DB v The King

[2023] NSWCCA 323

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

DB v R [2023] NSWCCA 323

Hearing dates:

23 June 2023

Date of orders:

23 June 2023

Decision date:

15 December 2023

Before:

Simpson AJA at [1]
Lonergan J at [2]
Dhanji J at [78]

Decision:

(1) Leave to appeal granted.

(2) Appeal allowed.

(3) The sentence imposed by Colefax SC DCJ on 7 March 2022 is quashed and in lieu thereof the following sentence is imposed. An aggregate sentence of 2 years, commencing on 7 March 2022 and expiring on 6 March 2024, with a non-parole period of 1 year commencing on 7 March 2022 and expiring 6 March 2023.

(4) The Court notes that the applicant is entitled to immediate release to parole.

Catchwords:

CRIMINAL LAW – appeal – pleas of guilty – appeal against sentence – insufficient regard to psychologist’s report – whether the sentencing judge failed to consider and apply De La Rosa principles to the applicant’s circumstances – error found – applicant resentenced

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Administration of Sentences) Act 1999 (NSW)

Cases Cited:

Aslan v R [2014] NSWCCA 114

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

Kelley v R [2021] NSWCCA 173

Moiler v R [2021] NSWCCA 73

Mulato v Regina [2006] NSWCCA 282

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

Category:

Principal judgment

Parties:

DB (Applicant)
Rex (Respondent)

Representation:

Counsel:
K Averre / H Thomas-Dubler (Applicant)
E Wilkins SC (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2020/00287992

Publication restriction:

The non-publication orders made pending appeal are to continue.

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

7 February 2022

Before:

Justice Colefax SC

File Number(s):

2020/00287992

JUDGMENT

1. SIMPSON AJA: I joined in the orders made by this Court on 23 June 2023 for the reasons given by Lonergan J.

2. LONERGAN J: The applicant, DB sought leave to appeal against the sentence imposed upon him in the District Court at Campbelltown on 7 March 2022. He had entered guilty pleas in the Local Court to charges of incite bestiality and incite incest with a person aged over 16 years.

3. The sentencing judge, Colefax SC DCJ, imposed an aggregate term of imprisonment of 4 years with a non-parole period of 2 years imprisonment.

4. The offences, corresponding maximum penalties, the sentencing judge’s findings of objective seriousness and the indicative sentences specified by his Honour are set out in the following table:

Offence	Maximum penalty	Findings of objective seriousness	Indicative sentence
Sequence 1: Incite bestiality ss 79, 80G Crimes Act 1900	14 years imprisonment	Within the mid-range	3 years imprisonment
Sequence 2: incite incest with person aged over 16 years ss 78A, 80G Crimes Act 1900	8 years imprisonment	Slightly below the mid-range	2 years and 3 months imprisonment

5. This appeal was heard on 23 June 2023. The Court had the benefit of written submissions provided in advance of the hearing, and helpful oral submissions at the hearing. After a short adjournment, the Court granted leave to appeal, allowed the appeal and resentenced the applicant to a period of imprisonment of 2 years with a non-parole period of 1 year, noting that the non-parole period would have expired on 6 March 2023 and so under s 158 of the Crimes (Administration of Sentences) Act 1999 (NSW), the applicant was entitled to immediate release.

6. These are my reasons for joining in those orders.

The Appeal

7. The applicant relied on three grounds of appeal:

1. The sentencing judge erred in his assessment of the objective seriousness of the offending.

2. The sentencing judge erred in finding that there was no causal connection between the applicant’s mental health and the offending and/or failed to have regard to other relevant principles applicable to offenders suffering from mental health issues.

3. The aggregate sentence imposed was manifestly excessive in the circumstances of the case.

The agreed facts of the offences

8. The facts of the offences were set out in the statement of agreed facts, the substance of which was repeated in the remarks on sentence.

9. The offences occurred in August 2020. The applicant was 83 years old at that time. He has four children, including SH, a male then aged 57 years and VK, a female then aged 51.

10. On 2 and 5 August 2020 police intercepted two telephone conversations between the applicant and SH. The circumstances giving rise to the telephone intercepts were not specified in the agreed facts or otherwise made known to the sentencing judge.

