Ali (a pseudonym) v The Queen - [2021] SASCA 142

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
ALI (A PSEUDONYM) v THE QUEEN
[2021] SASCA 142
Judgment of the Court of Appeal (ex tempore)
(The Honourable President Livesey and the Honourable Justice David)
25 November 2021
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - FRESH EVIDENCE AND EVENTS OCCURRING AFTER SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
In 2017, the applicant pleaded guilty to two counts of aggravated indecent assault, one count of unlawful sexual intercourse, one count of indecent assault, two counts of breach of bail, one count of possess child pornography, one count of aggravated possess child pornography and one count of aggravated inducing a child to expose himself. The applicant was 17 years old at the time of the offending.
The applicant contends that he was sentenced on an erroneous factual basis because he was misdiagnosed with a narcissistic or psychopathic personality disorder, rather than an autism spectrum disorder and, as a result, the sentencing Judge erroneously ordered that the applicant be sentenced as an adult and registered and subject to reporting obligations under s 9(1)(b) of the Child Sex Offenders Registration Act 2006 (SA).
Held (per the Court), refusing permission to appeal and dismissing the appeal:
1.That a new diagnosis has been obtained following sentence does not demonstrate that the earlier diagnosis was wrong or that the later diagnosis could not have been obtained with reasonable diligence.
2.It is not reasonably arguable that this evidence, if admitted, would have an important influence on sentence. In circumstances where there is significant commonality between the different diagnoses, a new diagnosis does not put the applicant’s offending in a new light.

Child Sex Offenders Registration Act 2006 (SA) s 9(1)(b); Young Offenders Act 1993 (SA) s 29; Criminal Procedure Act 1921 (SA) s 166(c), referred to.
Queen v Dorning (1981) 27 SASR 481; Rodi v State of Western Australia (2018) 265 CLR 254; R v Smith (1987) 44 SASR 587, considered.

ALI (A PSEUDONYM) v THE QUEEN
[2021] SASCA 142
Court of Appeal – Criminal: Livesey P and David JA
The Court:
Introduction

