R v SAV; ex parte Attorney-General
[2006] QCA 328
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- R v SAV; ex parte Attorney-General[2006] QCA 328
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R v SAV; ex parte Attorney-General[2006] QCA 328
R v SAV; ex parte Attorney-General[2006] QCA 328
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Court of Appeal | |
PROCEEDING: | Sentence Appeal by A-G (Qld) |
ORIGINATING COURT: | |
DELIVERED ON: | 1 September 2006 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 23 August 2006 |
JUDGES: | McMurdo P, Wilson and Atkinson JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDER: | 1.Appeal allowed 2.Set aside the sentence imposed on each count 3.On count 1, order that, subject to compliance with s 95 and s 96 Penalties and Sentences Act 1992 (Qld), the respondent is sentenced to 12 months imprisonment and three years probation on the terms and conditions set out in s 93 Penalties and Sentences Act 4.On count 2, the respondent is sentenced to five years imprisonment suspended after serving 12 months imprisonment with an operational period of five years 5.The period of 173 days from 4 November 2004 until 26 April 2005 during which the respondent has been in pre-sentence custody is declared to be imprisonment already served under the sentence 6.A warrant is issued for the arrest of the respondent but it is to lie in the registry for seven days |
CATCHWORDS: | CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE - OFFENCES AGAINST THE PERSON - where respondent was sentenced to 12 months imprisonment on one count of assault occasioning bodily harm whilst armed and four years imprisonment suspended after serving 173 days with an operational period of four and a half years on one count of doing grievous bodily harm - where respondent's two year old son received injuries resulting in significant brain damage and permanent physical disabilities - where sentencing judge took into account many mitigating factors - where Attorney‑General contends that sentence imposed on count 2 is manifestly inadequate - whether respondent's sentence was within the appropriate range in all the circumstances Criminal Code 1899 (Qld), s 669A Penalties and Sentences Act 1992 (Qld), s 93, s 95, s 96 R v Amituanai (1995) 78 A Crim R 588, applied R v FJ; ex parte A-G (Qld) [2005] QCA 15; CA No 338 of 2004, 9 February 2005, applied R v K [2003] QCA 368; CA No 168 of 2003, 27 August 2003, applied R v Sittczenko; ex parte Cth DPP [2005] QCA 461; CA No 221 of 2005, 9 December 2005, applied R v Smith [1997] QCA 350; CA No 29 of 1997, 10 October 1997, applied R v Solway; ex parte A-G (Qld) [1995] QCA 374; CA No 164 and No 187 of 1995, 22 August 1995, applied R v W [1999] QCA 202; CA No 490 of 1998, 4 June 1999, applied |
COUNSEL: | R G Martin SC for appellant A W Moynihan for respondent |
SOLICITORS: | Director of Public Prosecutions (Queensland) for appellant Legal Aid Queensland for respondent |
[1] McMURDO P: The respondent pleaded guilty in the District Court at Brisbane on 23 June 2006 to one count of assault occasioning bodily harm whilst armed on 27 October 2004 and one count of doing grievous bodily harm between 27 October and 3 November 2004. She was sentenced to 12 months imprisonment on the first count and to four years imprisonment on the second, suspended after serving a period of 173 days with an operational period of four and a half years. The appellant, the Attorney‑General of Queensland, contends the sentence on the second count was manifestly inadequate and that a sentence of six years imprisonment with a recommendation for parole eligibility after two years should be substituted.
[2] The respondent was 27 at the time of the offences and 28 at sentence. She has no criminal history. After full committal proceedings with cross-examination the respondent pleaded guilty at an early stage.
[3] Her co-offender husband pleaded guilty to one count of failing to supply necessaries and was sentenced to 10 months imprisonment suspended forthwith with an operational period of two years. He was 35 at the time of the offence and 36 at sentence and had convictions in 1987 and 1988 for offences of dishonesty and assault occasioning bodily harm. He was sentenced in 1988 to two years imprisonment with a recommendation for parole eligibility after six months. There is no appeal in respect of his sentence.
[4] The following facts were placed before the sentencing court. The victim in each count was the two year old child of the respondent and the stepchild of her husband. On 2 November 2004 the child was admitted to Caloundra Hospital with injuries consistent with infant abuse head trauma also known as shaken baby syndrome. He was flown to the Brisbane Royal Children's Hospital for treatment.
