Auton v Tasmania - [2019] TASCCA 17

[2019] TASCCA 17

COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION: Auton v Tasmania [2019] TASCCA 17

PARTIES:  AUTON, Joseph Edward
  v
  STATE OF TASMANIA

FILE NO:  958/2019
DELIVERED ON:  8 November 2019
DELIVERED AT:  Hobart
HEARING DATE/S:  22 August 2019
JUDGMENT OF:  Wood J, Geason J, Martin AJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Ill-treating a child – Three and a half year old with Autism Spectrum Disorder – Offender assumed a "disciplining" role while in a relationship with child’s mother – Multiple incidents of ill-treatment over a 3 week period – Child suffered multiple injuries and was subjected to repeated beatings, his mouth or hands taped with duct tape, and on one occasion he was placed naked inside a drum with tap running over his head – 24 year old offender with no prior convictions for violence – Plea of guilty – Significant mental health difficulties including major depressive disorder and post-traumatic stress disorder complicated by illicit and prescription drug use – Sentence of 3½ years' imprisonment with non-parole period of 2 years not manifestly excessive.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
             Appellant:  Unrepresented
             Respondent:  D Coates SC
Solicitors:
             Respondent:  Office of the Director of Public Prosecutions

Judgment Number: [2019] TASCCA 17
Number of paragraphs: 74

Serial No 17/2019
File No CCA 958/2019

JOSEPH EDWARD AUTON v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

WOOD J
GEASON J
MARTIN AJ
8 November 2019

Order of the Court

Appeal dismissed.

