St Clair v Police No. Scgrg-00-562

[2000] SASC 290

ST CLAIR v POLICE
[2000] SASC 290

Magistrate’s Appeal

1................ MARTIN J......... (Ex tempore) The appellant pleaded guilty to a charge that on 24 November 1999 she assaulted her daughter, Rebecca St Clair, a person under the age of 12 years, thereby occasioning her actual bodily harm contrary to s 40 of the Criminal Law Consolidation Act 1935. She pleaded guilty before a Magistrate on 14 December 1999. A sentence of two years imprisonment was imposed and a non-parole period of five months was fixed. The appellant appeals against the sentence on the basis that it is manifestly excessive and should have been suspended.

1. On the morning of the offence, the appellant was in the kitchen of her home with her two daughters aged five and four years.  Her de facto was asleep in the house. The appellant was preparing the girls for school.  They were asking for their breakfast.  The appellant began to run a bath.  Subsequently she placed the younger child Rebecca in the top loading area of a washing machine in the laundry and turned the hot water on the child.  As a result, Rebecca sustained severe burns to her torso, both legs and her right arm.  A neighbour heard screams and a conversation which included abuse being yelled at the child.  The neighbour called the police.

2. When the police attended the appellant declined to admit them into the premises.  In an unsophisticated fashion, she attempted to evade responsibility for her actions. She referred to the child having fallen in the bath and being burnt.  Police later re-visited the premises with a social worker.  The child was observed to be in distress with large pieces of skin peeling off her body.  The appellant subsequently acknowledged having been responsible.  The injuries will require skin grafting.

3. Prior to sentencing, the children had been removed from the custody of the appellant.  She has had supervised access for a short period each week with both children and the Department of Family and Youth Services has been undertaking work with a psychologist in that regard.

4. The Magistrate had the assistance of a pre-sentence report from the Department of Correctional Services, as well as reports from Dr Craig Raeside and Mr Richard Balfour.  Both reports gave extensive detail of the appellant’s history. The appellant is a single woman now aged 42 years.  She was receiving a disability pension.  She has had a most unfortunate background which included domestic violence when she was a child.  She has been a slow developer who experienced difficulties with literacy and learning.  She has been diagnosed as suffering an intellectual disability with an intelligent quotient of 55, which places her in the moderately disabled range.  She would appear to be well below the lowest five per cent of the population so far as intelligence is concerned.  She is vulnerable to crisis and at risk of impulsive and immature behaviour when under stress.  The appellant has been prone to binge alcohol abuse as well as depression.  She has been involved in an abusive relationship with her former de facto partner who was living with her at the time of the offence.  The appellant has been unemployed for much of her life.  The limited employment she has gained has been unskilled labour for short periods of time, often in sheltered workshops.

5. The appellant has offended on a number of occasions since 1977.  In 1990 she was convicted of Assault Occasioning Actual Bodily Harm and in 1980 of Unlawful Wounding.  The sentences imposed for her prior offending ranged from suspended sentences to the imposition of good behaviour bonds.  The appellant has not been required to serve a sentence of imprisonment.

6. The appellant told Dr Raeside that she woke up “feeling really weird and stupid”.  She said both girls were hungry.  She recalled placing them in the empty kitchen sink and then removing them.  She said she wanted to run a bath so that the children could prepare themselves for school.  She described herself as in a weird mood.  She picked up Rebecca, placed her in the washing machine and turned the hot water on.

7. Dr Raeside reported that the appellant felt remorse for her actions.  She told him she felt hurt thinking about how she could do that.  Dr Raeside stated that the appellant could not explain her behaviour to him.  He did not find any evidence to suggest a formal psychiatric disorder.  He reported that there was no evidence to suggest that the appellant could not control her behaviour at the time of the offence and that he would not be prepared to support a mental impairment defence.  Dr Raeside did, however, recommend a non-custodial penalty.

8. The report of Mr Balfour dated 13 June 2000 provides a detailed history of the appellant’s intellectual impairment.  Mr Balfour found no evidence to suggest that the appellant suffered from a psychotic illness.  He expressed the opinion that the appellant’s offending was the behaviour of an intellectually disabled child who had poor coping skills.  He was of the view that the appellant would cope poorly with a custodial sentence.  She was “terrified” of imprisonment. Mr Balfour stated that the appellant would need to be placed in protective custody due to the emotive nature of her offending behaviour.

9. This is a particularly sad case from the perspective of everyone involved. The Magistrate was faced with a difficult task. The offence is a serious example of Assault Occasioning Actual Bodily Harm involving a child under the age of 12 years. Severe injuries were caused. The appellant was in a position of trust, which she abused. Parliament has recognised the vulnerability of children and the seriousness of offending by fixing different maximum penalties depending upon the age of the victim. The maximum penalty for Assault Occasioning Actual Bodily Harm is five years, but where the victim is under the age of 12 years at the time of the offence, the maximum penalty is eight years imprisonment. By virtue of the operation of s 19.3(a) of the Criminal Law (Sentencing) Act 1988, the maximum penalty that the Magistrate could impose was two years imprisonment.

