R v BCT

Case [2016] QCA 180

SUPREME COURT OF QUEENSLAND

CITATION:

R v BCT [2016] QCA 180

PARTIES:

R
v
BCT
(applicant)

FILE NO/S:

CA No 281 of 2015
DC No 2051 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:


District Court at Brisbane – [2015] QDC 277

DELIVERED ON:

28 June 2016

DELIVERED AT:

Brisbane

HEARING DATE:

20 April 2016

JUDGES:

Margaret McMurdo P and Morrison JA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – where the applicant pleaded guilty to the offence of cruelty to a child – where, at a contested sentence, the applicant admitted to knowing her partner was physically abusing the child but denied knowledge of his sexual abuse – where the child suffered substantial injuries and medical evidence established that the injuries would have been visible to the applicant prior to the child’s admission to hospital – where the applicant contended the judge erred in concluding that knowledge of the injuries meant that the applicant knew of the sexual abuse – whether the sentencing discretion miscarried

Evidence Act 1977 (Qld), s 132C

R v CBL; R v BCT [2014] 2 Qd R 331, [2014] QCA 93, cited

COUNSEL:

S M Ryan QC for the applicant
C N Marco for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

  1. MARGARET McMURDO P:  The applicant pleaded guilty on 15 October 2015 to cruelty to a child on dates unknown between 31 July 2009 and 9 November 2009 by failing to remove her from access by CBL, the applicant’s then partner, and by failing to provide her with adequate medical treatment.  The child, who was two and three years old at the time of the offending, was the applicant’s daughter.  The Crown alleged at the time of the offence she knew her daughter was being physically and sexually abused by CBL.  In her plea of guilty, she admitted to knowing that CBL was physically abusing the child but denied knowing of his sexual abuse.  The prosecution rejected the contention that she did not know CBL was sexually abusing the child and the sentence proceeding was contested on this basis.  The applicant gave evidence but the sentencing judge did not accept her account and sentenced her to four years imprisonment suspended forthwith with an operational period of four years.  Pre-sentence custody of 522 days was deemed to be time already served under the sentence.

  2. The applicant has applied for leave to appeal against her sentence.  She contended the sentencing discretion miscarried because the learned sentencing judge erred in her approach to the fact finding exercise, and in finding the applicant knew her daughter was being sexually abused.

    Background

  3. On 8 March 2013 the applicant and CBL were each convicted after a trial in relation to these events of offences including…

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Details
AGLC
R v BCT [2016] QCA 180
Case
[2016] QCA 180
Decision Date

CaseChat Overview and Summary

The applicant, BCT, has applied for leave to appeal against her sentence for the offence of cruelty to a child. BCT pleaded guilty to the offence, which arose from her failure to protect her daughter from substantial injuries inflicted by her partner, CBL, including both physical and sexual abuse. The applicant's counsel submitted that the primary judge erred in her approach to fact-finding and in concluding that BCT knew her daughter was being sexually abused. The applicant argued that the judge should have made specific findings about when and over what period she knew about the sexual abuse, and that the sentencing discretion had miscarried.

The court was required to determine whether the primary judge erred in her approach to fact-finding and in concluding that BCT knew her daughter was being sexually abused by CBL. The court needed to consider whether the judge's conclusion was reasonably open on the evidence, and whether the sentence imposed was appropriate. The court also needed to assess whether the applicant's failure to protect her daughter was due to her subservient relationship with CBL and his dominance over her.

The court found that there was ample evidence to support the judge's finding that BCT knew of the injuries to her daughter's genital and anal areas, even before the complainant was taken to hospital. The court concluded that the judge's finding that BCT knew her daughter was being sexually abused was reasonably open on the evidence, and that the judge's approach to fact-finding was sound. The court found that the primary judge accepted that CBL was the principal and the perpetrator of the heinous assaults on the vulnerable child, and gave full weight to the applicant's subservient relationship to him and his dominance over her. The court concluded that the applicant's modest sentence reflected her failure to provide her own daughter with adequate medical treatment and care, knowing that CBL was both physically and sexually abusing her. The court found that the applicant had failed to demonstrate any error on the part of the primary judge in fact finding at sentence.

Application for leave to appeal refused.

Orders

Orders of the court

Application for leave to appeal refused.