Serial No 17/2019
File No CCA 958/2019

JOSEPH EDWARD AUTON v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

WOOD J
8 November 2019

I agree with the reasons of Martin AJ and his Honour's comprehensive consideration of the issues raised by this appeal. One of the submissions made by the appellant was that the sentence of imprisonment he received of three and a half years, and that he not be eligible for parole until he has served two years, was excessive having regard to other sentences imposed in this jurisdiction for the crime of ill-treating a child contrary to s 178(1) of the Criminal Code. I agree with his Honour's consideration of this complaint at [66] and wish to add some comments regarding the appellant's submissions on this point and the contention that the sentence was manifestly excessive.
The respondent provided this Court with a summary of sentences imposed in the Supreme Court of Tasmania since 1989. The summary refers to 44 sentences, eight in the last 10 years. The facts of the cases are disparate in terms of the nature of the offending and the circumstances of the offender, and there are not enough cases of a similar kind to provide a sentencing pattern for classes of similar cases. As noted by Underwood J (as he then was) in P v Tasmania(No 2) [2006] TASSC 35 at [46]: "Very few sentences for this crime have been imposed in this State, and there is no discernible 'tariff'." The crime of ill-treating a child applies to a wide range of conduct as can be seen from the terms of s 178(1): "Any person over the age of 14 years who, having custody, care, or control of a child under the age of 14 years, wilfully ill-treats, neglects, abandons, or exposes such child, or causes such child to be ill-treated, neglected, abandoned, or exposed in a manner likely to cause such child unnecessary suffering or injury to health, is guilty of a crime." The crime of ill-treating a child may involve neglecting a child in a manner likely to cause unnecessary suffering or injury to health, such as omitting to provide a child with adequate nourishment or failing to ensure a child receives medical treatment, or wilful ill-treatment involving intentional acts of violence or acts of emotional or psychological abuse. It may involve a variety of acts and omissions. There is a spectrum in terms of the gravity of the conduct and also as to whether the ill-treatment concerns a single occasion or a sustained course of conduct, perhaps over weeks, months or even years: Tasmania v M [2008] TASSC 21, 184 A Crim R 404 at [13], per Blow J (as he then was).
Another consideration affecting the utility of the summary is that sentences dating back more than 10 years are unlikely to reflect contemporary sentencing practices. While there are too few cases to detect a sentencing pattern, it can be seen that sentences in the last 10-15 years appear, overall, heavier than sentences in the preceding decade or so. It would be unsurprising if, ultimately, it became apparent that there is presently an upward trend. In considering past sentences, it is appropriate to make allowance for this possibility: Director of Public Prosecutions (Vic) v Dalgleish [2017] HCA 41, 262 CLR 428 at 445 [51]-[53]; Director of Public Prosecutions (Vic) v OJA [2007] VSCA 129, 172 A Crim R 181 at 196 [30]-[31]. Such a trend would be in line with sentencing trends in this jurisdiction for other crimes of violence generally, crimes involving sexual abuse of children and crimes of violence committed in domestic settings. Changes in sentencing practices may reflect changes in community attitudes to some forms of offending and reflect the courts' and the community's enhanced understanding of the harm to victims caused by particular crimes: R v Kilic [2016] HCA 48, 259 CLR 256 at 266 [21]; Director of Public Prosecutions v Harington [2017] TASCCA 4, 27 Tas R 128 per Wood J at 137 [23]; Director of Public Prosecutions v Foster [2019] TASCCA 15 at [25] per Estcourt J.
The appellant referred to the summary provided by the respondent and argued that he has been dealt with more harshly than other offenders. In some instances, comparison is not useful. Of the eight cases in the last 10 years, two of the sentenced offenders (Palmer, 8 February 2012; Fisher, 26 August 2011) ill-treated a child by failing to secure appropriate medical treatment, and the facts of those cases are too dissimilar to be helpful. Another sentence referred to by the appellant of Holmyard, 17 May 2006, involved the offender failing to stop the physical abuse of her two year old by her partner, and failing to secure medical treatment. In another two cases, the facts of the ill-treatment are not evident from the sentencing comments.
One of the sentences referred to was Kitchen, 16 October 2015, involving ill-treating a new born over a period of approximately two months including pinching the baby's legs, poking or applying force to parts of her body, screaming loudly in her face when the child was crying and upset, and squeezing the child around the chest when she would not stop crying, fracturing four ribs, and being rough in handling the baby, endangering the infant. He was 26 years of age, he had prior convictions but none for violence. The head sentence imposed was three years and six months, with one year concurrent with a sentence of 21 years' imprisonment imposed for murder of the baby. The appellant pointed out that in that case the offender’s parenting capacity was affected by illegal drugs, crystal methamphetamine.
In Johnstone, 23 December 2013 the offender was charged with ill-treating a child involving his new born son from the day of his birth for a period of 20 days. The conduct was very serious and included holding the baby tightly around the throat and throwing the baby on a bed and inserting one of his fingers down the baby's throat to stop him crying, covering the baby's face causing him to stop breathing, punching the baby to the legs, and causing injury by forcibly pushing the baby's bottle into his mouth. The offender was 23 years of age. He had a significant number of prior convictions and had served prison terms in the past. He pleaded guilty. He received a sentence of two years and six months' imprisonment with eligibility for parole after 18 months as a global penalty for this crime and also for offences of family violence relating to the mother of the infant including a serious assault of strangulation.
The comments in Blake, 26 August 2011, concern the imposition of a lengthy sentence of imprisonment of four years with a non-parole period of two years. It involved ill-treatment of his new-born baby during a period of approximately one month involving causing multiple fractures to both legs caused by pulling the limbs or twisting with significant force, and fractured ribs by compression of the chest. He pleaded guilty, was 20 years of age and had no record of violence.
Another example referred to by the appellant is found in P v Tasmania (above). That is a decision of the Court of Criminal Appeal concerning a sentence imposed at least 13 years ago. The offender was found guilty of one count of assault and three counts of ill-treatment of a child. The charges of ill-treatment concerned three of his daughters and in each instance the ill-treatment spanned a decade. Each count of ill-treatment involved repeated acts of brutal violence. He was not remorseful. The sentence imposed was a global term of 4 years' imprisonment with a non-parole period of two years.
The appellant highlighted that in all these serious cases, the perpetrators were parents of the children involved, most of them had no mental health issues, and at least some had prior convictions.
Drawing on the summary, the appellant also noted instances where sentences were ameliorated by suspending part of the sentence of imprisonment or by imposing the minimum non-parole period of half the sentence. There are instances, particularly in less serious cases, where part of the term of imprisonment has been suspended. Here, none of the appellant's sentence was suspended and the minimum non-parole period was not imposed, although the period was close to the minimum.
