R v H; ex parte - [2001] QCA 174

[2001] QCA 174

COURT OF APPEAL

de JERSEY CJ
MACKENZIE J
CHESTERMAN J

CA No 290 of 2000

THE QUEEN

H Respondent

and

ATTORNEY-GENERAL OF QUEENSLAND Appellant

BRISBANE

..DATE 08/05/2001

JUDGMENT

THE CHIEF JUSTICE: The Honourable the Attorney-General appeals against a three months recognisance without the recording of a conviction, the penalty imposed on a presently 42 year old mother of the complainant child.

At the time of the commission of the offence, which was assault occasioning bodily harm while the respondent was armed with an offensive weapon, the child was nine years old, a son, living with the respondent.

The incident involved the respondent's hitting her son with a tree branch. On the day in question, with the boy still in his pyjamas, the respondent swore at him and hit him with a wooden spoon. She then went outside the house, collected the tree branch and proceeded to hit him with it a number of times on the arms and the legs. The branch was some two to three metres long.

She then sent him off to school, only to pursue him and challenge him as to why he was not riding his bicycle. She had, in fact, confiscated that some time earlier. She then took him home and assaulted him further with the stick. He received bruises to his body.

Three days later, when the respondent delivered the boy to his father, from whom she was in a state of separation, she spoke of the incident, acknowledging that she had "gone crazy" but justifying it on the basis of the boy's previous bad behaviour. It may fairly be said that he had been a somewhat difficult child in terms of management and had exhibited some violence previously towards his mother and on Sunday, 12 December, which was a few days before this incident, he had been involved in destructive behaviour in relation to some motor vehicles.

The father took the boy to a doctor and that led to contact with the police. At that time, which was three days after the offence, substantial bruising remained visible up and down the child's legs and arms.

In the course of the sentencing the Crown Prosecutor proffered a victim impact statement prepared by the father on behalf of the complainant. The learned Chief Judge apparently read that statement and then refused to accept it, handing it back to the Prosecutor. While the statement appears to have been written from a somewhat partisan point of view in the context of the breakdown of the relationship between the parents, the statement should nevertheless, in my view, have been both received and retained by the learned Judge and marked as an exhibit, as has indeed occurred in this Court. It is important that Prosecutors be encouraged indeed to tender victim impact statements.

The content of the statement appears to have influenced the learned Judge's subsequent treatment of the sentencing process. In the course of that process, having read the statement she described it…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v H; ex parte

Details

AGLC: R v H; ex parte [2001] QCA 174
Case: [2001] QCA 174
Decision Date: 08/05/2001

CaseChat Overview and Summary

In this appeal, the Attorney-General sought to challenge a sentence imposed by a lower court on H, who had assaulted her nine-year-old son with a tree branch. The lower court imposed a three-month recognisance without recording a conviction. The Attorney-General argued that a community-based order, including a requirement for the respondent to undergo counselling, should have been imposed instead. The primary legal issue was whether the penalty imposed was manifestly inadequate.

The Court of Appeal found that while some of the remarks made by the sentencing judge were inappropriate, they did not distract from the overall approach taken. The Court noted that the appeal by the Attorney-General should be assessed based on whether there was a demonstrable error in principle, such as manifest inadequacy in the penalty imposed. The Court concluded that the good behaviour bond imposed by the lower court was not so far below an appropriate penalty as to warrant interference on appeal. The Court further noted that there was no evidentiary basis for a conclusion that the respondent needed ongoing counselling or that there was a risk of recurrence of this sort of misbehaviour.

The Court of Appeal held that the appeal should be dismissed. The judges emphasised the need for an appropriately detached and objective approach by judges during the sentencing process. They also noted that the facts of the case, as outlined by the respondent, showed that the child had exhibited substantial psychological and behavioural problems, which meant that he was a difficult child to manage. The Court concluded that the Attorney-General's appeal was likely more concerned with the message being sent to the community by this sort of response in the District Court than particular concern for the position, in terms of penalty, of the respondent. The Court held that the former concern was adequately met by a statement that this sort of ill-disciplined response by a parent to a child is intolerable.

Orders