This is an application for permission to appeal against a sentence imposed in May 2017 in the District Court following an order by the Senior Judge of the Youth Court that the applicant be dealt with as an adult.
In essence, the applicant says that he was sentenced on an erroneous factual basis because he was misdiagnosed with a narcissistic or psychopathic personality disorder rather than an autism spectrum disorder and, as a result, the sentencing Judge erroneously ordered that the applicant be sentenced as an adult and registered and subjected to reporting obligations under s 9(1)(b) of the Child Sex Offenders Registration Act 2006 (SA).
At the heart of this matter is an application to lead what is said to be fresh evidence.
The offences
The applicant pleaded guilty to the following offences:
1. Two counts of aggravated indecent assault on 7 August 2015, contrary to s 56(1)(b) of the Criminal Law Consolidation Act 1935 (SA) (CLCA) for which the maximum penalty was 10 years imprisonment. The aggravating feature was that the applicant was in a position of authority as a music teacher. The sentencing Judge notionally imposed a sentence of three years imprisonment for this offending.
2. One count of unlawful sexual intercourse (the victim being under the age of 17 years) on 7 August 2015, contrary to s 49(3) of the CLCA, for which the maximum penalty was 10 years imprisonment. The sentencing Judge included this in the notional three year sentence.
3. One count of indecent assault between 1 April and 7 August 2015 contrary to s 56(1)(b) of the CLCA, for which the maximum penalty was 10 years imprisonment. The aggravating feature was the young age of the complainant. The sentencing Judge imposed a notional sentence of 18 months imprisonment.
4. Two counts of breach of bail between 27 and 29 September 2015, contrary to s 17(1) of the Bail Act 1985 (SA), for which the maximum penalty was a fine up to $10,000 or two years imprisonment. The sentencing Judge imposed a notional sentence of three months imprisonment for the first count and a conviction without penalty on the second count.
5. One count of possess child pornography and one count of aggravated possess child pornography on 7 August 2015, contrary to s 63A(1) of the CLCA, for which the maximum penalty was five years imprisonment for the basic offence, and seven years imprisonment for the aggravated offence. The element of aggravation was that a number of children were below the age of fourteen, and some were as young as five. The sentencing Judge imposed a notional sentence of 12 months imprisonment for this offending.
6. One count of aggravated inducing a child to expose himself in September 2015, contrary to s 63B(1) of the CLCA, for which the maximum penalty was 12 years imprisonment. The sentencing Judge imposed a notional sentence of 12 months imprisonment.
The sentence
As mentioned, the applicant was sentenced as an adult pursuant to s 29 of the Young Offenders Act 1993 (SA), even though he was aged under eighteen at the time of each offence.
After taking into account partial concurrency, the sentencing Judge imposed one sentence of five years imprisonment, reduced by 30 per cent for the applicant’s guilty pleas, to three years and six months. A non-parole period of two years and three months was fixed. The sentence was backdated to 5 October 2015 when the applicant was first taken into custody.
The offending
The sentencing Judge described the offending as particularly serious. In broad overview, the 7 August 2015 offending occurred while the applicant was teaching piano to a 14-year-old boy. During a lesson, the applicant kissed, masturbated and performed fellatio on the boy.
Between 1 April and 7 August 2015, the applicant touched another boy on the penis on three occasions. However, the applicant was only charged with one offence.
On 8 August 2015, the applicant gave a piano lesson to two girls aged nine and 15 in breach of his bail agreement.
On 29 September 2015, the applicant travelled to Victoria, again in breach of his bail agreement. He travelled to Victoria for the purpose of meeting a 12‑year‑old boy he had met online. The applicant attempted to induce the boy to send a picture of his penis. The boy sent a picture of his bare chest. When he was arrested, police seized from the applicant various electronic devices which contained child exploitation material.
The offender
The sentencing Judge accepted that the applicant had encountered real difficulty moving between his birthplace in China and Australia, and that he had a very difficult and psychologically and physically abusive relationship with his mother. He had been sexually assaulted and subjected to sexual exploitation by adults and other children. He was struggling with his homosexuality which was not accepted by his parents, nor accepted in Chinese culture.
Following psychiatric examinations, Dr Marshall Watson, psychiatrist, diagnosed the applicant with a paraphilic disorder, a narcissistic personality style and concerning psychopathic personality traits. Although the applicant expressed regret and remorse, he tended to minimise his role. He had initiated inappropriate behaviour towards others in youth detention. He appeared to not understand the gravity or seriousness of his behaviour. This suggested that there were apparently poor prospects for rehabilitation.
The application to lead “fresh evidence”
The affidavit evidence and the psychological reports which are the subject of the application to lead fresh evidence suggest that the applicant has a previously undiagnosed and untreated autism spectrum disorder. Ms Morrell suggests that this was misinterpreted as narcissism and psychopathy.
By s 166(c) of the Criminal Procedure Act 1921 (SA), this Court has power to receive further evidence if it is necessary or expedient in the interests of justice. The three preconditions to the admissibility of fresh evidence are well-recognised:[1]
1. It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial or sentencing hearing.
2. The evidence must be such that it would probably have an important influence on the result of the case, though it need not be decisive. There must be a significant possibility that the evidence might reasonably lead to a different decision.[2]
3.The evidence must be apparently creditable.
[1] Queen v Dorning (1981) 27 SASR 481, 485-486 (Walters, Zelling and Williams JJ).
[2] Rodi v State of Western Australia (2018) 265 CLR 254, [28] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ).
It has also been said that the purpose of leading fresh evidence on an appeal against sentence is to put before the Court facts which were in existence at the time sentence was imposed but which were not known to the sentencing Judge, or to explain facts which were before the Judge so as to place them in a new light.[3]
[3] R v Smith (1987) 44 SASR 587, 588 (King CJ, with whom Cox and O’Loughlin JJ agreed).
Disposition of the application
It is noteworthy that the new psychological reports were prepared some years after sentencing in the District Court.
In our view, the psychological reports, together with the affidavit evidence, cannot satisfy all the criteria for admissibility. That a new diagnosis has been obtained after sentence does not demonstrate that the earlier diagnosis is wrong or, that the later diagnosis could not have been obtained with reasonable diligence.
Perhaps more importantly, it is not reasonably arguable that this evidence, if admitted, would probably have an important influence on sentence or that there is a significant possibility that the evidence might reasonably lead to a different decision.
As Ms Morrell accepts, there is a significant degree of commonality between a narcissistic personality type and autism spectrum disorder. In her report dated 27 June 2021, she explained:
The relationship between Autism Spectrum Disorders/pervasive developmental disorders and personality disorders is not completely clear, although both concepts imply lifelong impairment. Both ASD and Narcissistic Personality Disorder … are considered to be on a spectrum. Narcissism is a personality condition that ranges from mild to severe. In the most severe instances, the person demonstrates sociopathic tendencies or an antisocial personality, traits of which were ascribed to [the applicant]. Similarly, Autism also resides on a spectrum.
Later, Ms Morrell explained that autism spectrum disorder and narcissism can coexist and that there is significant agreement in the scientific literature that the emotional processing problems typical of narcissistic individuals are also central features of autism. Earlier in her report, she cited psychological literature to the effect that individuals with autism spectrum disorder may be predisposed to commit crimes due to their social naivety, social misunderstanding and their lack of understanding of the implications of that behaviour. Additionally, a lack of empathy and ability to consistently control emotions and issues associated with moral reasoning can increase the likelihood of an individual with autism spectrum disorder being exposed to the criminal justice system.
In short, a different diagnosis does not put the applicant’s offending in a new light.
Because the report of Dr Watson explained that, longitudinally, the applicant presented a moderate to high risk of reoffending without treatment and supervision it is entirely unsurprising that the sentencing Judge thought it appropriate to make an order pursuant to s 9(1)(b) of the Child Offenders Registration Act 2006 (SA). It cannot be said, based on the further psychological material, that that risk was not apparent even had there been an autism spectrum disorder diagnosis before the sentencing Judge.
Conclusion
In our view, no point of principle is raised and neither proposed ground of appeal is reasonably arguable.
Permission to appeal is refused.