Past sentences for ill-treating a child may provide a "yardstick" by which a sentencing court can attempt to achieve consistency in sentencing and in the application of relevant sentencing principles. The range of sentences imposed in the past does not fix the boundaries of future sentences. Numerical equivalence is not the objective, it is consistency in the application of relevant legal principles: Hili v The Queen [2010] HCA 45, 242 CLR 520 at 535, 537, [48]-[49] and [54].
A broad understanding of the range of sentences imposed in the recent past does not suggest that there was inconsistency in the sentencing of the appellant and the application of relevant legal principles in this case (R v Kilic at [22]). I reiterate that past sentences for this crime in this jurisdiction do not provide a sentencing pattern. It can be seen that reference to particular sentences such as Johnstone and also in P v Tasmania, noting that it is 13 years ago, suggest the sentence here was comparatively harsh. On the other hand, specific examples such as Kitchen and Blake, allowing for their factual differences, demonstrate that the sentence imposed here was heavy but broadly consistent with the approaches taken in those instances.
The fact that the respondent received a heavy sentence does not indicate error. There is no single correct sentence. This is another way of saying that the learned sentencing judge had a discretion. He had a discretion as to the ultimate penalty he imposed and also as to the weight he gave to individual considerations. It is plain that the penalty was arrived at by giving primacy to the gravity of the acts of ill-treatment and violence, the vulnerability of the victim and the breach of trust. Sentencing goals of punishment, condemnation and deterrence were given prominence. The learned sentencing judge paid regard to the appellant's personal circumstances, his age, lack of prior convictions for violence, and the steps he had taken towards his rehabilitation since mid-2017. The steps he had taken, including steps to address his mental health and addiction problems, were treated as mitigatory. These personal circumstances were important matters that required careful consideration. This was a difficult sentencing exercise. Ultimately, in determining the sentence, his Honour treated the sentencing goal of reform as a subordinate objective given the seriousness of the offending. That was a legitimate exercise of discretion.
The approach taken by the learned sentencing judge reflected the guiding principles of this Court and the principles discerned from past comments on passing sentence. This Court has emphasised the need for deterrent penalties for the crime of ill-treating a child: P v Tasmania at [48] per Underwood J. Indeed, the court has a protective role with respect to child victims and fulfils that role by the imposition of deterrent penalties: R v Smith [2005] NSWCCA 286 at [54] per Latham JA. It accords with these guiding principles that the courts' protective duty to society, and children in particular, be regarded as a fundamentally important and dominant consideration. Of course, the various sentencing objectives are not distinct; reformation of the offender overlaps with that objective and promotes protection of society.
Another sentencing goal identified by the learned sentencing judge was condemnation. This objective of the sentencing process vindicates the victim and seeks to reinforce society's values and expectations of its members: Ryan v The Queen [2001] HCA 21, 206 CLR 267 at 302 [118] per Kirby J; Director of Public Prosecutions v NOP [2011] TASCCA 15 at [41]. The community would rightly condemn the appellant's ill-treatment of the child. It was the kind of sustained and cruel conduct towards a particularly vulnerable victim that elicits moral outrage. The restrained moral sense of the community in cases of ill-treatment of children has long been recognised as having a proper influence on the courts' sentencing: R v Bayley Serial No 77/1972 per Burbury CJ; P v Tasmania at [48]. The High Court decision in Munda v Western Australia [2013] HCA 38, 249 CLR 600 was concerned with an appeal from a sentence for manslaughter and an argument regarding the effectiveness of heavy sentences as a deterrent. The following passage has application here and highlights the proper influence of the objective of denunciation:
"[54] …First, the proper role of the criminal law is not limited to the utilitarian value of general deterrence. The criminal law is more than a mode of social engineering which operates by providing disincentives directed to reducing unacceptably deviant behaviour within the community. To view the criminal law exclusively, or even principally, as a mechanism for the regulation of the risks of deviant behaviour is to fail to recognise the long-standing obligation of the state to vindicate the dignity of each victim of violence, to express the community's disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence."
It can be useful when assessing a claim of manifest excess for this crime of ill-treating a child involving a course of conduct including violent acts to consider what penalty might have been imposed for a single incident of violence, if the offender had been charged with that singular occasion as an offence of ill-treating a child or assault. Here, a number of acts of violence are the kind of conduct that individually would justify substantial terms of imprisonment. The occasion when the appellant smacked the child with such force so as to cause him to fall over and hit his head on concrete and, once the child was upright, striking him to the stomach, back and legs about ten times, is one such example. Objectively, it was a serious example of a single act of ill-treatment involving violence. The occasion when the defendant placed the child naked inside a drum in the shed and ran a tap over his head so that he had difficulty breathing is another such example. There were acts of cruelty which were part of the course of ill-treatment that individually would warrant a heavy sanction. On a significant number of occasions, he taped the child's mouth or hands. The taping of the child's mouth was done to stop him making noises, crying or screaming. The child, given his disability, had no other way of communicating his distress. The child needed comforting and yet he was punished in a cruel and most oppressive way.
As noted by the learned sentencing judge, the ill-treatment occurred repeatedly over a prolonged period when the appellant had plenty of time to reflect on what he was doing and when the consequences of his violence, and the child's distress, would have been obvious. The suffering caused to the child was considerable and inevitable given the nature of the ill-treatment. Sentences for this crime of ill-treating a child must be heavy enough to adequately reflect all of the conduct involved in ill-treating the child, whether it be acts of violence, cruel treatment and emotional abuse, and reflect the fear and harm caused to the child. The sentence must be justly proportionate to the criminal conduct: Veen v The Queen [No 1] (1979) 143 CLR 458; Veen v The Queen [No 2] (1988) 164 CLR 465 at 472. The sentence did not exceed what was proportionate to the gravity of the offending.
The sentence of imprisonment imposed on the appellant was a heavy sanction for the appellant in view of his personal circumstances such as his age, mental health problems, lack of prior convictions for violence and prospects of reform. However, these personal circumstances were not overlooked and the sentence was ameliorated by the non-parole period which was close to the minimum. Moreover, the learned sentencing judge was justified in determining that such a sentence was required given the gravity of the criminal conduct. The sentence fell within the proper exercise of his Honour's wide sentencing discretion. It was a correct sentence. For the reasons given by Martin AJ and these additional reasons, I would dismiss the appeal.

