Solicitors for respondent: Director of Public Prosecutions

Appeal allowed. Sentence of twelve months' imprisonment set aside and in lieu thereof the applicant sentenced to ten weeks' imprisonment to commence on 17 June 1992.

UNDERWOOD J The applicant seeks leave to appeal against sentence. He was convicted of ill-treating a child contrary to the Code, s178(1). The orders of the court were that:

1 The applicant be sentenced to prison for twelve months.

The sentence to commence on 17 June 1992.

2 That the final three months of the sentence be suspended

upon condition that, for a period of two years after

discharge from prison, the applicant:

(a) keep the peace towards the four children named in the

indictment;

(b) be of good behaviour.

2. The notice of appeal has seventeen grounds, one of which is divided into four parts. All grounds can be stated compendiously as follows:

1 The learned trial judge erred in making certain findings

of fact and in taking into account matters he ought not to

have taken into account for the purpose of imposing

sentence.

2 The sentence was manifestly excessive.

3. The applicant is the father of four children, Matthew, Janiey, Christopher and Andrew. The indictment contained eleven counts. Counts 1, 2, 6 and 9 charged the applicant and his wife (the children's step-mother) with ill-treating each of the four children. The jury convicted the applicant on count 1 (Matthew) but could not agree upon a verdict with respect to the co-accused on that count. Both the applicant and the co-accused were acquitted of the other counts of ill-treating a child.

4. The remaining counts were all of assault on a child. They are set out below in tabular form:

Count Charged Crime

3 Applicant and Co-accused Assault by striking Janiey

with a whip and threatening to

further strike her and forcing

her to smoke two cigars and

eat cigar butts. (This became

known as the "cigar

incident".)

4 Co-accused Assault by pushing Janiey

against a cupboard.

5 Co-accused Assault by striking Janiey

with a whip. (This became

known as the "tapes

incident".)

7 Applicant and Co-accused Assault on Christopher (the

"cigar incident".)

8 Co-accused Assault by striking

Christopher with a whip. (The

"tapes incident".)

10 Applicant and Co-accused Assault on Andrew (the "cigar

incident".)

11 Co-accused Assault by striking Andrew

with a whip. (The "tapes

incident".)

5. The jury were unable to reach a verdict on any of the above counts with respect to either the applicant or the co-accused. During the sentencing process, counsel for the Crown said that a nolle prosequi would be filed on all counts in respect of which the jury failed to reach an agreement. The co-accused was discharged and the applicant remanded for sentence on count 1 (ill-treating Matthew).

6. The applicant's four children lived with him and the co-accused on two farming properties; Mt Vernon at Kempton from about 1986 until 1987 and Broadwater, near Bothwell from 1987 until 16 April 1991 when the children were taken from the applicant and the co-accused. Matthew is the youngest of the four children. He was 11 and a half at the time they left Broadwater. Janiey and Christopher (twins) were then 14 (born 4 February 1977) and Andrew was 15 and three quarters.

7. In very broad terms, the Crown case against the applicant with respect to all counts can be divided into three segments:

1 Allegations (more or less common to all the children) of

assaults by the applicant and by the co-accused, each aiding

and abetting the other, at Mt Vernon and Broadwater. These

assaults were alleged to have been perpetrated with a cattle

prodder, whips, "Agfest" sticks, a belt and other

implements, on repeated occasions not identified in time or

(except once or twice) by occasion.

2 Allegations of a number of identifiable assaults shortly

prior to the children leaving home, one on Matthew alone and

the others on all the children. The "cigar incident" and

the "tapes incident" involved all the children but were

charged as separate assaults against the three elder

children as they were over 14 years of age at the relevant

time.

3 Allegations of general neglect by way of insufficient

clothing, food and so on.

8. During the course of the trial, the particulars in the indictment, common to all four ill-treating counts, were amended from "wilfully ill-treated and/or neglected" to read simply "wilfully ill-treated". In his summing up the learned trial judge said to the jury with respect to this:

"So there are four counts of ill-treatment and what I must

say to you at the outset is this - because I gave a ruling

on this in your absence a day or two ago - I have directed

that there should be removed from the particulars in each of

those four counts, these words (set that out above) .. so if

you like, the count has been contracted from ill-treatment

and neglect to simply ill-treatment."

9. The evidence concerning general neglect was still left to the jury as forming part of ill-treatment but the conduct of the trial and the summing up made it clear that the alleged assaults were the most important consideration.

10. In very broad terms again, the defence case was that the applicant had not assaulted any of his children with a cattle prodder, an "Agfest" stick, a dog lead or a whip except in the case of a whip on Matthew on a single occasion (known as the "gun powder incident"). The applicant said he had never seen his wife do any of these things. He admitted using a belt on two occasions for "routine discipline". It appears that he knew (at least after the event) that his wife had used a whip on one or more of the children during the "tapes incident". The applicant admitted that there had been an occasion when he made his four children smoke cigars but denied that he used or threatened to use a whip on any of them on that occasion. Thus, between the Crown and the applicant there was a very sharp conflict of fact as to whether or not these assaults had occurred.

11. Counsel for the applicant submitted to the learned trial judge during the sentencing process that:

(a) As the evidence with respect to assaults generally at Mt

Vernon and Broadwater (referred to in par1 above) was common

to all the children, and as the jury acquitted both accused

on the counts of ill-treating the three elder children,

sentence should not be passed on the basis that Matthew had

been the victim of these alleged assaults.