10. In my opinion, the Magistrate was correct in reaching the view that the seriousness of the offending required the imposition of a sentence of imprisonment.  In fixing the length of that sentence, the Magistrate properly had regard to the appellant’s unfortunate history and intellectual impairment.  For the reasons I will mention, however, in my opinion the Magistrate erred in one respect and the sentencing discretion miscarried.  However, I am also of the view that the sentence of two years imprisonment was well within the range of the Magistrate’s sentencing discretion and that, notwithstanding all the matters of mitigation personal to the appellant, a sentence of two years imprisonment is the appropriate sentence.  I have arrived at that view by balancing the gravity of the offending and the need for personal and general deterrence against the matters of mitigation personal to the appellant, including her plea and contrition.

11. As to the issue of suspension, the gravity of the crime was such that if the appellant had not been suffering from an intellectual impairment, there would have been no doubt that the Magistrate was correct in declining to exercise his discretion to suspend the sentence.  However, the appellant’s intellectual impairment was of particular significance to the question of suspension.  A causal connection existed between the impairment and the offending.  The appellant’s offending was the behaviour of an intellectually disabled woman who had poor coping and parenting skills. In the context of a number of chronic psycho-social stressors, it represented a dysfunctional form of attention-seeking for help because she was unable to cope with a stressful set of circumstances.

12. The Magistrate referred to the evidence of Mr Balfour concerning the matters to which I have referred.  It appears likely that his Honour took those matters into account in arriving at both the head sentence and the non-parole period and in considering the issue of suspension.  The low non-parole period probably reflects his Honour’s concern for the matters personal to the appellant. However, his Honour regarded the issue of general deterrence as a “paramount” factor and he referred to it as a “dominant consideration” in imposing sentence.  It appears that his Honour overlooked the principle discussed in a number of authorities, including R v Wiskich [2000] SASC 640, which recognises that in some circumstances the element of general deterrence, while remaining relevant, should be given less weight by reason of an offender’s mental impairment or disability.

13. In my opinion, bearing in mind the nature and extent of the intellectual impairment and its connection with the commission of the crime, this is an appropriate case in which to give less weight to the element of general deterrence than would have been appropriate if the appellant had not been suffering from an intellectual impairment.  The element of general deterrence is not to be totally ignored. In the words of some authorities, the impact of the element of general deterrence is to be “sensibly moderated” as part of the exercise of balancing the gravity of the crime and the matters personal to the offender.  In my opinion, the failure of the Magistrate to refer to the relevant principle when considered in conjunction with his Honour’s emphasis on the importance of general deterrence demonstrates a sentencing error of such significance as to justify a review of the sentence by this Court.

14. Events subsequent to the sentencing by the Magistrate are also of relevance. At the time of sentencing the element of personal deterrence was a significant factor. Mr Balfour had expressed the view that the threat of imprisonment would be a potent deterrent against further offending.  Following sentencing, the appellant remained in custody for approximately eight days before she was released on bail pending the resolution of the appeal. I accept the submissions from counsel on behalf of the appellant that she found her incarceration a frightening experience.  In view of the appellant’s intellectual impairment and her fear of imprisonment, I am satisfied that her short period in prison would have been a salutary lesson to her.  To that extent, there has been a degree of satisfaction of the element of personal deterrence.  The appellant must understand, however, that when she is under stress she cannot resort to the use of violence against other persons, particularly her children.  Personal deterrence remains, therefore, a relevant factor in the exercise of the sentencing discretion.

15. As I mentioned, the children are no longer in the custody of the appellant.  A care and protection order has been made placing the victim of the offence under the guardianship of the Minister for Human Services for a period of 12 months.  Similar proceedings are under way in connection with the other child.   The appellant has limited supervised access.  Since being released on bail pending the resolution of this appeal, she has sought psychiatric treatment and other assistance.

16. As is often the case when serious offences are committed by persons of intellectual disability, it is difficult to achieve the correct balance in the sentencing process.  As I have mentioned, this is a matter in which general deterrence, although still relevant, should be sensibly moderated.  However, the gravity of the crime must also be reflected by an appropriate sentence.

17. I have already indicated my view that the sentence of two years imprisonment is appropriate.  I also take the view that the period of five months non-parole period is appropriate. Not without considerable hesitation, I have decided to suspend the sentence.  I have reached the view that the public interest will be best served by the suspension of the sentence in the quite exceptional circumstances of this case.  It is the combination of all the circumstances that leads me to this view.

18. The appeal is allowed and the sentence of two years imprisonment and the non-parole period of five months are set aside.  I impose a sentence of two years with a non-parole period of five months.  The sentence is suspended upon the condition that the appellant enter into a bond to be of good behaviour for a period of 18 months.  The bond will be in the amount of $500.  It will be a condition of the bond that the appellant be under the supervision of an officer of the Department of Correctional Services for the period of the bond.  It will be a further condition of the bond that the appellant obey the lawful directions given to her by the supervising community corrections officer, including the following directions as to:

    •       appellant’s place of residence;

    •....... appellant’s contact and communication with her children Rebecca and Carina St Clair;

    •appellant’s contact and communication with her mother Ms Gwenda St Clair and her sister Ms Leonie Johansenn;

    •....... undertaking medical and psychiatric treatment, counselling and therapy and any rehabilitation program;

    •referral to the Intellectual Disability Services Council for assessment, treatment and support;

    •....... referral to the Family and Youth Services in connection with the range of parenting and respite services;

    •referral to a Sexual Assault Referral Centre for assistance with respect to past history of sexual victimisation;

    •....... referral to the Drug and Alcohol Services Council in connection with alcohol consumption.