R v The Queen

[1995] QCA 548

[1995] QCA 548

COURT OF APPEAL

MACROSSAN CJ
FITZGERALD P
MACKENZIE J

CA No 299 of 1995

THE QUEEN

v

R

BRISBANE

DATE 02/10/95

JUDGMENT

MACKENZIE J:  The applicant pleaded guilty to an offence of assault occasioning bodily harm with a circumstance of aggravation that she was armed with a dangerous instrument, a leather belt.  The Magistrate recorded no conviction but placed her on probation for two years and also ordered that she serve 80 hours community service.  The substance of the charge came to the notice of the police on 25 May 1995 when the six year old daughter of the applicant arrived at school where staff observed bruises and abrasions to the forehead and side of the head.

The complainant alleged that her mother had inflicted the injuries at home before school.  It was, of course, proper for the authorities to express concern at the injuries that they observed and the fact of the matter was that the police became involved.  However, when the police attended the applicant's home, she informed the police that she had hit the child with the strap end of the belt around the buttocks and legs but not around the head.  She said that she had hit the child because her daughter had refused to get ready for school.  The mother herself had to go to work and had previously been warned by her employer about her late arrivals at work which had, she claimed, been due to similar instances of misbehaviour on the part of the children when they were getting ready for school.

So far as the head injuries were concerned, the applicant suggested that they may have occurred when she threw a cupboard drawer in her frustration, the drawer having previously broken and not functioning properly, when she was trying to obtain clothes for her daughter.  She believed, according to her, that the drawer struck a bed or the wardrobe and she was not aware of it having struck the child until she saw a small cut on her daughter's head.  The applicant attended to the wound caused before she sent the child to school.  The applicant, as it turned out, was late for work and as a result of the incident, lost her employment.

The matter was put before the Magistrate on behalf of the applicant along the lines that I have already said.  The Magistrate was told that the complainant had refused to get ready for school, that the applicant was running late for work, that she smacked the child several times on the bottom with the soft end of the belt.

It was said that the force was not excessive.  However, having regard to the plea of guilty, it must be taken, I think, that she was prepared to concede that what she did exceeded the proper limits in section 280 of the Criminal Code.  The matter went before the Magistrate on the basis that the applicant had heard the child complain that she could not get the clothes drawer open and when she discovered that the drawer was broken, picked it up and threw it.  She did not intend it to hit the child, but it left a small cut on her head to which reference has already been made.

The applicant had no previous convictions.  It was common ground that a non-custodial outcome was appropriate.  It was also common ground that the applicant had cooperated in measures to ensure the welfare of the children since the offence.  She was a single parent.  She had been subject to domestic violence before separating from the child's father.  She was plainly not coping with her situation.  The Magistrate imposed a special condition of probation, that she comply with reasonable directions of the probation officer in relation to counselling.

It is not explicit in the Magistrate's reasons why he took a decision to impose both probation and community service.  He referred to a matter of Green, Court of Appeal 172 of 1995, where three years probation had been substituted by this Court for a sentence of imprisonment on appeal from the same Magistrate.  The Magistrate said correctly, in view of the way in which the matter was put before him, that the facts of Green were worse than the present case.

It is conceded by Mrs Clare on behalf of the Crown that the sentence imposed is manifestly excessive, having regard to the component of community service imposed concurrently with the probation.  She also concedes that a term of probation of the order of that sought by the applicant, namely six months, is appropriate.

In all of the circumstances, it is my view that notwithstanding the seriousness with which these kinds of offences must be regarded, in this particular case, the sentence was manifestly excessive and that it is appropriate that the application be allowed, that the sentence imposed by the Magistrate be set aside and that in lieu thereof, an order for probation for six months on the usual terms and conditions with the special condition imposed by the Magistrate be imposed.

THE CHIEF JUSTICE:  I agree.  Cases of this kind each have to be dealt with according to their own particular circumstances.  We are not concerned here with an appeal against conviction, since a plea of guilty had been entered below.  Therefore, we turn ourselves to a consideration of the appropriate penalty.  Counsel for the applicant suggests probation with no accompanying order for community service and this is not opposed by counsel appearing for the Crown.  It is suggested by counsel for the applicant that a six month period would be appropriate.

In those circumstances, I agree with Mr Justice Mackenzie's observations that the application should be allowed here and the appeal granted and the orders made below be set aside and the order which he suggests be substituted.

THE PRESIDENT:  I agree with what has been said by each of the other members of the Court.  I would simply add, for the purposes of clarity, that I do not understand it to be intended that when the orders made below are set aside, it is intended to set aside the order that no conviction be recorded.