R v Neal

[2001] QCA 503

[2001] QCA 503

COURT OF APPEAL

McMURDO P
McPHERSON JA
CHESTERMAN J

CA No 100 of 2001

THE QUEEN

v.

N

BRISBANE

..DATE 14/11/2001

JUDGMENT

McPHERSON JA:  The applicant was convicted on pleas of guilty in the District Court to one count of doing grievous bodily harm for which the sentence imposed was three years imprisonment, and a second count of assault occasioning bodily harm for which the sentence was imprisonment for 12 months.  The sentences were ordered to be served concurrently and the learned sentencing Judge added a recommendation for parole after 12 months.

The victim of these offences was the applicant's own two month old baby son.  The second offence of occasioning bodily harm consisted of holding the baby under a tap, which was running with hot water at a temperature estimated to be 60 degrees centigrade, after which the applicant simply dressed the baby in a nappy and placed it back in its cot while the applicant left for work.

The first offence of grievous bodily harm was uncovered when the baby was taken to hospital as a result of the scalding it had received.  He was found also to be suffering from a chronic subdural haemorrhage, a retinal haemorrhage in the left eye and fractures of both legs.  The applicant admitted that on an occasion about one month before the scalding incident he had shaken the baby backwards and forwards for about two minutes until he went limp in the applicant's arms.

The ambulance was called to take the child to hospital, the applicant saying that the baby had suddenly had a fit.  He was discharged from hospital after two days, the medical staff having found no cause for any such fit as was described.

The concurrent sentences of three years and 12 months are well within the range of sentences for offences of this kind, having regard to the decisions, for example, in R v. Watt (CA 490 of 1998) and R v. Atkins (CA 320 of 1998), to name only two of the distressingly many cases of this kind.

That the sentence or sentences are within range is evident, especially when accompanied, as these sentences were, by a recommendation for parole after 12 months.  The recommendation may to some extent reflect the applicant's plea of guilty, but that plea was entered only after the trial for these offences had proceeded for one day, so that there was very little in the way of saving of expense to the State, and little real sign of remorse in that plea.

The only mitigating factor really is that the applicant, who is 40 years of age with no prior convictions, is a person who is said to be of below average intelligence, who was evidently irritated by the troublesome behaviour of the baby into treating him in this violent fashion.

It was submitted that the sentence ignored the rehabilitative aspects of punishment and ought to have taken the form of a suspended sentence, or some other form of non-custodial sentence.  I can see no justification for such an approach.  The case is, in my experience, unusual in that the baby was the offender's own son and not, as so often happens in these cases, the son of some other man.  At two months old he was, of course, completely defenceless against assaults by his own father at whose hands he was entitled to expect protection and not injury.  Having regard to the steps that were taken by the applicant to conceal what had really happened to cause the injuries to his son, it is plain that he was aware that what he was doing was wrong.

The rehabilitative aspect of sentencing did not, in my opinion, loom so large in the sentencing process in this case as to overwhelm the need for punishment for committing this inhuman crime. 

One would assume that after behaviour of this kind the child would not be returned to the father's custody, and it seems likely, in fact, that he will remain with foster parents indefinitely; but if that is not so it is plainly desirable that the applicant not be in a position, for whatever reason, to inflict further injury on this little child, at least for 12 months or, one would hope, much longer.  On the next occasion, if it were to happen again, the outcome might very well be fatal.

In the light of all these matters and the strong abhorrence that the community naturally feel towards offences of this kind in the case of children as young as this, I can see no basis for upsetting the sentence that the Judge imposed.

I would dismiss the application for leave to appeal.

THE PRESIDENT:  I agree.

CHESTERMAN J:  I agree.

THE PRESIDENT:  The application for leave to appeal against sentence is refused.

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