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.

Supreme Court Civil Procedure Act 1932 (Tas), s39(5).

Criminal law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Factors to be taken into account - Miscellaneous matters - Other matters - Ill-treatment of a child - Insufficient precedents to set any "tariff".

Judgment Number: [2006] TASSC 35

1 The appellant was found guilty of one count of assault and three counts of ill-treatment of a child, contrary to the Criminal Code, s178, which provides:

"(1) Any person over the age of 14 years who, having the custody, care, or control of a child under the age of 14 years, wilfully ill-treats, neglects, abandons, or exposes such child, or causes such child to be ill-treated, neglected, abandoned, or exposed in a manner likely to cause such child unnecessary suffering or injury to health, is guilty of a crime."

2 The appellant was convicted on these counts and sentenced to four years' imprisonment. An order was made that he not be eligible for parole until he had served one half of that sentence.

3 The issue on this appeal is whether that sentence is manifestly excessive.

4 Each count of ill-treatment of a child related to one of the appellant's eldest three daughters, B, S and N. The count of assault related to a younger daughter, P. The particulars to the counts of ill-treatment of a child pleaded that the ill-treatment occurred:

* with respect to B, between 1 January 1968 and 9 September 1978;

* with respect to S, between 1 January 1970 and 16 May 1980; and

* with respect to N, between 1 January 1971 and 28 September 1981.

5 In the case of each child, the particulars pleaded that the ill-treatment commenced when the child was aged 3½ years and continued until she was 14 years of age when any conduct by the appellant ceased to be a crime, contrary to the Code, s178.

6 The pleaded particulars of the wrongful conduct were as follows:

"(a) kicking her body when on the ground with steel capped boots;

(f) regularly forcing her to hard manual labour in the afternoons, at night and on weekends;

(i) isolating her as a five year old child in a work shed at night."

(b) regularly forcing her to do hard manual labour in the afternoons, nights and weekends;

(c) kicking her when on the ground with steel capped boots;

(g) trapping her under the floorboards of the house;

(g) kicking her on her body with steel capped boots;

(i) forcing her to do heavy farm work at night and at weekends;

7 The count of assault pleaded that the appellant assaulted P on 30 September 2002 by:

"Throwing her body against a wall of her bedroom, repeatedly kicking her with his feet, and dragging her across the floor."

8 The learned sentencing judge delivered written reasons for the imposition of sentence; [2005] TASSC 31. He introduced his reasons at par4:

"The ill-treatment of the three eldest daughters commenced when they were very young and continued, in varying forms, until each left home. The ill-treatment was continuous and inflicted despite the protests and attempted intervention by the mother. The conduct ranged from beatings and kickings to a refusal to permit the children to do their school homework at home. There was a pattern of ill-treatment common to each child, although it may be that the eldest girl, born in 1964, had the more difficult path to traverse, if only because on some occasions she accepted the brunt of a particular outburst of anger."

9 There followed five paragraphs under the headings:

10 The learned sentencing judge then turned his attention to general sentencing principles applicable to cases such as this one. He made no specific findings of fact for the purpose of imposing sentence. It was important that he did so because the indictment also contained a count of ill-treatment of a child that related to his daughter J, a similar count that related to his daughter P and three counts of assault, all on his daughter S. The jury returned verdicts of not guilty on the count of ill-treating P and on two counts of assaulting S, but were unable to reach a verdict on the count of ill-treating J or the remaining count of assault.

11 The hearing of this appeal commenced on 2 November 2005. An amendment was made to the notice of appeal to allege that there had been error in law in that the learned sentencing judge did not give adequate reasons for the orders of sentence. The hearing was adjourned to the next day to enable counsel to consider the matter. When the hearing resumed, this Court exercised the power enacted in the Code, s409(1) which relevantly provides:

"(1) For the purposes of this chapter the Court may, if it thinks it necessary or expedient in the interests of justice -

... exercise in relation to the proceedings of the Court any other powers which may be exercised by the Supreme Court on appeals or applications in civil matters, and issue any warrant or other process necessary for enforcing the orders or sentences of the Court."

