant’s mother had commenced a relationship when the complainant was a few months old. There are two children from that relationship. There is evidence that the relationship has been a turbulent one. The complainant’s mother took out a domestic violence order in relation to herself and the complainant, which required that the respondent be of good behaviour towards them, although it apparently did not prohibit contact with either of them.
[9] The respondent has a significant criminal history dating from 1992 including drug offences, offences of housebreaking, stealing, burglary, destruction of property, unlawful use of a motor vehicle and entering a dwelling with intent and a number of dishonesty offences. In June 2000 and January 2002, he was convicted of breaches of the domestic violence order. On the latter occasion he was also convicted of assault occasioning bodily harm. In March 2003, he was convicted of 2 further breaches of the domestic violence order and of entering a dwelling and committing an indictable offence. In December 2003, he was convicted of obstructing a police officer. For most of these offences he was fined, but in March 2003, having breached an earlier probation order, he was re-sentenced to five months imprisonment.
[10] The circumstances of the offence of torture are that on 23 December 2003, the complainant’s mother contacted police, alleging that the respondent had flushed the complainant’s head in the toilet. Police took detailed allegations from the complainant, who alleged (and this was accepted by the respondent’s plea of guilty) that the respondent had been mistreating her for some 4 months. The complainant stated that sometime in late October 2003, the respondent struck her with a belt or extension cord around the legs. She said that she had been punched and slapped by the respondent and that he had forced his fingers down her throat, cutting the back of her throat and making it hard for her to eat and swallow. She detailed conduct by the respondent when she was deprived food, was forced to stand in the corner for hours at a time and forced to stand in very hot showers. She said that the respondent had on a number of occasions forced her head into the toilet when it was flushed. She referred to conduct by the respondent in sending her to bed without wearing clothes and regularly abusing her verbally, calling her a “black shit” or “mongrel so and so”. When interviewed by police, the respondent admitted that he had treated the child in this manner and, that he had done so on a daily basis over the period in question.
[11] The complainant child was, in addition to the general allegations, able to detail five specific incidents, which the respondent admitted. One concerned an incident in late October 2003, when the respondent became angry with the child, because she had not tidied her room and had hit her hard around the leg 3 or 4 times with an extension cord. Another incident concerned an occasion in early December 2003, when the respondent kicked the complainant in the back of the head, knocking her down and sending her a metre across the room, where her forehead struck a wall. The complainant sustained bruises and scratches to the forehead and complained that her head ached for some time.
[12] The respondent also admitted to an incident on 17 December 2003 when, because the complainant was blocking his view of the television, he punished her by taking her to the toilet, putting her head down it and flushing it. He admitted a further specific incident on 23 December, when he vented his anger with the complainant, because she would not pick up some money that had been dropped on the floor, by flushing the complainant’s head in the toilet a number of times. The respondent admitted that on that occasion the child was protesting and that, in order to scare her, he told her that the water was dirty. He also admitted that he then forced the child to stand in the shower, having turned the water on to maximum heat and having checked that it was hot enough to scald her.
[13] The complainant was examined at Cairns Base Hospital on 26 December 2003. The doctor found a small scabbing lesion on her forehead, a bruise on her back, grazing and bruising to her thighs. These had not been noted when the child was examined approximately 6 weeks before on 5 November 2003. On that occasion some old scars on the child’s neck and lower legs were noted, as was some bruising and scratches on her body. There was also a small ulcer inside her lower lip. The examining doctor considered that the injuries were both long standing and recent and that one of the scars on her legs was consistent with being hit by a folded cord of some description. The prosecutor indicated to the learned sentencing judge that the scalding had left red marks on the child’s skin.
[14] A psychologist’s report prepared by Mr Goldenberg after an interview with the child, contains observations as to the effects of the respondent’s mistreatment upon her. The complainant told Mr Goldenberg that she suffered from nightmares of her step-father beating and killing her and her mother. She also had nightmares of monsters chasing and eating her and of being flushed down the toilet. The complainant described symptoms of bed wetting and picking at her skin until it bled. She stated that she felt sad and that she felt “she was bad all the time”. Unsurprisingly, the psychologist reported that there was a strong likelihood that the abusive treatment had had a severe impact on the child and that there may well be long term consequences. The opinion was expressed that the child would require careful monitoring to manage possible adverse manifestations arising from the abuse she suffered.