(b) As the jury were unable to reach a verdict on the counts

involving assaults in connection with the cigar incident and

the tapes incident and, as Crown counsel indicated that a

nolle prosequi would be filed, sentence should not be passed

on the basis that Matthew had been the victim of an assault

on either of these occasions.

12. The learned trial judge did not accept counsel's submission and his failure to do so grounds this appeal. For reasons to which I shall refer later, the learned trial judge proceeded to sentence on a factual basis that is encapsulated by the following paragraph taken from p5 of his published comments on passing sentence:

"I am satisfied beyond reasonable doubt that there was

sustained violence in excess of lawful correction over an

extended period of time. I am also satisfied beyond

reasonable doubt that Matthew's evidence was substantially

correct, not only in respect of your general conduct towards

him, but also in respect of the specific incidents including

the 'gun powder' incident and the attendant whipping, and

the 'cigar' incident and the violence offered to him by you

on that occasion. I also find that he was assaulted with

the cattle prodder, whipped, struck with the Agfest sticks

and kicked on numerous occasions."

13. Imposition of sentence is the product of an exercise of judicial discretion. It is trite law that upon an application for leave to appeal against sentence, this Court will only intervene if error has occurred in the sentencing process. Appellate review is confined to those cases where there has been specific error, such as the application of wrong principle, taking into account matters which ought not to have been taken into account, omitting to take into account matters that should have been taken into account or giving insufficient or too much weight to relevant matters, and to those cases where the order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion. See Cranssen v R [1936] HCA 42; (1936) 55 CLR 509; House v R [1936] HCA 40; (1936) 55 CLR 499; Harris v R [1954] HCA 51; (1954) 90 CLR 652; Aherne v R, CCA 20/1982.

14. It is equally trite law that the sentencing judge must determine the factual basis for the sentence. The principle to be applied in the performance of this task was succinctly stated by Burbury CJ in Rowbottom v R, CCA, Un-numbered, 1960:

"A judge who has the task of determining the just sentence

to be passed for a particular crime must consider for

himself all the proved circumstances surrounding the crime

which affect its gravity. He must of course accept all the

findings of fact necessarily involved in the jury's verdict.

And he is not entitled to proceed upon any view of the facts

necessarily negatived by the jury's verdict. But questions

of premeditation, planning, motive, malignity, joinder with

others, as well as a great variety of mitigating

circumstances which a judge may have to consider in order to

determine condign punishment may be left entirely at large

by the jury's verdict. The verdict can only be taken

logically to involve findings upon the bare essential legal

ingredients of the crime. As to all matters relevant to

punishment but not logically the subject of findings of fact

by the jury, the judge must judicially review the evidence

for himself."

See also Prokopiec v R (1982) Tas R 170; R v Thompson (1975)

11 SASR 217; R v Stehbens (1976) 14 SASR 240; R v Harris

[1961] VicRp 36; (1961) VR 236; R v Boyd (1975) VR 183; Skillin v R (1990)

[1991] FCA 174; 100 ALR 20; Wilcox v R (1984) 6 Cr App R (S) 276.

15. If the verdict of the jury directly, or by necessary implication, determines a fact or an issue, the sentencing judge must adopt a view of the facts which is consistent with that determination. See R v Wilcox (1984) Crim LR 690; R v Harris (supra); R v Thompson (supra).

16. For the purpose of determining sentence, the judge cannot of course, take into account circumstances which are ingredients of a more serious crime in respect of which there has either been no charge or an acquittal. See Lovegrove v R (1961) Tas SR 106; Bennett v R, CCA 17/1990; R v De Simoni [1981] HCA 31; (1980-1981) 147 CLR 383; R v Wyllie [1989] VicRp 3; (1989) VR 21.

17. Where an indictment contains multiple counts and there have been some convictions and some acquittals, the trial judge must accept the implications of the verdicts for the purpose of imposing sentence. See Booker v R (1982) 4 Cr App R (S) 53; Clutterham v R (1982) 4 Cr App R (S) 40; Johnson v R (1984) 6 Cr App R (S) 227; Singh v R (1981) 3 Cr App R (S) 180.

18. It is generally accepted that sentence should be imposed only upon facts that are established to the satisfaction of the sentencing judge beyond reasonable doubt. See R v Thompson (supra) at 221; R v Stehbens (supra) at 245-246. This question was considered at length by the Court of Criminal Appeal (Vic) in Chamberlain v R [1983] VicRp 110; (1984) 14 A Crim R 67. The judgment of the court referred to the obligation upon the jury to be satisfied beyond reasonable doubt of the essential facts the existence of which go to make up the crime charged (70) and pointed out that this did not mean that the jury had to be satisfied beyond reasonable doubt of every relevant fact. The court applied the same proposition to the sentencing judge and said at 70:

"To require a judge to be satisfied beyond reasonable doubt

of every relevant fact might lead in some cases to quite

undue weight being given to self serving statements offered

by an accused during interrogation or evidence. Moreover, a

judge may have to sentence an accused where he does not

personally agree with the verdict of the jury. On the other

hand, to allow the finding of fact which is critical to the

determination of the sentence to be imposed upon a basis

that admits of the existence of a reasonable doubt about the

existence of that fact would plainly be unfair. Between

those two extremes a large number of possibilities exists."

