King & Kordick v Styles

[1997] QCA 278

IN THE COURT OF APPEAL	[1997] QCA 278
SUPREME COURT OF QUEENSLAND

C.A. No. 215 of 1997

Brisbane

Before McPherson J.A.

Pincus J.A.

de Jersey J.

[King & Kordick v. Styles]

SHARON MAREE KING and J. KORDICK

Respondents

v.

DARREN WAYNE STYLES

(Applicant) Appellant

McPherson J.A.
Pincus J.A.

de Jersey J.

Judgment delivered 12 September 1997

Judgment of the Court

APPLICATION GRANTED. APPEAL ALLOWED. SENTENCE IMPOSED BELOW
VARIED:

1.       TO REDUCE THE TERM OF IMPRISONMENT IMPOSED FOR THE OFFENCE COMMITTED ON 4 FEBRUARY 1997 SO THAT IT EXPIRES ON 30 SEPTEMBER 1997; AND

2. BY ORDERING THAT THE APPLICANT BE RELEASED UNDER THE SUPERVISION OF AN AUTHORISED COMMISSION OFFICER FOR A PERIOD OF 12 MONTHS FROM THE DATE OF THIS JUDGMENT ON THE CONDITIONS PRESCRIBED IN S.92(1)(b) OF THE PENALTIES AND SENTENCES ACT 1992.

CATCHWORDS: CRIMINAL LAW - ASSAULT OCCASIONING BODILY HARM - Circumstances of Aggravation - Assault on a Minor (10 month old child) - Section 92(1)(b) Penalties and Sentences Act 1992 - R. v. Griffin (C.A. 532 of 1996) and Stanley v. di Cola (C.A. 192 of 1997) considered.

Counsel:	Mrs K. McGinness for the applicant/ appellant Mr C. Chowdhury for the respondents
Solicitors:	Legal Aid Queensland for the applicant/appellant Director of Public Prosecutions (Qld.) for the respondents
Hearing Date:	28 August 1997

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 12 September 1997

The applicant was sentenced in the magistrates court on 13 May 1997

on a plea of guilty to one count of assault occasioning bodily harm

committed on 4 February 1997, for which he was ordered to serve a term of

imprisonment for 9 months. He had on 20 November 1996 previously been

sentenced to imprisonment for 3 months for a similar assault committed on

16 October 1996, that sentence being suspended for 2 years. The later

conviction activated the first sentence of 3 months, upon which the second

sentence was made cumulative. The result was an effective sentence of

imprisonment for 12 months.

What made these two assault serious instances of their kind was that

the first was committed on the applicant’s stepson aged 2½ years and the

second on his own son aged only 10 months. In the case of his stepson he

had smacked him on the face with his open hand hard enough to knock him

to the floor. He also admitted to having smacked the boy on the buttocks

several times. That incident appears to have occurred two days later and

was, as far as can be gathered, not made the subject of a charge. In the

earlier instance in 1996, the blow left bruising on the child’s face. In the

case of his 10 month old son, the force used in February 1997 was sufficient

to leave visible fingermarks on the child’s face, blackening of his right eye,

as well as a mark on his chin. An attempt was made by the parents to divert

suspicion but the matter was reported to Crisis Centre, and prosecution

followed.

The magistrate rightly took a serious view of what was plainly a heavy

blow to the face of a child who was still no more than a baby, whom he

described as “defenceless” and “helpless”, which, at that age, he certainly

was. The magistrate also took the view that imprisonment was, in the

circumstances, the only sentencing option, adding that conduct like this all

too often had grave results.

It is very difficult to disagree with any of this. For a second offence

within 4 months of assaulting another small child, by forcefully hitting him in

the face, committed after a sentence of imprisonment for the first had been

suspended, a custodial sentence would almost invariably be called for. The

only question is whether, given the circumstances in which these two

offences were committed by the applicant, the cumulative sentence was

excessive or, alternatively, whether some form of treatment for the applicant

should not have been tried instead of or in addition to imprisonment either

for the same or a shorter period.

The applicant is a man aged 27 years, or 26 when these offences were

committed. He is married with a wife and children from whom he is living

apart. Apart from the two offences mentioned, he has no prior convictions.

He was formerly in the Australian Army. His stepson, who was the target of

the first assault, is the son of Tanya, with whom he is now living, and the

little child who was hit in February this year is their son. As a result of the

first offence, the applicant was downgraded or transferred, and by the time

of the second offence he had left the Army and was unemployed.

