R v Chong; ex parte A-G

CRIMINAL LAW - APPEAL AGAINST SENTENCE- APPEAL BY ATTORNEY GENERAL OR OTHER CROWN LAW OFFICER - APPLICATION TO INCREASE SENTENCE - where Attorney-General appealed against sentence - where respondent was convicted on one count of unlawful wounding and one count of breach of an intensive correction order - where the respondent was sentenced for the unlawful wounding conviction to two and a half years imprisonment with court ordered parole to apply immediately - where for the breach of the intensive correction order the respondent was re-sentenced for the original offences to 15 months probation to be served concurrently with the earlier sentence - whether the sentence imposed for the offence of unlawful wounding, both before or after the re-opening, was manifestly inadequate

SENTENCE-FACTORS TO BE TAKEN INTO ACCOUNT-ABORIGINAL OFFENDERS- where exceptional circumstances include the respondent being an Aboriginal mother from a remote community who would no longer be able to breastfeed her youngest child if imprisoned - whether a person convicted of unlawful wounding must spend time in custody-where hardship caused to an offender's children by imprisonment may be taken into account in sentencing in exceptional circumstances

Crimes Act 1914 (Cth), s 16A(2)(p)

Penalties and Sentences Act 1992 (Qld), s 9(2)(p), s 188(1)(c)

Arnold v Trenerry [1997] NTSC 138; (1997) 118 NTR 1, cited

R v Bell & Anor [1994] QCA 220, considered

R v Boyle (1987) 34 A Crim R 202, cited

R v D'Arrigo; ex parte A-G (Qld) [2004] QCA 399, considered

R v Edwards (1996) 90 A Crim R 510, cited

R v Friday [2005] QCA 440, considered

R v Le [1996] 2 Qd R 516; [1995] QCA 479, applied

R v MP [2004] QCA 170, considered

R v Shev [2005] QCA 278, considered

R v McDonald [2003] QCA 439, considered

R v Shillingsworth [2002] 1 Qd R 527; [2001] QCA 172, cited

R v Tilley (1991) 53 A Crim R 1, considered

R v Stewart (1994) 72 A Crim R 17, applied

Director of Public Prosecutions (Queensland) for the appellant

**[1] KEANE JA: I agree with the reasons given by Atkinson J and with the order proposed by her Honour.

[2] FRASER JA: I agree with the reasons of Atkinson J and the order proposed by her Honour.

[3] ATKINSON J: The Attorney-General has appealed against a sentence imposed upon the respondent on 3 September 2007 in the District Court at Mornington Island. She was that day convicted on one count of unlawful wounding and one count of breach of an intensive correction order. For the offence of wounding, the respondent was sentenced to two and a half years imprisonment with court ordered parole on 3 September 2007, the day of the sentence. For the breach of intensive correction order the respondent was re-sentenced for the original offences, assault occasioning bodily harm in company and unlawful entry of a motor vehicle with intent to commit an indictable offence, to 15 months probation to be served concurrently. The two grounds of appeal were firstly that the sentence imposed was manifestly inadequate and secondly that it was beyond the power of the court to re-sentence the respondent as the original sentence was not "decided on a clear factual error of substance" within the meaning of s 188(1)(c) of the Penalties and Sentences Act 1992 (Qld).

[4] The offences which had been made the subject of an intensive correction order occurred on 8 February 2005. On 2 October 2006 the respondent was sentenced in respect of them to imprisonment for six months to be served by way of intensive correction order. It was during the currency of that intensive correction order, but some two years after the offences which led to that order, that the offence for which she was sentenced on 3 September 2007 occurred. The offence of wounding was committed on 19 February 2007. There were still some 41 days remaining to be served under the intensive correction order when the offence which breached it took place. It can be inferred from the court report that she nevertheless otherwise satisfactorily continued under the intensive correction order and completed it. She reported reliably and maintained stable accommodation in spite of the fact that during that time she gave birth to her seventh child. Her intensive correction order expired on 1 April 2007.