19. Their Honours then set out that well known passage from Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-362 after acknowledging that the case concerned the standard of persuasion in a civil matter. The judgment proceeded at 71:

"The guidance for sentencing judges which we would draw from

this passage is that the degree of persuasion required will

vary with the nature and consequence of the fact or facts in

question. If, for instance, a sentencing judge were

disposed to make the determination whether to impose or not

to impose a custodial sentence depend upon the existence of

a particular fact or facts he would certainly require to be

satisfied to a high degree of the existence of those facts.

But if the facts in question were no more than a part of the

narrative a similar degree of persuasion is obviously not

required."

20. The Victorian Court of Criminal Appeal confirmed the correctness of this exposition of the law in Halden v R (1983) 9 A Crim R 30.

21. In R v Martin (1981) 2 NSWLR 640, Hope JA (with whose judgment the other members of the court concurred) said at 653, "The judge must give the prisoner the benefit of any reasonable doubt when forming his view of the facts for the purpose of sentencing the prisoner, consistent with the verdict of the jury." There is nothing to suggest that his Honour was referring to anything other than the important facts in the sentencing process.

22. The passage cited above from Chamberlain v R (supra) imposes the same standard of persuasion on the sentencing judge as is imposed upon the jury when charged with the task of ascertaining guilt. It is in accordance with principle and states the law in this State with respect to the standard of proof in the sentencing process.

23. Finally, there is the question of appellate review of findings of fact made for the purpose of imposing sentence. In R v Parker (1984) Crim LR 763, the Court of Appeal concluded that, provided the trial judge directed himself in accordance with correct principle, the Court of Appeal would be slow to disturb any finding of fact as the trial judge had had the advantage of seeing and hearing the witnesses. This approach was applied in R v Ahmed (1985) Crim LR 250. In Halden (supra) at 35-36 Lush J said:

"Turning to the Crown argument concerning the role of an

appellate court in reviewing findings of fact relevant to

sentence, I would reject the argument that the appellate

court cannot depart from the finding if there is some

evidence to support it. The finding must be subject to

review upon the same basis as a finding of a judge sitting

without a jury. Where the judge has seen and heard the

witnesses, the appellate court will be conscious of the fact

that it has not had that advantage. If the judge was

working from the same papers as the appellate court has

before it, the appellate court can substitute its own

finding in accordance with the principles expounded in

Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531, and Paterson v Paterson

[1953] HCA 74; (1953) 89 CLR 212 at 219-224."

24. In R v Gandy (1989) 11 Cr App R (S) 564 the court said at 569 that it was only in "the most exceptional case that this Court will differ from the findings of fact made by a judge at a Newton-type hearing (taking evidence upon a plea of guilty) because this Court does not have the advantage of seeing and hearing the witnesses who have given evidence."

25. This appeal falls to be determined in accordance with the foregoing principles of law.

26. It is necessary to review the evidence in a little detail. Convenience dictates that this be done in the same sequence as did the trial judge in his summing up.

27. This incident occurred fairly shortly before the children left home. It was a particular of the count alleging ill-treatment of Matthew and gave rise to three counts of assault against the other children (counts 3, 7 and 10). Evidence about it was given by the three children who gave evidence at the trial, the applicant, the co-accused and a Mr Milton Moody. It was common ground that one or more of the children had been caught smoking cigarettes. In order to teach all the children about the evils of smoking, the applicant arranged for a friend of his, Mr Moody, to visit Broadwater and bring some cigars with him. It was also common ground that all four children smoked more than one cigar but the manner in which this was done was disputed. The applicant, the co-accused and Mr Moody all described the four children smoking at the invitation of the applicant. According to them it was a bit of fun at first but, as the children progressed through the cigars they began to feel sick and acknowledged that smoking was a practice that ought not to be taken up. The three adult witnesses said that as each cigar was finished the butt was ground out on the concrete path or grass just outside the house. All three adult witnesses denied any violence or threat of violence.

28. Each of the three children said that the applicant threatened all four children with violence if they did not smoke the cigars and then he forced each of them to eat the cigar butts. Matthew did not say that his father had a whip at the time but the other two said he did and that he threatened to use it. Matthew said that his father grabbed him by the throat at one stage and threw him to the ground. Janiey said that the applicant hit Christopher twice with the whip and Matthew "a fair few times". She corroborated Matthew's evidence that the applicant grabbed him around the neck. Christopher said that the applicant hit Matthew with the whip and grabbed him around the throat although at one stage he agreed with the question "And your mother (sic) who was hitting with it on that occasion (sic)?".

29. In view of the differences between the accounts given by the three children and the clear conflict between their evidence and that given by the two accused and a person, not a member of the family, a failure to reach a verdict on the three counts of assault is understandable. Counsel for the Crown said there would be no re-trial. As the jury were not satisfied beyond reasonable doubt that the three elder children had been forced to smoke and eat cigar butts under threat of assault with a whip nor that any force that was used was in excess of that reasonable for a parent to use by way of correction of a child, it was not open in the circumstances for the learned trial judge to reach a contrary view with respect to Matthew.