File No CCA 958/2019

JOSEPH EDWARD AUTON v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

GEASON J

8 November 2019

The appellant was unrepresented on the hearing of this appeal. His submissions were carefully considered and articulately presented. He exhibited insight into his offending, suggesting he has the necessary awareness to effect changes in his life to avoid the circumstances that led to his acts of cruelty.
I make those observations because it is important to acknowledge those aspects of the appellant's presentation to the Court, even though, in the result, I join in the orders proposed by Wood J and Martin AJ dismissing the appeal.
It is no surprise that the appellant seeks support from the cases to which he referred for his contention that his sentence was manifestly excessive. But Wood J has carefully explained the circumstances bearing upon the sentencing results in those cases and, more generally, the scope of the sentencing discretion reposed in a court. I agree with her Honour that the sentence imposed upon the appellant was a heavy one, but that the sentence was not beyond the limits of the sentencing judge's discretionary judgment.
As was stated by the High Court in R v Pham [2015] HCA 39, 256 CLR 550 at 56:
"It is only if the sentence is found to be 'unreasonable or plainly unjust' that the challenge of manifest excess succeeds. Manifest excess is a conclusion, relevantly in the context of sentencing …, that the sentence is manifestly too long. To observe that a sentence is 'very heavy' when compared with other sentences is not, without more, to conclude that it exceeded the bounds of the sentencer's discretion."

File No CCA 958/2019

JOSEPH EDWARD AUTON v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

MARTIN AJ

8 November 2019

Introduction

The appellant pleaded guilty to ill-treating a child contrary to s 178(1) of the Criminal Code. The maximum penalty is imprisonment for 21 years. The offending occurred between about 12 August 2016 and 2 September 2016 when the victim was aged about 3½ years.

Pearce J imposed a sentence of imprisonment for 3½ years and ordered that the appellant not be eligible for parole until he has served 2 years.
The appellant was not represented on the appeal. He prepared his notice of appeal which, in substance, complains that the sentence of 3½ years' imprisonment is manifestly excessive. The hand written grounds of appeal are as follows:
"1 Excessive sentence
2Judge Pearce didn't take into consideration many factors for my sentence, including my early plea of guilty, my medical reports (psychologist, psychiatrist)."
For the reasons that follow, I would dismiss the appeal.

Facts

There is no suggestion that the learned sentencing judge erred in any way with respect to the facts presented to him. I take the facts from his Honour's sentencing remarks.
The victim suffered from severe Autism Spectrum Disorder. His development was delayed, and he was unable to follow simple instructions. The victim could not talk, and could only communicate his feelings and responses by noises.
In mid-June 2016 the appellant met the victim's mother and, about a month later, the victim's mother, the victim and an older brother moved into a rural property in which the appellant was living. The offending occurred between 12 August and 2 September 2016. The sentencing judge correctly stated that during this period the appellant "subjected [the victim] to physical and emotional abuse and demeaning conduct of a most serious kind".
The sentencing judge described the offending as follows:
"The crime is best described by commencing with a description of the injuries observed on [the victim] on 2 September 2016 when, after the intervention of Ms A's sister, the police were notified and an ambulance was called. [the victim] was photographed and taken to hospital. Almost his whole body was affected. His head, face, arms, legs, upper and lower torso, both at the front and back, including his penis and testicles, were covered with bruises, lacerations, scratches and abrasions all caused by the application of force. His face was cut, swollen and bruised. There was a 1 cm open laceration at the top of his bottom on the right. Such a wound could only be caused by considerable force. Fortunately, no fractures or internal injuries were detected. The defendant is responsible for all of the injuries. The defendant's conduct purportedly commenced as a means of controlling and managing [the victim's] challenging behaviour. Any application of force by hitting or unreasonable restraint to a child with [the victim's] disability was inappropriate, but the defendant's violence amounted to merciless cruelty. The conduct extended over the period of three weeks or so covered by the indictment but seems to have escalated towards the end. His conduct included repeatedly striking the child on his bare skin, including when the defendant was wearing rings, with such force as to break the skin. The child's blood was found to be present on the defendant's rings when they were examined and analysed. His blood was also found on the floor of the shed at the property. The defendant repeatedly restrained the child by applying duct tape to bind his hands, both in front of and behind his body, and on occasions struck him when he was so bound. He taped the child's mouth with duct tape supposedly to keep him quiet and stop his crying. On one occasion, to stop [the victim] from screaming, the defendant placed the child naked inside a drum in the shed and ran a tap over his head so that he had difficulty breathing. Ms A did not intervene, according to her, because she was intimidated by the defendant and felt controlled. However the conduct Ms A observed on 2 September forced her to act. Over the course of that day she saw that the defendant had restrained [the victim] for about an hour by tying the cord of his dressing gown to a door handle. He then put [the victim] on the toilet with his mouth taped. Later, in the shed, he again taped his mouth and hands, supposedly because he was being noisy. He then smacked the child with such force as to cause him to fall and strike his head on the concrete. When he was upright again the defendant continued to beat him to his stomach, back and legs. Ms A contacted her sister who came to the house. She observed the child as to be in pain and unable to bear weight on his legs."
Not surprisingly, as a consequence of the appellant's criminal conduct, the victim's behaviour deteriorated. He is scared and less trusting of others, even those close to him. As the sentencing judge observed, for a child with his condition the "long term effects are difficult to identify and predict", but are likely to be significant.
The appellant was interviewed by police on 3 September 2016. He claimed that because of the victim's behaviour, discipline was necessary. The sentencing judge concluded that during the interview the appellant's account disclosed "quite a complete lack of insight into the seriousness of his conduct and a failure to accept responsibility for it." His Honour then followed with observations concerning the victim and the seriousness of the offending:
"[The victim] was, by reason of his age and his disability, especially vulnerable. He was incapable of understanding what was happening to him. It must have been a terrible experience. The ill-treatment occurred repeatedly over a prolonged period when the defendant had plenty of time to reflect on what he was doing and when the consequences of his violence, and the child's distress, would have been obvious. There is no excuse for this crime. Having accepted [the victim] and his mother into his home, his criminal conduct was a very serious breach of his duty to care for [the victim] and the trust which had been placed in him."
At the time of the offending the appellant was aged 24 years. His upbringing was correctly described by the sentencing judge as "dysfunctional". He was subjected to alcohol and other forms of abuse, including physical violence. The appellant finished school in grade 9 and, at the age of 16, obtained a job with a plastering firm during which he developed skills in that area. Notwithstanding his unfortunate childhood, apart from road traffic offences, the appellant had previously committed only one minor drug offence.
From his early 20s the appellant has abused drugs. He was a heavy user of cannabis. After spending time in custody following his arrest in September 2016, the appellant became a daily user of methylamphetamine.

