R v FAS

Case [2019] QCA 113

SUPREME COURT OF QUEENSLAND

CITATION:

R v FAS [2019] QCA 113

PARTIES:

R
v
FAS
(applicant)

FILE NO/S:

CA No 70 of 2019
SC No 63 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Rockhampton – Date of Sentence: 26 March 2019 (Crow J)

DELIVERED ON:

Date of Orders: 28 May 2019
Date of Publication of Reasons: 11 June 2019

DELIVERED AT:

Brisbane

HEARING DATE:

27 May 2019

JUDGES:

Fraser and Morrison JJA and Ryan J

ORDERS:

Orders delivered 28 May 2019:

1.   Grant the application for leave to appeal against sentence.

2.   Allow the appeal.

3.   Set aside the sentence imposed at first instance.

4.   In lieu thereof, impose a sentence of 18 months’ imprisonment and fix today as the date upon which the applicant is to be released on parole.

5.   The applicant is to report to a probation and parole office by 5 pm on Wednesday 29 May 2019 and obtain a copy of the parole order.

6.   Counsel or a solicitor for the applicant is to inform the applicant that if she fails to report as required, she will be unlawfully at large under the Corrective Services Act 2006.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of cruelty to a child under 16 years – where the applicant was sentenced to 18 months imprisonment, with parole release fixed after serving six months imprisonment – where the applicant contends that the sentence did not sufficiently take into account her particular mitigating circumstances – whether the applicant’s sentence was manifestly excessive

Penalties and Sentences Act 1992 (Qld), Pt 9A

R v HJ, unreported, Rafter SC DCJ, DC No 584 of 2015; DC No 454 of 2016, 17 June 2016, considered
R v PU[2004] QCA 392, considered
R v R & S; Ex parte Attorney-General [2000] 2 Qd R 413; [1999] QCA 181, considered
R v WAO[2012] QCA 56, considered
R v WAV[2013] QCA 345, considered

COUNSEL:

A Hoare for the applicant
C N Marco for the respondent

SOLICITORS:

DJP Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

  1. FRASER JA:  The reasons for judgment of Ryan J reflect my own reasons for joining in the orders made on 28 May 2019.

  2. MORRISON JA:  The reasons of Ryan J reflect those of my own and explain why I joined in the orders made on 28 May 2019.

  3. RYAN J:  On 26 March 2019, the applicant pleaded guilty to an offence of “cruelty to a child under 16 years” on the basis of failing to provide the child with adequate medical treatment, available to her from her own resources, when she knew or ought reasonably to have known that the failure would be likely to harm the child.

  4. She was sentenced to imprisonment for 18 months,…

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Details
AGLC
R v FAS [2019] QCA 113
Case
[2019] QCA 113
Decision Date

CaseChat Overview and Summary

In this case, the applicant was convicted of one count of cruelty to a child under 16 years and was sentenced to 18 months imprisonment, with parole release fixed after serving six months imprisonment. The applicant appealed against her sentence, arguing that it did not sufficiently take into account her particular mitigating circumstances and that it was manifestly excessive. The appeal was heard by the court, which was required to determine whether the sentence imposed was appropriate in all the circumstances.

The court considered the applicant's age, her intellectual disability, and the impact of domestic violence on her mental health. The court also noted that the applicant had turned community nurses away on two occasions, despite the baby's obvious injuries. The court acknowledged that the applicant had witnessed HN perpetrate extreme violence upon the baby, including shaking him, swinging him into a wall, and shoving a blanket into his chest. However, the court found that the applicant's failure to seek medical treatment for the baby's injuries was the basis of the cruelty charge. The court also noted that the applicant's criminal history was completely unrelated to the present offending, and that she had taken steps to rehabilitate herself.

The court held that the sentence imposed was manifestly excessive and did not sufficiently take into account the applicant's particular mitigating circumstances. The court set aside the sentence imposed at first instance and imposed a sentence of 18 months’ imprisonment, with the applicant to be released on parole today. The applicant is to report to a probation and parole office by 5 pm on Wednesday 29 May 2019 and obtain a copy of the parole order. Counsel or a solicitor for the applicant is to inform the applicant that if she fails to report as required, she will be unlawfully at large under the Corrective Services Act 2006.