Tanya, who is also in the Army, was away on military exercises at the

time the second offence was committed, and the applicant was looking after

their son on his own. On the occasion in question the child would not eat his

food, which upset the applicant, who gave him what he described as a “tap”

in the face and put him in his room. It is evident that much more than a tap

was involved, and, when the mother came home, she made arrangements

for someone to care for the child other than their regular baby sitter, who, it

was thought, would report the matter to the police. As it turned out, it was

the temporary carer who communicated with Crisis Centre.

The circumstances in which the applicant struck the child afford some

explanation of the applicant’s state of mind at the time. After serving as a

soldier for seven or eight years, he is now no longer in the Army but

unemployed. He was subject to severe financial pressure, and experiencing

stress because of his having lost touch with the two children of his former

marriage. As a child he himself suffered extensive physical abuse from his

father, who left him to look after his younger sister on occasions when his

parents went out. If his father thought that the sister had not been looked

after properly, he would beat the applicant with a riding whip, or an electric

cord, or anything else that came to hand. This practice continued until the

applicant was 16 or 17 years old.

It is often said that behaviour like that tends to be reappear in the

next generation. The applicant is conscious of the difficulty he has in

controlling himself when under stress, and is extremely remorseful for what happened. Before the second offence, he had voluntarily submitted to

counselling from a service provided by a Veterans’ association with a view to

learning to control his outbursts and to assist him with parenting skills.

There are prospects that he will improve if his therapy is continued.

A sentence of imprisonment for 9 months is not necessarily excessive

for a second offence of this kind within so short a period after the first,

particularly when it involved striking a child of only 10 months in the face

with the degree of force used here. But by comparison with R. v. Griffin

(C.A. 532 of 1996) the sentence here may be considered to be heavy. There

a sentence of 12 months imposed for “zapping” a 5 year old boy with an

electric device transmitting a current of 600 volts was reduced on appeal to

one of 6 months. Byrne J. dissented, and would not have altered the

original sentence. The offence was committed against a child who suffered

from attention deficit disorder and had behavioural problems. The majority

of the Court in that case were influenced by the fact that there was no

evidence indicating that the boy’s mental health was adversely affected, and

the applicant is said afterwards to have “ameliorated” the effects of his

conduct.

More recently, in Stanley v. di Cola (C.A. 192 of 1997) a sentence of

imprisonment for 4 months was imposed for a single slap to the face of a

five year old girl delivered in what were described as circumstances of

frustration. The blow caused bruising which was visible for some hours

afterwards. The appellant had previously been sentenced for domestic assaults, and had been placed on probation for 2 years with a condition that

he undergo psychiatric counselling. The Court described the penalty in that

instance as being “towards the top of the range”, but, stressing the risks

entailed in a blow to the head of a child, the sentence was not altered on the

appeal.

It is possible to regard this case as more serious having regard to the

age of the child, the degree of force used, and there having been a recent

prior similar offence. Nevertheless, we consider that the magistrate in

exercising his discretion may have given too little weight to the personal

factor of rehabilitation in the case of the applicant here. A sentence of

imprisonment for 6 months would have been justified in the circumstances,

but by itself would achieve nothing in assisting the applicant to deal with his

tendency to lose control in situations of stress and frustration. He has been

in prison now since 12 May 1997. The 3 month sentence, originally

suspended but activated upon his conviction on that date, has now been

served in full. The sentence imposed for the second offence should now be

reduced in duration. We consider that he should serve a sentence for a

term ending on 30 September 1997, and then should be released on

probation under s.92(1)(b) of the Penalties and Sentences Act to enable him

to continue to receive counselling or such other treatment as his authorised

Commission officer may reasonably direct with a view to his learning to

control his impulses.

The application and appeal will be allowed. The sentence of 9 months

imposed for the offence committed on 4 February 1997 should be varied by

reducing it to a term of imprisonment expiring on 30 September 1997, and

there should also be an order that the applicant be released under the

supervision of an authorised Commission Officer for a period of 12 months

(from the date of this order) on the conditions prescribed in section 92(1)(b)

of the Penalties and Sentences Act 1992. If and in so far as may be

necessary, the consent of the applicant to those conditions may be signified

by his legal advisers to the Registrar once they are explained to him and he

has agreed to them.