SUPREME COURT OF QUEENSLAND 

[1]  CHESTERMAN JA:  I agree that the application for leave to appeal against sentence should be dismissed for the reasons given by Mullins J. 

[2]  MULLINS J:  On 28 November 2008 the applicant pleaded guilty to one count of grievous bodily harm committed between 17 August and 4 September 2006.  The complainant was his daughter.  The applicant was sentenced on 16 December 2008 to imprisonment for three years.  The date for his release on parole was fixed at 15 June 2009 which will be after he has served six months of the term of imprisonment.

[3]  The plea of guilty was entered on the day the matter had been listed for the pre-trial recording of the complainant’s evidence.  It was not an early plea.  The indictment had been presented in August 2007.

[4]  The complainant was 11 years old at the time of the relevant events.  She and her 13 year old sister lived with the applicant who was their primary carer.  The applicant was involved in the promotion and distribution of a product called “Mannatech” which was described as a “therapeutic treatment and dietary supplement”.  The applicant used it and had given it to his daughters prior to the offence.  The applicant had a genuine belief in the benefits of Mannatech.

[5]  The complainant’s teacher noted that the complainant was unwell and had a temperature on 17 and 18 August 2006.  A neighbour of the applicant also noticed that the complainant was ill on 17 August 2006.  The applicant told the neighbour he was treating the complainant with Mannatech.  The applicant and the elder daughter were also ill with flu-like symptoms.  By 21 August 2006 the elder daughter had recovered, but the complainant was still unwell with headaches and high temperatures.  The complainant did not attend school that week.  She was given large amounts of Mannatech by the applicant.

[6]  On 25 August 2006 the applicant took the complainant to her mother’s house where she stayed for the weekend.  The mother recorded the complainant’s temperature as 42 degrees.  She used Panadol and Gastrolyte and managed to reduce the temperature to 36 degrees.  The mother did not take the complainant to hospital or seek medical treatment, as she was concerned that the applicant would not let her see her daughters again.  The complainant was so ill on 27 August 2006 when she was collected by the applicant that the applicant had to carry her to the car.  Over the following week the complainant’s condition further deteriorated.  She suffered diarrhoea, did not eat and hallucinated.  The applicant continued giving the complainant Mannatech.  On 31 August 2006 the applicant left the complainant at her mother’s house for an hour while he took the complainant’s sister to karate lessons.  Despite the mother telling the applicant to seek medical treatment for the complainant, he did not.  On 2 September 2006 the applicant took the complainant to the Toowoomba Hospital.  The applicant told staff initially at the hospital that he did not want the child to be given Panadol or antibiotics.  The complainant was observed to have a high temperature, fast heart rate and a tender abdomen.  She cried when her hip was touched and had a general wasted appearance.  The applicant was convinced by staff to consent to his daughter being treated with antibiotics.  The complainant was diagnosed with a severe infection and transported to the Mater Hospital in Brisbane.

[7]  The complainant was diagnosed as having suffered an acquired brain injury, as the result of cerebral infarcts, secondary to bacterial endocarditis, and septic arthritis of her left hip and both ankles.  The infection damaged her mitral valve and she underwent a mitral valve replacement and cardiopulmonary bypass.  There was brain damage caused by the heart infection.  The complainant was in a coma for some time.  She remained in hospital for almost a year. 

[8]  The complainant requires ongoing rehabilitation.  She will never be able to walk unaided and currently uses a wheelchair.  The complainant now resides with a foster family and requires her foster mother to meet all her hygiene and daily needs of toileting, showering and transfers in and out of her wheelchair.