[5] The unlawful wounding occurred on the evening of 19 February 2007 when the complainant, who is the respondent's mother, the respondent and the respondent's de facto husband went back to their home after some substantial drinking at the hotel. The complainant was then living with the respondent and her husband. The respondent and her husband had an argument and the respondent left the house. There was then an argument between the complainant and the respondent's husband and he hit the complainant on the head with a plastic bucket and then a length of hard plastic pipe.

[6] The respondent returned home and saw them fighting and went inside the house and came outside with a knife. Her husband walked away and the respondent said to the complainant "I'll stab you". She stabbed her mother in the leg. She then stabbed her twice more in the back and then walked off, desisting in the attack of her own accord. The complainant called for help and an ambulance was summonsed. The complainant suffered three wounds each being 1cm to 2cm long which required superficial suturing but not surgery. The stab wounds were relatively minor.

[7] The learned sentencing judge referred to the circumstances of the offence and to the respondent's criminal history. She had previously been convicted of an unlawful wounding of her partner in 2000 which also involved the use of a knife but had not inflicted serious wounds. The judge also referred to other offences of violence including the one for which she was serving an intensive correction order at the time of the offence.

[8] On the other hand, the sentencing judge referred to a number of mitigating factors. The respondent made some admissions to the police and subsequently took responsibility for her actions and accepted her role in the events. It was a relatively early plea of guilty. She had performed well under the intensive correction order. The judge also took into account that the offences occurred when she was affected by alcohol and that the respondent was willing to deal with her problems with alcohol. The judge also took into account that the respondent had herself suffered from violence within her family. She sustained a broken finger at the age of eight as a result of violence from her mother who was the complainant in this offence.

[9] The learned sentencing judge also took into account the submission made by her lawyer, which was confirmed by the Community Justice Group, that the respondent took her responsibility as a mother for the education of her children very seriously. A sentencing judge is required by s 9(2)(p) of the Penalties and Sentences Act 1992 (Qld) to take account of relevant submissions made by the Community Justice Group. It provides that:**

"In sentencing an offender, a court must have regard to -

(p) if the offender is an Aboriginal or Torres Strait Islander person - any submissions made by a representative of the community justice group in the offender's community that are relevant to sentencing the offender, including, for example -

(i) the offender's relationship to the offender's community; or

(iii) any consideration relating to programs and services established for offenders in which the community justice group participates."

[10] The District Court by its Practice Direction No 3 of 2001 has facilitated the making of such submissions. As was observed in the Equal Treatment Benchbook of the Supreme Court of Queensland at [10.6]:

"These provisions allow a court sentencing an Indigenous person to be apprised of relevant information as to the Indigenous person's community and not generally applicable to other offenders; the court is required to take such information into account."

**[11] The sentencing judge referred to the fact that low attendance rates at schools in communities such as Mornington Island were a matter of grave concern to the community and to education authorities and that the respondent was to be commended for the role she played in ensuring that her children were very good attenders and were performing well at school.

[12] The judge sentenced the respondent to two and a half years imprisonment for the offence of wounding suspended after she had served three months with an operational period of three years and re-sentenced her on the offences for which she had served six months imprisonment by way of intensive correction order to 15 months probation.

[13] Later on the same day, on the application of the respondent's counsel, the learned sentencing judge reopened the sentence because of an omission in counsel's submissions which amounted to a clear factual error of substance. The relevant matter that had not been put before the sentencing judge was that the respondent was still breastfeeding her baby and that would have to cease immediately. There were no facilities for the baby to be breastfed by her mother in custody. Furthermore, whilst the Women's Prison near Brisbane has facilities for the accommodation of some babies and children under five with their mothers, the respondent was sentenced on Mornington Island and would have to fly out to go into prison. The baby would not be permitted on the government aircraft. The learned sentencing judge, in my view, correctly held that to impose a sentence without knowing or taking account of those facts was to impose a sentence decided on a clear factual error of substance.

