AG v The Queen
[2013] NSWCCA 264
•14 November 2013
Court of Criminal Appeal
New South Wales
Case Title: AG v R Medium Neutral Citation: [2013] NSWCCA 264 Hearing Date(s): 16 October 2013 Decision Date: 14 November 2013 Before: Hoeben CJ at CL at [1]
Johnson J at [2]
Bellew J at [3]Decision: (i)the application for an extension of time in which to seek leave to appeal against sentence is granted;
(ii)leave to appeal against sentence is granted;
(iii)the appeal is allowed;
(iv)the sentence imposed in respect of count 1 is quashed, and in lieu thereof a fixed term of imprisonment of 5 years, commencing on 17 October 2008, and expiring on 16 October 2013, is imposed;
(v)the sentence imposed in respect of count 2 is quashed, and in lieu thereof a non-parole period of 6 years imprisonment commencing on 17 October 2010 and expiring on 16 October 2016, with an additional term of 3 years expiring on 16 October 2019, is imposed;
(vi)the sentence imposed in respect of count 3 is quashed, and in lieu thereof a non- parole period of 4 years imprisonment commencing on 17 October 2009, and expiring on 16 October 2013, with an additional term of 12 months expiring on 16 October 2014 is imposed;
(vii)the applicant will be eligible for release on parole on 16 October 2016, and his aggregate sentence will expire on 16 October 2019.Catchwords: CRIMINAL LAW - appeal - application for extension of time - so called Muldrock error - no error made out
CRIMINAL LAW - appeal - application for extension of time - where applicant pleaded guilty to sexual offending committed on daughters - where applicant mentally retarded - where error on the part of the sentencing judge in application of principles pertaining to mentally ill offenders, both in terms of reduction in moral culpability and lessened significance of general deterrence - where delay in bringing appeal explained partly on the basis of erroneous advice having been given to the applicant following sentence - extension of time granted - leave to appeal granted - appeal allowed - sentences quashed - applicant re-sentencedLegislation Cited: Crimes Act 1900 NSW
Crimes (Sentencing Procedure) ActCases Cited: Abdul v R [2013] NSWCCA 247
Aldous v R [2012] NSWCCA 153
Aslett v R [2012] NSWCCA 235
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Essex v R [2013] NSWCCA 11
Markarian v R [2005] HCA 25; (2005) 228 CLR 357
Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
R V Mooney (CA (Vic) 21 June 1978 unreported
Zreika v R [2012] NSWCCA 44; (2012) A Crim R 460Category: Principal judgment Parties: AG - Applicant
Regina - CrownRepresentation - Counsel: Ms B Rigg - Applicant
Ms T Smith - Crown- Solicitors: Legal Aid New South Wales - Applicant
S Kavanagh – Solicitor for Public Prosecutions - CrownFile Number(s): FILLIN "FILE NO"\d "" \* MERGEFORMAT 2009 / 2372007 Decision Under Appeal - Before: Frearson DCJ - Date of Decision: 12 June 2009
JUDGMENT
HOEBEN CJ at CL: I agree with Bellew J and the orders which he proposes.
JOHNSON J: I agree with Bellew J.
BELLEW J: On 11 June 2009 the applicant pleaded guilty to an indictment containing the following counts:
(i)between 20 August 2008 and 15 September 2008 attempted to have sexual intercourse with RG, a child then under the age of 10 years, namely 6 years (Crimes Act 1900 NSW s. 66B) (count 1);
(ii)between 15 September 2008 and 17 October 2008 had sexual intercourse with RG, a child then under the age of 10 years namely 6 years (Crimes Act 1900 NSW s. 66A) (count 2);
(iii)between 12 October 2008 and 10 October 2008 assaulted AG and immediately at the time of such assault committed an act of indecency on AG, a child under 10 years, namely 4 years (Crimes Act 1900 NSW s. 61M(2) (count 3)).
The applicable maximum penalties are as follows:
(i)as to count 1, 25 years imprisonment;
(ii)as to count 2, 25 years imprisonment with a standard non-parole of 15 years;
(iii)as to count 3, 10 years imprisonment with a standard non-parole period of 8 years.
