R v v
[2004] TASSC 18
•20 February 2004
[2004] TASSC 18
CITATION: R v V [2004] TASSC 18
PARTIES: R
v
V, E J
V, J K
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: C244/2003
DELIVERED ON: 20 February 2004
DELIVERED AT: Burnie
HEARING DATES: 4 – 6, 9, 11 & 20 February 2004
JUDGMENT OF: Underwood J
CATCHWORDS:
Criminal Law – Jurisdiction practice and procedure – Judgment and punishment – Sentence – Other matters – Tasmania – Ill-treatment of a child – Findings of fact - Factors relevant to sentence.
Bresenhan v R (1992) 1 Tas R 234, applied.
Aust Dig Criminal Law [911]
REPRESENTATION:
Counsel:
Crown: M A Stoddart
First Accused: T Jago
Second Accused D R Fairley
Solicitors:
Crown: Director of Public Prosecutions
First Accused: Legal Aid Commission
Second Accused Temple-Smith Barclay
Judgment Number: [2004] TASSC 18
Number of Paragraphs: 17
Serial No 18/2004
File No C244/2003
THE QUEEN v E J V and J K V
REASONS FOR JUDGMENT UNDERWOOD J
20 February 2004
The Background
The prisoner Mrs V, is the mother of four children. One was adopted as a baby and is not relevant to these proceedings. The other children are B, born on 3 January 1962, M, born on 19 January 1963 and Y, born on 1 August 1975. Mrs V is now 59 years of age. When M was about 3 years' old, Mrs V separated from M's father and the latter went to live with her father's mother. At about the same time, Y went to live with her maternal grandmother. Also living with M and her grandmother was a male called W. The age of this man is uncertain, but he was probably middle aged when M went to live with her paternal grandmother. B remained with his mother.
At some time well prior to 1975, Mrs V commenced living with the prisoner Mr V. Mr and Mrs V subsequently married and the two of them lived with B at various addresses.
While M was living with her grandmother, Mr W sexually abused her. When she was 9 years old, her grandmother died and, by default, M was left in the care of Mr W. This lasted for a short time, probably until early 1973. Mr W then took her to her mother, Mrs V, and so she M went into the care and custody of the prisoners. She remained in that care until the middle of November 1975 when she was taken into the care of the Child Welfare Department. She never returned to her mother.
Y got on well with her maternal grandmother, but the latter and Mrs V were on very bad terms; so bad that they ceased to speak to each other or have anything to do with each other, even though they lived in the same town. In her evidence, Y described how her mother collected her from school one day and took her home to live with the Vs, M, and B. This was just before her tenth birthday on 1 August 1975. Accordingly, Y and M lived together under the V roof for just a few months. In about 1976, Y returned to live with her maternal grandmother. It would be difficult to imagine a more dysfunctional family.
In 1999, M and subsequently Y, made complaint to the police about ill-treatment at the hands of the prisoners when they lived with them in the 1970s. In result the prisoners were indicted for several crimes.
The indictment
There were three counts of ill-treatment of a child. Two of them related to M and the other to Y. The first (count 1), alleged that both the prisoners physically ill-treated M. The second (count 2), alleged that Mr V ill-treated M and Mrs V aided and abetted him. The third (count 6), alleged that Mrs V ill-treated Y and Mr V abetted her to do so. Each of these counts contained about half a dozen particulars of acts of abuse that the complainants said occurred, some on more than one occasion. The other counts on the indictment are assault (3) and indecent assault (1). Each of these charges pleaded a single assault on one of the children by one of the prisoners, and, except in the case of the indecent assault, alleged that the other prisoner aided and/or abetted him or her.
The trial
The trial lasted a week. Neither of the prisoners gave evidence, but video recorded interviews with police officers were tendered in evidence. The two complainants gave evidence for the prosecution and B gave evidence for the prisoners. There were one or two other witnesses, but their evidence was not of great significance. The case was left to the jury upon the basis that they could not find either of the accused guilty in any one case unless they were satisfied beyond reasonable doubt that, in substance, the evidence of the complainant in that case was truthful and accurate. Y's evidence not only supported the counts in which she was the complainant, but also the evidence of M on the counts concerning her, although there were a number of discrepancies between their accounts.
The verdicts
After lengthy deliberation, the jury found Mrs V guilty on count 1, both the prisoners guilty on count 2, and both the prisoners guilty on count 6. They were acquitted on all other charges. Of course, this raises some problems about the facts upon which sentence has to be imposed.