30. This incident also occurred close to the time the children left home. It was a particular of the count alleging ill-treatment of Matthew and gave rise to three counts of assault against the other children (counts 5, 8 and 11). Evidence about it was given by the three children, the applicant and the co-accused. As with the "cigar incident", there was some common ground.

31. The co-accused had some audio tapes which she used to play to the two young children who were born of her marriage to the applicant. One of these tapes had been taken from the place where it was normally kept. The accusation was that one of the children of the applicant's first marriage had taken it. There was evidence that this had happened before and sometimes the tape was returned "destroyed".

32. Matthew gave evidence that a couple of days before they left home he got a "hiding" from the co-accused for doing something he could not remember. He did not identify this "hiding" by reference to any argument about a missing tape, but he did say that it caused one of the marks on his legs shown in a photograph of him taken at the hospital the day the children left home (16 April 1992). Janiey said that following the discovery of the missing tape, all the children were whipped by the co-accused. She said that she was struck three times on both hands with the whip. Christopher's account was to the same effect as that given by his sister. The co-accused said that she gave each child one "smack" on the hand with the horse whip on the occasion she found that a tape was missing. It appears to be common ground that the applicant was not in the house at the time.

33. In the circumstances, it is inescapable that the jury's failure to reach a verdict on counts 5, 8 and 11, indicated that ten or more of them were not satisfied beyond reasonable doubt that the account given by Christopher and Janiey was accurate or that any force applied on that occasion was in excess of that reasonable for a parent to use by way of correction of a child. Although Matthew was 2 1/2 years younger than his twin siblings, it is difficult to see how they could have been satisfied to the contrary in the case of Matthew on the evidence of the twins. Matthew's evidence of how he got marks on his leg was not a reference to the "tapes incident", and the applicant was not present at the relevant time. When passing sentence the learned trial judge made no separate reference to this matter and it has not been shown that he did take it into account, thereby falling into error.

34. Evidence of assaults at Mt Vernon on all four children was given by each of the children who were called as a witness. The applicant and the co-accused gave evidence denying that any assaults occurred at Mt Vernon. Additionally, there was some evidence from two defence witnesses with respect to this aspect of the Crown case. All of this evidence was relevant to each count of ill-treating a child.

35. Matthew said that he was about 5 years old when he went to live at Mt Vernon but, from other evidence, the jury might well have thought that he was mistaken about this and that he was then aged 6 or 7 years. Matthew said that at Mt Vernon both the applicant and the co-accused "stung" him with a cattle prodder "a fair few times" - about twenty or thirty times. He said he saw this done to each of the other children as well. He said that he saw his brother Christopher tied up in a shed with a dog chain and hit with a shearing belt because he did not feed the dogs properly. That was the extent of Matthew's evidence-in-chief of ill-treatment at Mt Vernon.

36. Janiey's evidence with respect to the same period contained much more detail. She said, in common with a preponderance of other evidence, that the children went to Mt Vernon in about 1986 and lived there for about two years before moving to Broadwater. The particulars to each count of ill-treatment relied on a period from 1 January 1986 to 15 April 1991.

37. With reference to the period at Mt Vernon, Janiey said, without discrimination, that "we'd be punished pretty badly" with a shearing belt, a dog lead, the cattle prodder and the stock whip. She later said that she saw each of her siblings "get the cattle prodder" and then gave detailed evidence of the circumstances surrounding two instances of the cattle prodder being used, one concerning her and one concerning all the children. She said that she was only hit once with the shearing belt and that she saw Christopher hit once with it. She told the jury she was hit once or twice a week with a dog lead for bed wetting. With respect to the use of the stock whip at Mt Vernon, she said she saw Matthew running from the applicant when he was hitting Matthew with it but it is not clear whether this happened at Mt Vernon or Broadwater. Janiey said she saw the applicant hit Christopher with the stock whip on one occasion whilst they were living at Mt Vernon.

38. In his evidence-in-chief, Christopher said that the applicant used the cattle prodder on his tongue and he saw it used on Janiey on one occasion. He also said that the applicant "just dabbed" it on his bottom once. Christopher said that he was hit with the hearth brush and shearing belt if he had done something wrong. He said the co-accused once tied him up and left him in a shed for four hours because he did not feed the dogs properly.

39. Both the applicant and the co-accused denied all these allegations. Evidence was also given by Mr Moody who visited the family at Mt Vernon once a week, and the applicant's brother who lived with the family for a few months and then moved with them to Broadwater. Both witnesses said that the only form of physical discipline of the children they saw was slaps on the bottom administered appropriately by the applicant and the co-accused.

40. With respect to the events at Mt Vernon, no issue was raised by the defence that the force used was justified in law although of course, that was always a matter for the jury as well as the question of whether any force constituted ill-treatment within the meaning of the relevant section of the Code.

41. With respect to the events that occurred whilst the applicant was living with the co-accused and his children at Broadwater, evidence was given by the same witnesses who gave evidence concerning the period at Mt Vernon and two other occasional visitors to the family at Broadwater, Mrs Garth and Miss Garth. This evidence was relevant to all counts of ill-treatment.

