Court of Appeal (Qld)|2003-06-19|Before: de, Jersey CJ, Davies and Williams JJA, Separate reasons for judgment of each member of the Court, each concurring as, to the orders made
de, Jersey CJ, Davies and Williams JJA, Separate reasons for judgment of each member of the Court, each concurring as
Catchwords
CRIMINAL
LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AGAINST
SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS
TO REDUCE SENTENCE - WHEN
Source
Original judgment source is linked above.
Catchwords
CRIMINALLAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AGAINSTSENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONSTO REDUCE SENTENCE - WHENREFUSED - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSONCRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEALAGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHERCROWN LAW OFFICER -APPLICATIONS TO INCREASE SENTENCE - OFFENCES AGAINST THE PERSON - whereprisoners restrained child in bed - wherechild died of asphyxiationexacerbated by pneumonia - where prisoners also pleaded guilty to 10 counts ofcommon assault in respectof treatment of child on successive eveningspreceding her death - where prisoners cooperated with police, exhibited remorseandpleaded guilty - whether sentences manifestly excessive or inadequate -whether serious violent offender declarations should havebeen madeEverett & Phillips v R [1994] HCA 49
(1994) 181 CLR 295, considered
R v Bojovic [1999] QCA 206
CA No 4 of 1999, 8 June 1999, [2001] 2 Qd R
183, considered
R v Collins [2000] QCA 280
CA No 238 of 1998, 18 September 1998
[2000]
1 Qd R 45, considered
R v de Salvo [2002] QCA 63
CA No 284 of 2001, 15 March 2002
[2002] QCA 63
(2002) 127
A Crim R 229, applied
R v Hall [2002] QCA 125
CA No 32 of 2002, 5 April 2002,
distinguished
R v Institoris [2002] NSWCCA 8
(2002) 129 A Crim R 458, considered
R v Irvine [1997] QCA 138
CA No 82 of 1997, 8 May 1997,
distinguished
R v Ross [1996] QCA 411
CA No 347 of 1996, 25 October 1996,
distinguished
R v Walsh CA No 85 of 1986, considered
Judgment (39 paragraphs)
[1]
M Byrne QC for the applicant in CA No 86 of 2003 and for the respondent in CA No 100 of 2003
[2]
A Moynihan for the applicant in CA No 84 of 2003 and for the respondent in CA No 101 of 2003
[3]
M Copley for the respondent in CA No 86 of 2003 and CA No 84 of 2003 and for the appellant in CA No 100 of 2003 and CA No 101 of 2003
[4]
Legal Aid Queensland for the applicants in CA No 86 of 2003 and CA No 84 of 2003 and for the respondents in CA No 100 of 2003 and CA No 101 of 2003
[5]
Director of Public Prosecutions (Queensland) for the respondents in CA No 86 of 2003 and CA No 84 of 2003 and the appellants in CA No 100 of 2003 and CA No 101 of 2003
[6]
THE CHIEF JUSTICE: The Honourable the Attorney-General appeals against sentences of six years imprisonment imposed on each of the respondents and the respondents have themselves sought leave to appeal against their sentences.
[7]
The sentences were imposed on 4th March 2003 following pleas of guilty to the manslaughter of the female respondent Haliday's 18 month-old daughter. The child died on 29th July 2001. The other respondent, Green, was not the father of the child but was living with Haliday at the time of the death. Green was then 23 years old and Haliday was 20. Neither of them had any prior criminal history.
[8]
The respondents lived together in squalid circumstances in a caravan for some few weeks prior to the child's death. Over that period they failed abysmally in their care for the child which the learned Judge accepted was referable to their gross immaturity, a matter to which I will return.
[9]
Although the child was apparently sufficiently nourished she was not properly cared for during the day and, as especially relevant to the offence, was not appropriately encouraged to adopt regular sleeping habits. On the learned sentencing Judge's findings, for most of the period the respondents lived together in a caravan, with a view to restraining the child to ensure she slept and did not distract them, Green nightly used a bed sheet to tie her hands together, and separately to tie her feet together, then tying the hands to the feet behind her back. He then wrapped the child in a doona and knotted a sheet around the doona before placing her on the bed. She died because of asphyxiation exacerbated by pneumonia from which she was suffering at the time of her death.
[10]
The respondents pleaded guilty as well to 10 counts of common assault in respect of their treatment of the child on successive evenings preceding her death. The Judge did not sentence them separately in respect of those convictions, imposing a global sentence for the manslaughter, and that was a reasonable course to follow.
[11]
Her Honour did not distinguish between the culpability of the respondents. Whereas it was Green who actually imposed the restraint on the child, he did so with the full knowledge of Haliday and Haliday, as the child's parent, was the primary care giver. That approach was justified.
