R v AA

[1999] QCA 373

[1999] QCA 373

COURT OF APPEAL

McPHERSON JA
THOMAS JA
CULLINANE J

CA No 320 of 1998

THE QUEEN

v.

AA  Appellant

BRISBANE

DATE 07/09/99

JUDGMENT

McPHERSON JA:  The applicant for leave to appeal against sentences is AA.  He was convicted after a trial in the District Court at Brisbane of two counts.  One was of unlawfully assaulting J thereby doing him bodily harm, and at the time being armed with an offensive instrument namely a lit cigarette, and another that he unlawfully assaulted the same victim and did him bodily harm.  In the second instance there was no allegation of an aggravating circumstance.

He was convicted of each of those two charges and sentenced to imprisonment for one year in respect of the first count, and imprisonment for three years in respect of the second.  The circumstances of the offences can be summarised as follows.

The complainant child was born on 9 May 1996 and the applicant is his natural father.  On 24 May 1996 the child was presented at the emergency section of the Nambour General Hospital, he then being barely 16 days old.  At that time the baby had a fever, was lethargic, and had been vomiting.

It was noted by the hospital authorities at the time that he had a haemorrhage in the right eye and a burn mark on the palm of the right hand.  Standard tests, including a lumbar puncture, were performed and the child was put on treatment for an infection.  However, during the night a clicking sound in the child's chest was observed by nursing staff.

A chest X-ray taken earlier was re-examined and a possible rib fracture was noted.  A further chest X-ray was then ordered.  This revealed additional possible rib fractures.  Dr Rogers asked the appellant and the mother of the child for an explanation for this condition but was told there was none.  The child it was said had been with its mother since birth.

The child was then transferred to the Royal Children's Hospital in Brisbane, where specialist radiologists, together with other specialists, became involved.  The consultant paediatrician, Dr Cranshaw, who first saw the child, was concerned and asked both parents for an explanation.  She was however not given any explanation and informed the parents that the Child Protection Service would be called in.  The appellant at this simply stood silently by.

It then emerged that there were 21 separate rib fractures in the 16-day-old child.  So far as count 1 is concerned, which related to the burn to the palm of the child's right hand, Dr Armstrong, a consultant paediatrician had the child under his care in the Royal Brisbane Hospital from 30 May to 26 June 1996.  He gave evidence that the injury on the palm of the hand was a well-circumscribed (that is, almost perfectly circular) full thickness skin burn.

That, Dr Armstrong said, demonstrated that an almost perfectly circular heated object was placed perpendicularly on the infant's hand.  If done with a cigarette, more than two to three seconds' contact would have been necessary to create a burn of that kind.

The defence called Prof Pegg who is the director of the Burns Unit at the Royal Children's Hospital.  He had not treated the child but saw him on 17 June 1998 and also examined photographs of the hand taken on 31 May 1996.  In his opinion the injury was a deep partial thickness burn rather than a full thickness burn.  Under cross-examination he conceded that he could not rule out the injury being a full thickness burn, and further agreed that interpretation from photographs did have many limitations.

It is not necessary for us to pursue this inquiry further because the jury, by their verdict and finding in relation to count 1 of the aggravating circumstance, were plainly satisfied with the charge as it stood.

So far as count 2 is concerned, which was the charge relating to the fractured ribs, the appellant was interviewed by police on 31 May 1996.  The focus of the interview at that time was, apart from the burn, a fractured left clavicle and six fractured ribs.  The appellant in the interview sought to explain the clavicle injury by saying that the birth of the child had been rough and included pulling of the head and shoulders after they became extruded but stuck in the mother's body.

The mother of the child gave an even more graphic description of the purported difficulties at birth; but both midwives who attended at the birth said there was no such problem.  Rather, as one put it, it was a normal spontaneous vaginal delivery.  A number of expert medical witnesses testified as to the rib fractures, and all came to a similar conclusion namely that a "fairly massive" squeezing force, involving a compression of the chest from front to back, had been the cause of the rib injuries.

I have pursued some of these matters, which are really covered by the verdicts of the jury, in order to explain the nature of the injuries sustained and to demonstrate that they could hardly have been accidental, but rather that they were the result of deliberate conduct, as indeed the verdicts themselves confirm.

The personal circumstances of the applicant are that he was born on 14 October 1967 and was thus 31 years of age.  He is a truck driver by occupation.  In 1986 he was convicted and fined $75 for stealing.  Otherwise he has no previous convictions of any kind.

In support of the application for leave to appeal against sentence it is submitted that the sentencing Judge erred in ordering that the sentences be served cumulatively, with the result that the upshot or effective sentence is one of four years for the two charges.