42. Matthew said that at Broadwater, the applicant hit him with a stock whip, a trotting whip and an "Agfest" stick. He said he was hit with the trotting whip "a few times" and then said it was about "three times a week". He said that he saw the other children (without specifying which) hit with the whip. Two trotting whips were produced, a white one and a black one. He said he and the others were hit with the white one. He did not appear to recognise the black one. He said that the applicant and the co-accused also hit him with the "Agfest" sticks. There were two of these, described as being made out of fibre-glass or plastic. One was orange with a knob on the end of it and one was white with a black rubber like handle. Matthew said he saw his siblings (again without specifying which) hit with these sticks. He said "we" probably were hit with one of them "once or twice but not very often" and with the other one, "fairly often".

43. Janiey said that the cattle prodder was not used at Broadwater. Then followed this question and answer:

"Well, what was used for punishment at Broadwater? ... The

trotting whips, the two 'Agfest' stocks and a stock whip was

used about twice."

44. However, she later said that the white trotting whip had never been used on her nor had she seen it used on any of her brothers. When shown the black one she said, "I don't know anything about that one." Janiey said that another trotting whip had been used on her by both the applicant and co-accused and she had also seen both of them hit each of her brothers with this other whip. She said that it was applied to her "once, sometimes twice, sometimes three times a week." She said that "we" were hit with both "Agfest" sticks. Janiey also said that the applicant and co-accused kicked the children but clarified that so far as the applicant was concerned to say that he had never kicked her and she had never seen him kick Matthew.

45. Christopher said that he was hit with the shearing belt and he saw his two brothers hit with it. However, with respect to himself he said that he was only hit with the belt roughly once a year and "only when I did the wrong thing". Christopher said that both the applicant and the co-accused hit him with a whip "probably every two weeks". He said the others were hit with this whip but he said there was only one whip, "a real trotting whip you use for horses. It's got a little swish thing on the end of it." He said he saw Matthew, and Matthew alone, hit with the stock whip by the applicant on one occasion.

46. The applicant and the co-accused denied that these assaults had taken place. The witnesses for the defence saw nothing to suggest that these assaults had taken place. In cross-examination, Christopher made some significant retractions described by the learned trial judge when passing sentence as "several concessions". Set out below is the relevant section of the cross-examination:

"And I also want to suggest that your father did not ever

hit you with anything? ... He did hit us.

And that he never whipped you? ... No.

No, meaning I'm right or no, meaning I'm wrong? ... You

right.

I'm right? ... Yes.

Your father never whipped you? ... No, not me anyway.

Not you? ... No.

And I also want to suggest that your father didn't whip

Janiey? ... No.

Your father never whipped Janiey? ... No.

I'm correct? ... Your correct.

I'm correct. I also want to suggest that your father didn't

whip Matthew? ... With a stock whip he did.

He did with a stock whip. Alright let's leave the stock

whip out. Is what you're telling the jury that except for

the stock whip your father didn't whip Matthew? ... Only

when he didn't draw back on the smokes (obviously a

reference to the "cigar incident").

Only when he didn't draw back on the smokes? ... Yes.

Mr Moody was there that day wasn't he? ... Yes.

And he was there right when all this was happening? ... Yes.

So as to Matthew your father whipped him with the stock whip

you say? ... Yes.

You told us that and the day of the smokes? ... Yes.

But he didn't whip him any other time? ... No.

No, meaning I'm right? ... Yes.

Thank you. I also want to say to you that he didn't ever

use the cattle prodder? ... Yes he did."

47. The foregoing account makes no reference to evidence concerning inadequate clothing, poor food and some related matters of discipline such as the co-accused once putting a quantity of pepper on Matthew's plate of food as a disciplinary measure. Although this material is not irrelevant, once the indictment had been amended these matters assumed a lesser significance. The learned trial judge told the jury:

"Well there was some evidence also, just to complete the

picture as it were, about clothing. Matthew said that he

had thin clothing or inadequate clothing. Janiey gave us a

description of her clothing, but as I understand it, the

allegation relating to the children being ill-clad and

ill-fed was virtually abandoned by the Crown so I am not

going to dwell on it at any great length."

48. No complaint about that direction was made to the learned trial judge by counsel for the Crown. Also, the foregoing account under the heading "General Allegations" does not include the evidence concerning the "cigar incident" and the "tapes incident" dealt with earlier.

49. The review of the evidence so far has made no reference to some significant evidence which was confined to the applicant's treatment of Matthew alone namely:

1 The "gun powder incident" which occurred shortly prior to

the children leaving home.

2 Evidence of marks seen on Matthew's body by a number of

school teachers and a child protection officer.

3 Photographic evidence of marks on Matthew's body.

50. In essence, Mr Kable, counsel for the applicant, submitted to the learned trial judge and this Court that sentence should only be passed with respect to the "gun powder incident" and one other beating of Matthew shortly before he left home.

51. There was a great deal of common ground surrounding this incident. Shortly prior to the children leaving home some bullets were found under Matthew's bed. Also there was a mug with what appeared to be gun powder in it. The applicant said that over a period of time some of his ammunition had been stolen. He said he decided to punish Matthew and teach him the dangers of playing with live ammunition and gun powder. The applicant also said that matches were found under Matthew's bed.

52. It was common ground that the applicant held, or made Matthew hold, his face over the mug of loose gun powder while he threw a match in it. The gun powder ignited. Matthew did not give evidence that he was injured in any way. The applicant said there was no flame, only a lot of black smoke. The applicant said that he then took Matthew outside and, in the presence of the other children, hit Matthew four times on the backside with a trotting whip. The applicant said that at the time Matthew was wearing all his clothes. Matthew said that on this day, as well as being hit with the whip, he was kicked by the applicant and, at another time the same day he got "a hiding with the 'Agfest' stick".