12 Accordingly, the Court relied upon the Supreme Court Civil Procedure Act 1932, s39(5), which, again relevantly, provides:

"(a) On the hearing of [an application for a new trial] the Full Court shall have and may exercise all such powers as are exercisable by it upon the hearing of an appeal ... or may, if it is of the opinion that it has not sufficient materials before it to enable it to give judgment, direct the application to stand over for further consideration, and may direct such issues or questions to be tried or determined, ... as it thinks fit ...".

13 An order was made that the learned sentencing judge determine and report to the Court upon the factual basis on 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 ex tempore reasons for making that order were reduced to writing and published. See [2005] TASSC 107.

14 The learned sentencing judge duly reported to this Court. In his report, he identified the witnesses whose evidence he accepted, the evidence that he did not accept, and the pleaded particulars of ill-treatment that he found had been established by the evidence.

15 The appeal resumed (before a differently constituted Court) on 6 March 2006. Although the ground of appeal alleging error of law has been made out, no order should be made by reason of that because this Court now has sufficient findings of fact to enable it to determine whether the sentence was manifestly excessive.

16 The appellant, who was 61 years of age at the time sentence was imposed, lived with his wife and children at various addresses, mostly in the north-west of Tasmania. There were six children, all girls. The eldest, B, was born in 1964. The youngest two, twins, P and P, were born in 1988.

17 During the period encompassed by the three counts of ill-treatment of a child, the family lived on small properties and the appellant worked for wages, mainly as a manual labourer. A cow or two, hens, pigs and other animals were usually kept on these properties. The appellant was an extremely hard worker. In addition to working on his property after he returned from an eight hour shift, the appellant used to manufacture trailers, repair machinery and do spray-painting in a workshop at his home. The appellant was a hard task master and set jobs that his children had to do about the property. The tasks included looking after the animals, helping the appellant with his mechanical repairs, fencing, repairing the house, and the like. The appellant used violence towards the complainants to ensure that they carried out the tasks he allotted them, tasks that in his view, always took precedence over school work or play. There was little joy in the appellant's house. Presents for the children were sparse and visits by, and to, friends were rare events. The following general description of the background against which the crimes were committed was given by the learned sentencing judge at par5 of his reasons for making the order of imprisonment as follows:

The family was subjected to a strict regime. Mealtimes, completion of tasks, quietness, bed times and conduct when visitors were present, were the subject of strict control and any departure punished. In isolation the regime would not attract the application of criminal sanction, it forms a backdrop to the methods of enforcement and the frequent and intense physical outbursts by the father. It is accepted, for the purpose of sentence, that the regime might have been a product of another age and a reflection of the upbringing of the offender. But it constituted a form of complete control which went beyond the norms of a reasonable parent, then and now.

Each child was subjected to a constant requirement of hard physical labour far beyond her age and physical capabilities. Accepting that the offender worked hard, it remains difficult to understand how the offender believed some of the tasks allocated to be within the capacity of young children. The duties were numerous and required constant activity. Requirements of lifting, moving of fodder and equipment, fencing and mechanical repairs and construction were at the physical limits of each child. Any transgression or inadequacy was punished. The children were deprived of the time necessary to be a child. The obdurate belief that children ought not do "school work at home" and the deprivation of social or "play" time were more a product of the personality of the father and his need to control, rather than an ethos. The offender was indifferent to the effect of his regime and conduct on his children. Depriving a young child of meals at various times because of failure to complete an onerous physical task is but an example of failure to consider the well being of a child. It is self-evident, then and now, that hard physical labour requires sustenance.

While much of the evidence at trial concerned the regime imposed and work required, it is the evidence of physical violence and abuse which significantly impacts on sanction. Verbal abuse and humiliation of each of the three girls was a constant. The physical abuse was likewise frequent and paradoxically often random and irrational. The strictness of the regime and punishment for failure or inadequacy suggests a measured form of physical violence. Yet many of the instances recounted by the three complainants show much of the conduct to be a product of temper and/or frustration. The girl would be punished or kicked as a reaction to a problem not of her making. If something went wrong, the nearby child would be struck. If a mechanical item failed or did not fit, it would be thrown outside and the child forced to find and retrieve it. A failure in efficiency would be met with by severe retribution. Sometimes the child would be struck with a hand or a fist, on other occasions with an object. On some occasions, the acts were ones of indifferent cruelty, such as those which occurred during the rewiring of the family home or the cleaning of the water tank at a later acquired property."

