R v Henry and Attorney-General of Queensland

[1996] QCA 414

IN THE COURT OF APPEAL	[1996] QCA 414
SUPREME COURT OF QUEENSLAND
Brisbane	C.A. No. 349 of 1996
[R v. Henry]

T H E Q U E E N

v.

COLIN JAMES HENRY

Respondent

ATTORNEY-GENERAL OF QUEENSLAND

Appellant

Fitzgerald P
Derrington J

Ambrose J

Judgment delivered 29 October 1996

Judgment of the Court

THE APPEAL IS DISMISSED

CATCHWORDS: Criminal Law - Sentence - Appeal by Attorney-General - Respondent convicted in respect of one count of wounding and one count of assault occasioning bodily harm of an eight-month old baby - Whether sentence manifestly inadequate.

Counsel:	Mr P. Ridgeway for the Appellant
Mr S. Hamlyn-Harris for the Respondent
Solicitors:	Qld Director of Public Prosecutions for the Appellant
Legal Aid Office (Qld) for the Respondent
Hearing Date: 22 October 1996 Judgment delivered 29 October 1996	JUDGMENT OF THE COURT

This is an appeal by the Attorney-General against a sentence of imprisonment for three and a half years imposed on a thirty-nine year old man on a count of wounding an eight month old baby boy who had been left in his care as a baby-sitter by the child's mother. He was also sentenced to eighteen months imprisonment in respect of an assault occasioning bodily harm, but this is not the subject of the appeal.

The offences were appalling, particularly having regard to the age of the victim, but by good fortune the consequences are not grave. The circumstances are not complex but it is necessary to describe the events relating to both charges for a full picture of the respondent's culpability.

When the mother of the child left him with the respondent, the latter had already been drinking that day and was intoxicated; and he continued to drink during the relevant period. At some stage while he was nursing the baby on his lap, because the baby persisted in crying, the respondent delivered a hard punch with his left hand to the child's face causing him to fall to the floor. This all resulted in some bruising and superficial injury. That gave rise to the first charge. The child was then taken by another person and placed on a mattress on the floor, but the respondent subjected him to some prodding and tugging of his hair. He desisted when another person present struck the respondent himself in the face. The child then went to sleep but soon awoke and recommenced crying. The respondent then smashed a beer bottle on the floor and used a piece of the glass to slash the baby's face. It had two sharp edges which caused lacerations to his left eyelid and both cheeks. The laceration of the left cheek was deep but no nerves were involved and the only possible permanent harm is the chance of some scarring.

The respondent's attack on a child was out of character and although he had a fairly long history of offences, with some short periods in gaol, he had no history of personal violence since a minor assault in 1981. When spoken to by the police after the event he expressed remorse, saying that he knew that he had done the wrong thing and offering the child's crying as an excuse. His remorse was confirmed by his timely plea of guilty.

His state of intoxication does not afford him any ground for mitigation of his sentence: Rosenberger [1995] 1 Qd.R. 677. However it is relevant as justifying the limitation of the charges brought against him to those which had no element of intention. This limitation must be accorded proper respect. The maximum penalty on the count which is the subject of the appeal is seven years' imprisonment.

Because of the absence of more comparable cases the learned sentencing judge considered sentences for grievous bodily harm caused to babies and young children and he made appropriate adjustments. No better comparable material was available to this court, and it is impossible to detect any error in the careful consideration applied by His Honour.

The argument for the Attorney developed into the proposition that the sentence for the offence was so manifestly inadequate as to imply a departure from principle, possibly in respect of the need for deterrence. It is true that in the absence of the mitigating factors a five year sentence was appropriate. However, because happily the result of the attack has left limited permanent consequences, because intention is not part of the offence charged, because the respondent has no significant history of personal violence, and because of his remorse, co- operation and early plea, the allowance for which is reflected in the head sentence rather than in any recommendation for early parole, it is not possible to say that the sentence is so manifestly inadequate as to demonstrate any such departure from principle. It is at the lower end of the range for such an abhorrent crime, but the factors adverted to explain that sufficiently.

The appeal should be dismissed.