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[2005] VSCA 130
Court of Appeal (Vic)
2005-05-11
CHARLES and VINCENT, JJ.A. and OSBORN, A.J.A.
Original judgment source is linked above.
Criminal law - Sentence - Intentionally causing serious injury to offender's daughter aged three - Horrific injuries - Applicant of prior good character - Sentence to be served in protection - Circumstances personal to offender - Sentence of 61/2 years, with minimum fixed of 41/2 years not manifestly excessive.
CHARLES, J.A.:
1 On 3 August 2002 the applicant and Joseph Fournair, who were de facto partners at the time, were charged with causing serious injury intentionally or recklessly to Jessica, the three year old daughter of the applicant.
2 On 15 April 2003 the applicant and Fournair were both committed to stand trial on various charges. The applicant then indicated that she intended to plead guilty to the charges, while Fournair reserved his plea.
3 On 31 July 2003 the applicant pleaded guilty in the County Court at Melbourne to one count of causing serious injury intentionally to Jessica between 1 March and 12 April 2002. During the plea evidence was called on behalf of the applicant from Grace Grieve, a programme coordinator with the Salvation Army, and Matthew John Edwards, the applicant's former brother-in-law. The plea hearing was adjourned to enable a pre-sentence psychiatric report to be obtained. A report was duly obtained from Dr Carol Newlands, a consulting psychiatrist.
4 On 26 September 2003 the judge sentenced the applicant to six and a half years' imprisonment and fixed a non-parole period of four and a half years.
5 On 5 December 2003 the trial of Fournair on the charge of causing serious injury intentionally to Jessica commenced before a different County Court Judge. Fournair pleaded not guilty. On 20 December 2003 the jury returned a verdict of guilty. On 10 May 2004 Fournair was sentenced to be imprisoned for eight years and a non-parole period of six years was fixed. Fournair made application for leave to appeal against both conviction and sentence, but his application for leave to appeal against conviction was rejected by this Court on 4 May 2005 and he has since abandoned his application for leave to appeal against sentence.
6 The applicant now seeks leave to appeal against sentence on the grounds that the sentence imposed was manifestly excessive in the circumstances; that the judge erred in the application of the principles of specific and general deterrence; that the judge erred by failing to find that the applicant was of prior good character and in failing to give any weight to the evidence of Matthew Edwards; and by giving no weight to the fact that the applicant would remain in protective custody throughout her incarceration.
7 I turn then to the circumstances of the offence, which I shall take substantially from the judge's sentencing reasons. The committal depositions were before her Honour and, in particular, statements by Fournair's three children, Brendan, Jamie and Bianca. The applicant's counsel disputed some of the allegations made in these statements, but the findings made by the judge have not been disputed in the applicant's grounds of appeal.
8 The victim was, as I have said, three years old at the time. Her injuries came to light when she collapsed at home and was then taken by ambulance to hospital. On 12 April the applicant had returned home late in the evening and entered the bedroom that Jessica shared with Bianca. Jessica was crying or whimpering at the time and the applicant struck her while she was in bed on the legs and then took her to the bathroom to wash her face. Whilst in the bathroom the applicant struck Jessica once or twice to the head with a hair brush, after which she collapsed and became unconscious. Ambulance officers were called and removed her from the house and took her to the Northern Hospital where a CT scan was conducted, revealing a subdural haematoma to the frontal area of her brain. The injuries observed led to the commencement of investigations and the applicant was interviewed by police. She suggested that Jessica had some days earlier ridden her bicycle into the rear of the truck, which had caused her injuries. The applicant conceded, however, that substantial bruising to the child's buttocks had been caused by chastisement. The child's condition at this time was justifiably described by the judge as shocking and her injuries as horrific. A set of photographs tendered by the prosecution at the plea show extensive lacerations and bruisings of all sizes and shapes over almost all areas of the child's body. Her face and head showed extensive bruising and lacerations, inside her mouth and ears, and on both sides of her face. Her torso, back, legs, arms and buttocks all had extensive bruising and lacerations. As her Honour said:
"It is plain that some days prior to 12 April both [the applicant] and Mr Fournair had compelled Jessica to kneel down in front of a plaster wall, and had pushed her head repeatedly into that wall, until the child's head actually damaged the plaster wall and left massive swelling and bruising to her forehead area, and in all likelihood that is the incident causing the subdural haematoma".
9 The deposition of Brendan includes the statement that every time Jessica was naughty or "mucked up", his father would grab her and start smacking her or laying into her; that he saw bruises on her and that the applicant also hit her as soon as she was in any way naughty. As the judge also said, the depositional material:
"reveals a systematic beating of the child Jessica by both [the applicant] and Mr Fournair over the days both before and after she had her head pushed through the plaster wall. She was ... like a prisoner, and once her injuries became apparent [the applicant] and Mr Fournair kept her in her bedroom so others who might visit would not see the way in which she had been abused.
It reached the extent where Jessica was so terrorized about leaving the bedroom that she would in fact go to the toilet in her sister's cupboard, with all her clothes on, so that she did not have to face leaving the room and meet either of you".
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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[1] (2001) 206 C.L.R. 267, at 275-278, 297-300 and 317.
R
Staples [2005] VSCA 130