18 In his report to this Court, the learned sentencing judge said that all the particulars pleaded with respect to B were established by the evidence that he accepted, the last of them having occurred on a single occasion. B's evidence began with an account of her getting a pair of shoes when she was in Grade 1 and not being able to tie up the shoelaces. She said that the appellant yelled at her, hit her and made her stay outside in the shed until she could tie up her laces. She said it was after tea and dark when this happened and that she was "scared".

19 B gave evidence that routinely, she and her sisters, S and N, left to catch the school bus each weekday morning at 7.30. The appellant made them feed the animals before they left. She said that after school the appellant made the three sisters get changed and do chores around the property. There was no time for playing except when the appellant was not there because he was working on a late shift. B said that when she was 9 or 10 years old, she had to help to dig foundations for an extension to the house. She said that she did this because the appellant told her to do it, but he was at work while she dug the foundations. In her evidence-in-chief, B said that the appellant made her, S and N drag branches that had been trimmed off some very old pine trees up the paddock to be burnt. However in cross-examination she said that she could not recollect S helping with the pine trees as S was more of an "inside girl". B said that they had to pull out blackberries and thistles as well. These were tasks that the children had to do on an unspecified number of times over a period of several years.

20 B said that she recalled the appellant making her dig holes for fence posts and making her help him put up a post and wire fence. She said that the appellant would not let her or her sisters do school work, saying that school work was for school. B said that she used to do her homework on the bus.

21 B said that she often helped the appellant build trailers in a shed at the home. B said that she was required to hold the steel while the appellant welded it and assist him do other tasks. She said that the appellant had a very short temper and if she did not hold the steel properly, he swore at her, hit her, punched her, knocked her to the ground and kicked her whilst wearing steel capped boots. She said, "it was an almost daily occurrence to get a flogging off him". B detailed an event when she was helping the appellant build a car and she slipped and dropped something she was holding. She said the appellant "got stuck into me again with his fists and his boots and yelling and screaming at me".

22 B said that when she was in high school she accompanied the appellant when he went shooting possums. It was her job to carry the carcasses and then skin the possums.

23 B said that if the appellant was in a bad mood, a common occurrence, she, S and N were not allowed inside to have their tea. She said, by way of example, that the appellant liked to watch the news on the television and if the children made a noise, they were sent outside without any tea. She said that "occasionally" they were locked out of the house and had to sleep in a shed with hay in it.

24 B gave evidence of frequent outbursts of bad temper on the part of the appellant and said:

"I can remember him yelling at all of us and just telling, and making us feel worthless. Like, you are just a pack of cunts and a pack of bastards and, you know, stuff like that - that is how he used to speak to us."

25 S began her evidence with an account of something that happened to her when she was just 6 years old. She said that electrical rewiring was being done in the family home and the appellant was experiencing difficulty in getting some wires from under the floor in the kitchen. The appellant pulled up two floorboards and told S to go under the floor, crawl along to where the wires were and drag them back to the hole. S was frightened and refused to go down the hole. She said the appellant got angry, swore at her and made her go down and crawl under the floor. She got in the hole, but then immediately backed out because she was afraid. The appellant pushed her back down the hole with his foot. S was afraid of spiders and rats. She was crying. The appellant laughed at her and told her to hurry up. Once she had gone down the hole, the appellant replaced the boards, and for a time S was unable to find her way back. The space was so restricted she could not turn around. Eventually, the appellant pulled up the boards again and S was able to get out and hand over the ends of the wires that she had dragged under the floor. It must have been a terrifying experience for a very young child.

26 S said that when she was 6 or 7 years old, she had to help with the house renovations by passing tools, helping with the plastering and "cleaning up the tools after each day".

27 She also gave evidence that she had to work in the garden, weeding and digging new beds in which vegetables were grown. She gave the same evidence as B with respect to dragging the branches that had been cut from the pine trees. S was also made to help clear blackberries on the property. She gave the same evidence as B with respect to the appellant making her work instead of doing her homework. She said that she had to feed the animals, pick buckets of grass for the pigs and clean out the pens. She said that she had to go around the paddocks with a fern hook and pull out ferns and thistles. She also had to pick up sticks and stones off the paddocks. She said she also had to do fencing on the property, and that she worked on this job with B and another sister.

