Citation: R v Bloomfield [1999] NSWCCA 196
Court: New South Wales Court of Criminal Appeal
Date: 21 July 1999
Judge(s): Studdert J; Simpson J
Background
The applicant, a father in his mid-thirties who had migrated from Tonga, pleaded guilty in the District Court to assault occasioning actual bodily harm under s 59 of the Crimes Act, an offence carrying a maximum of five years penal servitude. The victim was his own daughter. The assault took place while the applicant was intoxicated, and involved multiple punches to the face, pushing the victim to the ground, kicking, and a further assault in a bathroom that left a laceration to the back of her head.
Judge Tupman, who had presided over the preceding trial on a nine-count indictment (on which the jury had not agreed on the first eight counts), sentenced the applicant to 18 months penal servitude to be served by way of periodic detention. The applicant appeared in person before the Court of Criminal Appeal seeking leave to appeal against that sentence.
The applicant contested both the factual findings underlying the sentence and the severity of the penalty imposed.
Legal Issues
- Whether the sentencing judge erred in her findings of fact regarding the nature and extent of the assault, in circumstances where the assault was not reported for several months and no contemporaneous medical evidence was obtained.
- Whether the sentence of 18 months periodic detention was excessive having regard to the circumstances of the offence and the offender.
Decision
The Court of Criminal Appeal declined to disturb the sentencing judge's findings of fact. Her Honour had accepted the evidence of the victim, her mother, and her sister beyond reasonable doubt, and had carefully weighed the applicant's competing version. The Court emphasised that an appeal of this nature is not a rehearing: findings of fact made at first instance are not open to challenge on a sentence appeal where they were plainly available on the evidence.
The Court rejected the applicant's arguments about the delayed reporting and absence of contemporaneous medical evidence. Those matters had already been considered by the sentencing judge when assessing the competing accounts. A medical examination conducted approximately four months after the assault revealed a scar consistent with the injury described by the Crown witnesses, and neither the delay in reporting nor the delay in seeking medical attention undermined the factual findings made.
On the question of severity, the Court found the sentence was altogether appropriate. It noted the aggravating features identified by the sentencing judge: the assault was committed under the influence of alcohol and constituted a serious breach of trust by a parent toward his child. The Court also noted that periodic detention, as recognised in the authorities, carries a significant element of leniency compared to full-time custody.
Orders Made
- Leave to appeal refused.
Key Takeaways
- A Court of Criminal Appeal on a sentence appeal does not re-hear the facts: findings made by a sentencing judge that are available on the evidence cannot be challenged at the appellate stage.
- Delayed reporting of an assault and the absence of contemporaneous medical evidence do not automatically undermine factual findings where those matters were already weighed by the sentencing court and other evidence supported the Crown's version.
- Periodic detention has been recognised by the Court of Criminal Appeal, consistent with R v Burnett (1996) 85 A Crim R 76 and Hallocoglou (1992) 29 NSWLR 57, as carrying a significant element of leniency relative to full-time imprisonment.
- Where an offence involves a parent assaulting a child, a breach of parental trust constitutes a recognised aggravating feature at sentencing.
- In dismissing the appeal, the Court affirmed that sentences for violence by parents toward children should send a clear deterrent message to both the individual offender and the broader community.
Legislation and Cases Referenced
Legislation
- Crimes Act (NSW), s 59 (assault occasioning actual bodily harm)
Cases
- R v Burnett (1996) 85 A Crim R 76
- Hallocoglou (1992) 29 NSWLR 57
- Barbaro (unreported, NSWCCA, 24 February 1997)