[5] Paediatrician Dr Catherine Skellern examined and treated the child. She concluded that he suffered impact forces to the occiput and acceleration/deceleration forces to his head causing frontal subdural haematomas, retinal haemorrhages, traumatic right-sided retinoschisis and diffuse cerebral damage from shearing forces to the axons of the white matter triggering swelling which compromised blood supply to parts of the brain; the brain then became damaged from lack of blood and oxygen. The lack of blood supply was significant and prolonged and affected the basal ganglia and corpus callosum. The child would have suffered immediate altered levels of consciousness following the trauma and progressively deteriorated neurologically as the haematomas increased in size and his brain started to swell. He would have been unable to speak, swallow, see, walk or move in a co-ordinated fashion. These abnormalities would have been noticeable to any reasonable adult observing him after the trauma and failure to seek medical attention in these circumstances could be considered significant medical neglect.
[6] Paediatric ophthalmologist Dr Glen Gole treated the child's eye injuries. The boy has permanent visual impairment as a result of brain damage especially to the left eye and has at least a 70 per cent loss of visual function. He will require ongoing ophthalmic supervision for the rest of his life.
[7] Paediatrician Dr Nicola Previtera has also treated the child. She considered that his brain injury has resulted in some spasticity, weakness, tremor and balance issues, communication difficulties, reduced attention span and a personality change.
[8] Rehabilitation specialist Dr David Levitt who has also been treating the child over a period notes that the boy is now physically well and making slow and steady developmental progress with therapy.
[9] The respondent initially gave false exculpatory accounts to doctors and to police but before long she confessed that she was responsible for the injuries which occurred five days before the hospital admission. She said in a third interview with police on 3 November 2004 that she had lied earlier and provided the following information. On the previous Wednesday she smacked her son twice with a wooden spoon and this caused a bruise on the lower part of his back (count 1). The next day, Thursday, the child was "being sookie and unreasonably crying". The respondent had two children, the two year old child victim and a four year old daughter. She was pregnant, had difficulty sleeping and was overtired. She became angry with the boy and walked over the top of him, knocking him hard to the floor with her knee. The back of his head hit the floor. She later tried to feed him some lunch but he was upset. She told him to stop "carrying on" but his crying got worse. She grabbed him by the arm, marched him to his room and flung him inside using as much force as she could muster. She heard a dull thud. He hit either a piece of furniture or the wall. She walked away without looking. Later when she checked on him he seemed to be sleeping. He developed a temperature and she told her husband that he was ill with a fever. She gave him Children's Panadol. The child continued to deteriorate over the following days. The respondent's mother visited the following Monday and was concerned that the child was limp and unresponsive. She told the respondent to take the child to a doctor. Early on the Tuesday morning the child was whining and crying and the noise was noticed by neighbours. The child began to convulse. The respondent and her husband then took the child to hospital.
[10] Dr Skellern's report suggests that the actions admitted by the respondent were not responsible for the acceleration and deceleration injuries; these were caused by additional repetitive shaking.
[11] The complainant child is now in the care of his natural father whose victim impact statement was tendered at sentence. It indicated that the little boy's life has been severely detrimentally affected by the offences and that this has caused his father great sadness. He has given up his employment to care for the child and the boy's older sister, whose life is also no doubt detrimentally affected by her little brother's gross injuries.
[12] The prosecutor emphasized that the complainant child had suffered significant permanent injury which had been contributed to, not only by the initial assaults, but also by the delay in seeking treatment. She contended that, in the light of the plea of guilty, a sentence in the range of five to seven years imprisonment with a recommendation for parole eligibility after 18 months to two years should be imposed. The prosecutor relied as authority for that submission on the cases of R v K[1] and R v FJ; ex parte A‑G (Qld).[2]
[13] Defence counsel at sentence made plain that the respondent accepted her responsibility for all the injuries to the child. She was remanded in custody after her arrest. She gave birth to a third child whilst in custody on 18 April 2005 and was granted bail about a week later. The child victim and his older sister now live with their natural father and the baby lives with her husband's parents. In her interview with police she explained that she became frustrated with the complainant child and this developed into anger which resulted in her acts of violence towards the little boy. Had she known that he had sustained such serious injuries, she would have obtained assistance earlier. Since she became pregnant she had suffered morning sickness and was sleep deprived, in part through waking at night to go to the toilet.