The law
In this respect, I direct myself in accordance with Bresenhan v R (1992) 1 Tas R 234. Relevantly, the principles in Bresenhan are:
· It is for me to find the facts for the purpose of imposing sentence.
· Sentence should only be imposed on facts that are established to my satisfaction beyond reasonable doubt, but this does not mean that I have to be so satisfied of all the facts. The degree of persuasion will vary with the nature and consequence of the fact or facts.
· The facts found for the purpose of imposition of sentence must be consistent, either directly or by implication, with the verdicts.
· As there were convictions and acquittals on one indictment, the findings of fact must be consistent with the implication arising from all the verdicts.
The evidence
At the outset, I have to say that it is inevitable after the passage of all the years since the occurrence of the relevant events, none of the witnesses could expect to be regarded as 100 per cent accurate. However, I was generally impressed with the evidence given by M, but the acquittals tell me that that the jury did not accept the whole of the evidence given by either her or Y. It follows from this that it is unlikely that the jury accepted these witnesses with respect to all of the particulars that were pleaded in the counts upon which there were convictions. The issue for me is which particulars have been established to the requisite degree and consistent with all the verdicts?
M gave evidence of frequent slapping and pushing around at the hands of her mother that started soon after she went there. She described how she had difficulty in reading and how her mother made her sit on a chair every night and made her try and read words in the books that, I infer, were supplied by the Primary School that she was then attending. M said that if she was not able to read the words, her mother pushed her off the chair or hit her with a strap. She said that her mother called her fat, ugly and stupid. She said that she also got the strap if she did not do her chores when she was supposed to. She said that sometimes she was locked in her room, on occasions without food. These allegations were pleaded in count 1 and I accept the essence of the complainant's evidence about this conduct because her account was convincing, and because it is likely that specific acts of violence to which I shall refer later, arose out of a general background of violent domestic discipline. In addition, M said that her mother never hugged her or showed her love and defence counsel did not challenge this assertion. She said the same about Mr V. I would describe Mrs V's early conduct towards M as harsh and unreasonable discipline.
The sexual abuse of M at the hands of W loomed large at the trial. The undisputed evidence was that at some stage, probably a few months before M was taken into the care of the Child Welfare Department, M told her mother that W had sexually abused her. How this revelation came to be made I am unable to say. M said that her mother asked her if W had ever touched her "down there" and she said "Yes," whereupon Mrs V said that she was dirty. B gave an account of the family sitting around the table one evening and M said that said that she had been for a drive with W and that she had sex with him. The likelihood of a 10-year old girl saying this to her family as they sat around the table was not reinforced by B's evidence in which he made the unlikely claim that he remembered this event so well that he could describe where everybody was sitting, even though it happened 28 years ago. However the revelation came to pass, it coloured the relationship between the prisoners and M and eventually led to the total breakdown of this dislocated family unit.
M said she did not see Mr W after she had moved into her mother's house. I accept that evidence. However, I also find that M's home life was so miserable for her that she sometimes absented herself from there for varying periods of time. I find that the Vs got it into their heads that she was meeting Mr W and that Mrs V did describe her as dirty and a slut from time to time. I find that the prisoners both decided that she should be punished for what they perceived to be her continuing relationship with Mr W and the ill-treatment escalated during the last three months that M lived with the prisoners. The video recorded interviews make it clear that the Vs' perception of M and her alleged relationship with Mr W bordered on paranoia. Mrs V's counsel suggested to the jury that maybe the situation could have been handled better. That was a massive understatement of the case. I find that the prisoners punished M because they unreasonably believed that she was seeing Mr W and the only way that this could be stopped was by physical punishment. Neither of them tried to understand this troubled child, and neither showed her any compassion or love. With respect to Mr V, there is an interesting small insight into his attitude to the use of physical force on children when he told the police that he hit B with a belt because he would not eat. He said, "There was no way we could get him to eat".
During the course of the video recorded interviews, each of the prisoners made partial admissions with respect to some incidents, but made total denials with respect to others. Careful examination of the verdicts and the evidence leads me to the general conclusion that the jury accepted the evidence of M and Y where they were supported by partial admissions by the accused in their interviews. For example, Mrs V admitted to tying M to her bed on only two or three occasions, and then only by the hands. She justified this conduct by saying that it was to stop her meeting Mr W. M said that in the last few months, being tied to her bed by her hands and feet was a regular occurrence. Mr V admitted in his interview that he did hold M over a bath and threaten to drown her, but he did not repeatedly dunk her under, as described by M in her evidence. Although the evidence of what one prisoner told the police in the absence of the other is not evidence admissible against that other, the evidence of both interviews is likely to have bolstered the jury's view of the credit of M.