Background

Background to the litigation

The applicant has applied for leave to appeal against her sentence. She contended the sentencing discretion miscarried because the learned sentencing judge erred in her approach to the fact finding exercise, and in finding the applicant knew her daughter was being sexually abused.Background On 8 March 2013 the applicant and CBL were each convicted after a trial in relation to these events of offences including multiple counts of rape, grievous bodily harm and torture. CBL was sentenced to an effective sentence of 16 years imprisonment and the applicant to an effective sentence of 10 years imprisonment. This Court dismissed CBL’s appeal against conviction and application for leave to appeal against sentence but allowed the applicant’s appeal against conviction and ordered a retrial: R v CBL; R v BCT.[1] The applicant’s counsel on her re-trial made submissions to the Director of Public Prosecutions which ultimately resulted in the resolution of the matters by the applicant’s plea of guilty to cruelty on 15 October 2015, with the other charges being discontinued.[1][2014] 2 Qd R 331.The contested sentence hearing The contested sentence hearing proceeded over two days. The prosecution’s position was that, based on the medical evidence, at the very least the applicant must have seen the extensive injuries to the complainant’s genital and anal region, as well as the obvious injuries to her torso, head and face. She must have known, the prosecution contended, that CBL caused the complainant substantial injuries during at least one physical and one sexual assault. The prosecution submitted that she then failed to remove the child from CBL and protect her from further physical or sexual assault by failing to obtain medical treatment. Whilst accepting that she may not have been present at the time the sexual violence occurred and may not have known its full extent or nature, the prosecution argued that she must have known that the complainant suffered significant injuries to her genital area through a sexual assault, yet failed to get her treatment. The prosecution alleged the applicant was obstructive when she eventually took the complainant to hospital, lying to staff and investigators and inhibiting their ability to properly treat the child. The prosecution primarily relied on a schedule of facts;[2] a set of photographs of the child taken when she was under general anaesthetic on the day she went to hospital (8 November 2009),[3] a set of photographs taken later (12 November 2009);[4] an extract from the transcript of evidence from paediatrician, Dr Deanna True, given at the 2013 trial;[5] an extract from the transcript of evidence from Professor Roy Kimble, the Director of Burns and Trauma, Mater Children’s Hospital given at the 2013 trial;[6] and the transcript of the evidence of Professor Johan Du Flou, a forensic pathologist, called by CBL in the 2013 trial.[7] The prosecutor also tendered transcripts of interviews between the applicant and police officers on 8 November 2009;[8] 9 November 2009;[9] 12 April 2010;[10] 24 May 2010[11] and a statement taken from the applicant by police 25 May 2010.[12] The prosecutor contended those interviews gave untruthful versions of events and contained many inconsistencies so that the judge would not accept her as a witness of credit.[13][2]Exhibit 2.[3]Exhibit 11.[4]Exhibit 12.[5]Exhibit 13.[6]Exhibit 14.[7]Exhibit 17.[8]Exhibit 18 and 19.[9]Exhibit 20.[10]Exhibit 21.[11]Exhibit 22.[12]Exhibit 23.[13]The prosecution also tendered the transcripts of evidence of Dr Mark Phillips, a specialist paediatric radiologist, and Dr Christopher Posselt, visiting Medical Officer at the Mater Hospital, but this material is not directly relevant to this application.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Even if the applicant saw her daughter’s anal and genital injuries before the Saturday night when the complainant was hospitalised, in light of the applicant’s unsophisticated nature and her subservient relationship to CBL at that time, counsel contended that the judge could not have found, to the relevant standard, that the applicant knew her daughter was being sexually abused by CBL. This finding, counsel submitted, was not reasonably open on the evidence.Conclusion As counsel for the applicant sensibly conceded, there was ample evidence to support the judge’s finding that the applicant did have knowledge of the injuries to her daughter’s genital and anal areas, even before the Friday morning. This conclusion was consistent with photos of the complainant tendered at sentence, even taking into account that they were taken on 8 and 12 November. There was every reason for the primary judge not to accept the complainant’s evidence at sentence. The many inconsistencies between her many accounts demonstrated that she was, at best, self-serving and completely unreliable. The judge’s conclusion that she must have known of the injuries, at least by the Friday morning was also consistent with the expert evidence from Dr True and Dr Kimble, none of which was relevantly disputed by Dr Du Flou. The applicant contends, however, that the primary judge erred in concluding that knowledge of the injuries inflicted to her daughter’s genital and anal areas meant that she also knew her daughter was being sexually abused. The applicant’s contention that the judge should have determined when and over what period the applicant knew her daughter was being sexually abused is unrealistic in circumstances where the judge was not asked to make those specific findings. But in any case, it may be inferred from the judge’s reasons and the modest sentence imposed for such concerning offending, that the judge accepted the prosecution’s contentions that the applicant may not have been present when the sexual violence occurred or known its full extent or nature but that she found out about it at some point before the complainant was taken to hospital; the applicant was then both aware of the injuries to the complainant’s ano-genital area and that CBL had caused them by sexually abusing her. The judge’s leniency in sentencing the applicant indicates that her Honour accepted that CBL was the principal and the perpetrator of the heinous assaults on the vulnerable child and gave full weight to the applicant’s subservient relationship to him and his dominance over her. The applicant’s modest sentence reflected that her failure to provide her own daughter with adequate medical treatment and care, knowing that CBL was both physically and sexually abusing her, occurred over a relatively short time, and when CBL was probably also physically and mentally abusing the applicant. The applicant has failed to demonstrate any error on the part of the primary judge in fact finding at sentence. The application for leave to appeal should be refused.

Ratio Decidendi

Legal Principle Established

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