The applicant's complaint essentially is that the maximum penalty in respect of the assault occasioning bodily harm is, or at the time in question was, three years.  And that, not only has that been imposed, but the Judge has used the opportunity to make the sentence of one year on the first count cumulative upon the second sentence.

The factors plainly tending to increase the sentence are that these are extremely serious offences, in which the deterrent aspect of sentencing looms large; and that the circumstances of count 2 are capable of being regarded as within the worst category of this type of offence so as to justify the imposition of the maximum.  In short, the principal complaint or complaints against sentences are taken together, first, that they were made cumulative and, secondly, that the sentence of imprisonment for three years represents the maximum for that offence at the time in question.

As regards the first point, it is clear that, in theory at least, it was open to impose cumulative sentences for the two offences.  The evidence shows that there were separate incidents or acts committed on different occasions.  One appears to have been the infliction of a deliberate cigarette burn which, according to expert opinion, had been caused to the child's hand at least some time before the rib fractures which led to his being brought into hospital.

In my opinion it was not illegitimate for the learned sentencing Judge to impose separate sentences for distinct episodes like these and to make them cumulative.  I say that particularly bearing in mind the fact that a degree of deliberation must have been involved in relation to the commission of the first offence even if the second offence may possibly have been the result of a moment of heat or uncontrolled passion.

So far as the second point is concerned, it was in my opinion also open to the learned sentencing Judge to take the view that these were very serious instances of an offence of this kind.  So many rib fractures in a child of this age could only have been inflicted by the application of considerable force to this quite helpless and very young infant who might have expected care and protection rather than injury from its own father.

The decision in R v. Cook, ex parte Attorney-General (CA 507 of 1996) shows that the fundamental question, cases in which cumulative sentences are imposed or, more especially in this case, where the maximum is imposed, is whether the ultimate penalty is proportionate to the total criminality.

In the present case the applicant advanced no explanation for his conduct.  Indeed, he originally pleaded not guilty and initially appealed against the conviction in this case.  The conviction appeal has now been abandoned by filing of a notice to that effect, but there is nothing to show, in anything that the applicant has said, any remorse for this truly terrible deed or deeds which he committed against his own child.

There are no really comparable cases because those that were cited to us involving offences of this general kind or conduct of this general nature, have been ones in which the principal charge involved the doing of grievous bodily harm and led to a sentence in respect of that offence.  What we have here, however, is a very young baby of no more than 16 days in age, whose short life to that date provided very little opportunity, one would have thought, for injurious conduct of this kind.

As I have also said, there must, at least in respect of the first offence, have been a degree of deliberation in what was done, having regard to the jury verdict in respect of it.  I find myself in the end unable to say that the sentence, in effect, of four years for these two offences is excessive, and that is so whether they are considered separately, and therefore cumulatively, or together as two separate offences committed on different occasions and in somewhat different ways.

In my opinion the sentences, whether regarded in that way or otherwise, are not so disproportionate to the offences and the circumstances in which they must have been committed to enable this Court to say that the learned sentencing Judge was wrong in exercising his discretion as he did.  I would therefore refuse the application for leave to appeal.

THOMAS JA:  The circumstances of these assaults are serious and incomprehensible.  They are such that special care is needed to avoid emotional over-reaction.  There seems to have been an irrational reaction by a father to his baby on two occasions within a fairly short period.  The same type of conduct was evident on both occasions.  The maximum penalty for the more serious of the two incidents, that is to say, the assault which caused fractures to the ribs, was three years.  These offences occurred in 1996.  There are cases where the device of imposing cumulative sentences may properly achieve the result of overtopping the maximum penalty available for such offences.  This Court accepted such results in a number of cases involving fraud.  However, as pointed out in Hoad (1989) 42 Australian Criminal Reports 312, sentences imposed in respect of offences arising out of the one incident or series of incidents or transaction are ordinarily ordered to be served concurrently.

Little assistance can be found in the cases where grievous bodily harm was charged and proven as the available range of sentences is very much higher in those cases.  In my view the maximum sentence of three years on count two was a proper sentence.  However, to increase it by a further year in respect of the other incident was an incorrect exercise of discretion.  A concurrent sentence of one year would, in my view, have been appropriate.  I would therefore allow the application and vary the sentences by deleting the direction that they be cumulative.

CULLINANE J:  I agree with the order proposed by Mr Justice McPherson and with his reasons for that order.

McPHERSON JA:  The order of the Court is that the application for leave to appeal is dismissed.