[9]  The prosecution case against the applicant was therefore put on the basis that the grievous bodily harm to his daughter was committed because he failed in his duty to obtain medical treatment for his daughter at an earlier time than he did.  At the sentencing hearing, the applicant’s counsel advised the court of his instructions that the applicant’s recollection was that, during the two weeks preceding the complainant’s hospitalisation, the complainant’s condition had improved at times, but became worse at other times and had worsened greatly from the Thursday night before the Saturday on which he took her to hospital.  The applicant’s counsel conveyed his instructions that, although there were aspects of the facts as presented by the prosecution with which the applicant did not agree, the applicant did accept responsibility for the complainant’s condition and had therefore pleaded guilty to the offence. 

[10]  The applicant was 43 years old at the time of his offending conduct.  The applicant had been convicted of armed robbery in 1987 and sentenced to six years imprisonment.  In 2004 he was convicted of the breach of a domestic violence order.  In 2005 he was dealt with in the Magistrates Court for minor drug possession offences.

[11]  The applicant had suffered a serious head injury in a work accident in 1990.  According to the psychiatrist’s report prepared for the applicant’s personal injuries claim in relation to the work accident, the applicant suffered a degree of cerebral damage and significant anxiety and emotional consequences that resulted in his personality and social interactions becoming more dysfunctional. The psychologist’s report that was relied on by the applicant at the sentencing suggested it was probable that the head injury resulted in impairment in the applicant’s executive (higher order) functioning which resulted in some level of impaired judgment and that his judgment was also likely to have been influenced by personality factors.

[12]  The psychologist expressed the opinion that the applicant’s failure to seek medical treatment for his daughter was likely to be related to his long standing distrust of doctors, a greatly exaggerated view of his own ability to manage his children’s medical problems, an obsessional reliance on the use of Mannatech, as well as his impaired judgment. 

[13]  Although the applicant appeared for himself on the hearing of this application, he had an experienced solicitor and counsel acting for him at the sentence.  Because of the significant consequences caused to the complainant, the prosecutor had submitted that a head sentence in the order of three years was appropriate.  The applicant’s counsel accepted that a sentence of three years was within the range suggested by R v Clark [2007] QCA 168 (Clark) and R v Pesnak [2000] QCA 245 and was appropriate for the gross error of judgment of the applicant.   The applicant’s counsel’s submissions were directed at persuading the sentencing judge that the mitigating factors favoured a conclusion that a period in actual custody was not required.  The prosecutor acknowledged the mitigating factors and submitted that the sentence be structured so that a period of six months in actual custody be served.  Ultimately the submission of the applicant’s counsel was that there should be a parole date somewhere the date of sentence itself up to a period of six months. 

[14]  The sentencing judge expressly took into account that the applicant’s mental state was a mitigating factor, but noted that he also had to have regard to the serious harm caused to the complainant, as referred to in Clark at paragraph [46].  The sentencing judge concluded that the mitigating factors were sufficiently recognised by a parole date after a period of six months.

[15]  It is difficult for the applicant to now challenge the head sentence of three years, in view of the approach taken by his counsel at the sentence.  During the hearing of this application, the applicant complained that at the sentence hearing his lawyers failed to dispute factual matters that were put before the court by the prosecution.  Those factual matters largely related to the applicant’s recollection of his observations of his daughter during her illness and his recollection of how the events leading up to her hospitalisation unfolded.  Just as the applicant’s counsel at the sentence hearing did not pursue the differences in the applicant’s recollection of the events that preceded his daughter’s hospitalisation because the applicant accepted responsibility for the offence, the applicant disavowed any wish to appeal against his conviction on this application for leave to appeal against sentence. 

[16]  On the issue of whether a sentence that required the applicant to serve a period of six months in actual custody was excessive, the sentencing judge had the benefit of full submissions from both the prosecutor and the applicant’s counsel on this aspect of the sentence and the sentencing remarks show a careful balancing of the relevant factors on this issue. 

[17]  I am not persuaded that the applicant can show that the conclusion of the sentencing judge that a period of six months had to be served in actual custody was outside the range of a sound exercise of discretion.  The application for leave to appeal against the sentence should be dismissed. 

[18]  DOUGLAS J:  I agree with the reasons for judgment and the order proposed by Mullins J.