The judge said that the child had suffered horrific systematic punishment at the hands of the applicant and her co-accused. I can only agree.
10 At the time of the offence the applicant was aged 22. Her relationship with Jessica's father, to whom she had been married, was apparently violent, both physically and verbally. The applicant left that relationship in February 2002 after suffering a significant assault which left her with a broken nose, fractured collar bone and various bruising. She later moved in with Joseph Fournair and his three children and it was during this relationship that the applicant commenced taking amphetamines, which she admitted doing at least three times a week. A report by a forensic psychologist, Pamela Matthews, describes the applicant as showing a complete lack of insight and knowledge into a child of Jessica's age and described her as a very angry young woman still then unaware of her own anger. The pre-sentence report obtained from Dr Newlands noted that the applicant was not aware that she was smacking Jessica too hard and was still maintaining that the head injuries and some of the other injuries suffered by the child resulted from her falling off her bicycle the week before. Although the applicant apparently acknowledged that Jessica's head had come into contact with a plaster wall, she showed "a continued lack of responsibility or acceptance ... of the extent to which [she] and her co-accused systematically abused Jessica to the point of collapse on 12 April".
11 The evidence during the plea given by Grace Grieve, who had offered the applicant counselling and support, included that she thought that the applicant had addressed many of the matters that were of concern at the time of the offences in a positive manner and that she was working towards a better life. The judge, however, regarded Ms Grieve's evidence as "somewhat naive" and found that she did not understand the extent of the abuse that had been proved by the Crown. It was also plain, her Honour said, that the applicant had continued with Ms Grieve, as with others, to indicate that Jessica had suffered her injuries from a bicycle accident and to downplay her responsibility for the injuries.
12 The judge also referred to the evidence of Matthew Edwards, who spoke of the applicant's good character at the plea. Mr Edwards stated that the applicant was "absolutely fantastic" to her daughter Jessica and that since the offending and her break up with Fournair the applicant had been like a mother figure in helping him with his two children. But the judge clearly gave little weight to Mr Edwards' evidence, taking the view that he also had a limited ability to assess the circumstances of the charge and was clearly unaware of the details and seriousness of them.
13 The judge gave the applicant credit for her plea of guilty both in saving the cost and time of a trial and in reducing trauma to Jessica and the other witnesses. Her Honour took into account that the applicant was still relatively young and that rehabilitation does have some significance. However, her Honour said that, "This is one of the most serious assaults that comes before this Court".
14 It is convenient to turn first to the third ground of this application which claims that the judge erred in failing to find that the applicant was of prior good character and in failing to give weight to the evidence of Matthew Edwards. Mr Carter, for the applicant, put it that a central aspect of the plea was that the applicant was a young person of prior good character whose offending was out of character. Reliance was placed on Ryan v. R.[1]. It was argued that the applicant was entitled to a positive finding that she was a person of prior good character. Mr Carter submitted that the judge made no finding as to the applicant's prior good character and, indeed, that the judge had wrongly undermined the prior good character by inferring that the applicant had only managed as a parent prior to the offending because she had the support of others. He referred to Mr Edwards' evidence in this regard and submitted that the judge had erred in discarding this evidence because Mr Edwards was called to give evidence of prior and subsequent good character for the applicant both as a parent and carer of children and not to "assess the circumstances of the charge".
15 In my view there is nothing in this ground. This Court has repeatedly said that one should not presume from the fact that a relevant sentencing consideration is not mentioned in a judge's sentencing remarks that it was not taken into account. The judge recorded at the outset of her reasons that the applicant had pleaded guilty and had no previous convictions. Furthermore, the case made by the prosecutor during the plea accepted that the applicant's conduct was, to some extent, a result of her use of amphetamines. As it was put (and I think, accepted by her Honour) the applicant had in the past shown no predisposition to violence towards her child, but had then entered into a course of conduct that could only be described as horrendously violent and thereafter there was evidence that the same person had adopted a benign attitude to other children in the recent past. The prosecutor commented that the question as to how this conduct came about was answered by her use of amphetamines.
16 The evidence of Matthew Edwards was, I think, seriously undermined by his ignorance of the applicant's offending and the fact that he had not seen the photographs of the victim. Mr Edwards said, for example, that the applicant "would never do anything deliberately to harm" Jessica in circumstances where her Honour had been faced with clear evidence that the applicant had been guilty of intentionally causing shocking injuries to her child. I see no error in her Honour's reasoning leading to the view that the evidence of Mr Edwards offered little assistance. But it must be remembered that her Honour did not treat the evidence of Mr Edwards as having no value at all.
17 Ground 4 of the application claims that the judge erred by giving no weight to the fact that the applicant would remain in protective custody. It was argued that her counsel during the plea had specifically referred to the fact that she was in protective custody and would spend the entirety of any prison sentence there, whereas the judge made no reference to this matter. Mr Carter argued that the incarceration of a person in protection would make the service of a prison term more burdensome and should lead to some reduction in sentence.
18 It is true that her Honour did not advert to this matter in her sentencing remarks, but it was plainly a matter of which her Honour must have been well aware since it had been brought to her attention immediately before her Honour began her sentencing remarks. Having been mentioned so late in the plea, it is most unlikely that her Honour failed to give this matter (which was, of course, certainly relevant to sentencing) adequate weight. However, even if error had been shown under this ground, I would not myself have been persuaded to impose a lesser sentence.
19 Ground 1 of the application claims that the sentence was manifestly excessive and ground 2, that the judge gave excessive weight to general and specific deterrence. The latter was treated in argument not as a separate ground, but simply as a particular of manifest excess. Mr Carter in arguing this ground accepted the very serious nature of the offence, for which the maximum penalty is 20 years' imprisonment. However, he submitted that the head sentence and non-parole period fell outside the range of a sound discretionary judgment. Reliance was placed on the applicant's early plea of guilty, her relative youth, prior and subsequent good character as a parent and carer, her loss of relationship with her daughter, the impact of amphetamine use at the time of the offending, the fact that she would serve her sentence in protective custody and her strong prospects of rehabilitation.
20 The victim had suffered horrific systematic punishment at the hands of the applicant and Fournair, as the judge noted. Aggravating features of this case, as Ms Carlin submitted in this Court, include that the victim was so young and helpless, and that the abuse was sustained over a period of time rather than being the result of an isolated loss of control, and involved a gross breach of trust by the child's mother. The judge expressly took into account the applicant's plea of guilty, her youth, her absence of prior convictions, her drug use as one of the causes of offending and her prospects of rehabilitation. But it is clear that the judge did not regard the applicant's prospects of rehabilitation as particularly strong, partly because she had persistently failed to acknowledge the true extent of her offending and had maintained the lie about her daughter having run into a truck not only in her statement to the police at the hospital, but also in statements to Ms Grieve, Ms Matthews and Dr Newlands. The judge accepted that rehabilitation had some significance, but her Honour was plainly entitled to have reservations as to the weight to be given to this factor having regard to the evidence that the applicant had shown reluctance to accept her own behaviour and her full responsibility for it.
21 In my view the sentence imposed was well within range both as to the head sentence and non-parole period. It certainly cannot be described as manifestly excessive.
22 I would dismiss the application.
VINCENT, J.A.:
23 I agree.
OSBORN, A.J.A.:
24 I also agree.
CHARLES, J.A.:
25 The order of the Court is that the application for leave to appeal against sentence is dismissed.
26 In case there is any request by any party for access to the photographs, this Court prohibits publication of the photographs in evidence in this case.
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