The applicant was sentenced as follows:
(i)as to count 1, a fixed term of imprisonment of 6 years commencing 17 October 2008 and expiring on 16 October 2014;
(ii)as to count 2, a non-parole period of 6 years and 6 months imprisonment, commencing 17 October 2012 and expiring on 16 April 2019, with an additional term of 3 years;
(iii)as to count 3, a non-parole period of 4 years and 6 months commencing on 17 October 2011 and expiring on 16 April 2016, with an additional term of 1 year and 6 months.
The total sentence was one of 13 years and 6 months imprisonment, comprising a non-parole period of 10 years and 6 months imprisonment and an additional term of 3 years. The applicant will be eligible for release on parole on 16 April 2019.
The applicant seeks an extension of time in which to seek leave to appeal against the sentences imposed. The background to that application is set out in an affidavit of the applicant of 18 September 2013, along with an affidavit of Lauren Hrouda, solicitor, of 18 September 2013. In summary, the applicant did not lodge an appeal against the sentence imposed upon him because he was advised by his then legal representative that there was no utility in doing so, and that he would "get more time if he appealed". In early 2013 he conferred with a representative of Legal Aid NSW who advised him that there may be merit in an appeal.
Ms Hrouda has deposed to the fact that she received a copy of the remarks on sentence in early 2013 to consider whether there was merit in an application for leave to appeal against sentence due to a "Muldrock type error" (see Muldrock v R (2011) 244 CLR 120; [2011] HCA 39). In Abdul v R [2013] NSWCCA 247 this Court explained in detail the background to, and the general nature of, so-called "Muldrock errors".
Ms Hrouda conferred with the applicant, further documentation was obtained, and counsel was briefed. There appears to have been some delay in obtaining (inter alia) a transcript of the sentence proceedings, although that delay was not the fault of Ms Hrouda or the applicant. A Notice of application for leave to appeal was eventually filed on 28 June 2013.
The Crown has opposed the grant of an extension of time.
THE FACTS
The following summary is taken from the remarks of the sentencing judge.
Count 1
The victim RG was the daughter of the applicant. At the time of the offending she was 6 years old and developmentally delayed, both physically and mentally.
At some time between 20 August 2008 and 15 September 2008 the applicant and his former partner collected RG from her grandmother's house and took her back to their house for a visit. On arriving at the house the applicant told his partner that he was taking RG into the bedroom.
The applicant's partner then walked into the bedroom where the applicant had taken RG. She saw RG lying down on her back on the bed, with her knees bent and her legs parted. She was wearing a shirt but was naked below the waist. The applicant was kneeling between her legs and was also naked from the waist down. His penis was exposed and erect. The applicant then attempted to place his erect penis inside the victim's vagina.
The applicant's partner told the applicant to stop. While the applicant was attempting to penetrate RG, she was trying to wriggle away from the applicant and was asking the applicant's partner to help her. The applicant's partner told the applicant to stop and after about five minutes, without having penetrated the victim's vagina, the applicant stopped and left the room.
Count 2
On 17 October 2008, a case worker from the Department of Community Services was contacted and asked to attend the school at which RG attended. On that occasion RG reported that the applicant had engaged in sexual intercourse with her at her home. She later confirmed this complaint in a recorded interview with police.
Count 3
The victim AG was also the daughter of the applicant. At the time of the offending she was 4 years of age and lived with the applicant, his partner, and her younger sister who was then 20 months old. Like RG, AG was also developmentally delayed, both physically and mentally.
On the occasion of the offending, which was between 1 and 10 October 2008, AG was at home. The applicant informed his partner that he was going to bathe AG. The applicant's partner later heard AG crying. She entered the bathroom and saw the applicant and AG naked in the bath. The applicant was kneeling in the bath and holding AG in a standing position, rubbing his erect penis up and down between her legs, which he was holding tightly together. The applicant's partner called upon the applicant to stop but he would not do so. He continued to rub his penis between AG's legs before ejaculating between them. When the applicant's partner asked the applicant why he acted as he did, he replied that AG had been "mucking up".
The findings of the sentencing judge
His Honour found (at ROS 5) that the behaviour of the applicant was both deliberate and calculated but that at the same time, the offending was opportunistic to some degree (at ROS 10). He had particular regard to the age of the victims, and concluded (at ROS 9) that the applicant viewed his own children as sexual objects and as a source of sexual gratification.