[14] The respondent was re-sentenced to take account of the additional facts. The judge maintained the sentences previously imposed except that instead of suspending the sentence of imprisonment after three months, the judge ordered parole to commence on the day of the sentence.

[15] The appellant argued that the sentence imposed for the offence of wounding, whether before or after the re-opening, was manifestly inadequate. The submission was that the sentence should have been three years imprisonment with the respondent to be released on parole at the date on which she will have served 12 months imprisonment.

[16] An analysis of sentences imposed at first instance and on appeal suggests that a head sentence of two and a half years imprisonment is within the correct exercise of sentencing discretion for the offence of wounding. In R v Friday [2005] QCA 440, the submission that three years imprisonment for wounding in not dissimilar circumstances was at the top of the permissible range was recorded by the court without dissent and it was said by the court to find support in R v Shillingsworth [2001] QCA 172; [2002] 1 Qd R 527.

[17] Three years imprisonment was the head sentence imposed and upheld on appeal in R v McDonald [2003] QCA 439 although this court reduced the length of time to be served before the sentence was suspended. The facts of that case suggest somewhat more serious offending.

[18] The complainant was at his cousin's home in Cairns when McDonald threw a stubby which broke outside the house. The complainant's cousin remonstrated with McDonald for creating a danger to children in the neighbourhood by breaking the bottle. McDonald walked away and then came back with another person, entered the property and a challenge to a fight was issued. Rather than fight on the premises in front of the children, the men, including the complainant, went up the road for that purpose. Other people joined the group as it went. During the fight that ensued, the complainant was engaging another man when he was stabbed in the back by McDonald who had obtained a knife from a house into which he had run during the fight.

[19] The wound was substantial, penetrating to a depth of 4cm and of 7.5cm length. It was delivered in a position where there would ordinarily be a risk of penetrating the lung but because of the complainant's size he was spared that complication. The knife broke during the attack. McDonald surrendered himself after police enquiries revealed that he was the person responsible for the stabbing. He gave a self-serving account which was contradicted by a number of other witnesses but eventually pleaded guilty. The sentence of three years imprisonment was fixed to reflect the seriousness of the offence.

[20] The offence involved street violence between groups of men where a knife was used and, although there was only one stab wound, a serious injury was done to the complainant.

[21] In R v Shev [2005] QCA 278 this court refused to disturb a term of two and a half years imprisonment to be suspended after serving nine months with an operational period of two and a half years. The offence arose out of a neighbourhood dispute. The complainant was holding a party and playing music at what the applicant believed was an excessive volume. The loud music continued and when the applicant requested that it be turned down, he was ignored. At about 11.20pm the applicant telephoned the police to complain. The police said they could not attend immediately and the applicant responded by saying he would take matters into his own hands. He took a machete down to the fence line. He banged on the fence with the machete to attract attention. The applicant was approached by five men including the complainant. The applicant asked for the music to be turned down and the complainant said he would not turn the music down until midnight. There was a factual dispute about whether or not the complainant had attempted to punch the applicant but it is clear that the applicant struck the complainant on the head with the machete. That blow penetrated to the bone and the complainant was left with a scar on his forehead and occasional headaches. He was hospitalised for two days and off work for four weeks.

[22] The sentence of two and a half years imprisonment was suspended after he had served nine months in spite of the fact that he did not plead guilty and was sentenced after a trial and so did not get the benefit of a plea of guilty or substantial co-operation with the administration of justice.

[23] In all of the circumstances, it could not be said that the head sentence of two and a half years imprisonment was manifestly inadequate.

[24] I therefore turn to the question whether the granting of immediate release on parole as an ameliorating order was manifestly inadequate in all the circumstances. This involves a consideration of all of the factors, particularly the personal factors, tending to aggravate or ameliorate the appropriate sentence.