Medical

Although the appellant's grounds of appeal include a complaint that the sentencing judge failed to take into account "medical reports", it is clear from the sentencing remarks that his Honour gave careful consideration to those reports and to the appellant's mental health and personality:
"I was given two reports which address the defendant's mental health and personality. The first is a report from a psychiatrist, Dr Ian Wilson, prepared in March 2018. The second is a report from psychologist Mr William Doudle. Dr Wilson was first consulted in February 2016. He diagnosed ADHD, major depressive disorder, generalised anxiety disorder with panic attacks and post-traumatic stress disorder, complicated by the use of illicit and prescription drugs. He described the defendant as on occasion demonstrating angry and abusive behaviour, aggravated by situations beyond his control. He prescribed treatment which apparently led to some improvement but which, of course, did not prevent this crime. Nothing in Dr Wilson's report justifies the conclusion that the defendant's culpability is reduced. Mr Doudle assessed the defendant for his report in February 2019 and relies heavily on the defendant's self-reporting. However, Mr Doudle had access to other information. The information tends, at least for the most part, to confirm Dr Wilson's diagnosis, but also indicates that the situation is complicated by the effects of substance abuse. The report indicates that the defendant has made consistent efforts between mid-2017 and the end of 2018 to engage in treatment and which resulted in gradual improvement of his presentation. He has recently obtained work as a scaffolder and is well regarded by his employer. However, again, nothing in the report reduces the defendant's criminal culpability. Neither report provides any real explanation for why the defendant would act with such cruelty to a child. His conditions are likely to make imprisonment more onerous for him, and he has demonstrated some capacity to rehabilitate. Mr Doudle indicates that the defendant will be best served by continuing engagement in treatment and supervision. That may be more difficult in prison, but in the absence of evidence to the contrary I am satisfied he will get the treatment he needs."

Guilty plea

The assertion in ground 2 that the sentencing judge failed to take into account the appellant's plea of guilty is contradicted by the sentencing remarks. The sentencing judge stated that "some mitigation arises from the plea of guilty". His Honour observed that the plea was not an early plea and the prosecution of the matter had been delayed by reason of the conduct of the appellant. In a finding justified by the evidence, his Honour found that no mitigation arises from the delay except to the extent that, in the meantime, the appellant had taken steps to address his mental health and addiction problems. In that time the appellant had demonstrated the capacity to hold responsible employment. The sentencing judge found that although the appellant failed to display any "early signs of remorse", his Honour thought that the appellant had "come to appreciate the wrongfulness of his actions."
As to the appellant's claim that he wanted to plead guilty at the outset of the proceedings, the sentencing judge was given a lengthy explanation of the delay by counsel for the prosecution. This included the appellant's plea of not guilty on 28 September 2016 and his failure to answer bail on two occasions. None of the assertions by the prosecution were challenged by counsel for the appellant, and it was never suggested to the sentencing judge that the appellant had wanted to plead guilty at the outset.
In these circumstances, in my view the approach of the sentencing judge to this issue was correct and there is no basis upon which this Court could interfere.