[12]
Evidence before her Honour established that the child would have suffered both physically and emotionally, and to a substantial extent, from the treatment meted out to her. The respondents were very distressed by the death of the child. They cooperated with the police and exhibited remorse. Haliday had herself been the victim of abuse as a child and in later life had experienced domestic violence and sexual and emotional abuse.
[13]
Her Honour noted that the respondents gave paramountcy to their own interests over those of the child. She described their way of establishing a sleeping pattern in the child as "cruel and deliberate," carried through "with full awareness of the distress" thereby occasioned to the infant.
[14]
On the other hand the Judge noted the respondents were "very young, very immature and obviously quite out of their depth when it came to coping with the children, barely able to look after themselves let alone take responsibility for two children."
[15]
She records that the respondents did not intend to kill the child which is of course consistent with the charge. One could add they did not intend to do the child any serious harm. This was more a case of grossly deficient parenting. One infers from the material and her Honour's approach that both respondents were of deficient intellect and personality and there is direct evidence of that in relation to Haliday.
[16]
In determining upon the penalty of six years imprisonment the Judge worked from seven years reducing it to six because of the pleas of guilty. The Crown Prosecutor had sought a sentence at the top of the range of five to 10 years imprisonment after allowing for the plea of guilty, together with a declaration that each respondent had been convicted of a serious violent offence. Her Honour declined to make a declaration because it was in each case a first offence and the respondents "should have the advantage of having parole and supervision."
[17]
We were referred, as was her Honour, to a number of cases. There was emphasis on the comparatively recent decision in Hall [2002] QCA 125 in which the Court of Appeal gave its decision on 5th April 2002. On an Attorney's appeal a sentence of four years imprisonment was increased to six years which was described by the Court as being moderate. Hall had pleaded guilty to the manslaughter of his 19 day old son. He shook the baby, who had been screaming. The baby remained alive for 10 months suffering the effects of the brain damage caused by the shaking. Hall, who was 40 years old, had a significant prior criminal history including an earlier conviction for assaulting a 15 day old baby.
[18]
The Court considered a head sentence of eight to nine years warranted subject then to moderation for the plea. The Court declined to add a serious violent offence declaration to the six year term of imprisonment, largely it seems because the sentencing Judge had not been asked to exercise the relevant discretion.
[19]
There are three points of distinction between this case and Hall. First, the respondent's cruel treatment of this child was repeated, continuing over a period, unlike the isolated conduct in Hall, and this point was given some attention by the sentencing Judge here. Also the suffering of Hall's victim continued for a substantial period, although that appears not to have weighed heavily with the Court on appeal, Justice Williams saying that that consideration was "not entirely irrelevant" in relation to the setting of the penalty.
[20]
Second, unlike the Judge in Hall, this Judge was asked to make a serious violent offence declaration. Third, Hall bore the burden of a substantial and highly relevant prior criminal history, whereas these respondents had none.
[21]
I wish to turn now to the second of those points of distinction, the question whether a declaration should have been made. Having regard to the protracted nature of the precedent cruelty, albeit voluntarily disclosed, and the particular means by which the respondents restrained this defenceless child, the offence was, because of its particular nature, to my mind, a serious violent offence enlivening the discretion to make a declaration. The continued nature of the cruelty and its grotesque character rendered the case sufficiently distinctive in context of the approach discussed in De Salvo [2002] QCA 63; (2002) 127 ACrimR 229 paragraphs 9 and 15.
[22]
Her Honour declined to make a declaration for two reasons. First, she referred to its being the respondents' first offence. In De Salvo at paragraph 15 Justice Williams pointed out, and I respectfully agree, that the criminal history of an offender will not ordinarily be decisive in this regard given the statutory focus on the offence rather than the offender.
[23]
Second, her Honour pointed to the respondent's need for supervision. A similar response may again be made, and further, of course, supervision will occur whether or not a declaration is made, though of different duration. As I have said, a declaration could, here, have been justified.
[24]
As to the other two points of distinction between this case and Hall, while Hall's prior criminal history was obviously most significant, that feature was, in my view, if I may use the term, "balanced" here by the repeated nature of this cruelty, by contrast with the offending conduct of Hall which occurred only once.
[25]
Turning to the other cases mentioned, in Ross, CA 347 of 1996, six years imprisonment with parole recommended after nine months was upheld in a case of suffocation, and in Irvine, CA 82 of 1997 the Court, on an Attorney's appeal, declined to increase five years with parole after nine months in a case of death caused by shaking. As noted in Hall, the Court in Irvine regarded the sentence imposed as inappropriately low. It was disinclined to interfere because of the nature of the appeal.