In terms of the objective gravity of the offending, his Honour described it (at ROS 9) as "particularly heinous". He found the offending in counts 1 and 2 to be within the mid range of objective seriousness, and the offending in count 3 to be "just under the worse (sic) category, having regard to the nature of the activity, the persistence, the fact of ejaculation and the age of the child". His Honour also found (again at ROS 9) that the common denominator to the entirety of the offending was a gross breach of trust by the applicant, who was a person who was supposed to be a protector of the two victims.
THE GROUNDS OF APPEAL
Ground 1 - His Honour erred in the way the applicable standard non-parole period was taken into account in connection with counts 2 and 3
The findings of the sentencing judge
As previously noted, counts 2 and 3 carried standard non-parole periods of 15 years and 8 years respectively. In reference to the standard non-parole periods his Honour said (at ROS 11):
"Now two of the offences attract a standard non-parole period and I must give reasons for departing from the standard non-parole period and the primary reason is the plea, and second reason is, the degree of functioning even not withstanding that I still found it to be within the mid range. And the third reason is, I do propose to find special circumstances in relation to the final sentence I impose. Now I appreciate that nevertheless the standard non parole period remains as a guide, as a general guide along with the maximum sentence and I am mindful not to oscillate around it, having decided to depart from it. I am mindful of the authorities that say I should not oscillate around the non-parole period."
The submissions of the parties
It was submitted on behalf of the applicant that the sentencing judge had adopted a two stage approach to sentencing contrary to the decision in Muldrock. In particular, it was submitted that his Honour had given primary, or perhaps even determinative, significance to the standard non-parole period, as opposed to adopting a process of instinctive synthesis (as to which see Markarian v R [2005] HCA 25; (2005) 228 CLR 357 per McHugh J at [51]). This, it was submitted, was evident from his Honour's reference to being required to give reasons for departing from the standard non-parole period.
Counsel for the applicant acknowledged that in determining whether his Honour had erred, it was necessary to consider the entirety of the sentencing remarks and that to proceed on the basis of considering isolated passages was not the correct approach. However counsel submitted that viewed as a whole, his Honour's observations pointed to the adoption of a two stage approach to sentencing.
The Crown submitted that there had been no error, and stressed that it was the substance, rather than the form, of the reasons of the sentencing judge which were required to be assessed.
To the extent that the applicant relied on the sentencing judge's reference to "departing from" the standard non-parole period as being indicative of the adoption of a two-stage process of sentencing, the Crown submitted that his Honour was simply adopting that phrase to convey his reasons for imposing a sentence different from the standard non-parole period. It was further submitted that on a fair and complete reading of his Honour's reasons, it was apparent that a process of instinctive synthesis had been followed, and that his Honour had taken into account all relevant factors before recording the reasons for imposing a sentence different to the standard non-parole period in each case.
The Crown also placed reliance upon the sentencing judge's reference to the standard non-parole period remaining as a "general guide along with the maximum penalty". It was submitted that the adoption of such a description was at odds with a conclusion that the standard non-parole period had been given primary or determinative significance.
Consideration and conclusion
Taken in isolation, his Honour's reference to the fact that counts 2 and 3 attracted a standard non-parole period, immediately followed by his Honour's reference to the necessity to give reasons for departing from the standard non-parole period, might be indicative of the application of a two stage process of sentencing. Such a process is clearly impermissible in light of the decision in Muldrock. However, confining the examination of his Honour's reasons to an isolated passage is not the correct approach. Both parties acknowledged that in determining this ground, it is necessary to read the reasons of the sentencing judge as a whole (see Essex v R [2013] NSWCCA 11 at [30] citing Aldous v R [2012] NSWCCA 153 at [2] and Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [43]).
When the reasons are read as a whole, I am not satisfied that his Honour's approach was erroneous. Prior to the passage set out at [21] above, his Honour had considered the various mitigating and aggravating factors. In doing so, he made express reference to the circumstances of the offending, the applicant's personal circumstances, the applicant's subjective features and the matters of aggravation. A reading of those passages of his Honour's reasons tends against a conclusion that his Honour adopted a two stage process of sentencing, in which he regarded the standard non-parole period as a fixed and rigid starting point. In my view, it points to a process of instinctive synthesis having been adopted, in which all relevant matters were identified and taken into account, and a judgment reached as to the appropriate sentence.