The appeal

The appellant provided the Court with a ten page hand written submission which was well constructed and logical. In summary, the appellant made the following points:
·     At the time of his offending, the appellant was out of his "right mind" and suffering from a "drug induced psychosis" as a consequence of taking the prescribed Alprazolam, commonly known as Xanax.
·     At that time, the appellant was seeking help and trying to address his mental state, but he was "not mentally fit" and people in his life were made aware of the seriousness of his psychosis.
·     Since being arrested, the appellant has worked extremely hard to recover and get his life back in order. During the period of approximately 2½ years he was on bail, he worked hard at rehabilitating himself and was drug free. He met an "amazing woman" whom he loves dearly and with whom he was building a life. They have children between them. The appellant is filled with remorse and his chances of reoffending are extremely low.
·     In prison, the appellant has been unable to see a psychiatrist or a psychologist or to arrange appointments with therapeutic staff. His mental health is deteriorating and he believes that prison is setting him backwards.
·     Since being imprisoned the appellant has completed two cycles of a parenting program and has undertaken a spelling course. He has just commenced a horticulture course, and is on the wait-list for other courses. However, attempts to gain entry into minimum security in order to obtain more opportunities have been frustrated because "my mental health hasn't allowed my classification to change".
·     The appellant was ready to plead guilty from early 2017. He feels that subsequent events were out of his hands and that he received very poor legal advice.
·     The appellant believes the sentence of 3½ years is "extremely harsh" and that consideration should be given to his particular circumstances through partial suspension or a shorter non-parole period.
·     The appellant's sentence is excessive when compared with other sentences identified in the submissions of the DPP.
During submissions before the sentencing judge on behalf of the appellant, counsel tendered a report from a psychiatrist, Dr Ian Wilson, prepared in March 2018. In his detailed report, Dr Wilson provided a comprehensive history of the appellant's mental state commencing in about 2015. Dr Wilson saw the appellant on five occasions between February and June 2016, and his diagnoses are accurately summarised in the remarks of the sentencing judge cited earlier in these reasons.
It is apparent from the report of Dr Wilson and other medical reports provided to the sentencing judge that for a significant period prior to the offending, the appellant had been in a poor mental state which included a major depression and feelings of being overwhelmed. In January 2016 Dr Sansom diagnosed a drug induced psychosis. The appellant was obviously at risk of self-harm and had engaged in aggressive behaviour which included aggression during a consultation with a psychologist in mid-2015.
Dr Wilson prescribed a number of medications intended to cope with the appellant's Attention Deficit Hyperactive Disorder and his generalised personality disorder with panic attacks. Included in the medication was Alprazolam, which the appellant said is commonly known as Xanax. The prescriptions for that drug were given in March, April and June 2016.
Dr Wilson reported that on 4 July 2016 the appellant telephoned his office in a "rambling, loud and abusive call". The appellant wanted permission to use three tablets of Alprazolam daily rather than one, which had been prescribed. Dr Wilson agreed to that request.
After the final consultation with the appellant, the appellant's partner contacted Dr Wilson's office on a number of occasions to discuss the appellant's on-going treatment. An appointment was made for the appellant to see a social worker on 15 August 2016, but the following day the social worker advised Dr Wilson's office that he had seen the appellant, but the appellant had "gone into a rage and walked out of his office".
Dr Wilson was of the view that during the two month period when the appellant consulted him regularly, the appellant's mood had stabilised and his anxiety and panic had lessened "considerably". Dr Wilson added, however, that as had occurred previously, when in situations that the appellant felt he could not control, his mood deteriorates and his anxiety escalates.
Included in the medical material provided to the sentencing judge was a report dated 25 November 2016 from Dr Wareing of the Tasmanian Health Service. He saw the appellant on 23 November 2016. According to the report, the appellant told Dr Wareing that Dr Wilson had prescribed Alprazolam which resulted in "it not agreeing with me and making things worse and last Anzac Day I was ready to end it all".
The trial judge was also provided with a report from a clinical psychologist, Mr Doudle, dated 10 March 2019 and prepared at the request of the appellant's solicitors. He interviewed the appellant on 15 February 2019 and spoke with him by telephone on 21 February 2019.
Mr Doudle provided a detailed report concerning the appellant's background. As to the offending, and the relevance of prescription medication, Mr Doudle reported as follows:
"11 When he first commenced treatment, Mr Auton tendered to minimise his offending, blaming others and his circumstances for the material events. Although, at the time of the offending Mr Auton's account outlined experiencing symptoms consistent with significant mental health problems. According to Mr Auton his capacity was diminished when the offending occurred. He attributed his poor mental health to prescription medication, specifically 'being off my face on Xanax. I was begging the doctors to take me off them, clearly stating to them how erratic, out of control and not myself I was'. Upon questioning Mr Auton, if the medication was having such an adverse effect, why not merely stop taking it, Mr Auton exclaimed that his Centrelink benefit would be ceased if he was not taking medication as required.
12 Over the course of both clinical and offence related treatment, Mr Auton's levels of individual responsibility towards the material events improved. Mr Auton agrees with five out of the seven particulars of 'Ill Treat a Child' outlined in the facts. Nevertheless, his position around the adverse impact of the medication and not being in possession of his faculties at the time of the offending has remained steadfast. Consequently, the reasoned due to his mental health, at the time his behaviour 'did not feel wrong', but currently 'makes me sick looking back at it now'."
The offending occurred between about 12 August and 2 September 2016. The statement by the appellant to Mr Doudle, that at the time of the offending he was "begging" the doctors to take him off Xanax does not sit well with the appellant's conduct on 4 July 2016. In a "rambling, loud and abusive call" on that day, he sought to increase his intake of Xanax from one to three tablets daily.
During submissions to the sentencing judge, counsel for the appellant referred to the diagnoses by Dr Wilson, and to the improvement in his condition after the offending. He referred to his instructions that since being in custody from 22 February 2019 to the date of submissions on 5 April 2019, the appellant felt that his mental health had deteriorated significantly. Counsel contended that the appellant was a person who would find prison more burdensome that a person of normal health.
Counsel then advanced the following submission:
"In my submission he has no history of violent conduct and the commission of the crime in my submission while not diminishing his moral culpability at all is a fact maybe reflective that at the time in 2016 he did have underlying depression, anxiety and post-traumatic stress disorder coupled with illicit substance abuse but those issues have largely been addressed at the time of sentencing and that Mr Auton has certainly made significant headway and very proactive steps towards addressing those underlying issues that he has suffered from for some time."
Counsel for the appellant having suggested that the appellant's mental state did not diminish his moral culpability, the sentencing judge said that he did not think Dr Wilson addressed the question, but his Honour was looking in the report of Mr Doudle to see if it contained any reference to whether the conditions from which the appellant was suffering might have contributed to his offending. His Honour specifically asked whether counsel had any submission about that issue. Counsel replied:
"The difficulty there is, your Honour, is that Dr Ian Wilson and the indication that we received when trying to pursue that avenue is that he has retired essentially. He was no longer preparing any further material. The only material that we were able to obtain was that letter of March 2018 sent to Mr Auton's general practitioner, and Mr Doudle expressly makes reference to the fact that he's not able to comment on that and that's the difficulty so I can't make any submissions to your Honour. I have no proper evidential basis to make those."
The passage in the report of Mr Doudle to which counsel was referring when he said that Mr Doudle expressly said that he was not able to comment on whether the conditions from which the appellant was suffering contributed to his offending was as follows:
"Formulation
32 Mr Auton is a 28-year old man who has been found guilty of ill treat a child with seven particulars as outlined in the facts. By and large Mr Auton agrees with the events outlined in the facts with the exception of two points. Although, Mr Auton maintained that his mental state when the offending occurred was compromised, Mr Auton's psychiatrist at the time of the material events was not able to be contacted to validate Mr Auton's version of event and to elucidate if the medication could have had a counter therapeutic impact on Mr Auton's mental status, as a result I am dependent on Mr Auton's self-report. Consequently, it is challenging to comment on whether Mr Auton was experiencing any mental impairment at the time of the material events (Verdins principle) as it would in my opinion, require a psychiatrist to render a view about possible counter therapeutic responses to any prescribed medication. Moreover, Mr Auton's mental state at the time of the material events was further confounded by personally and potentially illicit substances which make drawing a conclusion challenging. Having said that, when Mr Auton first presented for treatment in April 2017 he clearly has acute mental health problems consistent with depression and anxiety as well as personality difficulties. Although, it is challenging to make a definitive diagnosis because he was also using illicit substances as well as taking a number of prescription medications."

