R v HBA

Case [2010] QCA 306

SUPREME COURT OF QUEENSLAND

CITATION:

R v HBA [2010] QCA 306

PARTIES:

R
v
HBA
(applicant)

FILE NO/S:

CA No 181 of 2010
DC No 1395 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

5 November 2010

DELIVERED AT:

Brisbane

HEARING DATE:

21 October 2010

JUDGES:

McMurdo P, Muir and White JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant inserted her fingers into her infant son’s anus on multiple occasions over a 14 month period – where applicant pleaded guilty to one count of grievous bodily harm and six counts of assault occasioning bodily harm – where child would have suffered permanent damage without medical intervention – where child suffers daily faecal soiling and a psychological pre-occupation with his anus – where learned sentencing Judge found applicant deliberately inflicted severe pain and injury on her son over a lengthy period of time – where applicant denied conduct, covered it up and continued offending – where reports from psychiatrists regarding applicant’s intellectual and psychiatric deficits differed – where learned sentencing Judge found that although applicant’s judgment was impaired, she knowingly inflicted pain on her child – where applicant sentenced to five years imprisonment with parole eligibility after 16 months – whether sentence manifestly excessive

CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – NON-PAROLE PERIOD OR MINIMUM TERM – QUEENSLAND – PARTICULAR CASES – where learned sentencing Judge set parole eligibility date at four months less than one-third of the sentence to give recognition to mitigating factors – where applicant submits reduction failed adequately to recognise applicant’s impaired mental functioning and reduced moral culpability – where learned sentencing Judge found applicant had capacity to understand what she was doing and control her actions – whether parole eligibility date gave sufficient recognition to mitigating factors

Channonv The Queen (1978) 33 FLR 433; [1978] FCA 16, considered
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited
R v Brand [2006] QCA 525, cited
R v Bryan; ex-parte A-G (Qld) (2003) 137 A Crim R 489; [2003] QCA 18, applied
R v FJ; ex parte A-G (Qld)[2005] QCA 15, considered
R v Goodger[2009] QCA 377, cited
R v J [1998] QCA 143, followed
R v M, unreported, Skoien DCJ, District Court of Queensland, No 692 of 2003, 8 July 2005, distinguished
R v PAA [2006] QCA 56, cited
R v SAV; ex parte A-G (Qld)[2006] QCA 328, considered
R v Tez [2007] QCA 227, cited
R v Tsiaras [1996] 1 VR 398, cited
R v Ungvari [2010] QCA 134, cited
R v Verdins (2007) 16 VR 269; [2007] VSCA 102, cited

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Details
AGLC
R v HBA [2010] QCA 306
Case
[2010] QCA 306
Decision Date

CaseChat Overview and Summary

In this case, the applicant, referred to as HBA, appealed against her sentence for grievous bodily harm and assault occasioning bodily harm inflicted on her infant son. The trial took place in the Queensland Court of Appeal. HBA had inserted her fingers into her son’s anus multiple times over a 14-month period, causing severe pain and injury that required medical intervention to prevent permanent damage. The child continues to suffer daily faecal soiling and psychological issues related to his anus. HBA pleaded guilty and was sentenced to five years imprisonment with parole eligibility after 16 months.

The court had to determine whether the sentence was manifestly excessive or inadequate. The sentencing judge had considered HBA’s intellectual and psychiatric deficits but found that she knowingly inflicted pain on her child despite her impaired judgment. The judge set the parole eligibility date four months less than one-third of the sentence, acknowledging mitigating factors. HBA argued that this did not sufficiently recognise her impaired mental functioning and reduced moral culpability. The court needed to assess if the parole eligibility date appropriately reflected the mitigating factors.

After reviewing the evidence and the sentencing judge's reasoning, the Queensland Court of Appeal found that the sentence was appropriate and the parole eligibility date sufficiently recognised the mitigating factors. The court held that the learned sentencing judge had properly balanced the severity of the crimes with the mitigating factors, including HBA’s impaired mental functioning. The application for a reduced sentence was refused.

Orders

Orders of the court

The application is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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