[26]
The protracted nature of the cruelty in this case distinguishes it somewhat from each of those. In Walsh, CA 85 of 1996, the Court declined to interfere with a sentence of nine years imprisonment imposed for a death caused by shaking and punching, describing it as at the upper end of the range. Overall however, there is no doubt, subject to the matter of a declaration, that Hall would support the six year terms imposed here.
[27]
The question to my mind is whether the Attorney's appeal should be allowed to the extent of adding a serious violent offence declaration. Moderation traditionally attends the disposition of Attorney's appeals. The justification for the Court's adopting a moderate approach is discussed in Institoris (2002) 129 Australian Criminal Reports 458 at 467 essentially, because the appeal puts "in jeopardy for the second time the freedom beyond the sentence imposed": Everett (1994) 181 Commonwealth Law Reports 295 at 299.
[28]
While, as I have said, a declaration could have been added to the six year term otherwise justified by comparison with Hall especially, I would not now interfere, acknowledging both that moderate approach and the essence of this offending conduct, grossly bad parenting on the part of grossly immature people, and not associated with any particular intent to do serious harm to the child.
[29]
This is a uniquely awful case and one hopes it always remains so.
[30]
I would make the following orders. Refuse each respondent's application for leave to appeal against sentence; dismiss the appeals by the Honourable Attorney General.
[31]
DAVIES JA: I agree with the orders proposed by the learned Chief Justice, and subject to what I am about to say, also with his reasons. The learned sentencing judge, in deciding whether, in addition to the sentence which she imposed, a declaration should have been made in each case that the respondent was convicted of a serious violent offence, had to consider whether, having imposed that sentence the offender should, in addition, be deprived of being considered for post-prison community based release after serving half of his or her sentence, as further penalised by deferring any such question until 80 per cent of that sentence had been served.
[32]
See R v Collins[2000] 1 QdR 45, approved in R v Bojovic [1999] QCA 206; [2000] 2 QdR 183 at [30]. The question in this Court is whether the learned sentencing judge erred in answering that question in the negative.
[33]
In considering that question in Bojovic, this Court referred to the additional emphasis placed by s161B(3) of the Penaltiesand Sentences Act on protecting the community from violent offenders: see [34]. Although I do not think, by any means, that is the only matter which this Court should take into account in deciding whether to exercise it's discretion to make a declaration under that section, it is undoubtedly, as the Court recognised in that case, a very important consideration, and one which in my opinion is relevant here.
[34]
Notwithstanding the shocking nature of the conduct of each of the offenders in this case, as outlined by the learned Chief Justice in his reasons, I don't think that the circumstances of this case demonstrated a need to protect the community from these offenders by deferring their eligibility to seek post-prison community-based release at the mid-term of their sentence. In the first place, without diminishing in any way the seriousness of the conduct on the part each of the offenders, their engagement in that conduct, in each case, can be explained to some extent, but by no means excused, by the reduced capacity of each of them to cope with the ordinary stresses of life. Ms Haliday, at the time of the commission of this offence, had a post-traumatic stress disorder, a major depressive order with mood congruent psychotic features, a borderline personality disorder, and a depressive personality disorder. The interactive impact of these disorders and other factors significantly impaired her ability to make decisions concerning the unfortunate child who died. And although Green did not suffer from any such disorders he has, like the offender Haliday, had an unfortunate childhood himself with consequent limitations on problem solving skills resulting in a reduced capacity, it seems, to resolve the unfortunate child's sleeping difficulties in some other way.
[35]
Secondly, as the Chief Justice has pointed out, both offenders were very distressed by and remorseful for what had occurred. These factors together, it seems to me, make it unlikely that the commission of this offence gives rise to the need to protect the community from these offenders.
[36]
For those reasons I cannot be satisfied that the learned primary judge erred in exercising her discretion in declining to make the declarations sought, and for those reasons, in addition to those given by the learned Chief Justice, I agree with the orders he proposes.
[37]
WILLIAMS JA: When the circumstance of the offence outlined by the Chief Justice and his observations on the comparable cases are read in conjunction with matters personal to the applicants Green and Haliday emphasised by Justice Davies in his reasons, it becomes clear, in my view, that the sentences in fact imposed were not only within range, but were the appropriate sentences to impose.
[38]
There was no error by the learned sentencing Judge in declining to make a serious violent offence declaration. I agree with the orders proposed by the Chief Justice.
[39]
THE CHIEF JUSTICE: The applications are refused and the appeals are dismissed. The Court will adjourn for the purpose of changing its composition.