R v M

[2000] QCA 6

[2000] QCA 6

COURT OF APPEAL

de JERSEY CJ
McMURDO P
THOMAS JA

CA No 262 of 1999

THE QUEEN

v.

M  Applicant

BRISBANE

..DATE 02/02/2000

JUDGMENT

THE CHIEF JUSTICE:  The applicant was sentenced to 10 years' imprisonment for the offence of torture.  He pleaded guilty to the torture of an 11-month-old baby.  He seeks leave to appeal on the basis that the 10 year term is manifestly excessive. 

The applicant was the de facto husband of the victim's mother. He was not the father of the victim.  He caused shocking injuries to the infant child over a period of probably about two months which, but for hospital treatment which commenced on 12 October 1998, would have led to her death.

Over a period he kicked, struck or threw her, or all three, to the extent that she suffered a head injury producing shrinkage of the brain likely to cause long-term intellectual impairment, substantial abdominal injuries including tears to the liver and pancreas, fractures to the arms, legs and ribs and extensive bruising. 

The significance of the injuries may graphically be illustrated by reference to the medical opinion that they were such as might ordinarily have been expected to result from a high-speed motor vehicle collision.

The child was subjected to many operations and would otherwise have died.  As an indication of her tentative condition on admission to the hospital she remained in intensive care for about three weeks.

The 30-year-old applicant had a relevant although comparatively minor previous criminal history.  His counsel conceded before the learned sentencing Judge that eight years' imprisonment would be justified.  The applicant's current complaint about the 10 years he was given may be explained in part by its attracting an obligation to serve 80 per cent automatically by force of the legislation.

The major thrust of the applicant's position here is that these acts of cruelty were spontaneous reactions to the behaviour of the baby allied with his personality deficiency, depressive reaction and a conceded cannabis dependency syndrome.  Of course, the Court has turned its face against reducing sentences because of intoxication.  Yet the applicant says through the written submission that these events were not the result of his intoxicated state but anxiety states caused by his unsuccessful attempts to wean himself from the drugs.  That may be a distinction without a difference.

There has been some challenge to the Judge's conclusion from the medical evidence that the ill treatment lasted more than two months.  The child was admitted to hospital on 12 October.  A doctor said that rib injuries then noted were at least four weeks old.  There was lay evidence of bruises two months old.  The challenge is to the absence of medical evidence confirming injuries older than a month.  The doctor did say "at least" four weeks. 

Lay witnesses spoke of injuries two months old.  This is the sort of minor quibble which can be summarily dismissed as insignificant.

The learned Judge considered that these injuries were probably worse than those suffered in S and R, CA390 and 391 of 1998, and certainly at least of similar significance.  He was plainly right.  There was certainly a level of premeditation in S which was not present here but to my mind other features restore a balance especially that the torture to which this applicant has pleaded guilty persisted over about two months whereas in the case of S and R for only two weeks and the circumstance that this victim has the likelihood of probably more serious enduring effects especially the permanent brain damage.

The torture in S and R attracted 11 years imprisonment.  I believe this Judge quite justifiably settled on 10.  I see absolutely no reason to interfere with this sentence.  Justice White in R and S pointed to the primacy of community denunciation in the sentencing for such crime.  I agree and I believe that this 10-year sentence properly reflects it.  I would refuse the application.

THE PRESIDENT:  I agree that the application should be refused for the reasons given by the Chief Justice.  I would only add that whilst a sentence of nine years' imprisonment with a declaration that the applicant was convicted of a serious violent offence would in my view have also been within range, the sentence imposed certainly cannot be said to be manifestly excessive.

THOMAS JA:  I agree with the remarks of both the Chief Justice and the President.

THE CHIEF JUSTICE:  The application is refused.

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