53. Evidence was given by six teachers or former teachers at the Bothwell District School and a child welfare officer. Two of the teachers gave evidence of seeing bruises or wounds to Christopher's legs and buttocks in September 1986. Both were possibly referring to the same occasion. Another teacher gave evidence that she saw marks on Andrew and the remainder of these witnesses testified to seeing bruises on Matthew. Mr Hampton and Mrs McVilley said that in 1988 they saw bruising on Matthew's shins and lower buttocks. The former telephoned the Child Protection Board. The child welfare officer said that on 28 November 1988 she was called to the school and she also saw bruises on Matthew's shins and lower buttocks. She spoke to the applicant and the co-accused about this. The latter admitted to hitting Matthew with a piece of wood.

54. Mrs McVilley also gave evidence of seeing a lump on the back of Matthew's head on another occasion and some evidence, possibly of yet another occasion, when she saw marks on his legs.

55. It is not without significance, as was put to the jury, that so far as Matthew was concerned, there was no evidence from the teachers that they saw any marks between 1988 and shortly prior to the time the children left home.

56. From the photographs taken of him on 16 April 1991 Matthew identified the following:

Photograph Depiction Stated Cause (by Matthew)

3 Mark top of right leg Trotting whip - "gun

powder incident".

5 Marks on legs Kick by applicant.

7 Mark not described Trotting whip - day of the

"gun powder incident".

11 Mark towards top of leg Whip not thought to be

caused in the "gun powder

incident".

14 Left leg Caused by the co-accused a

couple of days before the

"gun powder incident".

16 Back of bottom part of leg A whip or a kick on an

unspecified occasion.

57. Matthew's evidence was unsworn. The learned trial judge gave an appropriate direction with respect to the requirement for corroboration. (The Evidence Act 1910, s128). He told them that corroboration could be found in the evidence of the other two children. However, that direction carried with it a warning, proper in the circumstances, that, before the other children's evidence was used for the purpose of corroborating Matthew's account, the jury must scrutinize it very carefully. His Honour said:

"The reason for that (the need to scrutinize it) is, as has

been exposed by the evidence, they have been interviewed on

a number of occasions by numerous people, they have had an

opportunity to discuss the case amongst themselves and one

must always therefore say that there is some possibility

that they may have concocted their evidence or conspired

between themselves to put up a false case. Indeed, I think

it would be fair to say that that is the main thrust of the

defence submissions here, that they have essentially told

untruths and they have all essentially told similar untruths

and therefore, as I understand it, it is said that the

inescapable inference is that they have got their heads

together. Well, you have got to consider that. You would

need to consider whether one would expect a complete

consistency from three young persons dealing with a complex

series of events over a number of years. Are any

inconsistencies between them explicable on the basis of

forgetfulness, or some other reason?"

58. With respect to the allegations of ill-treatment of Matthew at Mt Vernon, the only possible source of corroboration was the evidence of the other two children. The same proposition applies with respect to the general allegations of ill-treatment at Broadwater. The only other source of corroboration of Matthew's evidence was the photographs and the evidence given by the school teachers.

59. In his comments on passing sentence, the learned trial judge stated that Matthew was three years younger than the twins. His Honour then referred briefly to the general evidence of ill-treatment and then said:

"I mention these features now to show that whilst there was

evidence which may have satisfied the jury that harsh

methods were employed upon all four children, they may

equally have been in doubt as to whether, despite the

multiplicity of items allegedly used, they amounted to

ill-treatment of Janiey, Christopher and Andrew, in view of

their ages, the absence or paucity of direct corroborative

evidence from a truly independent source, the period of time

over which the events were said to have occurred, and the

several concessions made by Christopher, in particular, in

cross-examination, as to the limited extent to which the

whippings of himself and Janiey occurred."

60. With respect, I do not understand how his Honour reached the view that the jury might have been satisfied that the alleged physical acts occurred but that they did not amount to ill-treatment of the elder children because of:

1 The absence or paucity of direct corroborative evidence

from a truly independent source.

2 The period of time over which the events were said to have

occurred.

3 The several concessions made by Christopher in

cross-examination.

61. Those matters go to the issue of whether the physical acts occurred at all, not whether they constituted ill-treatment of the eldest three children. The fact that Matthew was younger than the twins by two years and seven months and the latter, younger than Andrew by two years and five months and, by reason of age difference it might be said that the same physical acts applied to each child might constitute ill-treatment of the youngest but not of the others, was not made an issue at the trial by either the Crown or the defence. The substantial issue at the trial was whether the alleged assaults occurred at all although, the characterisation of any assault found by the jury to have taken place was of necessity, a matter they had to take into account when considering their verdict.

62. When passing sentence, the learned trial judge referred to the evidence of the teachers and the photographs and postulated that the jury might have used that evidence as corroboration of the whole of Matthew's evidence. He considered that the jury might have looked for independent corroboration of the evidence of the other two children "although not in law required to do so". His Honour considered it significant that the jury could not reach agreement on the counts of assault "suggesting that they did not reject Janiey's and Christopher's evidence out of hand".