28 S described the appellant's temper as "terrible". She said that he "used to always call us names". She said that the appellant called the children "useless" and referred to her as "the long haired bitch".

29 S said that if B was not working in the shed with the appellant helping him to build trailers and mend equipment, she had to help him. She recounted an occasion when the appellant inspected some painting that S had done on a trailer. The appellant said that it was not good enough and even though it was after tea, he made her do the whole job again. She spoke of the appellant's outbursts of rage and temper when she was working with him in the shed.

30 S gave evidence that she had to help inside the house, as well as work outside. She said it was her job to do all the ironing and she had to vacuum the whole house. She also helped her mother prepare the vegetables.

31 S said that if the children made too much noise, the appellant would hit them, either with his hand or with a stick from a Holland blind. She said that, "sometimes if things broke or went wrong dad used to go clean off and just hit whoever was next to him". She said that the appellant hit her with his hands and kicked her with his boots, usually when she was kneeling on the ground.

32 S recounted an occasion when the appellant got angry with her because she would not have a shower. She said that he dragged her outside by the hair and:

"... he'd turn the hose on and put it down my clothes until I was drenched. And I tried to pull away and he kept holding my clothes and he kept putting the hose all over me and then when I tried to pull away he'd drag me back. And I was kneeling down on the ground and he started kicking me and wouldn't stop. He just kept- ... Kicking me with his boots."

33 S gave evidence that on at least two occasions after being forced to work on the property after dark, she found that she had been locked out of the house and had to sleep in a shed. She said that on "quite a few times" she was sent to her room in the evening without a meal. She said that the appellant often said on these occasions, "if you don't do your work you don't eat".

34 S gave evidence of an occasion when the appellant repeatedly threw a pot of tea at her after she had made it, each time saying that the tea was not good enough and she had to make it again.

35 N's evidence began with an account of the appellant locking her in the woodshed when she was 5 years old. She said she was frightened because it was dark inside. She was unable to recall the reason given for locking her in the woodshed.

36 In substance, she gave the same evidence as B and S with respect to manual labour on the property, school homework and the appellant's temper. There were some discrepancies between N's evidence and that given by her sisters B and S, such as, she could not recall having to do chores before going to school but, in substance, her evidence was to the same effect as that given by her sisters.

37 With respect to physical assaults, N said that the appellant's temper was terrible, "he was angry and would fly off at nothing all the time". She said that the appellant would "just grab the nearest one of us and start hitting us". She said that from the age of about 6 the appellant hit her either with his hand, or with a piece of "poly-piping", or with a stick or with a belt. She said that the appellant used to call her "a useless 'c' of a kid". She said that "on many occasions" the appellant kicked her with his steel capped boots and she also saw him kick B with them.

38 S gave evidence of two specific occasions, one in the laundry and one at the clothesline, when the appellant knocked her to ground and then kicked her with steel capped boots. She said that she was about 12 when this happened and it was very painful. She also specifically referred to another occasion when she was 13 years old and the appellant kicked her because she was watching television.

39 She said that on one occasion the appellant was shooting birds with a .22 rifle and noticed that she was watching him through an open window. S said that the appellant turned and trained the gun on her from about six metres away and held it there for about a minute.

40 With respect to B, the learned sentencing judge found that all the particulars had been made out. With respect to S, he found that all the particulars had been established, except that relating to her being forced to help slaughter stock. With respect to N, the learned sentencing judge found that particulars (a) to (i) inclusive, had been established. With respect to particular (j), "denying proper food", he reported to this Court, "only in the sense of general conduct". With respect to particular (k), "pouring hot water onto her head", his Honour reported, "I do not recall adverting to this allegation in the assessment of penalty". I am not quite sure what his Honour means by "only in the sense of general conduct". N gave no evidence of being denied proper food, although S spoke of that happening in relation to the children generally. There was no evidence at all to support particular (k) and in his reasons for imposing the impugned sentence, the learned sentencing judge made no reference to it. The appropriate course, even in the absence of a ground alleging any error of fact, is to review the sentence upon the basis particulars (j) and (k) in the case of N are not established.