In summary, the court found that the sentence imposed was manifestly excessive and did not take into account the applicant's particular mitigating circumstances. The court set aside the sentence imposed at first instance and imposed a new sentence of 18 months’ imprisonment, with the applicant to be released on parole today. The applicant is to report to a probation and parole office by 5 pm on Wednesday 29 May 2019 and obtain a copy of the parole order.

Orders

Orders of the court

Orders delivered 28 May 2019:

1. Grant the application for leave to appeal against sentence.

2. Allow the appeal.

3. Set aside the sentence imposed at first instance.

4. In lieu thereof, impose a sentence of 18 months’ imprisonment and fix today as the date upon which the applicant is to be released on parole.

5. The applicant is to report to a probation and parole office by 5 pm on Wednesday 29 May 2019 and obtain a copy of the parole order.

6. Counsel or a solicitor for the applicant is to inform the applicant that if she fails to report as required, she will be unlawfully at large under the Corrective Services Act 2006.

Background

Background to the litigation

The applicant was described by one of the psychiatrists who saw her as “childlike” and that is reflected in the content and language of her police statement and her statements to the psychiatrists during their examination of her.Facts The deceased baby was born at 36 weeks. For the first few weeks of his life, he lived with the applicant and HN with one of HN’s aunties, T. T and another resident helped out with his care. The house was quiet with few visitors and the applicant was not concerned about the baby. In the applicant’s own words, she and Mr HN left the house because T argued with HN over them (the applicant and HN) leaving the baby at home and going to the pub for a couple of drinks. They moved to a house which was occupied by KN and others. The baby was inoculated when he was six weeks old. He was then apparently unharmed. His serious injuries, including his fatal brain injury, were inflicted between 22 April 2013 (the date of his inoculation) and 23 May 2013, which was the day he experienced breathing difficulties after the last shaking episode and an ambulance was called. In material before the primary judge, the applicant explained that HN had “angry moods” brought on by several things including the baby waking in the middle of the night. She described one night when she saw HN shake the baby (although the baby’s head was not unsupported during this episode). She said she was angry about it but was afraid to say anything because she did not want HN to bash her and leave her, so she kept her feelings to herself. She heard him apologise to the baby later that night and that made her feel better. She described having her son inoculated and seeing a lump on his left thigh a couple of days later, which she put down to the consequences of a needle at that site. The baby was in fact suffering from a fracture of his left femur and the leg deformity was obvious – facts which the applicant, at sentence, accepted. She told the psychiatrists about other acts of HN’s violence towards the baby which she witnessed. One occurred after the baby had been bathed. She was about to dress him, but HN became angry because he wanted to dress the baby. The applicant was nursing the baby. He grabbed the baby from her and said he knew “it” was not his.[3] He started “swinging” the baby. The applicant told Dr Flanagan that the baby’s arm hit the wall and he started crying. She told Dr Heffernan that HN threw the baby against the wall with force because he was angry that he was not able to dress him after his bath.[3]HN was not the baby’s biological father. Another episode of violence occurred after the baby had woken during the night. HN did not want the applicant to feed the baby and he shoved a blanket on or around the baby’s chest. On that occasion, the applicant said she told HN not to do that to the baby. She took the baby from him, fed him a bottle and nursed him to sleep. The applicant told Dr Heffernan that she saw the baby’s swollen shoulder the next day. It seems that the baby’s left clavicle was fractured on this occasion.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