I am fortified in that view by his Honour's reference to the standard non-parole period being (along with the maximum penalty) a "general guide", and by his reference to the need not to "oscillate around" the standard non-parole period. Such references, when read as part of the sentencing remarks as a whole, run contrary to the proposition that the standard non-parole period was used in some fixed, rigid or otherwise impermissible way (see Aslett v R [2012] NSWCCA 235 at [35]).
For these reasons, this ground is not made out.
Ground 2 - His Honour failed to apply the principles relevant to sentencing intellectually disabled offenders
The evidence on sentence
Dr Westmore, a forensic psychiatrist, examined the applicant and provided a report of 8 May 2009 which was tendered on sentence. He diagnosed the applicant as having a psychosexual disturbance in respect of which he said (at p. 5):
"This man has acted in an inappropriate sexual way toward two of his children. Details of the offending behaviour are noted in the police fact sheet. (The applicant) either could not or found it difficult to provide a history relating to the offending behaviour. Having examined him only once I am not in a position to indicate to you or the court the extent of his sexual difficulties, but it would appear that his level of insight into the inappropriateness of his behaviour and its wrongness is likely to be compromised. I think that is occurring because of his intellectual problems."
Significantly, Dr Westmore also concluded (at p. 6 of his report) that the applicant was mentally retarded. He estimated that the degree of such retardation was "mild but possibly closer to the moderate range". He described the applicant's level of functioning as being "in the lower range" as a consequence of his retardation.
Having arrived at these diagnoses, Dr Westmore said (at p. 6 of his report):
"He has a limited employment history and he has worked on at least two occasions in services which support intellectually disadvantaged people. He said he can write his name and date of birth, but otherwise he cannot read or write.
He has had one extended relationship with the mother of his three children. They were together for seven years. He has three daughters from that relationship and two of those children are the victims in this matter.
(He) appears to understand he has some problems with controlling his sexual behaviour, he talked about losing control. He denies having sexual fantasies involving prepubescent children however, although that history is obviously counteracted by the nature of the matters now before the court.
I am not able to say that he suffers from the condition paedophilia, but his actions were of that type.
He expressed a willingness, even a keenness, to attend a sex offenders' program and I saw that as being a positive aspect of his presentation. To what extent he will be able to learn about appropriate sexual behaviour is unclear. He should be formally tested by a neuropsychologist and that is likely to occur as part of his overall assessment at the sex offenders' program".
In terms of the risk of re-offending, Dr Westmore said (at p. 7 of his report):
"His risks of reoffending will be better understood after he has completed an appropriate sex offenders' program, much will depend on the level and insight and understanding he has about the inappropriateness of his behaviour towards his daughters and he needs to achieve a greater understanding about the harm he could have done to them, both physically and psychologically, by his actions.
...
At this stage his prognosis looks uncertain but I am not in a position to say that his prognosis is either good or poor based on the current assessment."
A pre-sentence report dated 9 March 2009 was also before the court. Under the heading "Attitude to the offences" (at page 2) the author of the pre-sentence report said:
"(The applicant) agreed with the police facts and did not dispute the findings of the court. He admitted guilt for his offending, describing his behaviour as "stupid". When pressed, he stated that he has had sexual feeling towards his daughters for sometime, and alluded to the fact that he has struggled with this issue for many years. The applicant did appear to have some level of insight into the wrongfulness of his behaviour; however he seemed to not fully understand the impact of his offence on his victims. He did identify the need for some form of professional intervention in relation to his offending behaviour and although this is encouraging, it is doubtful whether the applicant fully comprehends the inappropriateness of having sexual desires towards his daughters at this point."
In summary, the author of the pre-sentence report said (at page 3):
"(The applicant) appears to have a history of sexual based offending. He presents as having unresolved mental health issues, and would no doubt benefit from a comprehensive Forensic Psychological assessment. (The applicant) appears to struggle with thoughts about sexual offending against minors, and it is the view of this service that (the applicant) would benefit from participation in a significant and intensive offence targeted program. It is a significant concern to this service that the applicant has no post release support in the community, given that he is estranged form (sic) his entire family."
The fact that the applicant is estranged from his family would appear to be supported by the history that he gave Dr Westmore that he receives no visits in custody.