63. The learned trial judge rejected counsel's submission that sentence could only be passed with respect to conduct that occurred shortly prior to the children leaving home. His Honour imposed sentence upon the basis that the whole of Matthew's account was substantially correct, that the applicant "initiated a regime of draconian punishment against (his) younger son" and that it was meted out as punishment for perceived misbehaviour or "as group chastisement for several of the children." In doing so, the learned trial judge accepted that all the assaults on Matthew in respect of which the children gave evidence had in fact occurred. I am of the opinion that in doing so the learned trial judge fell into error. The error was taking into account matters of fact that were negatived by the jury's verdicts of not guilty on the counts alleging ill-treatment of Janiey, Christopher and Andrew. The evidence and the issues at the trial were such that those verdicts necessarily implied that the jury was not satisfied beyond reasonable doubt that the general allegations of assault at Mt Vernon and Broadwater had taken place as described by the evidence of the three children. Further, the failure of the jury to reach a verdict on the separate counts of assault carried with it the implication that the tribunal of fact was not satisfied beyond reasonable doubt that the "cigar incident" was attended by threats and the use of violence with a whip although it does not necessarily imply that it was not so satisfied that the applicant did not seize Matthew by the throat. The necessary implications to which I have referred were binding on the learned trial judge and required him to pass sentence on the basis of the "gun powder incident", such assaults as he found were corroborated by the evidence of the teachers and the photographs and perhaps, an assault by seizing Matthew around the throat during the "cigar incident".

64. For these reasons I would grant the application for leave to appeal, allow the appeal and quash the order of sentence.

65. In addition to the evidence at the trial and the submissions of counsel, the learned trial judge had the benefit of a psychologist's report to assist him in the sentencing process. However, its use was limited as it offered no opinion on the causal link between the applicant's criminal conduct and the reported behavioural characteristics of Matthew.

66. The learned sentencing judge found that the applicant acted upon the basis that his methods of discipline were for the ultimate good of the children. It is appropriate to act on that finding. The applicant has no relevant prior convictions. He had been in custody between 17 June 1992 and 27 August 1992 when he was released on bail by order of this Court pending judgment. In my view the period spent in custody is an appropriate sentence and I would order a sentence of ten weeks' imprisonment to date from 17 June 1992.

CRAWFORD J I have read the reasons for judgment of Underwood J and subject to what I say I respectfully adopt his statements of legal principle concerning the functions of a sentencing judge consequent upon a jury's verdict of guilty.

2. When dealing with the judgment of the Court of Criminal Appeal (Vic) in Chamberlain v R [1983] VicRp 110; (1984) 14 A Crim R 67 Underwood J attributed that court as having referred to the obligation upon the jury to be satisfied beyond reasonable doubt of the essential facts the existence of which go to make up the crime charged. With respect the Court of Criminal Appeal did not refer to "the essential facts" but instead to "each and every element of the offence charged". The expression "the essential facts" is a difficult one to comprehend particularly when applied to a case such as this where a course of conduct was asserted by the Crown to constitute the crime charged. What the Court of Criminal Appeal said at 70 was:

"The basal requirement of the criminal law is that each and

every element of the offence charged should be proved beyond

reasonable doubt in order to justify a conviction. The

requirement does not mean that every fact alleged by the

Crown must be proved beyond a reasonable doubt. One piece of

evidence may be open to doubt but when it is coupled with

other pieces of evidence, each of which may itself be open to

doubt, persuasion beyond a reasonable doubt of the ingredient

of the offence may result. It follows that when forming his

own view of the facts for the purpose of passing sentence a

trial judge cannot be required to be satisfied beyond a

reasonable doubt of every fact which he considers relevant."

3. There then followed the passages in the judgment cited by Underwood J.

4. The appellant was found by the jury to be guilty of the crime of ill-treating a child, the elements of the crime as directed by the learned trial judge being:

1 That at all relevant times the appellant was over the age

of fourteen years.

2 That at all relevant times the child, Matthew, was under

the age of fourteen years.

3 That the appellant voluntarily and intentionally performed

acts which either individually or collectively amounted to

ill-treatment of Matthew and were not justified by law.

4 That such ill-treatment was likely to cause Matthew

unnecessary suffering or injury to health.

5 That the appellant intended the act or acts constituting

ill-treatment to cause such unnecessary suffering or injury

to health.

5. The verdict of the jury obliged the sentencing judge to accept that those elements had been established.

6. One of the questions which arises on this appeal concerns the extent to which the learned judge was constrained by the other verdicts and the inability of the jury to reach verdicts when determining the factual basis for sentencing for the crime of which the appellant was found guilty. The case for the Crown principally consisted of evidence of a considerable number of events, some of which were identifiable occasions of "assaults" (such as the "cigar incident") and others which were not individually identified but were contained in more general evidence of "assaults" and mis-treatments on many occasions by the use of various implements such as a cattle prodder, whips, "Agfest" sticks and shearing belts.

7. If the appellant had alone been indicted for only the count of which he was convicted the sentencing judge would have been entirely free to exercise his own judgment when determining the factual basis for sentence consistent with the jury's determination of guilt of ill-treating Matthew. The law recognises and accepts that the findings of the sentencing judge that certain assaults or events occurred, whether in terms of precisely identifiable occasions or not, might well be contrary to the findings of the jury or the findings of some of the individual members of the jury. Further it is conceivable that there may have been no consensus between the members of the jury concerning what facts were established by the evidence and yet by different routes they may have agreed that ill-treatment was proved beyond reasonable doubt.