41 The remaining count with respect to which the sentence was imposed, alleged an assault on P in September 2002. P was a twin, then aged 14. She said that the appellant came into her room as she was cleaning it and hiding an ashtray. She said that the appellant said, "caught you, you bitch" and he "had [her] up against the wall and he was wearing slippers and he was kicking [her] and slapping [her] across the face". The attack stopped with the arrival of P's mother on the scene. P suffered a swollen right eye and bruises on her back and right arm. In his report to this Court, the learned sentencing judge said that he accepted P's evidence and that "alone, the assault had little import in the assessment of penalty, except to show an ongoing course of conduct".

42 The appellant did not give or adduce evidence. At the time of imposition of sentence, he was aged 61 years. He had worked at Port Latta for many years. In 1990, he was involved in an industrial accident there in which he suffered gas poisoning. As a result of this, the appellant became an invalid pensioner and never worked again. This accident was in the order of a decade after the last of the acts which constituted the crime of ill-treating a child. Following the accident, the appellant was admitted to hospital on several occasions. He became intolerant of light and started wearing dark glasses. For a period of time, he gained a considerable amount of weight. The accident caused the appellant to suffer from memory loss which sometimes appeared to leave him confused. Counsel for the appellant told the learned sentencing judge that the appellant also suffered an injury to three discs in his spine, and due to a hip disability, had to walk with a stick. The appellant left school at the age of 12 years, unable to read or write. He immediately started work in a sawmill and thereafter, until his accident in 1990, engaged in hard, manual labouring work. His childhood appears to also have been a violent one at the hands of his father.

43 The three counts of ill-treatment of a child were very serious crimes. They were committed with respect to three of the appellant's daughters. In each case, the ill-treatment was continuous from the time the child was aged about 5 or 6 years, until she was 14 years old. The harsh, unrelenting climate of heavy manual toil in an unloving environment could not be passed off as being no more than an inappropriate upbringing for young children. It was far more than that. In addition to forcing each child to engage in continual heavy manual labour, much of the ill-treatment comprised punching and kicking with steel capped boots, as well as other acts of cruelty and deprivations. This violence was often accompanied by extreme psychological abuse, the repetition of which was likely to, and did, induce in each victim a lack of self worth and feelings of inadequacy.

44 In her victim impact statement, B said, "I have no self confidence and am unable to get close to people". S said, "I felt as usless as he told me I was. ... Thinking about how my dad made me do what he said 'or else' has made me feel like a person of little relevance in life". In her statement, N wrote, "I have no self confidence from having drummed into me for years from my father what a useless c*** of a kid I was and many other daily putdowns."

45 Each of the three victims has suffered serious life-long psychological harm which is detailed in their victim impact statements tendered to the Court.

46 Very few sentences for this crime have been imposed in this State, and there is no discernible "tariff". Counsel referred to, and tried to draw analogies from, Bresnehan v R 78/1992 and R v Varnier 20 February 2004, but the circumstances of those cases are so different from the circumstances of this case, that no useful assistance is to be gained from them.

47 Resort must be had to principle rather than precedent. The appellant's duty was to love, nurture and care for his three daughters. He had an obligation to provide them with a secure environment in which they could grow up to become confident and happy young women. He totally failed to do any of those things. The commission of the crimes of ill-treatment of a child constituted gross breaches of the trust that his children were entitled to place in the appellant and the duties that he owed each of them. The mere assertion by counsel for the appellant that he was brought up by a violent father in an environment of hard manual work has little mitigatory effect in the absence of evidence to show a causal connection between that upbringing and his criminal conduct that would entitle the making of a finding of diminished culpability for the commission of these crimes. The evidence in support of each count of ill-treatment painted a picture of repeated acts of brutal violence, each one of which might alone call for the imposition of a sentence of imprisonment, particularly having regard to the extreme youth of the victims and their relationship to the perpetrator. The crime of assault on P pales into insignificance against the enormity of the crimes committed on her three sisters.

48 Although at the time of the sentencing the appellant suffered from some disabilities, they do not entitle him to receive a discount on an appropriate sentence. There is no suggestion of remorse. In a case like this the Court has a duty to impose a sentence that will mark society's condemnation of those who ill-treat children in their care and which will act as a deterrent to others who abuse the trust that children are entitled to put in them.

49 In all these circumstances it cannot be said that the imposition of a four year sentence, with a non-parole period of two years, was manifestly excessive. I would dismiss the appeal.

51 I agree that this appeal should be dismissed, for the reasons stated by the learned Chief Justice.