[14] Defence counsel tendered a report from psychologist Dr Keane who saw the respondent in February 2006 for about two hours. The respondent reported that she and her co‑offender had married in 2004 and she was pregnant with his child when the offences occurred in October 2004. Her husband's business was not doing well and they were in financial difficulties. They had sold their car and other equipment to pay bills. She had to take the children out of day care. Her husband had become depressed and his medication made him even more withdrawn. He had moved out of the marital bedroom and was sleeping on a mattress in the lounge room. He ceased to take an active interest in the business leaving all the responsibility to her. She felt she was not receiving the support she should have from her own mother and from her church. The complainant child was in the respondent's words a "sooky, sickly child". She expressed great remorse at her conduct stating that every day she "wishes she could take his injuries". She questioned how she could have committed the offences and why she did not get help. Her religious beliefs have given her strength to cope. Prior to this incident the respondent saw herself as a devoted mother who was overprotective of her children and took them to hospital at the first sign of illness. She had a somewhat dysfunctional background and had abused drugs as a young woman, although not since she separated from her previous partner, the father of her first two children. She found she became angry after withdrawing from drugs, which she used to help her cope with life's difficulties. Although she is now permitted to have contact with her children under strict supervision, she has chosen not to see them because she doubts she could cope with having to leave the new baby and she felt that no contact was in the best interests of her older children whom she had hurt enough. She presently resides and works with her husband on a farm owned by his parents. She rarely leaves the farm because she is ashamed of her past actions. She prays and reads the Bible but is too ashamed to attend church. Dr Keane believes the respondent would benefit from treatment aimed at managing her emotions, particularly anger, and such treatment has a reasonable likelihood of success. If she re-establishes contact with her children she would benefit from an intensive one-on-one parenting programme and a referral to a community support agency such as Talera with the Department of Families. Dr Keane considered that due to the existing multiple stressors (set out above) immediately prior to committing the offences the respondent was emotionally alone and overwhelmed. When faced with a situational crisis she had few adaptive coping strategies on which to call. Dr Keane observed that if the respondent were given a custodial sentence the nature of her offending would make her vulnerable to aggression from other prisoners and she would need to be in protective custody. A non-custodial sentence would allow her to access therapy in order to increase her adaptive coping strategies and her parenting skills. If she has contact with her children without such intervention she could reoffend. The probability of this occurring would be decreased if she were to receive appropriate interventions and have ongoing contact with a community support agency.
[15] Defence counsel also tendered reports from Mission Australia which recorded that the respondent was participating in their Personal Support Programme which offers both counselling and practical support. She commenced the Programme in August 2005, was participating in it at sentence and she intends to continue with it. I cannot help observe that if the respondent had had access to this or a similar programme before October 2004, she may not have inflicted these devastating injuries on her young son and the community may have been saved tens of thousands of dollars in its health and criminal justice systems.
[16] The respondent's counsel submitted that the circumstances of the case and comparable sentences supported an effective term of imprisonment of four years but that that should be suspended after the six months imprisonment which the respondent had already served.
[17] The judge took some time to consider the submission. In his sentencing remarks the judge referred to the catastrophic injuries suffered by the child, their devastating effect on his life and the circumstances of the offences which required, except in exceptional cases, a period of actual imprisonment. His Honour considered there were many mitigating factors including the respondent's prior good history; that these offences were isolated and that she had previously been a good parent; that the offences were partly explained by the circumstances in which they occurred which placed her under enormous strain; that she did not realize how ill the child was; that she had expressed great remorse and believed that her greatest punishment was her own realization of the tragic consequences of what she had done to her own child; that she had lost the opportunity to care for her children; and that she was undertaking ongoing counselling since her release from prison. But for the fact that she had already spent almost six months in custody, the judge would have suspended the sentence after 10 months but concluded it was not appropriate to return her to prison for a period of four months because this would interfere with her rehabilitation, which was in the best interests of the community. The judge considered that the sentence he imposed adequately dealt with questions of personal and general deterrence and with the denunciatory aspects of the sentencing process.
[18] The appellant's counsel, Mr R G Martin SC, made the following submissions. The judge's starting point of a head sentence of four years imprisonment was too low and gave too much weight to the mitigating factors of the stressors on young parents, things which are within the range of normal life experience. The devastating permanent injuries inflicted upon the complainant child warranted a sentence in the range of five to seven years imprisonment with a recommendation for parole eligibility after about two years. Even were the judge's notional sentence of four years imprisonment suspended after 10 months in fact appropriate, the judge erred in not returning the respondent to custody to serve the remaining four months, which was 40 per cent of the actual custody component of the sentence originally envisaged by the judge. The respondent was not entitled to avoid serving that part of her sentence simply because she had served a period in pre-sentence custody and then obtained bail. The judge also gave too much weight to the effect on the respondent of her guilt over her actions; it is the child that will have to live with the permanent injuries she inflicted on him.
