R v MCX - [2018] QCA 249

[2018] QCA 249

COURT OF APPEAL

FRASER JA
GOTTERSON JA
MORRISON JA

CA No 167 of 2018
DC No 656 of 2018

THE QUEEN

Applicant

BRISBANE

FRIDAY, 28 SEPTEMBER 2018

JUDGMENT

MORRISON JA: On 28 June 2018 the applicant pleaded guilty to two charges of unlawful assault against children who were in his care. The first was an unlawful assault on a two year old girl, the daughter of a woman with whom the applicant was in a relationship. The second, seven months later, was an unlawful assault on a five year old boy, the son of a different woman with whom the applicant was having a relationship. Each of the offences was a domestic violence offence.

The applicant was sentenced to imprisonment for two years and three months on the count involving the two year old girl. In respect of the count involving the five year old boy he was sentenced to imprisonment for 12 months. The terms of imprisonment were cumulative and 300 days of pre-sentence custody was declared. The parole eligibility date was fixed at 1 October 2018.

The applicant seeks leave to appeal against the sentences on the grounds that they are manifestly excessive. The applicant seeks to contend that too much weight was placed on the following factors:

(a)his criminal history which, though relevant, was dated, with offences of violence occurring when he was only a teenager;
(b)the seriousness of the injury to the two year old girl and the fact that he was on bail were aggravating features; however, the sentences imposed cannot be justified having regard to comparable cases; and
(c)although some unquantified reduction was given as a result of imposing cumulative sentences, those sentences in themselves were either excessive or an insufficient reduction was allowed.

An agreed schedule of facts was tendered at the sentencing hearing. No additional matters were put forward as to the circumstances of the offending. It revealed that the assault against the two year old girl occurred at a time when the Department of Child Safety had implemented a safety plan under which the applicant was to have no contact with the child. It was put in place because the child kept turning up to day care with unexplained bruises and injuries. However, the plan was not complied with by either the complainant’s mother or the applicant.

On 17 January 2017 the applicant drove the mother to collect the child from child care. At that time the girl was in good health. Half an hour later the applicant parked the car and the mother left to tend to some business for a period of four minutes. While alone with the girl the applicant struck her on the left leg with sufficient force to cause a fracture. When the mother returned she observed the girl had been crying, had puffy eyes and redness to the face. The applicant lied about what had happened.

Half an hour later again the applicant parked the car at a shopping centre. The…

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 MCX

Details

AGLC: R v MCX [2018] QCA 249
Case: [2018] QCA 249
Decision Date: 28 SEPTEMBER 2018

CaseChat Overview and Summary

The case of R v MCX involved an applicant who had pleaded guilty to two charges of unlawful assault against children in his care, one being a two year old girl and the other a five year old boy. The applicant was sentenced to imprisonment for two years and three months for the offence involving the two year old girl and 12 months for the offence involving the five year old boy. The applicant sought leave to appeal against the sentences, arguing that they were manifestly excessive and that the sentencing judge had placed too much weight on certain factors. The Court of Appeal was tasked with determining whether the sentences were manifestly excessive and whether the sentencing judge had misapplied any principle in arriving at the sentences.

The Court of Appeal found that the applicant's criminal history, although dated, was relevant and justified the sentencing judge taking it into account. The Court also found that the seriousness of the injuries sustained by the two year old girl and the fact that the applicant was on bail were aggravating factors that the sentencing judge had properly considered. The Court noted that the sentences imposed were not markedly different from sentences in other cases and that there was no misapplication of principle. The Court held that the applicant's inability to control his temper and his history of violence justified the sentences imposed and that the applicant's criminal history, despite being dated, was relevant and justified the sentencing judge taking it into account. The Court of Appeal was unpersuaded that the sentences imposed were manifestly excessive and refused the application to appeal against sentence.

The Court of Appeal's decision was based on the principle that a sentence is not established to be manifestly excessive merely if it is markedly different from sentences in other cases. The Court held that the sentencing judge had properly considered all relevant factors and that there was no misapplication of principle. The Court found that the sentences imposed were appropriate given the seriousness of the offences and the need for personal and general deterrence and denunciation. The Court of Appeal's decision highlights the importance of considering all relevant factors in sentencing and the need for consistency in sentencing outcomes.

Orders