R v RY; ex parte Attorney-General
[2006] QCA 437
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- Unreported Judgment
- Appeal Determined (QCA)
- R v RY; ex parte Attorney-General[2006] QCA 437
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R v RY; ex parte Attorney-General[2006] QCA 437
R v RY; ex parte Attorney-General[2006] QCA 437
SUPREME COURT OF QUEENSLAND
CITATION: | R v RY; ex parte A-G (Qld) [2006] QCA 437 |
PARTIES: | R |
FILE NO/S: | CA No 250 of 2006 DC No 158 of 2006 |
DIVISION: | Court of Appeal |
PROCEEDING: | Sentence Appeal by A-G (Qld) |
ORIGINATING COURT: | District Court at Toowoomba |
DELIVERED ON: | 3 November 2006 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 18 October 2006 |
JUDGES: | Williams and Keane JJA and McMurdo J Separate reasons for judgment of each member of the Court, each concurring as to the order made |
ORDER: | Appeal dismissed |
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 - respondent pleaded guilty to two counts of assault occasioning bodily harm - respondent sentenced to imprisonment for 12 months to be served by way of intensive correction order - offences to which respondent pleaded guilty constituted breach of terms of previously imposed suspended sentence - suspended sentence extended further for an operational period of one year - complainant was respondent's daughter - respondent 25 at time of offences - respondent had substantial criminal history including breaching domestic violence orders - respondent has problem with alcohol - respondent undertook rehabilitation programs in between time of offences and time of sentence - respondent has custody of young son - whether sentence manifestly inadequate Penalties and Sentences Act 1992 (Qld), s 113 King & Kordick v Styles [1997] QCA 278; CA No 215 of 1997, 12 September 1997, cited R v Cuff; ex parte A-G (Qld) [2001] QCA 351; CA No 151 of 2001, 22 August 2001, cited R v H; ex parte A-G (Qld) [2001] QCA 174; CA No 290 of 2000, 8 May 2001, considered R v PZ; ex parte A-G (Qld) [2005] QCA 459; CA No 281 of 2005, 9 December 2005, cited R v R [2001] QCA 305; CA No 68 of 2001, 30 July 2001, considered R v Rann [2005] QCA 366; CA No 184 of 2005, 30 September 2005, cited |
COUNSEL: | S G Bain for the appellant A W Moynihan for the respondent |
SOLICITORS: | Director of Public Prosecutions (Queensland) for the appellant Legal Aid Queensland for the respondent |
- WILLIAMS JA: I have had the advantage of reading the reasons for judgment of Keane JA wherein the relevant background facts to this appeal by the Attorney-General are set out. For the reasons advanced by Keane JA the appeal should be dismissed.
- My main concern has been the respondent's criminal history which includes episodes of domestic violence. But it appears that the removal of his son from his care by the Department of Child Safety made the respondent realise that he had to take serious steps to reform his conduct.
- The program he undertook with the Australian Red Cross Intensive Family Support Program provided the guidance and support which prior to then had been lacking in the respondent's life. He was clearly unable to cope with the demands of two young children; that was particularly so with respect to the complainant who was unexpectedly thrust on him in February 2005. The Red Cross program has assigned a support worker to the respondent, and that support worker visits the respondent regularly. The report from the Red Cross strongly suggests that the respondent is now able to cope with the parenting responsibilities confronting him.
- A sentence of imprisonment for 12 months to be served by way of an intensive correction order is, by definition, a sentence of imprisonment and Parliament has decreed it must be so regarded by the courts. In the circumstances that is not a light sentence, particularly when the factors relating to mitigation are brought into account. The sentence may also be re-opened if the respondent failed to comply with its terms.
- I agree that the appeal should be dismissed.
- KEANE JA: On 1 August 2006, the respondent pleaded guilty to two counts of assault occasioning bodily harm. On 11 August 2006, he was sentenced to imprisonment for 12 months to be served by way of an intensive correction order. The offences to which the respondent pleaded guilty constituted a breach of the terms of a suspended sentence that had been imposed by the Magistrates Court at Warwick on 30 January 2004. At sentence on 11 August 2006, the learned sentencing judge ordered that the term of the respondent's suspended imprisonment be further extended for an operational period of one year.
- The Attorney-General appeals against the sentence on the grounds that it is manifestly inadequate in that it failed to reflect adequately the gravity of the offence and the need for deterrence, and in that the sentence gave too much weight to factors going to mitigation.
The circumstances of the offences
- The complainant in each case was the respondent's daughter, a five year old girl. At the relevant times, the complainant lived with the respondent, having been left in the respondent's care in February 2005 by the child's mother. At that time, the respondent also had custody of his three and a half year old son, who was his child by another woman.