11. During the telephone conversation on 2 August 2020 the applicant and SH made comments to each other comprising incitement to commit bestiality with a dog. The conversation included the following:

1. The applicant and SH discussed an appropriate breed of dog to purchase, including the size of the dog and the size of the dog’s penis.

2. The applicant advised SH not to procure a dog that had been desexed.

3. The applicant told SH that he had been researching dog breeds and had located dogs to look at in Maitland, Casino and Bargo.

4. The applicant and SH assured each other they were serious about purchasing the dog.

5. The applicant offered to pay for the purchase of the dog.

6. The applicant and SH both spoke about performing oral sex on the dog and placing an unnamed substance on their penises so the dog could perform oral sex on them both.

7. The applicant and SH agreed that the dog would sexually penetrate their anuses with its penis.

8. The applicant and SH spoke about taking turns to engage in sexual intercourse with the dog.

12. During the telephone conversation on 5 August 2020 the applicant incited SH to commit incest against VK, the biological daughter of the applicant and biological sister of SH. The conversation included the following:

1. The applicant and SH discussed their desire to perform sexual acts on VK, with the applicant stating that: “I’d like to suck her tits” and “I’d like to have me [sic] fingers in her”.

2. The applicant and SH spoke at multiple points about arranging for VK to travel to Sydney for the purpose of having sexual intercourse with the applicant, with the applicant telling SH: “See if you can get her to come around…. I’d just like to suck on her tits. I think they’re lovely”.

3. The applicant encouraged SH to entice VK to travel to his house so that he could attempt to have sexual intercourse with VK. SH told the applicant: “If I got in her pants, I’d take a video of it and I’d let you see it…I like knowing you want to fuck her too”.

4. The applicant offered to provide money to SH so that he could pay VK to participate in sexual intercourse.

5. The applicant accepted an offer from SH to listen over the telephone in the event that he had sexual intercourse with VK.

13. The applicant’s home was searched by police on 17 August 2020. A flash drive was located which contained bestiality materials, including a video depicting a female having sexual intercourse with a male dog.

14. Police conducted a forensic download of the applicant’s computer which revealed the following:

1. One image of bestiality pornography dated 2 August 2020.

2. An internet search history between 13 October 2018 and 15 August 2020 that contained references to the following keywords: “incest”; “rape”; “teen sex”; “school-girl”; “young girl”; young boy”; and “pedo”.

3. 131 images of bestiality pornography.

15. The applicant was arrested on 6 October 2020. He agreed to participate in an electronically recorded interview with police, during which he stated:

1. The conversations with SH were a result of boredom.

2. He was guilty and ashamed about the conversation pertaining to bestiality but believed SH would have never followed through with purchasing a dog.

3. He admitted to watching bestiality pornography.

4. He apologised for the conversation about VK and acknowledged that what he had discussed with SH was wrong and disgusting.

5. He said the conversations about bestiality were fantasy and he had no intention of committing acts of bestiality.

6. He was unable to recall any previous conversations with SH about VK and said he would not have done anything of a sexual nature with her.

The proceedings on sentence

16. Of some centrality was a report of Sam Borenstein, Clinical Psychologist, dated 27 November 2021. The report was partly based on what he was told on interview with the applicant on 25 November 2021. Mr Borenstein also noted that he had been provided with the statement of agreed facts.

17. After outlining the applicant’s social history, including the death of his wife in 2008, some unresolved family issues, and that he was feeling isolated and alone, the applicant told Mr Borenstein that he had sought connection with his son through “fantasy discussions” which included the notion of purchasing a dog for sexual gratification. The applicant was noted by Mr Borenstein to have accepted that when the comments were made, he spoke with intent to act upon them, but he does not believe he would have followed through with the actions, even though he acknowledged to Mr Borenstein that his son may have done so, and that he had incited his son to do so.

18. The report also noted that the applicant felt burdened by guilt and remorse: “I feel totally ashamed. What I did was stupid. I accept responsibility and I can’t understand why I did it”.

19. Under the heading "Opinion," Mr Borenstein concluded:

“Mr [the applicant] remains a lonely, isolated man who suffers with multiple health problems and symptoms of major depression and anxiety. Symptoms include suicidal ideation without intent, sleep disturbance, appetite disturbance, weight loss, compounded by Mr [the applicant]'s chronic medical disorders, namely emphysema, ulcerative colitis, cardiac complaints and he was recently diagnosed with prostate cancer.