8. The learned trial judge, when passing sentence, stated correct principle when he said that "a sentencing judge is not obliged to act upon that version of events most favourable to the convicted person, but he is obliged to act upon a version which is not inconsistent with the jury's verdict." Reliance for that proposition was found in Prokopiec v R (1982) Tas R 170. It is said by Underwood J, and I respectfully agree, that where an indictment contains multiple counts and there have been some convictions and some acquittals, the sentencing judge must accept the implications of the verdicts. To this I would add that the sentencing judge should not determine facts which, although consistent with the verdicts as a matter of possibilities, were unlikely to have been accepted by the jury having regard to all the evidence and their verdicts.

9. I agree with the views of Underwood J concerning the factual basis for sentence in this case, subject to one reservation. The learned trial judge was not in my view obliged to conclude that because the appellant had been found not guilty of ill-treating the other three children he could only sentence the appellant upon the basis of the "gun powder incident", such assaults as were found to be corroborated by the evidence of the teachers and the photographs and perhaps, an assault by seizing Matthew around the throat during the "cigar incident". I consider that in addition the learned trial judge was entitled to take into account the evidence concerning the common allegations of assault at Mt Vernon and Broadwater although I agree with Underwood J that it was not reasonably open to find ill-treatment of Matthew on the basis of that evidence alone. The verdicts that the appellant was not guilty of ill-treating the other three children does not necessarily mean, by the application of logic, that the jury rejected all of the factual allegations asserted by the Crown in relation thereto. The crime of ill-treating a child may be committed by a course of wilful ill-treatment involving a number of acts committed over a period of time. The jury may well have concluded that when they gave evidence the children, including Matthew, exaggerated what was done to them by the appellant and, taking into account that some corporal punishment of the children may have been justified, that guilt had not been established on the basis of the common allegations. In the case of Matthew however the jury may have been satisfied that some of the common allegations had been made out and when viewed in combination with the evidence relating to mis-treatment of Matthew alone, guilt of ill-treatment of him had been established. With respect it is not in my view valid to divide the evidence of the course of conduct said to constitute ill- treatment of Matthew into two parts and because of the verdict relating to the other children to totally ignore one part and sentence only on the basis of the other.

10. I agree with the learned trial judge when he said:

" ... s178(1) appears to me to be directed primarily to a

series of events having a cumulative result, that result

being 'ill-treatment' of the child - a concept not totally

dissimilar to the concept of a series of events during one

journey in a motor car which individually may not merit the

description but which collectively warrant characterization

as 'dangerous driving'.

To smack a child whenever he is disobedient may not be

ill-treatment but to do so three times a day for a year no

matter what his behaviour, may well be so. To chastise a

child for misdemeanours he has committed may be reasonable

correction but to do so whenever one of his siblings

misbehaves as well, may be unlawful."

11. It is conceivably possible, as the learned trial judge said, that the jury may have convicted the appellant of ill-treatment of Matthew but acquitted him with regard to the other children because matters taken into account were their ages, the absence of or paucity of direct corroborative evidence from a truly independent source, the period of time over which the offence was said to have occurred and the several concessions made by Christopher. As I said, that is conceivably possible. But in my opinion it is more likely that the jury acquitted the appellant with regard to the other children because the common allegations, that is to say allegations which were largely common in their relevance to all the children, were not so established by the evidence as to be sufficient for conviction of ill-treatment with regard to the other children. It follows that it is unlikely that the jury would have convicted with regard to Matthew on those common allegations alone and with respect I think the learned trial judge was in error in finding that Matthew's evidence was substantially correct, insofar as that finding extended to the common allegations, and in finding that there was substantial violence towards Matthew in excess of lawful correction over an extended period of time, for within those findings I think it would have to be inferred that ill-treatment of Matthew on the basis of the common allegations had been made out. Based on a review of all the evidence my conclusion is that the verdicts of the jury should be interpreted as likely to have been reached on the basis that the evidence concerning the common allegations did not establish guilt with regard to any of the children, including Matthew, but in conjunction with the evidence of the "gun powder incident", such assaults as were found to be corroborated by the evidence of teachers and the photographs and the assault by seizing Matthew around the throat during the "cigar incident", such guilt was proved with regard to Matthew.

12. In summary I would not limit the findings which were reasonably open to the sentencing judge to the extent advanced by Underwood J. But I am of the opinion that the findings of the learned trial judge went too far.

13. The appellant was a first offender. The learned trial judge accepted that when he struck Matthew he did so either as punishment for perceived misbehaviour or as group chastisement of the children with a genuine belief that his methods were for the ultimate good of the child. Taking these matters particularly into account and in the light of the findings of not guilty concerning the other children and the implications which flow from them, I am persuaded that the sentence of twelve months' imprisonment was excessive. I agree with Underwood J that the application for leave to appeal should be granted, the appeal allowed and the sentence quashed. I too would replace it with a sentence of ten weeks' imprisonment to date from 17 June 1992.

ZEEMAN J I have had the advantage of reading the reasons for judgment prepared by Underwood J. I agree with the orders proposed by his Honour and the reasons expressed by him.