[25] There is authority for the proposition that a person convicted of wounding is not necessarily required to spend time in actual custody. In R v Bell & Anor [1994] QCA 220, this Court, on an Attorney's appeal, re-sentenced an offender who had pleaded guilty to unlawful wounding, from the two years probation and 120 hours of community service with no conviction recorded imposed by the sentencing judge, and instead sentenced him to imprisonment for one year, such sentence to be suspended with an operational period of two years. In the course of that judgment, the President observed at p5 that in a number of cases in the District Court unlawful wounding involving a knife did not result in imprisonment or led to an order that a prison sentence be suspended.

[26] Bell was a case in which a 22 year old Aboriginal man wounded his de facto partner when they were drunk and after many hours of argument. He picked up a knife and stabbed her in the heat of the moment. The stab wound was not serious and did not require suturing. With regard to the circumstances of social and economic disadvantage which related to the respondent's residence at Cherbourg, the President observed of the attitude taken by the sentencing judge at p 8:**

"It was right for him to have regard to the respondent's disadvantages and open to him, as a result, to sentence the respondent as leniently as the circumstances of his offence admitted. However, such disadvantages do not justify or excuse violence against women or, to take another example, abuse of children. Women and children who live in deprived communities or circumstances should not also be deprived of the law's protection. A proposition that such offences should not be adequately penalised because of disadvantages experienced by a group of which the offender is a member is not one which is acceptable to the general community or one which we would expect to be accepted by the particular community of which an offender and complainant are members."

**[27] The Court said it was disinclined on an Attorney's appeal to order the belated incarceration of an offender who had been released back into the community by the sentencing judge and apparently resumed his relationship with the complainant and continued with his employment.

[28] The factors which tended to aggravate in the circumstances of the present case included the fact that the applicant had a criminal history for similar offences and was serving an intensive correction order at the time of the offence presently under consideration. On the other hand, she pleaded guilty, had never previously served a term of imprisonment, had completed the intensive correction order after the breach and was considered suitable for further community based orders. She was willing to deal with her alcohol problem which was significant as it appears that she was affected by alcohol whenever she offended. She had a childhood in which she had endured violence towards herself from her mother. In spite of that, it appears that she was herself a very responsible mother of seven children, ensuring that those of school age attended and excelled at school and breastfeeding the baby. There was no suggestion that she had repeated the familial cycle of violence with her own children.

[29] There is authority for the proposition that the hardship caused to an offender's children by imprisonment may be taken account of in the exercise of the sentencing discretion but only in certain circumstances. It is then one of many factors to be taken into account. In R v Stewart (1994) 72 A Crim R 17 at 21, the Court of Criminal Appeal in Western Australia held:**

"Generally the hardship caused to an offender's children is not a circumstance to be taken into account. The authorities are clear, however, that it may be taken into account when the degree of hardship that imprisonment will involve is exceptional or when the offender is the mother of young children, or where imprisonment will result in the children being deprived of parental care. In all cases, however it depends on the gravity of the offence and the circumstances of the case."

[30] It is true that the hardship to an offender's children cannot be allowed to overwhelm all other considerations in sentencing: See R v Tilley (1991) 53 A Crim R 1 at 3. However, as the appellant conceded in this case, the effect on a family is not irrelevant. As Cooper J observed in R v Tilley at p6:

"The public interest is promoted by preserving wherever possible a family unit. The respondent's background demonstrates quite clearly the social cost where some semblance of family stability and support is lacking. Rehabilitation and preservation of a stable family environment are both relevant and important to the process of sentencing."

**[31] Tilley was followed in this court in R v Le [1995] QCA 479; [1996] 2 Qd R 516 by Thomas J at p522 with whom Williams J agreed. Thomas J said that the hardship and distress shared by the family of an offender cannot be allowed to overwhelm factors such as retribution and deterrence. Pincus JA observed, at p519, that the practice of Queensland courts is to give consideration, when appropriate, to the effect of a sentence on an offender's young children.

