R v CAI[2008] QCA 359

SUPREME COURT OF QUEENSLAND

MUIR JA:  The applicant seeks leave to appeal against a 12 months intensive correction order imposed after a plea of guilty by the applicant to five counts of unlawful assault, one count of which involved bodily harm and another of which involved bodily harm whilst armed.

The applicant was about 35 years of age at the time of the offences and had a minor criminal history which did not include offences involving physical violence.  The complainant is the applicant's nine year old son. 

The circumstances underlying each of the counts on the indictment are as follows.  The applicant punched the complainant in the head for failing to clean his teeth, count one.  The applicant, for an undisclosed reason, lifted the complainant up by holding his face and threw him on to a plastic chair, count two.  The applicant hit the complainant on the nose causing it to bleed when the complainant got in his way, count three.  The applicant believing the complainant was eating his dinner too slowly, hit him on the head about six times, count four.  When fishing in a small boat with the complainant and the complainant's brother, the applicant believing the complainant had punched the side of the boat, hit him with a donger on the right shoulder blade causing a large bruise, count five.  A donger is a piece of wood shaped like a shovel and/or used to stun or kill fish.  The blow from the donger caused the complainant's back to hurt for about a week.

These offences were committed between 26 February 2007 and 20 May 2007.  When interviewed by police, the applicant readily admitted the offences.  He asserted that he was administering discipline and that such punishment was the only thing which worked with the complainant.

After the interview, the applicant and his wife undertook parenting classes and there is evidence that the lessons learned have been absorbed and heeded.  The family support worker engaged in a family support program undertaken by the applicant in the Atherton Neighbourhood Centre reported an improvement in relationship between the applicant and his children.

The primary Judge took these matters into account.  He took into account also that the complainant was ill disciplined.  In the applicant's favour are his lack of prior criminal history and his progress towards rehabilitation.

In most cases, the physical injury inflicted was minor.  Nevertheless, the applicant betrayed his parental trust by treating the complainant in a way which was not only unduly harsh physically, but emotionally harmful to the complainant.

He suffered emotional distress, reported having nightmares and confessed to being "a tiny bit scared" of the applicant.  He considered that he needed to continue with counselling.

The primary Judge imposed one sentence for all five offences.  That is contrary to the requirement that a separate sentence be imposed for each offence.  R v Crofts [1998] 1 QdR 386 and R v Dolan [2008] QCA 41.

The exercise of the sentencing Judge's discretion thus miscarried and it is necessary for this Court to exercise the sentencing discretion.

In my view, the sentence imposed by the sentencing Judge had much to commend it.  It was submitted by counsel for the respondent that it would have been open to the sentencing Judge to have imposed a short term of imprisonment involving actual custody.

He referred, in this regard, to R v Walker [2007] QCA 446 which supported the submission.  The applicant's conduct was not isolated, the physical and emotional harm inflicted far from negligible and the applicant's conduct, as I have said, was in betrayal of his position of trust.

As was observed by McMurdo P in Walker, deterrence in cases such as this is important.  However, in light of the applicant's progress towards rehabilitation, his continuing parental role and the desirability of continued supervision, the sentence imposed was the appropriate one, save for the error mentioned earlier.

I would allow the application for leave to appeal, allow the appeal.  I would sentence the applicant to a 12 months intensive correction order for count five on the same terms and conditions as that imposed by the sentencing Judge. 

I would record convictions for counts one to five and impose no further penalty for counts one to four.  The requirements of intensive correction orders and the consequences of breach were explained by the sentencing Judge in appropriate terms and that explanation is adopted for present purposes.

There is one further matter which should be mentioned.  The applicant was concerned that the continuation of reporting requirements was interfering with his ability to maintain an appropriate familial relationship with his children. 

In particular, he was concerned that the reporting requirements would prevent him from taking the children camping and on holidays.  Those are concerns which seem to have some legitimacy and should be able to be addressed by application by the applicant to his supervising officer.

HOLMES JA:  I agree, although Mr Martin, we want to put it beyond doubt, I think, that the intensive correction order commences from the 12th of June 2008.  Is there any particular form of words needed for that?

MR MARTIN:  I was just looking because I'm troubled by those provisions that say that sentences and imprisonment commence on the date that they're imposed.

HOLMES JA:  And it's not as if you can declare time in custody.  It's not that situation.

MR MARTIN:  No.

HOLMES JA:  But if we add the qualification that the intensive correction order is to be taken to have commenced on the 12th of June 2008, do you think there's likely to be any?

