R v Bloomfield

[1999] NSWCCA 196

CITATION:	R v Bloomfield [1999] NSWCCA 196
FILE NUMBER(S):	CCA 60272/98
HEARING DATE(S):	21 July 1999
JUDGMENT DATE:	21 July 1999
PARTIES :	Regina Vili Bloomfield (Applicant)
JUDGMENT OF:	Studdert J at 1; Simpson J at 23

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	96/21/3138
LOWER COURT JUDICIAL OFFICER:	Tupman DCJ

COUNSEL:	P. Berman (Crown) In person
SOLICITORS:	S.E. O'Connor (Crown)
CATCHWORDS:
ACTS CITED:	Crimes Act
CASES CITED:	R v Burnett (1996) 85 A Crim R 76 Hallocoglou (1992) 29 NSWLR 57 Barbaro (unreported, NSWCCA, 24 February 1997)
DECISION:	Leave to appeal refused

IN THE COURT OF
CRIMINAL APPEAL

60272/98

STUDDERT J
SIMPSON J

Wednesday 21 July 1999

REGINA v VILI BLOOMFIELD

JUDGMENT

1   STUDDERT J: The applicant Vili Bloomfield has appeared in person before this Court seeking leave to appeal against a sentence imposed upon him by her Honour Judge Tupman in the District Court on 12 May 1998. The applicant had earlier pleaded guilty to an offence charged under s 59 of the Crimes Act of assault occasioning actual bodily harm. Section 59 provides for a maximum penalty of five years penal servitude for a conviction for such an offence.

2   Her Honour, following conviction, sentenced the applicant to a term of penal servitude of eighteen months, directing that it be served by way of periodic detention.

3   The applicant now seeks leave to appeal and has stated the following grounds to support his application:

“(i) severity of sentence;

(ii) the assault was not reported until several months after it allegedly occurred;

(iii) no medical reports to justify allegations;

(iv) the eighteen month periodic detention was unjust due to lack of evidence”

4 Although the applicant pleaded guilty to the offence charged, there was a dispute as to exactly what occurred. The sentencing proceedings followed upon a trial of the accused on an indictment containing nine counts. The jury did not agree on the first eight counts of the indictment. However the victim had given evidence concerning the subject matter of the offence charged under s 59 and so too had her mother and her sister.

5   Her Honour was the trial judge and the material adduced during the trial concerning the assault occasioning actual bodily harm was treated as being before her Honour for purposes of sentencing.

6   The version of events relied upon by the Crown and established through the victim, her mother and the victim’s sister, was disputed by the applicant.

7   In her remarks on sentence her Honour carefully reviewed the Crown case and the applicant’s version of events. Her Honour expressed herself as accepting beyond reasonable doubt the evidence of the three Crown witnesses I have identified. Her Honour went on to record these findings on her remarks on sentence:

“I accept the requisite standard that the facts are that when he came in, he had an argument with Vicki Bloomfield about pills that were missing from her mother’s bedroom, that he was not prepared to accept her denial that she had been involved, that he continued to ask her in an accusatory fashion about whether she took them and that he then punched her in the face five or six times causing her lip to be cut. I am satisfied to the requisite standard that he then asked her again and that when she admitted that she had taken the pills he pushed her, causing her to fall and that he kicked her in the stomach and side. I am satisfied that she went to the bathroom to wash her face and that he followed her there, asked her again and that he then punched her again, causing her to fall heavily onto the door where the handle was missing and the protruding screw lacerated the back of her head causing it to bleed.”

8   These proceedings before this Court are not by way of re-hearing. Her Honour’s findings to which I have just referred are findings of fact not open to review on the present application. They were plainly findings of fact available to her Honour on the evidence she was required to consider.

9   Her Honour found aggravating features remarked upon at p 10 of the remarks on sentence. These aggravating features were that the offence was committed whilst the applicant was under the influence of alcohol; further that the offence involved what her Honour regarded as a serious breach of trust by a parent towards his child, owing to her an obligation to care for her and not to assault her and treat her in the way he had done.

10   Her Honour noted these subjective features: that the applicant was thirty-four years of age, having been born in Tonga. He came to Australia at about the age of twenty and over the years here he has worked in various forms of employment. At the time of being sentenced he had available a position as a general handyman in residential accommodation.

11   The applicant has a criminal record which her Honour considered. The offences recorded against him were mainly driving offences, although they did include some PCA offences. Her Honour also noted offences apparently committed in 1986 that involved malicious injury, resisting arrest and assault police.

12   By the time the applicant came to be sentenced he was no longer living with his daughter and in the applicant’s favour her Honour did not regard the daughter as being under threat of any further violence.

13   Nevertheless her Honour was correct to remark that there was a need for a very clear message to be sent out not only to the applicant but to other members of the community that the courts will treat this sort of behaviour by parents toward their children very seriously.

14   The second and third grounds expressed by the applicant concerned the failure to report the assault for several months and the absence of medical reports. The victim did not receive medical attention after the assault but the evidence was that her mother stopped the bleeding and used disinfectant and a gauze dressing on the child’s head for a week. Eventually the child was examined by Dr Spencer in January 1996, some four months after the assault. The doctor saw a scar which was at least three months old and which on the evidence was consistent with the victim having been injured in the manner described.

15   The delay in reporting and the delay in medical assessment were matters her Honour took into account when considering the competing versions as to what took place on the occasion of the commission of the offence by the applicant but neither of these features raised by the applicant impacts upon the findings which were made by her Honour as to the precise nature and extent of the assault or the bodily harm which her Honour found the applicant to have committed and caused.

16   The remaining matters raised by the applicant concern the sentence itself. The applicant complains that it was too harsh. In my opinion that complaint is without substance. Her Honour found that the applicant had inflicted significant harm upon his daughter at a time when he was drunk. The nature of the offence was one which called for stern punishment.

17   The applicant has in the course of his oral submissions before this Court, complained that he was misunderstood on his account of the circumstances in which his daughter had injured her head. He explained to this Court that what he intended the sentencing judge to understand was that his daughter had hurt her head when she fell from a horse and hit her head upon a stone.

18   Be that as it may, the position was that the District Court judge preferred the evidence relied upon by the Crown as to the circumstances of the assault to that advanced by the applicant and was satisfied to the requisite degree to accept the evidence relied upon by the Crown.

19   As I have already observed, those findings of fact by her Honour are not open to be challenged in this Court.

20   The remaining matters raised by the applicant concerned the sentence itself. The applicant complained that it was too harsh. In my view, that complaint is without substance. Her Honour found that the applicant had inflicted significant harm upon his daughter at a time when he was drunk. The nature of the offence as her Honour found it to be, was one which called for stern punishment.

21   The applicant should nevertheless appreciate that by imposing a sentence to be served by way of periodic detention the sentencing judge was imposing a sentence which the courts have recognised has a significant element of leniency built into it: see Burnett (1996) 85 A Crim R 76 and Hallocoglou (1992) 29 NSWLR 57 at 63. See also Barbaro (unreported, NSWCCA, 24 February 1997).

22   Her Honour expressed detailed and careful reasons for the sentence which was imposed in this case and in my opinion her Honour’s reasons disclose no error in approach. The sentence was altogether appropriate and I would refuse leave to appeal in this case.

23   SIMPSON J: I agree.

24   STUDDERT J: The order is that which I have proposed.

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