The sentencing judge obviously gave careful consideration to all the medical evidence and to the question of the appellant's culpability. No request was made for additional evidence concerning the influence of Xanax on the conduct of the appellant. In my view, having raised the issue as to whether the appellant's conditions may have contributed to his offending, and having received the submission to which I have referred, the sentencing judge cannot be criticised for not taking the matter any further.
In substance, the appellant now contends that additional evidence should have been presented to the sentencing judge concerning his "drug induced psychosis" which would have explained his conduct and led to a conclusion that his culpability was reduced. In my opinion, there are a number of difficulties facing this claim.
First, the appellant's claim that he was acting in a drug induced psychosis was well known to his counsel and to the sentencing judge. Counsel referred to the appellant's mental state and specifically stated that it did not diminish the appellant's moral culpability. Secondly, as Mr Doudle commented, the suggestion that the medication had a "counter therapeutic impact on [the appellant's] mental status", was entirely dependent on the appellant's "self-report". In addition, such a claim was complicated by reason of the appellant's intake of illicit substances. In these circumstances, even if the prescribed medication might have produced "counter therapeutic responses", it is highly unlikely to have led to a finding of reduced culpability.
Further, as mentioned, the appellant's claim to this Court that he was "begging" the doctors to take him off Xanax is contradicted by his demand on 4 July 2016 for an increase in his daily intake.
Finally, the facts of the appellant's criminal conduct do not support his claim that his criminal conduct occurred as a consequence of a drug induced psychosis. There can be no doubt that the acute mental health problems, coupled with the intake of illicit substances, contributed to the appellant's conduct, but the evidence falls well short of a drug induced psychosis reducing moral culpability.
Shortly after the victim's mother and children moved in with the appellant, it was the appellant who offered to help with the child. According to the facts presented by the Crown to the sentencing judge, which were not challenged by counsel for the appellant, the child's mother "agreed or acquiesced" to the appellant assisting. The assistance included helping to dress the child and, on occasions, restraining the child when he tried to get away or did not wish to get dressed. Initially, the appellant did not discipline the children, but the appellant told police that the children were "pretty unsettled, unruly, and needed stability and that he had been prepared to assist [their mother] with discipline". In other words, when the appellant spoke with police, he presented a logical explanation for volunteering to assist with discipline of the children.
The appellant's treatment of the child was sustained and appalling. However, the appellant did not repeatedly lash out at the child with unrestrained violence. He claimed there was a need for discipline as an explanation for his conduct. It was not the type of unrestrained and illogical violence that might be expected from a person acting by reason of a drug induced psychosis, and without any form of restraint or appreciation of what he was doing. In addition, the appellant's conduct on at least one occasion in removing his rings before he applied violence does not suggest that these were the actions of a person acting through a drug induced psychosis.
In my view, while there is no doubt that the appellant was suffering from significant psychological difficulties of which the sentencing judge was well aware, and which his Honour took into account, there is no sound basis for a conclusion that additional evidence might have revealed a basis for a finding that the appellant's moral culpability was reduced by reason of the intake of Xanax or any other prescribed medication.
As to the appellant's rehabilitation, the sentencing judge specifically noted that during his period on bail, the appellant had undertaken treatment and obtained work which demonstrated a capacity to hold responsible employment. His Honour found that the appellant had come to appreciate the wrongfulness of his actions. His Honour also acknowledged that the appellant's mental conditions were likely to make imprisonment more onerous for him.
As mentioned, in the appellant's written submission he asserted that he has been unable to obtain appropriate therapeutic assistance or to see a psychiatrist or psychologist. He suggests that he is not obtaining appropriate medication.
This Court is not in a position to investigate those complaints. However, the authorities in charge of the appellant's incarceration should bear in mind that the appellant has previously harboured thoughts of self-harm and the sentencing judge imposed sentence on the basis that the appellant would receive the appropriate treatment. Having observed that the appellant's psychological difficulties are likely to make imprisonment more onerous for him, his Honour acknowledged that it may be more difficult for the appellant to receive ongoing treatment and supervision in prison, but said that in the absence of evidence to the contrary, his Honour was "satisfied" that the appellant would receive the treatment he needs.
Speaking more generally, it is appropriate to emphasise the importance of prisoners receiving appropriate medical treatment and counselling. Sentencing courts impose sentence in the belief that prisoners who require treatment and assistance will receive it as appropriate for their conditions, and that such treatment will be provided regularly and without delay.
As to the appellant's complaint that other offenders have been treated more leniently in the past, there is limited value to be obtained in comparing other cases. Each case must be assessed according to its particular circumstances and sentencing judges exercise independent discretions according to the individual circumstances. Previous sentences vary considerably and demonstrate that there is no tariff or fixed range of sentences for the crime of ill-treating children. Importantly, the sentences to which we have been referred do not provide a basis for a conclusion that the sentence under consideration is manifestly excessive.