MR MARTIN:  I suppose your Honour can say the remaining portion of the 12 months is similar to that period.  I suppose we can do the maths and find out how much is left from today but that might be better rather than trying to back-date it.  If your Honours will give me a few minutes, I'll try to do the calculations, if you bear with me.

HOLMES JA:  Yes.

APPLICANT:  Can I just say something else before the Judge‑‑‑‑‑

HOLMES JA:  Just hold on a minute, would you, please, Mr CAI?

APPLICANT:  Yes. 

HOLMES JA:  Sorry, Mr CAI, what is it you wanted to say?

APPLICANT:  I just wanted to make known that originally besides the fact that we've got no money to contest anything in Court, so, we had to go through Legal Aid.  Well, my solicitor told me that because the prosecution had dropped the torture charge, he felt that it would be best just to plead guilty to get away from dragging the thing out through Court.

HOLMES JA:  Mmm.

APPLICANT:  Because he said he's got one case ongoing and it's been going for four years and the parents still hadn't been re-unified with their kids.  Their kids were still in foster care and so that's, you know, I just want to make that be known as well.

HOLMES JA:  Yes.

APPLICANT:  But the idea was, though, that we could be re-unified, like, further with the kids.

HOLMES JA:  Yes.

APPLICANT:  If I just plead guilty and not contest any of the charges.

HOLMES JA:  Yes.

APPLICANT:  Because, like, there is truth to all the charges but the actual - it's not entirely true what's happened, what's written down in all these counts.

HOLMES JA:  Yes, we understood what you said about that.

APPLICANT:  Yes.

HOLMES JA:  And what Justice Muir was suggesting was it may be possible for you to negotiate with the Corrective Services officer who's supervising your probation to allow you not to report for a couple of weeks, so, you can get away with the kids.

APPLICANT:  Yeah, like, I'm just thinking Christmas holidays and that coming up.

HOLMES JA:  Well, you can try.  Nobody can guarantee that they'll say, "Sure, that's fine." But there's nothing to stop you asking.

APPLICANT:  Yeah.

HOLMES JA:  And we're just getting this order formalised.  I don't know if you understand but what is going to happen is that the order is going to be fixed up but the Court has decided that the sentence is all right, so, it will be the same sentence again.

We're just making sure we don't put you in a position where it's any longer, so, just bear with us.

APPLICANT:  Yeah.  There's one other question that's not really relevant to this appeal case but it's to do with my firearm.  They were taken off me.

HOLMES JA:  No, I don't think so, Mr CAI.  I don't think we'll be entering into that.

MR MARTIN:  Your Honour, I calculate that he serve five months and five days, leaving, erring on the side of generosity, six and a half months left to do.

HOLMES JA:  Yes, that doesn't present any difficulty, does it?  There's no lower limit on the‑‑‑‑‑

MR MARTIN:  No, there's not but I can see it's got to be no more than 12.

CHESTERMAN J:  Yes, I agree with the reasons expressed by Justice Muir and the order he proposes.

HOLMES JA:  The proposed order, I should make clear now is that the Court will impose an intensive correction order on the same conditions as were imposed by the primary Judge in respect of count 5, for a period of six months from today's date.  In respect of the remaining charges, convictions are recorded but no further penalty is imposed.  Does that present any difficulty, Mr Martin?

MR MARTIN:  I'd see none except for the requirement under section 117, given that it's a new order.  This is the one that he has to give consent.

HOLMES JA:  All right.  Mr CAI, that order requires your consent.  I might point out to you that it’s slightly better than you were because you've only done five months and five days.

APPLICANT:  Yes.

HOLMES JA:  And the new order only requires you to another six months, so you got out of most of the month.

APPLICANT:  Yes.

HOLMES JA:  Do you consent to the making of that order?

APPLICANT:  Yes, I do.

HOLMES JA:  And you understand the conditions.  They were explained to you, I think, by Judge Griffin, at first instance?

APPLICANT:  Well, my understanding is, if I break anything to do with the order, I will have to actually serve a custodial sentence.

HOLMES JA:  Well, the Court would be in a position to impose the balance of the sentence if you were to do that.

APPLICANT:  Yeah, and I'll actually spend gaol time, yeah.

HOLMES JA:  That's right.

APPLICANT:  Yeah.

HOLMES JA:  All right, thank you , those are the orders.  Thanks, Mr CAI.