[19] Counsel for the respondent answered with the following contentions. The head sentence of four years imprisonment was within range: it is supported by the comparable cases of Rv Smith,[3] R v W[4] and the cases referred to by the prosecutor at sentence: R v K and R v FJ; ex parte A-G (Qld). There were in this case many mitigating factors. The respondent had no criminal history, no past propensity for violence, no intent to cause serious harm, pleaded guilty at an early stage and committed the offences at a time when she felt alone and overwhelmed in caring for her two young children, compounded by her pregnancy which caused her nausea and fatigue. She had acknowledged her responsibility, expressed remorse and was participating in ongoing counselling. The judge rightly recognized that her greatest punishment was her knowledge of what she had done to her own child. The judge was also right to take into account the undesirability of now returning the respondent to custody. The sentence imposed was lenient and compassionate but within range.
[20] This case posed particular difficulties for the sentencing court because of the strongly divergent competing considerations. On the one hand the two year old complainant child was completely vulnerable and dependent on his parents; the respondent should have nurtured him but instead treated him with great violence, caused him devastating life-threatening permanent injuries and for some days denied him access to medical treatment which any reasonable person would have recognized as urgently needed. Such anti-social conduct is abhorrent and understandably invokes strong feelings of community revulsion and disapprobation warranting a salutary penalty.
[21] On the other hand, the offences were apparently out of character. The respondent had no prior convictions, no history of violence and otherwise seemed to have been a satisfactory parent. She came to commit the offences in circumstances where she could not cope and felt she had nowhere to turn for help: she had two children, the two year old victim and a four year old daughter, and she was also pregnant; she was suffering morning sickness and sleep deprivation; her husband's business was in decline and they had financial difficulties; he was depressed, had left the matrimonial bedroom and was leaving her to manage the business. She and her husband did finally seek medical assistance for the child. She has subsequently accepted responsibility for her offending, pleaded guilty at an early stage and expressed great remorse and shame for her actions and their consequences to her child. She did not intend to cause serious harm. She does not presently have contact with any of her children. She has participated in ongoing counselling through Mission Australia's Personal Support Programme to address the character flaw that allowed her physical difficulties and emotional frustration to erupt in anger and violence towards her innocent young son. Psychologist Dr Keane considers that the probability of her reoffending will be decreased by these appropriate interventions.
[22] The primary judge's sentencing remarks make clear that he was acutely aware of these competing considerations and his responsibility to balance them in determining an appropriate sentence according to law. The judge was entitled to accept the respondent's statement to Dr Keane and through her counsel that her greatest punishment would be living with her own guilt for permanently and severely injuring her own child. That statement was unchallenged by the prosecution. If genuine, and the judge accepted it was, it is consistent with remorse, insight and rehabilitation.
[23] The judge plainly considered that an appropriate sentence was one of four years imprisonment with release after 10 months. He was entitled to take into account the negative effect of returning the respondent to prison after she had served almost six months before being released on bail, providing that the sentence ultimately imposed was within the established range: R v Solway; ex parte A-G (Qld)[5] in the reasons for judgment of Pincus JA; and R v Sittczenko; ex parte Cth DPP.[6] The answer to that question, whether the sentence imposed was within range, is at the essence of this appeal.
[24] The maximum penalty for the most serious offence of which she was convicted, grievous bodily harm, is 14 years imprisonment. Neither offence included as an element an intention to harm. In determining whether the sentence here was within a sound exercising discretion, it is useful to refer briefly to some of the cases discussed by counsel. In Smith the appellant was convicted after a trial of doing grievous bodily harm to a 10 month old child. Smith was the male friend of the child's mother. His assaults caused the child to receive a parietal skull fracture with an extra-cerebral haemorrhage in the left upper parietal region with a small amount of surrounding tissue oedema. The child also suffered earlier injuries for which Smith was not found liable. The child was making a good recovery from the initially serious injuries with an unclear prognosis. There was a mild functional deficit on the left side but it seemed unlikely there would be gross impairment. Smith had a minor criminal history, was 26 years old and impressive references were tendered which indicated the offence was completely out of character. This Court considered his comparative youth and rehabilitative prospects made the five and a half year sentence manifestly excessive and substituted a four year sentence.