As noted above, her last criminal offence was committed at the end of October 2015.Comparable decisions and submissions made at first instance The prosecutor referred the primary judge to R v PU [2004] QCA 392 and R v WAV [2013] QCA 345. Defence counsel relied upon the cases referred to by the prosecutor. Both the prosecutor and defence counsel contended for a sentence of three years’ probation or a short period of imprisonment without any requirement that the applicant serve any time in actual custody. [Redacted] [Redacted] [Redacted] His Honour conducted his own research and found the decision of R v R & S; Ex parte Attorney-General [2002] Qd R 413 which conveyed the need for community denunciation of offending of this kind. His Honour noted that in WAV the child was eventually taken to see a doctor. That had not occurred in the present case. His Honour also noted that the present case was serious and upsetting because the applicant had seen HN perpetrating serious violence on the baby.[4][4][Redacted]. In response to his Honour’s concerns, the applicant’s counsel referred to the applicant’s age (she was 20 at the time of the offence; HN was nine years older); that HN had a criminal history which included offences of violence; and that she was the victim of his severe domestic violence. The applicant’s counsel compared the likely consequences of the applicant’s failure (that is, deformity of the leg) to the more serious consequences of the delay in WAV, namely the needless increase of the child’s pain and the exacerbation of a serious brain injury, leading to a destroyed opportunity for a normal life. [Redacted]Sentence at first instance In passing sentence, his Honour recited the agreed facts. His Honour also noted the following:·that many of the injuries to the baby’s body were caused by the episode of fatal shaking [which were not the injuries relevant to the applicant’s offending];·other injuries were caused by direct blows;·the applicant had a mild intellectual disability which placed her at a disadvantage in her life – but that did not excuse her from caring for her child;·she had seen HN harm the baby, including by swinging him into a wall; shaking the baby; and shoving the blanket into the baby’s chest;·she saw the injury to the baby’s swollen shoulder;·she turned community nurses away on two occasions;·on one of those occasions, the nurses were turned away because HN feared that the nurses would see the baby’s shoulder injury and “cause them problems”;·HN perpetrated extreme violence upon the applicant – constant, sometimes daily, beatings and sexual violence;·the baby was gravely unwell – the fracture to the collar bone was infected;·the applicant was not to be sentenced on the basis that she had failed to seek medical treatment immediately after the fatal shaking, but on the basis that she failed to seek medical treatment for the other obvious injuries;·the applicant’s criminal history was completely unrelated to the present offending – but it was six pages long;·the applicant’s background was prejudicial;·her children were not in her care but in the care of the Department of Child Safety;·although not then employed, the applicant was trying to obtain employment skills;·the applicant had taken courses to try and rehabilitate; and·she was in a stable relationship without domestic violence.

Ratio Decidendi

Legal Principle Established

The applicant was sentenced on the basis that it would have been impossible not to conclude that the baby was in “serious trouble” having seen the deformities to the baby’s femur and clavicle. Even if the applicant did not see all of the violence inflicted on the baby, the injuries to his clavicle and femur would have alerted her to the serious risk to his health. The baby was malnourished with swelling and bruising visible on many parts of his body. However, as the prosecutor explained, the basis of the cruelty charge lay in the applicant’s failing to provide medical treatment to the child (rather than his malnourishment) but his malnourishment was a sign of his ill health.Co-operation with the authorities Having been found not of unsound mind and fit to plead by the Mental Health Court, the applicant entered an early plea of guilty. [Redacted] [Redacted] [Redacted] [Redacted] [Redacted]Mental Health Dr Flanagan, consultant psychiatrist, described the applicant as “quite childlike” in manner, having seen her on 29 November 2017. He diagnosed mild intellectual disability, which was probably due to a combination of congenital and acquired factors, including head trauma and hydrocarbon inhalation. She was also suffering from an anxiety disorder of PTSD type, which was difficult to disentangle from her personality damage. At the time the offence was committed, Dr Flanagan was of the opinion that, in addition to her intellectual disability, the applicant was suffering from an acute stress disorder, as a result of HN’s physical, emotional and sexual abuse of her (see below). Dr Heffernan, consultant psychiatrist, examined the applicant on 28 June 2018. His impression of her was that she had cognitive deficits. She was softly spoken and her speech was slow or slurred, often the result of a neurological problem. The results of his testing were not consistent with cognitive impairment but the position would be clarified upon neuropsychological testing. The applicant had risk factors for cognitive impairment including severe substance abuse and a reported history of traumatic brain injuries secondary to domestic violence. She suffered grief related to the loss of her son. She also suffered from symptoms of PTSD related to HN’s abuse of her and the traumatic death of her son.Domestic violence The applicant and HN had been together for five or six years when the offence was committed. He was violent towards her. Her instructions to her barrister at sentence were that she was beaten daily to the point where she was unable to walk. The applicant told Dr Flanagan that she had experienced years of domestic violence, which included hits to her head, and had become forgetful. She told Dr Flanagan that HN bashed her “really badly” to the point where she could not walk properly. She said she had a bruised and swollen face and that he threatened to kill her. She said he would bash her “for nothing” including “for telling the truth”. She told the psychiatrists that HN and his cousin raped her when she was pregnant with her deceased son. After the rape, she locked herself in the bathroom. HN used a knife to open the door. He entered the bathroom and bashed her and punched her “in the gut” and face.