- The respondent evidently found the complainant difficult to control. The respondent's difficulties were compounded by the circumstance that he was drinking heavily following the sudden death of his father.
- On 11 March 2005, the respondent took the complainant child to see a doctor. The doctor examined the child's ears and noted that blood came out of both ears. The child also had bruises to her forehead and both cheeks. There was also a dark bruise on her lower abdomen. The child told the doctor that she did not know how the bruises had been caused. The doctor notified the Department of Child Safety of concerns over the child's safety.
- On 15 March 2005, a child safety check was conducted by police and an officer of the Department of Child Safety. The child appeared to be anxious and fearful during the interview. She had a patch over her right eye, and claimed to have fallen on her toys. When the patch was removed, it could be seen that there were black bruises to her left and right eye and on her right buttock. In the course of an interview that day, the respondent said that the child was intentionally hitting her head against things. He said that her behaviour was difficult and that she was a compulsive liar. He denied using corporal punishment to discipline the child. The respondent said that he had been told to use the eye patch to correct the child's lazy eye. It appears that child did indeed have a lazy eye.
- Subsequently, the child told police that the respondent had been hurting her. The respondent was interviewed by police. He denied hitting the child. He described the child as a compulsive liar and attention seeker. The respondent's dishonesty at this stage as to the cause of the complainant's injuries and his blaming of the child are matters for concern. On the other hand, it must be acknowledged that the respondent did seek treatment for the complainant's injury on 11 March 2005.
- The complainant was taken into the care of the Department of Child Safety, and the respondent was arrested and charged on 20 April 2005. After the committal hearing, the respondent indicated his intention to plead guilty to the charges in question.
- Prior to these events taking place, a domestic violence order had been imposed on the respondent by the Warwick Magistrates Court. The respondent breached that order and, on 30 January 2004, a sentence of three months imprisonment wholly suspended for a period of 18 months was imposed on the respondent. This breach resulted from an altercation between the respondent and the then 17 year old mother of his son. He struck her several times causing her nose to bleed and bruising her forehead. The offences of present concern breached that suspended sentence and exposed the respondent to the possible imposition of that period of three months imprisonment.
The respondent's circumstances
- The respondent was born on 2 April 1979. He was 25 years of age at the time of the offences against the child, and 27 years of age at the date of sentence. He has a substantial criminal history which commenced in 1996. This history includes offences of dishonesty, unlawful carnal knowledge and disorderly behaviour. Of greater concern for present purposes is the circumstance that he has, on four separate occasions in recent years, breached domestic violence orders. As has been seen, one of these occasions involved a violent assault on the 17 year old mother of his son. The respondent has had the benefit of two probation orders. In 1999, the respondent spent two months in prison as a result of breaching the terms of the suspended sentence imposed in relation to the offence of unlawful carnal knowledge.
- The respondent has a long-standing problem with alcohol. Much of his offending has been associated with alcohol abuse.
- The respondent left school at grade 11. His ability to work in gainful employment is adversely affected by a chronic back condition.
- The respondent was supported by numerous references to the effect that the present offences were "out of character" for him; but the respondent's record of domestic violence means that these references must be regarded with some reserve.
- The respondent has been responsible for the upbringing of his son since birth. Officers of the Department of Child Safety took his son into custody on 8 June 2005 and thereafter placed him in the care of a foster family. At the time the respondent was sentenced, his son was living with him five days per week. The respondent is financially responsible for his son who was due to be returned to his full-time care at the end of August 2006. The learned primary judge was told that the process of reuniting the respondent with his son might not continue if the respondent was sentenced to actual imprisonment for a period longer than four months. It seems that the respondent has had no further contact with the complainant since she was removed from his care.
- In the lengthy period between the events which are the subject of the charges and the respondent's sentence, the respondent underwent a nine month program for anger management and extensive programs in relation to alcohol abuse. As a result, he had ceased drinking at the time he was sentenced. He also underwent extensive parenting programs.
The sentence
- The learned sentencing judge observed that the offences were very serious. His Honour considered that a sentence of 12 months imprisonment was appropriate. His Honour was, however, prepared to accept that the respondent's behaviour had to be seen in the context of the especially stressful circumstances in which the offences occurred.
- His Honour was particularly impressed by the respondent's attempts at rehabilitation. This program of rehabilitation occurred during the period of 15 and a half months between the respondent's arrest and his sentence. The learned sentencing judge was persuaded by a consideration of the respondent's efforts to rehabilitate himself to order that the respondent's 12 months imprisonment should be served by way of an intensive correction order.