The facts for sentence
Accordingly, I find the following facts for the purpose of imposing sentence.
Count 1
In addition to the general matters in the years leading up to the latter part of 1975, to which I have already referred, I find that Mrs V locked M in her room on a considerable number of occasions in the last few months of 1975. On some of those occasions, she was denied food. I find that Mr V knew that this was going on, did nothing to prevent it, and expressed his approval of this conduct. I also find that on a number of occasions Mrs V tied M to her bed with rope in the general manner described by M, and that Mr V knew that his was going on, did nothing to prevent it, and expressed his approval of this conduct. This conduct must have been a terrible experience for an 11-year-old child. The jury acquitted Mr V on count 1 and, accordingly, for the purpose of imposing sentence, it would be wrong to take into account the adverse findings that I have just made against him. Although it is inconceivable that the jury took the view that he did not know and approve of his wife's conduct, the verdict in his case is explicable because the State put its case against Mr V on count 1 upon the basis that he was a principal and not an accessory. I make no finding with respect to the others particulars pleaded in count 1.
Count 2
With respect to count 2, I find that on one occasion, also in the latter part of 1975, the prisoner Mr V, placed two needles in the end of an electric razor power cord, plugged it in and applied the needles to M's buttocks causing her to suffer electric shocks. I also find that the prisoner, Mrs V, was present and assisted Mr V to do this. This ill-treatment was applied because, to use Mr V's words, to the police, "we [were] having the problem for her to tell us some truth about the situation that was occurring …". It would not be extreme to describe this conduct as torture. Also with respect to count 1, I find that during the same period, on an unspecified number of occasions, the prisoner, Mr V, bound M's hands and feet and dunked her several times under the water in a bath. I also find that the prisoner, Mrs V, was present and assisted Mr V to do this. As was the case with the electric shocks, the motive was to punish M for what the prisoners perceived to be lies she was telling them about Mr W. Again, it would not be inappropriate to describe the perpetration of this conduct on an 11-year old girl as torture. I make no finding with respect to the others particulars pleaded in count 2.
Count 6
This count concerns Y. I find that, generally speaking, the prisoners treated Y better than they treated M. Nonetheless, I find that she was the victim of harsh and unreasonable discipline that included repeated assaults at the hands of Mrs V. I also find that she was required to watch the ill-treatment of her sister, probably upon the basis that the prisoners thought that it might teach her a lesson. I have no doubt that at the heart of the ill-treatment of Y were the facts that she loved Mrs V's mother, that she resented being taken from her care after being brought up by her for so many years, and that she dearly wished to return to live with her. As I have already noted, the evidence made it quite clear that Mrs V hated her mother and had not spoken to her for years, even though they lived in the same town. Why Mrs V vented her spite upon Y over this is hard to understand. I find that the prisoner Mr V was present at many of these assaults, that he intended to encourage them and that he thereby abetted the commission of this crime by his wife.
The sentence
This is a sad tale of unreasonable violence perpetrated on two small children by a harsh and unrelenting mother and her husband. The crimes constituted a gross violation of the duty vested in the two of them to care for, to love and to nurture children in a safe and secure home environment. I have no doubt that this breach of duty contributed to the many difficulties and hurdles that M and Y subsequently encountered. Neither of them was given the proper childhood to which they were entitled and the commission of these crimes contributed to that state of affairs. It is necessary for the Court to impose a sentence that will mark society's condemnation of this criminal conduct and which will serve as a warning to others who have care of children and who might be minded to treat those children as the prisoners treated these two children. I am mindful of the matters put to me by defence counsel in the sentencing hearing, particularly the ages of the prisoners. Although the prisoner, Mrs V, was convicted of three counts of ill-treatment of a child and the prisoner, Mr V, only convicted on two counts, I see no reason to draw a distinction between the two for the purpose of imposing sentence, as the criminal conduct of the prisoner, Mr V, acting as a principal, was more violent than that of his wife.
The sentence
The orders of the Court are:
· A conviction on each count upon which there was a finding of guilt.
· A sentence of 9 months' imprisonment to date from 11 February 2004.
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