[32] In R v D'Arrigo; ex parte A-G (Qld) [2004] QCA 399, the court was considering a case in which the only reason for suspending a term of imprisonment was the respondent's position as sole carer of his young daughter. In that case it was held that the fact that the applicant was the sole carer for a 16 month old child could not be allowed to overwhelm the otherwise appropriate punishment for a conviction of dangerous operation of a vehicle causing death for which the offender was convicted after a trial. He had a previous conviction for dangerous driving and convictions for speeding which preceded and followed the driving the subject of the conviction before the court. The President noted that he had other children living in Victoria with their mother and he did not contribute to their maintenance. The Chief Justice observed at pages 5-6:**

"The balance of authority supports the view that while hardship to third parties because of the imprisonment of a family member may, if rarely, be a relevant consideration, it must not overwhelm others such as the need for deterrence, denunciation and punishment. See Le and Le v R [1995] QCA 479; [1996] 2 Qd R 516.

Indeed the preponderance of authority is to the effect that this consideration may be brought to account only in exceptional or extreme circumstances. See R v MP [2004] QCA 170; R v Boyle (1987) 34 A Crim R 202; Arnold v Trenerry [1997] NTSC 138; (1997) 118 NTR 1; and R v Edwards (1996) 90 A Crim R 510."

**[33] In my view, where relevant, the best interests of children who are dependant on the offender fall within s 9(2)(r) of the Penalties and Sentences Act 1992 (Qld) which requires the sentencing court to take account not only of the enumerated matters found in s 9(2)(a) to (q), but also of "any other relevant circumstance". There is of course a strong argument for the law reform recommended by the Anti-Discrimination Commission of Queensland (ADCQ) in its Women in Prison Report, March 2006, to include this factor explicitly. Recommendation 57 of that Report is that: "section 9 of the Penalties and Sentences Act 1991 be amended to include the principle that the best interests of the child be a factor to be considered when sentencing a person with a dependent child." This is consistent with s 16A(2)(p) of the Crimes Act 1914 (Cth) which contains a requirement that a sentencing court must take into account "the probable effect that any sentence or order under consideration would have on any of the person's family or dependants."

[34] Nevertheless the law as it currently stands requires the sentencing court to take account of any "relevant circumstance." The United Nations Convention on the Rights of the Child, which entered into force for Australia in 1991(Australian Treaty Series 1991 No 4), relevantly provides in article 3.1:**

"In all actions concerning children ... undertaken by ... courts of law ... the best interests of the child shall be a primary consideration."

**It appears, as Pincus JA observed in R v Le at p519, that the terms of s 9 of the Penalties and Sentences Act preclude the courts from regarding the best interests of the child being a primary consideration in sentencing those upon whom the child is dependent. They do not however preclude the court from regarding the best interests of such a child or children as being a relevant circumstance.

[35] Of course, the effect on the offender's children is only one factor but, as was properly conceded by the Attorney-General, a factor which is relevant to the sentence in the circumstances of this case. This was not a case where, like R v MP [2004] QCA 170, it was such a serious offence that a substantial period of imprisonment must be imposed and the children would suffer no more than the usual hardship caused by the incarceration of a child's parent. This case falls within the category of cases referred to in Stewart, where the offender is a mother of young children, one of whom was being breastfed, and the imprisonment would have an exceptionally harsh effect on her children.

[36] The fact that the respondent is an Indigenous woman living on Mornington Island is relevant to the question of the effect on her family. Her imprisonment will necessarily mean her removal to the mainland far away from her children and particularly the baby and thus any practical means of maintaining personal contact to them through visits or maintaining breastfeeding of the baby.