The findings of the sentencing judge
His Honour referred to the report of Dr Westmore (commencing at ROS 6) in the following terms:
"There is a psychiatric report from Dr Westmore, which is dated 8 May 2009. I have paid careful attention to the psychiatric report, but it does not answer all the unanswered questions. It does set out in some detail, the applicant's background, he is twenty-eight and he is receiving a disability support pension and he has received that pension since 1997. He explained to the psychiatrist he was getting the pension for reading and writing and a few other things. The psychiatrist concludes, which seems to be common ground, that he has what the psychiatrist calls compromised intelligence and there are obvious difficulties with his communication skills.
When the details of the offences were discussed with him, on one occasion he said "I don't really know" when asked why he engaged in such conduct. He said "I should've stopped well beforehand and got help, like I was going to." He said "I was trying to keep myself under control as much as possible" - not much control I would comment. "I should have gone to get help like I said to me missus in the first place, it's just something you're not supposed to do" - on this occasion showing some rare insight into his behaviour.
He has had two significant relationships, the last one being with the partner ... the mother of his three children. He was asked about sexual fantasies and he said "I've only done it once or twice, I've tried to keep my mind away from all that stuff." And he was asked more directly, whether he had sexual fantasies or thoughts about children and he said "No and gaol has made me think a lot."
The personal history demonstrates that he received some special education classes and there was some sexual contact with an older boy, which does not seem to have any particular significance here. And he cannot read or write and he left school in Year 8.
In terms of the mental state examination, it appears that he is not suffering from any major depressive illness. He has no psychotic symptoms or none were identified and he is in the mild to moderate range of mental retardation. The psychiatrist is not in a position to indicate to the court the extent of his sexual difficulties, I suppose that is difficult when he denied to the psychiatrist the particular fantasies about children. He says it would appear that his level of insight into the inappropriateness of his behaviour and the wrongfulness is likely to have been compromised. And again, the psychiatrist concluded that he denies sexual fantasies involving pre pubescent children, although that history is obviously counteracted by the nature of the matters before the court. The doctor concludes, "I am unable to say he suffers from the condition paedophilia but his actions were of that type."
Well one could comment here, if this applicant's not a paedophile, who is, but I do not think the particular label matters that much because he acts as a paedophile, when he gratifies himself on children of tender years and whether the psychiatrist has given him the label or not, he certainly acts in the manner of a paedophile. At this stage according to the psychiatrist, his prognosis looks uncertain and he is not in a position to say that it is either good or poor, based on the current assessment. Well that is particularly unhelpful".
Without identifying which part(s) of Dr Westmore's opinions he accepted, and which he rejected, his Honour then turned to consider the pre-sentence report and said (commencing at ROS 7):
"The pre-sentence report does throw a bit of further light and the pre-sentence report is a report dated 9 March 2009. And again it details much of the history that which I have already talked about and I will not repeat it. It confirms the fact that the applicant is on a disability pension, et cetera, and it does make reference to a Corrective Services State Wide Disability Service Report, where it was noted that the results suggest significant impairment in verbal skills which may result from hearing impairment and/or other causes.
In relation to the attitude to the offence it is noted that the applicant described his behaviour as stupid, well I would comment that it was much more than stupid. When pressed he stated he had sexual feelings towards his daughters for some time. And he struggled with the issue for many years, he did appear to have some level of insight into the wrongfulness of his behaviour. However, he seemed not to fully understand the impact of the offences on the victims. And it notes that, "It is doubtful whether the applicant fully comprehends the inappropriateness of having sexual desires towards his daughters at this point." It comments that he could reasonably be considered a risk to the community. Well that is probably axiomatic. He has no support in the community. There is no post release support in the community because he has become estranged from his family".
His Honour then reached the following conclusion as to the effect of the applicant's mental illness on sentence (at ROS 8):
"..... I do find that the level of intellectual functioning does diminish the objective gravity, at least to some extent and it does moderate the requirement for general deterrence to some extent. But having said that, I need to acknowledge immediately that there are countervailing considerations and that is, because of the applicant's intellectual functioning, he remains a danger to the community and the community needs protection from him and children of tender years need protection from him and there is nothing in the evidence that enables me to conclude he could have the discipline to not offend in the way he has already offended".
The submissions of the parties
Counsel for the applicant submitted that the applicant's level of mental retardation was properly described as "significant" in the sense in which that term was used by the High Court in Muldrock. Indeed, counsel for the applicant submitted that the opinion of Dr Westmore supported the conclusion that the applicant's mental retardation was greater than that of the appellant in Muldrock.
