R v McConachy [2011] QCA 183

Judgment (20 paragraphs)

[1]

The applicant now contends that the primary judge erred in failing to consider the hardship that would flow to his children upon his imprisonment or, at least, failed to give adequate weight to that consideration. He also contends that the judge failed to consider or give adequate weight to the impact of his post-discharge medication on his judgment at the time he committed the offence.

[2]

In addition, the applicant has applied for leave to adduce further evidence in the form of his own letter to the court and statutory declarations from his mother and his former partner's stepmother. The evidence is to the following effect. Since the applicant's incarceration, his former partner has suffered mental problems. She was unable to care for their three children. His mother, who lives in Toowoomba, has taken custody of his 12 year old son. His four year old son and 12 month old daughter are in the custody of his former partner's stepmother in Caboolture. The 12 year old boy was greatly emotionally distressed at his father's imprisonment and was also missing his younger brother and sister.

[3]

Before turning to whether the court should accept the fresh evidence I turn to the application for leave to appeal against sentence. The principles to be followed by a sentencing court when considering the effect of the sentence on dependant children were discussed by Atkinson J, with whom Keane and Fraser JJA agreed, in R v Chong; ex parte A-G (Qld) [2008] QCA 22:

[4]

"[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:

[5]

'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.'

[6]

[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:

[7]

'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.'

[8]

[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.

[9]

[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:

[10]

'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.

[11]

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.'

[12]

[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'. ...

[13]

[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:

[14]

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

[15]

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."

[16]

The evidence before the sentencing judge did support the conclusion that the applicant's dependant children would suffer exceptional hardship upon his incarceration. He was a single parent and their estranged mother was unable to care for them. His own mother was physically unable to take on the burdensome responsibility of caring for three children including a four year old and an eight month old with whooping cough. All the children had special needs at the time of sentence. The sentence imposed involved six months of actual custody. The judge made only general reference to defence counsel's submissions in mitigation and made no specific reference to the hardship which would be suffered by the children, nor did he specify that he was shortening the term of actual imprisonment he would impose because of the needs of the children. In the circumstances, I am persuaded the judge gave insufficient weight to the impact on the children in sentencing the applicant to a period of actual imprisonment of six months. This error requires this court to re-sentence him.

[17]

The offending was, as the primary judge recognised, serious. The applicant was a mature man with some minor but relevant criminal history for dishonesty. He did not show remorse or cooperate with the authorities by pleading guilty. In the absence of exceptional circumstances, the sentence imposed was well within range and, indeed, a higher sentence could have been imposed. So much is established by Harders and Forrest. But there were particular mitigating features. The applicant had only recently been diagnosed with epilepsy when he committed the offences. He suffered a major fit brought on by not taking his medication and was hospitalised and in intensive care for a number of days shortly before this offending. His counsel's submission, that his judgment was affected by his medical problems and his medication when he committed the offences, was entirely plausible. Since his release from hospital he had taken his medication as prescribed. He appeared to be a devoted single parent to his three children. His eldest child who was 12 years old was being investigated for what appeared to be epileptic episodes. The school principal confirmed the child had particular problems and that the applicant was a supportive and involved parent. His four year old child had developmental difficulties. His eight month old child was, as I have said, on the day of sentence, diagnosed with whooping cough. The applicant has now been in custody since his sentence on 24 March 2011, a period of over four months. The further evidence which this court can now consider in re-sentencing the applicant shows that since his incarceration, the children have been separated from each other and are missing their father.

[18]

In these exceptional circumstances the community's interests are now best served by imposing a sentence which allows the applicant to return to his young family and to care for them in a united family unit.

[19]

I would grant the application for leave to appeal, allow the appeal, set aside the parole release date imposed at first instance and, instead, substitute a parole release date of 3 August 2011.

[20]

I would otherwise confirm the sentence imposed at first instance.

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