[25] In W the appellant was convicted after a trial of doing grievous bodily harm to his two year old stepson by delivering a very severe blow to the skull. He was sentenced to four years imprisonment. He was 39 at sentence and had prior convictions but none for violence. There was permanent serious injury to the child's brain although the prognosis as to whether there was permanent damage to his motor skills or behaviour was unknown. His application for leave to appeal against sentence was refused.
[26] In K the applicant was convicted on a retrial of one count of grievous bodily harm and seven counts of assault occasioning bodily harm. She was 26 at sentence and 23 when she offended. The complainant was her newborn son. She caused him fractures to the right tibia, left femur and ribs and a subdural haematoma and life‑threatening swelling to the brain. As a result he was exposed to greater risk of spasticity, epilepsy and developmental problems. She had a prior conviction in 1998 for causing grievous bodily harm to an infant daughter by severely shaking her, causing her brain damage, retinal haemorrhages and metaphysial and forearm fractures for which she was sentenced to 12 months probation without conviction. This Court substituted a five year sentence for the seven year sentence largely because that was the sentence imposed after the first trial and it was within range although "only just".
[27] In FJ, an Attorney's appeal, the 21 year old respondent pleaded guilty the day before trial to causing his eight month old son grievous bodily harm. The respondent had no relevant criminal history. The child suffered bruising, fractures, retinal haemorrhaging, a skull fracture and subdural haematoma of various ages consistent with the respondent assaulting the child on more than one occasion over a three week period. The child recovered physically but the possibility of brain injury remained. FJ expressed remorse. This Court considered that the five and a half year sentence with a recommendation for parole eligibility after 22 months was within the appropriate range.
[28] In none of those cases was the child victim as severely injured as in the present case. The cases demonstrate, nevertheless, that a four year head sentence was, taking into account many of the mitigating factors in this case, within the established range of four to six years imprisonment, although plainly at the low end of that range in view of the grievous permanent injuries suffered by the complainant child. But the sentence of four years imprisonment was then further greatly mitigated by suspending it after 173 days, a little less than six months. The respondent inflicted devastating and permanent injuries on her vulnerable two year old child. His life, the life of his father who now cares for him and that of his sister have been forever detrimentally affected. The serious impact of the respondent's assault on her victim must be reflected in the sentence imposed: R v Amituanai.[7] Despite the many mitigating factors to which I have referred and the undesirability of now returning the respondent to prison and interrupting her counselling and rehabilitation, the sentence of four years imprisonment suspended after 173 days is manifestly inadequate. I note that her return to prison will not affect directly her children with whom she has had no recent contact. The appellant has persuaded me that the sentence imposed should be varied and that this Court should impose an alternative sentence under s 669A(1) Criminal Code. In re‑exercising the sentencing discretion I have taken into account that she has had this appeal hanging over her for the past two months. The sentence I propose is structured so that the head sentence reflects the seriousness of the offence; the early suspension reflects the mitigating factors; and on her release she will have a substantial period of community supervision and support.
[29] I would allow the appeal, set aside the sentence imposed on each count and instead on count 1 order that, subject to compliance with s 95 and s 96 Penalties and Sentences Act 1992 (Qld), the respondent is sentenced to 12 months imprisonment and three years probation on the terms and conditions set out in s 93 Penalties and Sentences Act. On count 2 the respondent is sentenced to five years imprisonment suspended after serving 12 months imprisonment with an operational period of five years. The dates between which the respondent has been in pre-sentence custody are from 4 November 2004 until 26 April 2005, a period of 173 days. That period is declared to be imprisonment already served under the sentence. I would also order that a warrant issue for the arrest of the respondent but lie in the registry for seven days.
[30] WILSON J: I agree with the orders proposed by the President, and with her Honour's reasons for so ordering.
[31] ATKINSON J: I agree that the appeal should be allowed for the reasons given by the President. I also agree with the orders proposed by the President.
Footnotes
[1][2003] QCA 368; CA No 168 of 2003, 27 August 2003.
[2][2005] QCA 15; CA No 338 of 2004, 9 February 2005.
[3][1997] QCA 350; CA No 29 of 1997, 10 October 1997.
[4][1999] QCA 202; CA No 490 of 1998, 4 June 1999.
[5][1995] QCA 374; CA No 164 and CA No 187 of 1995, 22 August 1995 at [16].
[6][2005] QCA 461; CA No 221 of 2005, 9 December 2005 at [27].
[7](1995) 78 A Crim R 588, Pincus JA, 589.