Accepting that the applicant was mentally retarded to a significant degree, counsel submitted that his Honour had failed to have proper regard to the fact that:
(i)the moral culpability of the applicant was greatly reduced;
(ii)the significance of general deterrence, specific deterrence, punishment and the need to make the applicant accountable for his actions were all reduced; and
(iii)the denunciatory purposes of sentencing were of less significance.
Counsel submitted that the statements made by the applicant to Dr Westmore, and to the author of the pre-sentence report, about his having sexual feelings towards his daughters were necessarily required to be assessed in the context of someone who had received no appropriate treatment to deal with his sex offending. Counsel further submitted that the evidence established that the applicant had a compromised understanding of his wrongdoing, which was the result of a combination of his mental retardation and the absence of treatment.
Counsel for the applicant also emphasised a number of positive features of the applicant's case. These included his motivation to undergo treatment, and his lack of history of similar offending. In view of these matters, counsel submitted that it had not been open to the sentencing judge to find that the applicant remained a danger to the community, and that the community continued to require protection from him.
The Crown submitted that it was apparent from the remarks on sentence that his Honour was aware of the importance of the applicant's intellectual disability in the sentencing process. This, it was submitted, was evident from his Honour's reference to the fact that this had operated to generally reduce what would otherwise have been the objective gravity of the offending.
The Crown further submitted that it was open to the sentencing judge to find, on the balance of probabilities, that there was a risk of reoffending. It was submitted that such a finding was supported by:
(i)the fact that there were three offences involving two different victims;
(ii)the applicant's admission that the offences were committed in the context of him having had sexual feelings towards his daughters for some time;
(iii)the evidence that there was going to be little or no family support in the community upon the applicant's release; and
(iv)Dr Westmore's opinion that the extent to which the applicant would be able to learn about appropriate sexual behaviour remained unclear.
In these circumstances, it was submitted that the applicant had failed to demonstrate that it was not reasonably open to his Honour to find that the applicant posed a risk to the community.
Consideration and conclusion
In Muldrock the High Court observed (at [50]):
"The condition of mental retardation is classified according to its severity as mild, moderate, severe or profound. Mental retardation is defined by reference to both significantly subaverage general intellectual functioning and significant limitations in adaptive functioning. Significantly subaverage intellectual functioning is defined as an intelligence quotient (IQ or IQ equivalent) of about 70 or below".
The Court proceeded to observe (at [51]) that the fact that the appellant in that case had engaged in some paid employment, and the fact that he held a driver's licence, did not detract from an assessment of his level of retardation. The Court also observed that the appellant, like the applicant in the present case, had been in receipt of a disability support pension.
By reference to the judgments of Young CJ and Lush J in R v Mooney (CA (Vic) 21 June 1978 unreported) the High Court cited (at [53]) the principle that general deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality, because such an offender is not an appropriate medium for making an example to others. In Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194, McClellan CJ at CL (at [177] - [178]) considered the principles to be applied when sentencing a mentally ill offender. Although the decision in De La Rosa was delivered after the present applicant was sentenced, his Honour's judgment reviewed a number of earlier authorities and consolidated the well established principles for which those authorities stood, and which were applicable to the sentencing of the applicant. Included in those principles was that cited by the High Court in relation to the consideration of general deterrence in the case of a mentally ill offender.
In the present case, the unchallenged opinions of Dr Westmore included that the applicant had:
(i)a compromised level of insight into the inappropriateness of his behaviour;
(ii)an inability to read and write, other than being able to write his name and date of birth; and
(iii)an employment history which, in recent times at least, had been limited to working in services supportive of those who are intellectually disadvantaged.
These, and the various other matters to which Dr Westmore referred, all supported his ultimate opinion that the applicant was at least mildly, if not moderately, mentally retarded. Counsel for the applicant submitted that the applicant's mental retardation was at least the same, if not greater than, that of the applicant in Muldrock. However such a comparative exercise may not be to the point. The more important consideration is that the degree of the applicant's retardation was, on any view, significant, and its relevance to sentence obvious.
His Honour expressly stated that he had paid "careful attention" to the report of Dr Westmore before observing that in his view, it did not "answer all the unanswered questions". He then set out a number of aspects of the report as detailed in [38] above, before considering the pre-sentence report and then reaching the conclusions set out in [40]. He found that the applicant's level of intellectual functioning diminished the objective gravity of the offending "at least to some extent" and that it moderated the requirement for general deterrence "to some extent" before immediately turning to what he considered to be countervailing considerations, including the fact that the applicant posed a danger to the community.
