JUDGMENT OF: Underwood CJ, Crawford and Blow JJ

[Edited edition of reasons for judgment delivered orally]

Criminal Law - Appeal and new trial and enquiry after conviction - Appeal and new trial - Practice after criminal appeal legislation - Miscellaneous matters - Tasmania - Powers of appellate court - Appeal against sentence - Insufficient findings of fact made by sentencing judge - Power to remit back to sentencing judge to determine.

Judgment Number: [2005] TASSC 107

The Court directs that the further consideration and hearing of the appeal is stood over until first term next year and that the learned sentencing judge determine and report to the Court on the factual basis upon which he sentenced the appellant, so as to enable the Court to assess the severity of the appellant's crimes and his degree of culpability. The report is to state, as to each particular of counts 1, 2 and 6, what parts of the relevant evidence of each complainant were accepted for sentencing purposes.

1 The appellant was convicted and sentenced to imprisonment for four years with a non-parole period of two years, following verdicts that he was guilty of four counts. Three of the counts were for ill-treating a child contrary to the Criminal Code, s178, the children being his daughters B, S and N respectively. The other count was for assaulting another daughter, P.

2 He has appealed against the sentence. As amended, the grounds of appeal are:

1 The sentencing judge erred in failing to make sufficient findings of fact as to the conduct of the appellant constituting the ill-treatment of which he had been found guilty in counts 1, 2 and 6 on the indictment.

3 The Court is satisfied, and counsel for the respondent conceded, that the first ground has been made out. The learned sentencing judge published lengthy reasons for the sentence but, with respect, his findings of fact were insufficient to the extent that the Court has found that it is unable to adequately assess whether the sentence was manifestly excessive as is claimed in the second ground of appeal.

4 The matter is best explained by way of example. In the indictment, particulars of the first count, alleging ill-treatment of B, included that he kicked her body when on the ground with steel capped boots, punched her to the body and used abusive language towards her. The learned judge did not indicate whether he accepted all of B's evidence about those matters. If he had done so, the Court could understand the factual basis upon which the accused was sentenced insofar as it concerned those matters, by reading her evidence. No such statement having been made by his Honour, the Court finds itself in difficulties. B gave a considerable amount of evidence of assaults upon her by the appellant. Some of her evidence was of specific occasions and some of it was generalised. For example, she gave evidence that "if you were working with dad in the shed it was an almost daily occurrence to get a flogging off him". The learned judge expressed no finding concerning violence of those kinds that were specific to B and he did not state that he accepted all of her evidence. He made general findings that the three complainants suffered "verbal abuse and humiliation" as "a constant"; that "physical abuse was likewise frequent and paradoxically often random and irrational"; (in a passage which was probably intended to refer to all three of the complainants) that "the girl would be punished or kicked as a reaction to a problem not of her making" and that "if something went wrong, the nearby child would be struck"; that "sometimes the child would be struck with a hand or a fist, on other occasions with an object". None of those findings were specific to B and no finding was made that all or some of the many specific incidents described by her actually occurred.

5 B gave evidence of an occasion when she could not tie the laces of her new school shoes and of being isolated in a shed, which presumably was the occasion particularised in par(i) of the first count ("isolating her as a five year old child in a work shed at night".) The learned judge made no reference to that in his findings of fact and none of his general findings can confidently be said to include the incident. The Court does not know whether or not the court accepted that it did take place and took it into account in the sentencing process.

6 There is no need to give more examples. The same kind of problems exist for the Court when it considers the other two counts of ill-treating the appellant's daughters, upon which he was convicted.

7 Under the Criminal Code, s409(1), the Court has power to exercise any of the powers of the Supreme Court on appeals and applications in civil matters. Under the Supreme Court Civil Procedure Act 1932, s39(5), the Full Court has the power, if it is of the opinion that it has not sufficient materials before it to enable it to give judgment, to direct that the application before it be stood over for further consideration, and to direct that such issues or questions be determined as it thinks fit. That is a sufficient power to resolve the present problem on this appeal.

8 Accordingly, the Court directs that the further consideration and hearing of the appeal is stood over until first term next year and that the learned sentencing judge determine and report to the Court on the factual basis upon which he sentenced the appellant, so as to enable the Court to assess the severity of the appellant's crimes and his degree of culpability. The report is to state, as to each particular of counts 1, 2 and 6, what parts of the relevant evidence of each complainant were accepted for sentencing purposes.