[15] Dr Woolridge, a psychiatrist, prepared a report after interviewing the respondent, in which he detailed the respondent’s long history of poly-substance abuse, depression and social maladjustment. In particular, a serious history of alcohol abuse was detailed. Dr Woolridge noted a lack of insight by him as to his conduct, observing that although he expressed guilt, it was related more to his concern as to the effect his conduct would have on him and his children, rather than the effect it had had upon the complainant.
[16] Before the learned sentencing judge it was contended by the prosecutor that the relevant sentencing range was between 3 to 5 years as a head sentence.
[17] Her Honour considered that, given the actual acts done by the respondent and the physical consequences for the child, this was an example of torture at the lower end of the scale. While accepting that the upper range for an offence of a similar nature to that committed by the respondent was one of 5 years imprisonment, her Honour determined that, in light of the plea of guilty and lack of long term physical consequences for the complainant, the appropriate sentence was one of 2 years’ imprisonment.
[18] In imposing sentence, the learned sentencing judge took into account the complainant’s age at the time of the offences and that they had occurred over a four month period. Her Honour noted that, while alcohol and upbringing had played a part in the respondent’s behaviour, a concerning feature was the respondent’s lack of insight that what he had done was wrong and as to the effect that his conduct might have upon the complainant. Her Honour also had regard to the opinion of Mr Goldenberg that the complainant had suffered psychologically and that there were real prospects that she may suffer long term psychological damage.
[19] Her Honour took into account the respondent’s early plea of guilty, but also observed that he had committed the offences a few months after being released from prison for offences of violence against the complainant’s mother. Regard was also had to the respondent’s extensive criminal history, although it was noted that the offences of violence had only occurred after the respondent had commenced the relationship with the complainant’s mother.
[20] On this appeal it was argued that the sentence which should have been imposed was one of 4 years imprisonment. The following features were emphasised as being of particular concern:
(a) The youth and therefore vulnerability of the complainant;
(b) The prolonged period over which the respondent’s behaviour had occurred;
(c) The lack of insight by the respondent as to the wrongness of his behaviour and of the consequences upon the complainant;
(d) The criminal history of the respondent, particularly the recentness of a prison sentence for breach of a domestic violence order.
[21] Whilst it was accepted by the appellant that the learned sentencing judge took these matters into account, it was submitted insufficient weight was given to them. It was submitted that less importance ought to have been attached to the lack of long term physical consequences to the complainant, given her age and the period over which the conduct had occurred.
[22] On behalf of the respondent, it was submitted that, in view of the appellant’s concession that the appropriate range for the head sentence was one of between 3 to 5 years’ imprisonment, no error was demonstrated by the learned sentencing judge in moderating a notional head sentence within that range to 2 years, to reflect the plea and the matters of mitigation. In particular, it was contended that no error was demonstrated in taking such an approach as against that of imposing a head sentence of 4 to 5 years coupled with a recommendation for early eligibility for post prison community based release after 15 to 20 months.
[23] The cases of Geddes (1999) 106 A Crim R 14, Mah [2004] QCA 198 and Burns [2000] QCA 201 were referred to by the appellant by way of comparatives. The first two cases were clearly more serious ones than the present case and thus offer little assistance. However, they share a feature, in common with the present case, that the offending conduct was not isolated to a single occurrence, but was engaged in over a protracted period. That feature was regarded in both cases to be a serious aspect of the offending. Those cases also indicate that where (as is the case here) the offender takes advantage of the complainant’s vulnerability, for example, because of age or intellectual capacity, that will be regarded as an exacerbating factor.