Although his Honour made lengthy references to the report of Dr Westmore, and although he stated that he had paid careful attention to its contents, he made only a brief reference to Dr Westmore's opinion as to the applicant's mental retardation. Although that factor was of obvious importance in determining an appropriate sentence, his Honour's reference to it passed without any further comment or evaluation.
The significance of the applicant's mental retardation became even greater in light of Dr Westmore's unchallenged opinion that it had resulted in the likelihood of the applicant having a compromised level of insight into the wrongness of his behaviour. Clearly, Dr Westmore found some causal connection between the applicant's mental state and his offending. In these circumstances, the applicant's mental state not only meant that he was an inappropriate vehicle for general deterrence, it also operated to reduce his moral culpability.
These matters were, on any view, important considerations in determining the sentence to be imposed. Apart from his Honour's passing reference in the terms which I have noted, there was no further assessment made of them. Moreover, to the extent that his Honour gave those matters consideration at all, he did so in somewhat qualified terms, finding that they were relevant "to some extent". Such a finding significantly understated their significance, and was indicative of insufficient weight having been given to them in the sentencing process. The evidence established that as a mentally retarded adult it was likely that the applicant had a compromised understanding of the wrongdoing of engaging in sexual acts with children. His Honour was required to assess the applicant's criminality in that context. In my view, the relevance, on the question of sentence, of the applicant's mental retardation was substantially greater than that for which his Honour made allowance.
His Honour also described the applicant's offending (at ROS 5) as being "persistent and deliberate ... notwithstanding the interruption by (his) partner". Whilst on an objective view of the offending that description might be prima facie accurate, it failed to take into account the unchallenged evidence of Dr Westmore as to the applicant's compromised level of insight into his offending.
For these reasons, his Honour erred in failing to properly apply the principles relevant to the sentencing of an offender who suffers from a mental illness. In particular, his Honour failed to give sufficient weight to the applicant's mental retardation in the particular respects to which I have referred. Those errors were material (see Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284 at [83] per Latham J).
This ground is therefore made out.
The application to extend time
In Abdul (supra) this Court said (at [53])
"Accordingly, when considering an application for extension of time based on "Muldrock error", all relevant factors need to be considered - the length of the delay, the reasons for the delay, the interests of the community, the interests of the victim and whether, if an extension of time were refused, substantial injustice would result. This last factor will inevitably require an assessment of the strength of the proposed appeal although as Etchell made clear, that assessment can be carried out in a "more summary fashion" than would be done in an application for leave to appeal that was brought within time".
The delay in the present case is substantial, although perhaps not as great as that in some cases examined recently by this Court. A Victim Impact Statement which was before the sentencing judge set out the emotional effects upon the victim AG, although given her young age this may be a case in which an extension of time would not have any further adverse effect upon her. An extension of time would, however, offend the principle of finality. To the extent that the application was brought on the basis of a change in sentencing principles arising from the decision in Muldrock it is also relevant that I have found that no Muldrock error has been made out. On balance, these various considerations tend against an extension of time being granted.
Further, although ground 2 has been made out, an appeal based upon that ground could have been brought at a far earlier time. That said, the failure to do so is largely explained by the advice which was given to the applicant following the sentence proceedings. The tenor of that advice was, to say the least, unhelpful. In light of the conclusions I have reached in respect of ground 2, it was also inaccurate.
For the reasons explained in Abdul, because a material error has been established it is necessary to assess the prospects of success of the application for leave to appeal. In doing so, the Court must consider whether any other sentence is warranted in law (Criminal Appeal Act 1912 (NSW) s. 6(3)).
Is a lesser sentence warranted in law?
Submissions of the parties
Counsel for the applicant acknowledged the seriousness of the applicant's offending, and the fact that it involved a significant breach of trust. However, it was submitted that the applicant's continuation of his offending in the face of the requests made by his partner to desist was explicable on the basis of his mental retardation, and his lack of insight into his wrongdoing. In this respect, counsel emphasised the degree of the applicant's mental retardation, and submitted that he was basically illiterate.
Counsel also pointed to the applicant's expressed willingness to undertake treatment, and to the opinion of Dr Westmore that this was a positive aspect of the applicant's presentation.