Conclusion

There are aspects associated with the personal circumstances of the appellant, including his upbringing, which attract sympathy. However, the gravity of the appellant's criminal conduct should not be underestimated.
The appellant willingly took into his home a mother and two young children. He positively sought to take an active role with respect to the parenting of the victim. The very young age of the victim was obvious to the appellant, as was the victim's mental state which rendered him particularly vulnerable and defenceless. In other words, the appellant willingly undertook a position of trust in respect of the victim, but through a prolonged period of sustained and serious ill-treatment, the appellant committed grave breaches of trust in domestic circumstances. During that period of ill-treatment, the appellant inflicted injuries to much of the child's body.
The sentencing judge correctly observed that the child was "incapable of understanding what was happening to him". This was a child who could not follow simple instructions. He was unable to speak and could only communicate his feelings and responses by noises. This was the child who, at the hands of the appellant, suffered a prolonged period of sustained and serious ill-treatment. As the sentencing judge observed, for the child it must have been a "terrible experience".
In these circumstances, matters personal to the appellant which might attract a degree of sympathy must give way to other considerations. The sentencing judge correctly observed that a sentence of imprisonment was required "to punish the defendant, to publicly condemn and mark the seriousness of his crime, and to make clear, in the hope of deterring him and others from acting in this way, that imprisonment for ill-treatment of children to this extent is the likely result". In my view, these factors were particularly important in the exercise of the sentencing discretion. The community is deeply disturbed by crimes of violence committed against children and sentences must reflect both the community abhorrence and the need to protect vulnerable children.
The sentencing judge concluded that eligibility for parole was appropriate because the appellant had not previously served time in prison and, if granted parole, the appellant was likely to benefit from supervision. His Honour determined, however, that in order to ensure adequate punishment, a period more than the minimum period was required. I agree.
The principles governing appeals against sentence on the basis of manifest inadequacy are well established and it is unnecessary to discuss them: Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1 per Pearce J at [8]. There was no error by the sentencing judge. His Honour took into account all relevant matters.
The sentence imposed by the sentencing judge was within the range of the sentencing discretion. It was not excessive. The non-parole period was also within the range of the sentencing discretion.
I would dismiss the appeal.