HEARING DATE: 5 - 8, 11 - 12, 14, 15, 18, 19 April 2005

Criminal Law - Jurisdiction practice and procedure - Judgment and punishment - Sentence - Character of offence - Generally - Ill-treatment of child - Equivalence of penalty between sexual and non-sexual abuse of children.

State of Tasmania: Director of Public Prosecutions

Judgment Number: [2005] TASSC 31

1 P has been found guilty of the crimes of ill-treating a child and assault, contrary to the Criminal Code, ss178 and 184.

2 The allegations comprised in the indictment encompassed physical misconduct to his daughters over a period commencing in the late 1960s and ending in September 2002. The verdicts of the jury show careful consideration of the evidence and the application of legal principle to the facts. Those verdicts were:

Section 178 - Alleging physical misconduct to his daughter B during the period January 1968 to September 1978

Section 178 - Alleging physical misconduct to his daughter S during the period January 1970 to May 1980

Section 184 - assault on S between December 1980 and January 1981

Section 178 - Alleging physical misconduct to his daughter N between January 1971 and September 1981

Section 178 - Alleging physical misconduct to his daughter J during the period January 1975 and June 1984

Section 178 - Alleging physical misconduct to his daughter P during the period January 1991 and August 2002

3 Sentence will be imposed for a course of conduct against three daughters during the period January 1969 and September 1981 and an act of assault occurring on a fourth daughter in September 2002.

4 The ill-treatment of the three eldest daughters commenced when they were very young and continued, in varying forms, until each left home. The ill-treatment was continuous and inflicted despite the protests and attempted intervention by the mother. The conduct ranged from beatings and kickings to a refusal to permit the children to do their school homework at home. There was a pattern of ill-treatment common to each child, although it may be that the eldest girl, born in 1964, had the more difficult path to traverse, if only because on some occasions she accepted the brunt of a particular outburst of anger.

5 The course of conduct can be identified by category. For convenience they can be considered as:

The family was subjected to a strict regime. Mealtimes, completion of tasks, quietness, bed times and conduct when visitors were present, were the subject of strict control and any departure punished. In isolation the regime would not attract the application of criminal sanction, it forms a backdrop to the methods of enforcement and the frequent and intense physical outbursts by the father. It is accepted, for the purpose of sentence, that the regime might have been a product of another age and a reflection of the upbringing of the offender. But it constituted a form of complete control which went beyond the norms of a reasonable parent, then and now.

Each child was subjected to a constant requirement of hard physical labour far beyond her age and physical capabilities. Accepting that the offender worked hard, it remains difficult to understand how the offender believed some of the tasks allocated to be within the capacity of young children. The duties were numerous and required constant activity. Requirements of lifting, moving of fodder and equipment, fencing and mechanical repairs and construction were at the physical limits of each child. Any transgression or inadequacy was punished. The children were deprived of the time necessary to be a child. The obdurate belief that children ought not do "school work at home" and the deprivation of social or "play" time were more a product of the personality of the father and his need to control, rather than an ethos. The offender was indifferent to the effect of his regime and conduct on his children. Depriving a young child of meals at various times because of failure to complete an onerous physical task is but an example of failure to consider the well being of a child. It is self-evident, then and now, that hard physical labour requires sustenance.

While much of the evidence at trial concerned the regime imposed and work required, it is the evidence of physical violence and abuse which significantly impacts on sanction. Verbal abuse and humiliation of each of the three girls was a constant. The physical abuse was likewise frequent and paradoxically often random and irrational. The strictness of the regime and punishment for failure or inadequacy suggests a measured form of physical violence. Yet many of the instances recounted by the three complainants show much of the conduct to be a product of temper and/or frustration. The girl would be punished or kicked as a reaction to a problem not of her making. If something went wrong, the nearby child would be struck. If a mechanical item failed or did not fit, it would be thrown outside and the child forced to find and retrieve it. A failure in efficiency would be met with by severe retribution. Sometimes the child would be struck with a hand or a fist, on other occasions with an object. On some occasions, the acts were ones of indifferent cruelty, such as those which occurred during the rewiring of the family home or the cleaning of the water tank at a later acquired property.

The assault on P committed in September 2002 was a product of both temper and control. In the scheme of things it is of lesser import. Alone it would not have warranted a sentence of imprisonment. The consequence of the assault was the separation of husband and wife and the decision of the older children to report the conduct of their father.

Victim impact statements were provided by each of the four children, three of whom are now mature adults, B, S and N being born in 1964, 1966 and 1967, respectively. P, the youngest, was born in 1988. The Court accepts that each complainant, especially the older ones, has been adversely affected by their father's conduct. It is not necessary for the purpose of sentence to determine whether all or any of the physical consequences are attributable to conduct, nor to identify precise psychological sequelae. The three complainants lived in a constant state of tension. The combination of regime, allocated tasks, and the severity and constancy of verbal and physical ill-treatment, has produced significant and longstanding adverse effects on each child. It has affected their relationships with spouses and children, fractured the family unit, and continues to have profound psychological effects on their lives.

