SUPREME COURT OF QUEENSLAND

Transcription

1 SUPREME COURT OF QUEENSLAND CITATION: R v M [2003] QCA 380 PARTIES: R v M (applicant/appellant) FILE NO/S: CA No 92 of 2003 DC No 334 of 2003 DIVISION: PROCEEDING: ORIGINATING COURT: Court of Appeal Appeal against Conviction and Sentence District Court at Ipswich DELIVERED EX TEMPORE ON: 1 September 2003 DELIVERED AT: Brisbane HEARING DATE: 1 September 2003 JUDGES: ORDERS: CATCHWORDS: McMurdo P, Dutney and Philippides JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made Appeal against conviction dismissed Application for leave to appeal against sentence refused CRIMINAL LAW APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION OTHER MATTERS where appellant charged with nine counts of physical abuse against a child where appellant pleaded guilty to one count of assault occasioning bodily harm and four counts of common assault where appellant convicted by jury to one count of torture and further count of assault occasioning bodily harm where appellant declared to be convicted of serious violent offence whether torture charge was duplicitous resulting in prejudice to the appellant in his defence upon the trial whether the particulars relied upon by the Crown could not be said to form one series of acts CRIMINAL LAW JUDGMENT AND PUNISHMENT SENTENCE CHARACTER OF OFFENCE GENERALLY where appellant sentenced to eight years imprisonment for count of torture and not further punished for the remaining counts whether sentence manifestly excessive in all the circumstances

2 2 COUNSEL: SOLICITORS: Penalties and Sentences Act 1992 (Qld), s 161B R v M [2000] QCA No 6; CA No 262 of 1999, 2 February 2000, considered R v S & R [1999] QCA 181; CA No 390 of 1998, 28 May 1999, considered A J Rafter for the appellant M J Copley for the respondent Legal Aid Queensland Director of Public Prosecutions (Queensland) for the respondent THE PRESIDENT: The appellant was charged with nine counts concerning the physical abuse of his partner's three year old son. He pleaded guilty to one count of assault occasioning bodily harm and four counts of common assault and not guilty to one count of torture, a further count of assault occasioning bodily harm and two further counts of common assault. He was found not guilty on the two counts of common assault but guilty on the count of torture and the further count of assault occasioning bodily harm. On the 6th of March 2003 he was sentenced to eight years imprisonment on the count of torture and not further punished for the remaining counts, which were particulars of the torture charge. He was declared to be convicted of a serious violent offence under s 161B Penalties and Sentences Act 1992 (Qld). He appeals from that conviction on the basis that "the torture charge was duplicitous resulting in prejudice to the appellant and his defence upon the trials: the particulars relied upon by the prosecution could not be said to form one series of acts." The appellant has abandoned his remaining grounds of appeal against conviction. He also contends that the sentence imposed was manifestly excessive. The indictment charging the count of torture spanned the period from the 8th of November 2000, (the time when the appellant commenced his relationship with the child's mother), and ended on the 12th of September 2001, (the day after the child died). I note the death of the child was not a matter which was before the jury and there is no suggestion that the appellant's conduct was in any way responsible for that death.

3 3 The prosecution case depended on the evidence of a number of witnesses to establish a course of continuing and appalling violence on the part of the appellant towards the three year old boy. The evidence of this conduct related to a period which in fact commenced on the 12th of January 2001 when L said she saw the appellant become angry when the child refused to say goodnight to him. The appellant punched the child in the arm three times hard enough to move him but not to knock him over. Evidence of the last episode of violence capable of constituting the torture was of conduct in June or July The appellant contends that the evidence of his violent conduct towards the child falls into two distinct periods, the first relating to events on the 12th and 18th of January and another event in mid-february 2001 and the second about events in June and July The evidence established that there was a six week gap in the offending behaviour when the appellant came to stay with the child's grandmother whilst the mother had a knee reconstruction from the middle of May until the end of June During this time the child's grandmother said the appellant rang "a dozen or more times a day". In addition, in December 2000 there was a short break in the physical relationship between the appellant and the mother and child when the appellant left his partner and the child in Cairns whilst he moved to Ipswich; it was always intended that they would follow a couple of weeks later. The period alleged in the indictment is the period during which the appellant was in a relationship with the mother and the child even though there were two relatively brief periods of separation during that time when the emotional relationship nevertheless continued with regular telephone contact. The evidence relied upon by the prosecution was that the appellant's violent attitude to and treatment of the child was much the same whenever there was physical contact between them and there was no difference in that physical relationship before or after these breaks. I am not persuaded that the count of torture charging dates between 8 November 2000 and 12 September 2001 was so broad as to put at risk the appellant's prospects of a fair trial or so as to result in a miscarriage of justice. It follows that in my view the appeal against conviction should be dismissed.