- His Honour concluded that it would be unjust to order the respondent to serve the term of his suspended sentence. In this regard, it may be noted that the operative period of the suspended sentence would have expired at the end of July 2005 (that is, several months after the respondent's arrest but more than a year before he was sentenced for the offences of present concern).
The appeal
- The Attorney-General does not challenge the learned sentencing judge's conclusion that it would have been unjust to require the respondent to serve the period of the suspended imprisonment. The Attorney-General challenges the sentence imposed in respect of the assaults, and submits that a head sentence of 18 months imprisonment with release after six months should be imposed by this Court. In this regard, it may immediately be accepted that a head sentence of up to 18 months imprisonment was open to the learned sentencing judge.[1]
- On the other hand, the decision of this Court in R v H; ex parte A-G of Qld[2] demonstrates that it cannot be said that a sentence of 12 months imprisonment after a plea of guilty is manifestly inadequate for offending involving assaults by a parent on a child where no permanent harm is inflicted on the child. In R v H, this Court refused to interfere with a three month recognisance imposed on a 42 year old mother who had twice struck her nine year old son with a long stick. It was an important aspect of the reasoning of the Chief Justice, with whom Mackenzie and Chesterman JJ agreed, that there was no suggestion that a recurrence of the mother's violent outburst was likely.
- Similarly, in R v R,[3] the offender had been sentenced to 18 months imprisonment for assault occasioning bodily harm to a six month old female child who suffered extensive bruising to her face and body. The offender was 28 years old at the date of sentence and had what was described by McMurdo P as a "significant criminal history for offences of dishonesty and violence". That history included two charges of armed robbery leading to a term of actual imprisonment. An application for an extension of time to pursue an appeal against this sentence was refused. It is important to appreciate that the sentence in R v R was imposed after a trial.
- It cannot be said that it is never proper for a judge to order that a sentence of imprisonment in a case of an assault by an offender with a record of previous violent behaviour should be served by way of an intensive correction order.[4] It is to be emphasised that s 113(1) of the Penalties and Sentences Act 1992 (Qld) ("the Act") provides that the effect of an intensive correction order is that the offender is to serve a "sentence of imprisonment by way of intensive correction in the community and not in a prison". This provision is not merely a matter of empty words. Stringent conditions were imposed on the respondent by the learned sentencing judge pursuant to s 114 of the Act. If the respondent ceases to be able or willing to comply with the terms of the order, it may be revoked under s 120 of the Act; and, in that event, the respondent may be resentenced for the offences in question under s 121 of the Act. Accordingly, an intensive correction order affords an offender an opportunity to demonstrate genuine rehabilitation while at the same time leaving open the prospect of actual imprisonment if the order is not adhered to.
- In this case, there were reasons which afforded justification for the view that "leniency at this particular stage of the [respondent's] life might lead to reform".[5]
- This was a case of violence by a relatively young man confronted with a stressful domestic situation which was not of his own making. He was inadequate to cope with that situation largely because of his problems with alcohol. There was evidence that, since the offending, his alcohol and parenting problems have been seriously addressed with some real degree of success.
- In such a case, there was real scope for the sentencing judge to form the view that the respondent's prospects of rehabilitation, coupled with the associated desirability of preserving, if possible, a family unit, warranted the imposition of an intensive correction order rather than the immediate imposition of a period of custody in prison.
- The claims of personal deterrence were reduced in this case because the child who remains in the respondent's custody is not said to be in any danger from the respondent, and the respondent has no contact with the complainant. It was open to the sentencing judge to conclude that, in such a case, an intensive correction order appropriately punishes the offender, while at the same time avoids the adverse effects of prison upon both the offender and social dislocation of the family for whom the offender is economically, socially and emotionally responsible. It also serves to provide the offender with continuing support in his efforts to put alcohol abuse behind him.
- No doubt because the offender has a worrying record of domestic violence, the sentencing judge gave anxious consideration to whether the degree of leniency extended to the offender by making an intensive correction order is unduly optimistic. But where the offender has shown a real willingness and ability to rehabilitate himself, and there is no suggestion of further danger to the offender's children, it was reasonably open to a learned sentencing judge to impose a form of sentence which encourages the respondent to continue to meet his responsibilities as a parent while at the same time bringing home to him the point that any repetition of violent behaviour will be met by condign punishment.
Conclusion and order
- In my respectful opinion, the sentence imposed by the learned sentencing judge was not manifestly inadequate. The appeal should be dismissed.
- McMURDO J: I agree with Keane JA.