Mr P, aged 61, has no relevant prior convictions. He is in ill-health, primarily as a consequence of an industrial accident which occurred in 1991. He grew up in an environment of hardship and, in part, his conduct towards his children was a product of his own experiences. He was certainly a hard worker, but his efforts to improve the value of his property and increase return were done at the expense of the well being of his children. The Court accepts the material advanced as to his subjective circumstances. A medical assessment conducted in June 2002 indicates the onset of dementia with an associated phobic disorder. He has respiratory and sight complications. It is accepted that his medical condition will have greater import than would ordinarily be the case. Nevertheless retribution is an integral part of sentencing and here the effects of age and infirmity require consideration of the deprivation of childhood for his children. Mr P was the guardian of those children.

6 During the course of the sentencing hearing, the issue of equivalence was raised. Counsel for Mr P submitted that the Courts have historically imposed more severe sentences in sexual cases involving young persons than for acts of ill-treatment or non-sexual assaults. It may be that such is the case and it was, at the time of the sentencing hearing, my intuitive response. The example used by counsel was that an act of indecent assault on a young person will often attract a custodial sentence, but an isolated physical assault will not. There is insufficient material in the Supreme Court sentencing database to properly compare the respective sentences. Many of the cases involving non-sexual ill-treatment involve reactive or spontaneous conduct, rather than a prolonged course of conduct (R v Bailey 77/1972), or an admixture of sexual and non-sexual misconduct. Some of the academic literature and judicial responses have been referred to in Tasmania v Lowe [2004] TASSC 62, although that case concerned conduct comprised in the term "battered baby syndrome". But there is less reason to make a significant difference in cases involving a prolonged course of conduct. Fear, physical harm, breach of trust, control, use of physical strength, inability of a child to understand the process or have the experience or maturity to respond to the situation, are effects common to both sexual and non-sexual abuse.

7 In Tasmania there is a paucity of case law and sentencing data concerning systemic and prolonged ill-treatment. Review by Professor Warner in Sentencing in Tasmania 2nd ed, par11.326, shows the majority of recorded cases to involve single acts of assault or ill-treatment over a relatively short period of time. Nevertheless, comparison with sexual cases involving misconduct over an equivalent period show a lesser regime of sanction. Cases such as Lavelle 33/1983 and Bresnehan [1992] TASSC 55; (1992) 1 Tas R 234, do not address the issues of equivalence or prolonged or systemic ill-treatment. The authors Fox and Frieberg in their text Sentencing - State and Federal Law in Victoria (1985) state at par12.206:

"Parents or guardians who bring about the death of young children either by maltreatment or lack of care can expect to receive heavy sentences. Sentences in the high end of the range (7 to 10 years) have been affirmed or imposed in a number of cases."

Their review of Victorian cases shows the courts to have paid considerable attention to the relationship of trust in the determination of penalty, a matter common to both sexual and non-sexual crimes. Their review also shows a sentencing regime, then, less severe than that currently imposed in Tasmania for crimes of a sexual nature. In their later edition, the authors recorded, at par12.217:

"In the decade from 1986 there were few cases relating to manslaughter of young children. In Bandman 27/2/95. See also Vaughan (1991) 56 A Crim R 357, the applicant, a 21-year-old man, pleaded guilty to manslaughter by shaking an 18-month-old baby so severely as to cause its death. This produced a sentence of 5/3y6m[dagger]. The case of Richards and Gregory 26/9/97 similarly involved the death of a 20-month-old child by shaking. Richards, the mother of the child, was originally sentenced to a term of 7/4 [dagger], but this was reduced on appeal to 5/3y6m[dagger] on account of her own disturbed background of abuse, life in state care, lack of support in raising her children, depression and intellectual incapacity to cope with her own life and that of her dependants."

8 In Victoria it would appear that there has been an upward trend in sentences imposed in cases involving sexual assaults on children. In R v D (1993) 65 A Crim R 79, the Court of Criminal Appeal, per Marks J, approved of the observation of a presiding judge made in Wayland (Unreported, Court of Criminal Appeal Victoria, 14 September 1992) that:

"No one with any experience of the work in the criminal courts in this State would doubt that there has in recent times been a significant increase in the incidence of crimes which can be compendiously described as 'child abuse' offences and with which the courts have been called upon to deal. Whether that increase in the number of crimes coming before the courts is due to an increase in the commission of the crimes themselves or is due to an increase in the detection rate following upon media publicity designed to facilitate reporting by victims of the commission of an offence is neither to the point nor need be debated. The undoubted fact is that in recent times there has been evidence of a rising tide of public indignation that such crimes have been committed and can be seen to be anything but infrequent occurrences. The court, and particularly this Court is, I consider, bound to respond to the legitimate community concern with the response placing emphasis on the need in particular to have sentences give effect both to specific and general deterrence."

(See also R v Ware [1996] 1 VR 647 at 654; Burnett (1994) 70 A Crim R 469 and reference to Queensland trends R v Eather (1994) 71 A Crim R 305.)

9 In its report published in 1981 (Child Welfare Report No 18), the Australian Law Reform Commission refers to conflicting objectives in the response to child abuse, namely the autonomy of the family and the societal obligation to protect children from harm. The Report states, at par371:

... the incident of 'child maltreatment' is an index of the total social disharmony within a society, and perhaps in the long run the true solution will only be found in fundamental improvement in the nature of our society.

