R v MJB

Case [2021] QDC 170

DISTRICT COURT OF QUEENSLAND

CITATION:

R v MJB [2021] QDC 170

PARTIES:

R

v

MJB

(defendant)

FILE NO:

Indictment No. 714/21

DIVISION:

Criminal

PROCEEDING:

Sentence
ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

13 August 2021

DELIVERED AT:

Brisbane

HEARING DATE:

2 and 6 August 2021

JUDGE:

Smith DCJA

ORDER:

1.   A conviction is recorded on each count.

2.   On Count 1, I impose two years imprisonment.

3.   On Count 2, I impose two years imprisonment.

4.   On Count 3, I impose seven years imprisonment.

5.   On Count 4, I impose one months’ imprisonment.

6.   On the summary charge, I impose one months’ imprisonment.

7.   The terms of imprisonment are to be served concurrently with each other.

8. Pursuant to s 159A of the Penalties and Sentences Act, I declare the defendant has served 100 days in presentence custody. I state the dates are between 16 August 2019 and 12 November 2019 and 2 August 2021 and 13 August 2021 and I declare this to be time already served under the sentence.

CATCHWORDS:

CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – Appropriate sentence for the offences of grievous bodily harm and assault occasioning bodily harm on seven week-old baby- effect of amendments to Penalties and Sentences Act 1991 (Qld) – whether serious violent offence declaration should be made and if not whether the date for parole eligibility should be delayed past the 1/3rd mark

LEGISLATION:

Child Protection Act 1999 (Qld) ss 59, 60, 61, 62
Criminal Code 1899 (Qld) ss 320, 339
Criminal Law (Domestic Violence) Amendment Act 2016 Act (Qld) s 5
Penalties and Sentences Act 1991 (Qld) ss 9, 161B
Penalties and Sentences (Sentencing Advisory Council)
Amendment Act (Qld) 2010 s 7
Youth Justice and Other Legislation Amendment Act (No 1)

2016 (Qld) s 61
CASES:

Markarian v R [2005] HCA 25; (2005) 228 CLR 357, cited
R v Amituanai [1995] QCA 80; (1995) 78 A Crim R 588, cited
R v BCF [2012] QCA 87, cited
R v Cardwell [2021] QCA 112, cited
R v Chard; Ex parte Attorney-General [2004] QCA 372, cited
R v Collins; Ex parte Attorney-General [2009] QCA 350, discussed
R v Dwyer [2008] QCA 117, applied
R v FJ; Ex parte Attorney-General [2005] QCA 15, cited
R v Free; Ex parte Attorney-General (Qld) [2020] QCA 58;
(2020) 282 A Crim R 94, applied
R v Hall; Ex parte Attorney-General [2002] QCA 125, cited
R v Hitchcock [2019] QCA 60, cited
R v HBA [2010] QCA 306, cited
R v J [1998] QCA 143, cited
R v K [2003] QCA 368, cited
R v Lawler [2020] QCA 166, cited
R v Lilley [2021] QCA 52, cited
R v McDougall and Collas [2006] QCA 365; [2007] 2 Qd R 87; (2006) 166 A Crim R 191, cited
R v O’Sullivan; Ex parte Attorney-General [2019] QCA 300; [2019] 3 Qd R 196; 280 A Crim…

Continue reading R v MJB

Sign in free to access the full text

Details
AGLC
R v MJB [2021] QDC 170
Case
[2021] QDC 170
Decision Date

CaseChat Overview and Summary

The case of R v MJB involves the defendant who was convicted of grievous bodily harm and assault occasioning bodily harm on a seven-week-old baby. The court was required to decide the appropriate sentence for these offences and whether a serious violent offence declaration should be made under the Penalties and Sentences Act 1991 (Qld). Additionally, the court considered whether the date for parole eligibility should be delayed past the one-third mark of the sentence. The defendant, who is now 28 years old, had a history of violent behaviour towards the baby, including rough handling and disregard for the baby's well-being. The court also heard evidence of the defendant's behaviour in a subsequent relationship, indicating a pattern of controlling and potentially harmful conduct.

The court found that the defendant's actions were particularly egregious due to the vulnerability of the victim, who was a young infant. The court emphasised the need to protect young children from violence and to send a strong message of denunciation and deterrence. The court noted the defendant's lack of insight and remorse, as well as the risk he posed to other children. The court concluded that the sentence must reflect the seriousness of the offending while also considering mitigating factors such as the defendant's age and the time he had already spent in custody.

After careful consideration, the court imposed sentences for each count: two years imprisonment for Counts 1 and 2, seven years imprisonment for Count 3, and one month's imprisonment for Count 4 and the summary charge. The terms of imprisonment were to be served concurrently. The court also declared that the defendant had already served 100 days in presentence custody, which was to be counted towards the sentence. The court did not make a declaration that the offences constituted serious violent offences, nor did it delay the date for parole eligibility past the one-third mark.

Orders

Orders of the court

1. A conviction is recorded on each count.

2. On Count 1, I impose two years imprisonment.

3. On Count 2, I impose two years imprisonment.

4. On Count 3, I impose seven years imprisonment.

5. On Count 4, I impose one months’ imprisonment.

6. On the summary charge, I impose one months’ imprisonment.

7. The terms of imprisonment are to be served concurrently with each other.

8. Pursuant to s 159A of the Penalties and Sentences Act, I declare the defendant has served 100 days in presentence custody. I state the dates are between 16 August 2019 and 12 November 2019 and 2 August 2021 and 13 August 2021 and I declare this to be time already served under the sentence.