[24] Geddes concerned the torture over a 3 month period of an 18 month old infant. An Attorney’s appeal against a sentence of 6 years’ imprisonment imposed on Geddes, a 25 year old man, with no prior convictions, who had entered an early plea, was dismissed. The conduct constituting the offence involved putting faeces into the child’s mouth on several occasions, holding his head under water long enough for him to gag for breath, winding the child by punching him, kicking the child so that he travelled some distance and injuring the child’s penis.
[25] Mah was also a more serious case than the present case. In that case, a sentence of 6 years’ imprisonment coupled with a serious violent offence declaration was made in respect of the torture of a 23 year old autistic man. The offending conduct was engaged in over a 2 to 4 week period, during which the complainant was kicked and hit with a steel pipe around the head and upper body, leaving him with serious head and back injuries and with permanent injury to his shoulders. The offender was 25 years of age, had the benefit of a plea and had no criminal history.
[26] In Burns, the complainant was the estranged wife of the offender. Although the prosecution at trial gave particulars of various conduct constituting the offence of torture, pursuant to the special verdict returned by the jury, the only acts capable of constituting the offence of torture that the jury agreed had been committed consisted of the “dozens of punches” that the complainant said the offender had delivered to her after taking her to an isolated location, coupled perhaps with some accompanying remarks and other actions on his part designed to frighten, humiliate and hurt her. The complainant sustained significant bruising, but no long term physical consequences. The offender was a 40 year old man, who did not have the benefit of a plea. As in the present case, the offender had a prior criminal history and was the subject of a domestic violence order at the time in relation to the complainant. A sentence of 4½ years was reduced to 3½ years on appeal. A recommendation made by the sentencing judge, appreciating the danger the offender might continue to present to the complainant, that the offender’s future conduct be carefully monitored was not disturbed.
[27] In the present case, although the offending conduct was not at the same level of seriousness as in Geddes and Mah, it was greater than that in Burns, given the age of the complainant and the prolonged period over which the offences occurred.
[28] A review of the authorities reinforces the observations of the Court of Appeal in Burns that the process of arriving at the proper sentence to be imposed at the lower range of seriousness for offences under s 320A has yet to develop sufficiently to furnish precise or firm guidelines. Nevertheless, it can be said that, in the present case there are serious features, which called for the gravity of the offence and the element of deterrence to be recognised in an appropriately severe sentence. These features are that:
(a) the complainant was a child of young age and in a position of vulnerability;
(b) the conduct was carried out daily over a protracted period;
(c) some of the mistreatment was attended with substantial risk of inflicting grave physical injury, such as the incident involving the complainant kicking the child causing her forehead to strike a wall;
(d) the respondent abused his position of trust, being in a parental relationship and having the care of the complainant child during the period of the offending conduct;
(e) the offender had a prior criminal history and was the subject of a domestic violence order in relation to the complainant at the time of the offending;
(f) at sentencing the respondent continued to exhibit a lack of insight into his conduct.
[29] In the circumstances, the sentence imposed by the learned sentencing judge was manifestly inadequate. In my view, a sentence of 4 years’ imprisonment was called for in the present case to reflect the serious aspects of the offence and the important consideration of deterrence. It is appropriate that such sentence be moderated to reflect the plea and other matters of mitigation. A recommendation for post prison community based release after 18 months adequately reflects those matters.
[30] Such a sentence not only more appropriately reflects the seriousness of the offending conduct while recognising the matters of mitigation, but also provides the benefit of a prolonged period of supervision of the respondent upon release from prison. There is therefore a significant distinction between such a sentence and that imposed by the learned sentencing judge, notwithstanding that the period of actual custody served under the two forms of sentence may, in the final result, be of a similar period.
[31] Accordingly, I would make the following orders:
1. Allow the appeal;
2. Set aside the sentence imposed on 2 August 2004 for the offence of torture and in lieu thereof order that the respondent be imprisoned for 4 years;
3. Declare that the respondent has served 218 days in pre-sentence custody which is time served pursuant to the sentence imposed by this Court;
4. Recommend that the respondent be considered for post prison community based release after having served 18 months of the term of imprisonment.