The concept of child abuse is relatively recent. Even in the past decade it has changed in two respects. In the early 1970s child abuse was characterised as a problem of individual deviancy and as an occasion for the imposition of severe criminal sanctions. Towards the end of the decade there was a change in the orientation of the community's concern. Parents who maltreated their children were viewed not as isolated deviants but as members of a society subject to pressures to which many individuals could succumb. It was recognised that Australian society, like other Western industrial urban societies, provides an environment which can lead to child abuse. Child abuse came to be viewed rather as a problem of the family and society than of the individual. A concurrent change resulted in less emphasis being placed on severe criminal sanctions. The change was reflected in the growth of supportive services, first in the United States and, later, in some Australian States. The retributive theories of punishment associated with the prosecution of abusive parents were recognised as a hindrance to the achievement of protection and maximum assistance for the child. In the nature of things the child will normally continue his association with the abusing parent, since that association cannot readily be terminated, whatever courts might order."

The later statement at par403 that prosecution and sanction might be counterproductive in that it might cause disproportionate harm to the child, has no application here. The conduct was prolonged, the children have been harmed, and the family fractured.

10 The English cases referred to by Thomas, Principles of Sentencing 2nd ed, such as R v Beanland (1970) 54 Cr App R 289; R v Cripps, December 19, 1975; R v Sims-Rees (1985) 7 Cr App R (S) 120; R v Thompson (1985) 7 Cr App R (S) 240, show a range of penalties between three and six years' imprisonment where there has been significant harm caused to the child. However, the English cases also suggest an absence of equivalence between sexual and non-sexual cases. One problem of equivalence might be that studies have shown many victims of physical abuse to have also been the subject of sexual abuse (see generally - research papers referred to by Faye McCallum PhD - Law Policy and Practice in her paper presented to the Australian Association for Research in Education, 1 - 5 December 2002). In some jurisdictions in Canada and the United States, a distinction has been drawn between sexual and non-sexual abuse in the law of limitation (see Mathews - Limitation periods and child sexual abuse cases: Law, psychology, time and justice (2003) 11 Torts Law Journal 218 at 230 - 232), although the rationale appears to be the complexity of psychological trauma (White v Chief Constable of South Yorkshire Police [1999] 2 AC 453; see also Wilson v Horne [1999] TASSC 33; (1999) 8 Tas R 363) and the factors known to inhibit the notification of sexual misconduct through guilt, shame and the like (R v Austin (1995) 14 WAR 484; see generall_y Delayed Criminal Prosecutions for Childhood Sexual Abuse: Ensuring a Fair Trial_ - Lewis and Mullins (1999) 115 LQR 265). However, the qualitative differences applicable to sexual abuse were recognised as being present in some instances of child physical abuse (Review of the Law of Negligence Report Commonwealth of Australia (the Ipp Report), Post-Ipp special limitation periods, Mathews (2004) 12 Torts Law Journal 239 at 243).

11 The above analysis suggests that there has been a different sentencing regime between sexual and non-sexual cases involving children. The rationale might be confused and reflect a growing awareness of society of a particular form of abuse (see reference impact of media reporting Moral Tales: Representations of Child Abuse in the Quality and Tabloid Media, Wilczynski, Young and Sinclair, 1999 Aust and NZ Journal of Criminology 262). Recent decisions of this Court suggest an increase in the appropriate penalty for sexually related cases (B v DPP [2005] TASSC 16; DPP v M [2005] TASSC 14). However, in cases of systemic and prolonged physical abuse and ill-treatment as here, that difference should not be marked or artificial. The fact that the events, which are the subject of this sentencing hearing, occurred long ago is no different from cases involving sexual misconduct. As a Canadian judge observed in Hagger (1982) 38 AR 187 (CA):

"Brutality is not to be condoned because it is passed from one generation to the next".

12 The conduct here which requires sanction was not acceptable then or now, nor explained by a standard or ethos of thirty years previous. The kicking of a young child, the striking with objects or punching by an adult male has never been an accepted ethos. The course of conduct has been deemed reprehensible for a long period of time. The position of a father has, as a component, that of protection from harm. Historic parental power was accompanied by responsibility.

13 Allowance is made for the age and medical condition of the offender. No allowance is made for plea or any expression of remorse. Deterrence might have little import in a case of this nature involving events long ago, but retribution for harm caused and punishment for culpability are significant factors. The nature of the conduct, the relationship of the offender and the length of time during which the conduct occurred and the effect on the complainants, require the imposition of a significant sanction. The appropriate penalty is that of four years' imprisonment. Future disposition which might in part depend on physical or psychological health is best left to the Parole Board.

14 (1) That P be convicted of the crimes of ill-treatment of a child and assault.

(2) P be sentenced to a term of imprisonment for a period of 4 years, such sentence to commence as and from 19 April 2005.

(3) P not be eligible for parole before the expiration of one half of the sentence.

The victims of crime compensation levy of $200 is to be paid within six months of the date of release from prison.