Counsel for the applicant acknowledged the importance of the protection of the public. However she pointed out, with some force in my view, that the applicant had not previously displayed any predatory or similar behaviour, and stressed that he had not yet received any treatment in respect of sex offending. The essence of those submissions was that appropriate treatment would assist in his rehabilitation.
The Crown acknowledged the evidence of the level of the applicant's mental retardation but submitted that properly viewed, the opinion of Dr Westmore fell short of establishing a causal link between that condition and the applicant's offending. The Crown also stressed the seriousness of the offending, the fact that it involved two separate victims, the applicant's persistence in the face of being told to desist and the serious breach of trust.
Consideration and conclusion
The Crown's submissions as to the seriousness of the offending are obviously well made. However, they must be balanced against a number of other matters, the most significant of which is the applicant's mental state which, for the reasons I have already expressed, is significant. In my view, primarily as a consequence of the failure of the sentencing judge to have proper regard to the applicant's mental state, a lesser sentence is warranted in law. However in determining the appropriate sentence, the sentencing discretion must be re-exercised afresh, taking into account all relevant considerations.
The existence of a causal connection between the applicant's retardation and the offending is an inescapable conclusion from the report of Dr Westmore. As a consequence, the applicant's moral culpability is significantly reduced and he is not an appropriate vehicle for general deterrence.
Prior to these matters, the applicant was a person of prior good character with no criminal history. He pleaded guilty at the first available opportunity, he is not a recidivist and he has expressed both a willingness and a keenness to engage in appropriate forms of treatment.
I have taken into account the contents of the applicant's second affidavit of 18 September 2013 which was admitted without objection on the question of re-sentence. He has undertaken literacy classes since being in custody, is employed full time in a textile shop and is undertaking a course of study in textiles at TAFE. All of those matters provide some positive support to his prospects of rehabilitation.
In particular, the applicant has expressed (consistent with what he told Dr Westmore) a desire to undertake a sex offenders course. As I have noted, Dr Westmore saw this as a positive aspect of his presentation.
Dr Westmore also thought that as part of the applicant's rehabilitation, there was a necessity for him to gain a greater understanding of the inappropriateness of his offending, and the danger he posed to his children. In this regard, the applicant has deposed in his affidavit to wanting to "get better", and has expressed some acknowledgement of the seriousness of his offending. That evidence goes some way to supporting a conclusion that with appropriate treatment, the applicant's prospects of rehabilitation are likely to be more positive than not.
In re-sentencing the applicant in the terms in which I propose, I have had regard to the provisions of s. 54B of the Sentencing Act as amended by Schedule 1[3] of the Crimes (Sentencing Procedure) Amendment (Standard Non-parole Periods) Act NSW 2013 ("the Amendment Act"). In particular:
(i)I have taken into account the standard non-parole periods applicable to counts 2 and 3 as required by s. 54B(2) (as amended by the Amendment Act);
(ii)I have set out above my reasons for the sentences which I would propose be imposed in lieu of those imposed by his Honour at first instance as required by s. 54B(3);
(iii)I have indicated the non-parole periods which I consider appropriate in respect of counts 2 and 3 as required by s. 54B(4); and
(iv)I have set out above the reasons why I consider those non-parole periods to be appropriate as required by s. 54B(5).
ORDERS
For the foregoing reasons, I propose the following orders:
(i)the application for extension of time in which to seek leave to appeal against sentence is granted;
(ii)leave to appeal against sentence is granted;
(iii)the appeal is allowed;
(iv)the sentence imposed in respect of count 1 is quashed, and in lieu thereof a fixed term of imprisonment of 5 years, commencing on 17 October 2008 and expiring on 16 October 2013, is imposed;
(v)the sentence imposed in respect of count 2 is quashed, and in lieu thereof a non-parole period of 6 years, commencing on 17 October 2010 and expiring on 16 October 2016, with an additional term of 3 years expiring on 16 October 2019, is imposed;
(vi)the sentence imposed in respect of count 3 is quashed, and in lieu thereof a non-parole period of 4 years commencing on 17 October 2009, and expiring on 16 October 2013, with an additional term of 12 months expiring on 16 October 2014, is imposed;
(vii)the applicant will be eligible for release on parole on 16 October 2016, and his aggregate sentence will expire on 16 October 2019.
**********
2
11
2