[37] The effect on a family of incarceration for a relatively short period of time is dealt with in many reports. A literature review on issues and difficulties facing families of prisoners (R Woodward, Australian Government Department of Family and Community Services Occasional Paper No. 10 Families of prisoners: Literature review on issues and difficulties, Sept 2003) observed at xiv that:**

"Several reports stressed the importance of the justice system recognising 'the impact of offending behaviour and imprisonment of a parent on a child' (Victorian Association for the Care and Resettlement of Offenders, 2000, Doing it hard. A study of the needs of children and families of prisoners, p 12)."

**[38] The study noted that the impact on Indigenous families was far greater partly because of the greater percentage of Indigenous people incarcerated. The Australian Bureau of Statistics (ABS) estimates that in 2006 Indigenous people were thirteen times more likely to have been incarcerated than non-Indigenous people. (ABS Law and Justice Statistics - Aboriginal and Torres Strait Islander people: a snapshot, 2006). Those statistics also show that almost one in five Indigenous people reported a family member being sent to jail/currently in jail (ABS 2004). Furthermore, Indigenous people in remote areas were one-and-a-half times more likely than Indigenous people in non-remote areas to report that a family member had been sent to jail or was currently in jail (25 per cent compared to 17 per cent) (ABS 2004). The figures are even more dramatic for Indigenous women. As at 30 June 2004, 27.8 per cent of female prisoners were Indigenous. (Queensland Department of Corrective Services (QDCS) Annual Report 2003-4 Table 2, page 39 reproduced in Women in Prison: A report by the ADCQ, March 2006 at [5.3].)

[39] Indigenous women were overrepresented in both secure and medium custody. As at 30 June 2004, 36 per cent of high security, 30 per cent of medium security, 12 per cent of low security and 21 per cent of the open security female prisoners were Indigenous (QDCS Annual Report 2003-4 p39, Table 4 quoted in Women in Prison Report p 107). As at 30 June 2005, 26.5 per cent of all female prisoners in Queensland were Indigenous, yet Indigenous people represent only 3 per cent of the population. (QDCS Annual Report 2004-2005 (2005), National Prison Census 1999 (ABS) unit record file quoted in Aboriginal and Torres Strait Islander Social Justice Commissioner, Report 2002, (2003) quoted in Women in Prison Report, p 107). The Human Rights and Equal Opportunity Commission has found that Indigenous women are incarcerated at a higher rate than any other group in Australia. (Aboriginal and Torres Strait Islander Social Justice Commissioner Social Justice Report 2002 - Chapter 5: Indigenous Women and Corrections - A Landscape of Risk Canberra, Human Rights and Equal Opportunity Commission, 2002 quoted in the Equal Treatment Benchbook of the Supreme Court of Queensland [10.5]).

[40] The Standing Committee on Law and Justice (1999) identified that incarceration of one generation impacts on later generations through the "continued breakdown of family structures." (p 53) (Occasional Paper No. 10, p xiv). This is particularly so in remote locations because of the difficulty of an imprisoned person maintaining contact with their family during their incarceration (Women in Prison Report at [5.3]). The ADCQ Report on Women in Prison points out, at p 112, that Indigenous and other women prisoners in North Queensland do not have access to community custody facilities in spite of this need being identified in 1992 in the Report of the Women's Policy Review (Queensland Corrective Services Commission, 1993).

[41] The learned sentencing judge also took into account the likely adverse impact on the children with regard to their attendance at school, a particularly important factor in remote Indigenous communities where, as government reports show, the absentee rate from school is much higher than in the rest of the community. (See Better Practice in School Attendance - Improving the School Attendance of Indigenous Students, Department of Education, Science and Training, 2000).

[42] All of these factors meant that the degree of hardship that imprisonment would involve for the young children of the respondent was exceptional and able to be taken account of as a "relevant circumstance" in the sentence imposed.

[43] The sentencing judge recognised the deterrent and punitive purposes of punishment in the head sentence imposed and the rehabilitative purpose in the order for parole. It could not be said that the sentence imposed was outside the proper exercise of sentencing discretion. It was not manifestly inadequate. The appeal should be dismissed.**