4 4 The application for leave to appeal against sentence. The applicant has seven children of his own, four of whom he keeps in contact with and there is no suggestion that he has been violent to these children. The learned primary Judge found that the applicant took a dislike to the child victim and inflicted physical and emotional suffering upon him by acts of cruelty, including punching to the jaw with sufficient force to push him backwards through a doorway and hit his head on cement, punching him repeatedly, knocking him into a cupboard, hitting him on the bottom so as to leave bruises, hitting him on the back of the head when he was slow in eating his dinner and on one occasion making him wet himself at the dinner table, calling him offensive and abusive names when he wet the bed or engaged in other conduct which the applicant found inconvenient, making him run around the back yard of the house at night until he cried, making him stand in corners for up to an hour at a time, making him run repeatedly into the appellant's fist and teaching him to and making him head-butt the applicant repeatedly. In the absence of the applicant the child was happy but understandably quickly become withdrawn in the applicant's presence. Her Honour rejected the suggestion of excessive domestic discipline or misguided fun but found that the applicant's conduct was extreme bullying and an effort to exercise total control over the child. The pleas of guilty were entered on the basis of excessive domestic discipline and her Honour treated these as not showing any particular remorse about his treatment of the child. Her Honour observed that there were periods during the time span covered in the indictment when the abuse could not have occurred because of the separation between the applicant and the child. Her Honour found that the child must have suffered severe physical and emotional pain and felt constrained as to the sentence she could impose because of the range put forward by the Crown Prosecutor of between seven and nine years imprisonment. The applicant was 31 at sentence and 29 during the offending behaviour. He was not an immature young man unused to the demands of young children and had been involved in raising his own children apparently without incident. He had some criminal history for relatively minor property and driving offences, but had no prior convictions for violence. Nevertheless, he did not come before the Court as someone with an unblemished record.

5 5 Dr N, who examined the child on 12 September, presumably in a post-mortem examination, found 49 separate bruises on the child in a number of different areas of the body. He was of the view that the bruises over the buttocks would have required repeated application of force. Taken in entirety, the number of injuries and their ages strongly suggested non-accidental injury involving a number of applications of force over a period of time. The fracture of the lower nasal septum, the petition between the two nostrils, was noted by ear, nose and throat specialist, Dr P, as extremely unusual in a child. Usually it is seen only in child victims of high-speed motor vehicle accidents, with severe widespread facial injuries. Major force was required to cause it in this child. The cases of R v S & R [1999] QCA 181; CA No 390 of 1998, 28 May 1999, and R v M [2000] QCA 6; CA No 262 of 1999, 2 February 2000, are examples of even more serious torture offences than here. They demonstrate circumstances where a heavier penalty could have been imposed. The offence here, nevertheless, involved a shocking abuse of the trust of a dependant three year old child who, because of the effect of his mother's relationship with the appellant and her betrayal of him, had nowhere to turn for protection. The offending, as I have set out, was serious and involved physical and emotional abuse. It occurred over an extended period. Once a sentence of 10 years or more is imposed, a declaration of a serious violent offence is automatic. A sentence of nine years' imprisonment, with a declaration that the offence was a serious violent offence would, in my view, have been within range here. The sentence imposed cannot be said to be manifestly excessive. I would refuse the application for leave to appeal against sentence. DUTNEY J: I agree in respect both of the appeal against conviction, and the application for leave to appeal against sentence.