Background

Background to the litigation

The defendant was born on 27 August 1992. He was 26 years of age at the time of the offending and is now 28 years of age. Exhibit 2 is his criminal history. It contains irrelevant matters.The FactsThe Background The facts of the case are set out in Exhibit 4. The complainant was seven weeks of age at the time of the grievous bodily harm offence. The other offences occurred on dates unknown between his birth and the grievous bodily harm. The defendant is the complainant’s biological father. The complainant’s biological mother is GB. The defendant commenced a relationship with GB in 2015 and they married in 2017. The complainant was their first and only child. The defendant and GB lived alone together with the complainant until his arrest. The defendant worked as a plasterer during the relevant period. He regularly smoked cannabis before and after work. The relationship between the defendant and GB deteriorated prior to the complainant’s birth and GB described him as being increasingly controlling. After the child was born, the defendant increasingly isolated himself from the support of GB and her parents. Tensions grew between the defendant and his in-laws particularly his mother-in-law. He rejected sensible advice from his in-laws and GB about how to parent the complainant. He preferred his own ways of parenting which were too heavy handed and he lacked insight into his deficiencies as a parent. As time passed, he became more tired, agitated and assertive. He roughly handled the complainant and was not responsive to GB’s attempts at intervention. Particulars are provided of the defendant’s parenting style. He told police he would occasionally have a “screaming match” with the complainant and the complainant “knew that once I take over Dad don’t take that sort of don’t take shit”. He described a technique he would use to push the complainant’s dummy into his mouth to muffle the screaming. He told police he had not read any books on parenting and he learnt through trial and error. He told police he was the only one who could settle the complainant quickly and was proud of this. He criticised others for holding the complainant in inappropriate ways and told police he learnt how to hold a baby from watching ads on television. He and GB took care of the complainant in shifts. GB would care for him until the defendant returned from work at about 3 - 4pm each day. The defendant would care for the complainant whilst GB was sleeping until midnight when she would take over allowing him to get some sleep. As a result of this, the defendant was only getting about four and a half hours sleep a night. He became increasingly irritable, frustrated, and profane and increasingly unwilling to yield to reasonable advice. He also became increasingly rough with the complainant. He forcibly straightened the complainant’s legs when he was on the changing table. This caused the complainant to cry. On occasions he would hold the child in the air and spin around. He would occasionally throw the child into a bean bag.

Evidence

Evidence Before The Court

The court resumed on 6 August 2021 to hear further submissions.Further evidence The Crown tendered, as Exhibit 10, an “Assessment and Outcome” report from the Department of Child Safety. This report indicated that another child A had been born to the defendant and a new partner on 21 May 2021. This report noted that the new partner G and the defendant had been in a relationship for about 18 months. G has a brain injury from birth which affects her memory and function. She functions at a 12 to 13 year old level. The report noted that the defendant had produced several excuses as to how the injury to the complainant occurred. It is noted “he accepts he was the only one with the child at the time, however, his explanations do not explain the injury or show any sign of remorse for his alleged actions. He has stated that the child dropped from a blanket after wiggling out, the child was unconscious, and he shook it to wake up and finally that the child was already in an unconscious state prior to returning to his home”. The report notes that the defendant alleged that GB had numerous mental health concerns none of which were accurate. The report notes that there is reference to his controlling behaviour in that relationship and to his reference to his former partner as being suicidal and he needed to care for her and the child. The report noted that concerningly these behaviours have been demonstrated in the defendant’s current relationship with G. It is alleged that he tells G she doesn’t need painkillers and he would correct and interject when she tries to feed the new child. He tells her that the child has just eaten and doesn’t need a feed for another four hours despite G trying to demand to feed. The defendant needs to be convinced to allow G to speak with the Department without him being present. There is hearsay reference to what G has said, what G’s mother has said and what the defendant’s mother has said. It was noted “contact will remain supervised as the risk of harm to [the new child] is considered too great at this point in time. It was further noted “in assessing all the information available during the investigation and assessment of the worries it has been found that [the new child] is at risk of significant harm if she remained in the care of parents, the defendant and G”. The intervention plan was a child protection order. It was further noted that the defendant was charged with shaking injuries on the complainant in 2019. There were concerns about the defendant demonstrating the same behaviours with G and “the most appropriate intervention is a child protection order, to ensure the ongoing safety of [the new child].” The defence submitted that no weight should be accorded to the contents of Exhibit 10 as it was unsworn and the defendant denied particular aspects of matters alleged in the document. The Crown submitted that the only reason for the tender of the document was to show a lack of insight/lack of remorse of the part of the defendant. It submitted that this was clearly evidenced anyway from the schedule of facts which were agreed between the parties.

Decision

Reasons for decision

As in Free,[63] I consider such a sentence, takes into account the mitigating factors but also given the serious nature of the offending sends a strong message of denunciation and deterrence. Young infants should be protected by their parents and should not be the objects of violence. [63] [2020] QCA 58; (2020) 282 A Crim R 94 at [93].Conclusion In conclusion I make the following orders:1. A conviction is recorded on each count.2. On Count 1, I impose two years imprisonment.3. On Count 2, I impose two years imprisonment.4. On Count 3, I impose seven years imprisonment.5. On Count 4, I impose one months’ imprisonment.6. On the summary charge, I impose one months’ imprisonment.7. The terms of imprisonment are to be served concurrently with each other.8. Pursuant to s 159A of the Penalties and Sentences Act I declare the defendant has served 100 days in presentence custody. I state the dates are between 16 August 2019 and 12 November 2019 and 2 August 2021 and 13 August 2021 and I declare this to be time already served under the sentence.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.