Mr [the applicant] was, in my opinion, suffering a mental health impairment leading up to and during the offending period, which led to a temporary and ongoing disturbance of thought, mood, volition, perception and memory, regarded as significant for clinical diagnostic purposes, and included symptoms of major depression and anxiety.

Mr [the applicant] was struggling with unresolved and complicated grief, and in my opinion his level of mental health impairment and associated disturbance impaired his emotional wellbeing, judgement and behavioural choices.” (Emphasis in the original).

20. In relation to remorse and the risk of reoffending, Mr Borenstein said this:

“Mr [the applicant]’s symptoms of major depression and anxiety, together with his expressed level of motivation, guilt, remorse and contrition, will, in my opinion, mean the likelihood of him reoffending in similar fashion is extremely low.”

21. In a supplementary report, Mr Borenstein explained further the bases for his conclusions as to the relationship between the offending and the applicant’s mental health:

“On Page 3 of my report dated 27 November 2021, I state, “Mr [the applicant]’s mental health was made more vulnerable given his deteriorating medical/physical health”. Mr [the applicant] has lived a lonely existence following his wife’s death, the result of cardiomyopathy in 2009. Mr [the applicant] remained in the marital home for some four to five years, before moving to Camden region, closer to old colleagues with whom Mr [the applicant] worked in the mines. Mr [the applicant]’s health deteriorated after he suffered a fall, and he moved to Grasmere, where he currently resides in a retirement complex, resulting in Mr [the applicant] being removed from a close community, in particular the church in Liverpool. Mr [the applicant] said of the move from the Liverpool area, “it was the worst decision I ever made”.

Mr [the applicant] was navigating cumulative and significant losses, which includes his wife, brother, and sister-in-law. Mr [the applicant] is now the only surviving member of his family.

Cumulative and significant losses, compounded by deteriorating medical/physical health, is well known to leave individuals vulnerable to symptoms of depression, compounded by loneliness. Research confirms loneliness increases the amount of cortisol (a known stress hormone), which can impact negatively on the immune system, and raises the risk of underlying medical/physical health issues, viz. sleep, appetite, cardiovascular disease and diabetes.

Prolonged loneliness impacts negatively on mental health, a topic which is currently more closely examined in the context of Covid-19 lockdowns.

Psychometric test results undertaken in January and November 2021, confirmed Mr [the applicant] suffered with extremely severe symptoms of depression, severe symptoms of anxiety, and severe symptoms of stress (DASS 21 results).”

(All underlining and emphases in the original).

22. The applicant gave evidence and was cross-examined. The sentencing judge made the following findings about that evidence:

1. He had a sexual interest in bestiality at the time of his offending. He was excited by and enjoyed looking at bestiality pornography and became sexually aroused.

2. He was sexually aroused when speaking to his son and by the fact that his son was becoming sexually aroused during the telephone conversation.

3. The applicant accepted that the conversation was beyond fantasy, that he wanted his son to get a dog for them both to have sexual intercourse with. The applicant further accepted that he urged his son to get a dog for this purpose.

4. The applicant accepted that the conversation was not connected to his depression and was purely to obtain sexual gratification and there were other ways available to him to reconnect with his son other than arranging for him to obtain a dog so they could have sexual intercourse with it.

5. The applicant accepted that he was sexually aroused by the notion of his son and himself performing sexual acts on his daughter and agreed that he urged his son to make arrangements for such acts to take place.

23. There was unfairness in the way the applicant was cross-examined about his perception of the role his depression had in the offending. This proposition was put to him:

“Q.     This conversation had nothing to do with any depression you had or how you were feeling.  It was purely for you to obtain perverse sexual gratification.  Am I right about that suggestion?

A.     Well the conversation yes.

SEARSON:  I object.

HIS HONOUR:  What’s the objection?

SEARSON:  Your Honour in relation to the connection between any mental health condition that he has, the question calls for an expert opinion from him.

HIS HONOUR:  No the witness can answer the question.  Yes go on answer the question please Mr [the applicant].

TUNKS

Q.     You agree with me don’t you?

A.     Yes I do, yeah.”

24. