R v BDZ[2023] QCA 59

SUPREME COURT OF QUEENSLAND

1. [1]
   DALTON JA:  I agree with the reasons proposed by Henry J.
2. [2]
   GOTTERSON AJA:  I agree with the reasons of Henry J for the order made on 15 March 2023 refusing leave to appeal.
3. [3]
   HENRY J:  The applicant was violent to his baby, inflicting permanent catastrophic harm.  He applied for leave to appeal his sentence of seven years imprisonment without the fixing of an early parole eligibility date on the ground it was manifestly excessive.  The Court refused the application at the hearing.  These reasons explain why such an order was made.
4. [4]
   The applicant’s baby was about seven weeks old when taken to hospital in an unconscious state, breathing shallowly.  Various injuries were detected, some older than others.
5. [5]
   About three weeks earlier, almost all of the baby’s left ribs had been fractured in an apparently simultaneous single act of compression.  Another old injury, which may have occurred at the same time as the breaking of the ribs, was a fracture of the baby’s femur.  It had to have been caused by a pulling force.  The applicant pleaded guilty to those two instances of assault occasioning bodily harm.
6. [6]
   The undoubted seriousness of those two offences was far exceeded by the applicant’s more recent violence, culminating in the baby being taken to hospital and the applicant being charged with and pleading guilty to grievous bodily harm.  This time the applicant had shaken the baby, causing a violent whiplash motion of the baby’s head and neck.  This caused severe bleeding and swelling across almost all of the baby’s brain, an injury at the base of the brain above the spinal cord, and numerous retinal haemorrhages.  Because of the applicant’s violence the baby has been left with cerebral palsy and consequently global developmental delays.  The baby has permanent and severe physical disabilities, including being unable to walk independently, being unable to be fed orally, instead being fed through a gastronomy tube in his stomach, epilepsy and associated seizures, visual impairment and swallowing difficulties which place him at long-term risk of aspiration pneumonia.
7. [7]
   The applicant entered early guilty pleas.  The defence submitted for a head sentence of six years’ imprisonment with the setting of a parole eligibility date after two years.
8. [8]
   The applicant was sentenced to seven years imprisonment for the offence of grievous bodily harm and lesser concurrent sentences of imprisonment for two offences of assault occasioning bodily harm and two drug offences.  The concurrent sentencing approach meant the head sentence of seven years was intended to adequately punish the total offending.^[1]
9. [9]
   A serious violent offence declaration was not made, despite the prosecution having contended for one.  No early parole eligibility date was set, despite the defence having contended for one.  By operation of s 184(2) Corrective Services Act 2006 (Qld) the applicant’s parole eligibility date will fall at the sentence halfway point.
10. [10]
    The only variation to the sentence sought by the proposed appeal is the imposition of a parole eligibility date, on 2 September 2023, which would represent a parole eligibility date after about one-third of the seven-year head sentence.
11. [11]
    The applicant’s argument in support of the complaint of manifest excess was that without the fixing of an earlier parole eligibility date the sentence did not give sufficient effect to the features in the applicant’s favour.  In summary those features were said to be:

2. 1.he pleaded guilty to the grievous bodily harm charge at the committal proceedings and gave an early indication of his intention to plead guilty to the other charges;
3. 2.his guilty pleas had particular utility given the difficulty in a shared care context of proving which carer caused the harm;
4. 3.he was still a young man, being 26 at the time of the offence and 28 at the time of sentence;
5. 4.he only had one prior conviction;
6. 5.he had not re-offended;
7. 6.he had a good employment record;
8. 7.he offended in unthinking frustration or anger;
9. 8.he did not try to conceal the baby’s injuries and took him to hospital;
10. 9.he eventually made admissions to interviewing police;
11. 10.he had exhibited remorse at various times.

12. [12]
    The force of the final four features was heavily qualified in that, in respect of:

• feature 7, he had injured the baby in such anger on more than one occasion;
• feature 8, he had not sought precautionary medical examination of the baby after the earlier episodes of violence;
• feature 9, he took until the third police interview to accept he caused the injuries;
• feature 10, his attitude to his wrongdoing had been variable, involving what the learned sentencing judge described as “limited insight and remorse”.

13. [13]
    Further, those ten features were not the only factual features of relevance in arriving at a just sentence.  Other factual features included that the victim was especially vulnerable, being only weeks old, and that the applicant was responsible for the victim’s care.  However, by far the most influential factual feature of the case in the determination of a just sentence was the catastrophic, life altering consequence of the grievous bodily harm offence.
14. [14]
    The defendant’s ill-tempered violence towards his baby has forever deprived the child of any semblance of the life he should have enjoyed.  Beyond the grief occasioned to the baby’s mother and supporting family it has also burdened them with the onerous, permanent responsibility of providing care for their disabled loved one.
15. [15]
    In sentencing, the seriousness of the crime to be punished is assessed not only by reference to the offender’s culpability, in the sense of the degree of deliberation or wickedness with which the offender acted.  It is also assessed by reference to the consequences of the offender’s actions.^[2]
16. [16]
    For the offence of grievous bodily harm, those consequences can vary very widely.  Grievous bodily harm is defined in s 1 Criminal Code (Qld) as including a “bodily injury of such a nature that, if left untreated, would endanger or be likely to endanger life, or cause or be likely to cause permanent injury to health”.  It is not uncommon, because of the availability of medical treatment and the curable nature of some injuries, that victims of the offence of grievous bodily harm largely or entirely recover from the physical effect of their injuries.  But where physical injury turns out to be permanent, the offence is more serious for the purpose of sentence.
17. [17]
    The maximum penalty for such an offence is 14 years imprisonment, per s 320 Criminal Code.  That is unremarkable, not only because of the potential variability of offenders’ circumstances.  It is also because an injury constituting grievous bodily harm may range over a spectrum from one which fully resolves to one which leaves the victim deprived of most faculties of life.  Without intending to diminish the dignity of the life the applicant left his victim with here, it must be acknowledged as a very weighty consideration that the injury is closer to the upper end of that spectrum than the lower.
18. [18]
    That reality ought not be obscured by the fact, repeatedly emphasised on the applicant’s behalf, that he did not intend to cause grievous bodily harm to his baby and was not to be sentenced for the offence in s 317 Criminal Code of doing grievous bodily harm with intent to do so.  That offence has a maximum penalty of life imprisonment, whereas the offence of grievous bodily harm simpliciter has a maximum of 14 years imprisonment.  However, it should not be thought that all iterations of the latter offence should always be met with lesser sentences than all iterations of the former.  It is conceivable that, despite the serious element of intentional harm not being present, some offences of grievous bodily harm simpliciter may attract an even greater sentence than some offences of doing grievous bodily harm with intent.  Such a possibility arises because of the breadth of variability in the potential gravity and permanence of the grievous bodily harm occasioned.
19. [19]
    At the hearing of this application the parties were invited to identify a past sentence considered by this court, proximate to the circumstances of this case.  The closest proffered were R v FJ; Ex parte Attorney-General (Qld) [2005] QCA 15 and R v SAV; Ex parte Attorney-General (Qld) [2006] QCA 328.
20. [20]
    In FJ, in which the baby had fully recovered but was susceptible to “future learning or other difficulties”, this Court declined in an Attorney-General’s appeal to increase a sentence of five and half years’ imprisonment with parole eligibility after 22 months.  In SAV, the infant, like the present victim, suffered brain damage from being shaken but the extent of permanent impairment, while very serious, was not as grave as in the present case.  This Court allowed the Attorney’s appeal, increasing the head sentence from four years to five years, suspended after one year.
21. [21]
    Neither case involved injury of such permanent gravity as the present.  Further, they were decided in an era preceding the introduction of s 9(10A) Penalties and Sentences Act 1992 (Qld) which requires the fact this was a domestic violence offence to be treated as an aggravating factor.
22. [22]
    The learned sentencing judge was conscious of the gravity and permanence of the injury done to the victim here.  In deciding whether to declare the applicant convicted of a serious violent offence his Honour observed it was “very much a borderline case”.  One feature of the case which was relevant in that context was that this was an offence of violence against a young child, which s 161B(5) Penalties and Sentences Act 1992 required the learned sentencing judge to treat as an aggravating factor in deciding whether to make the declaration.
23. [23]
    Ultimately, his Honour decided not to make a declaration, with the result the applicant avoided the prospect of no parole until having served 80 per cent of his sentence.  But that conclusion did not render irrelevant the seriousness of the features which had made it such a finely balanced decision and it certainly did not have the consequence that the mitigating circumstances of the case required the imposition of an early parole eligibility date.  As was explained in R v Free; Ex parte Attorney-General (Qld) (2020) 4 QR 80, 99 at [55] there is no requirement that a sentencing judge must impose an early parole eligibility date in response to mitigating considerations such as a plea of guilty.  His Honour, having referred to Free, decided to make no order for parole eligibility prior to the statutory halfway point, evidently taking the early guilty pleas and other circumstances favourable to the applicant into account in mitigation in arriving at a just head sentence.
24. [24]
    In the circumstances of this case the resulting sentence was within the range of a sound exercise of the sentencing discretion.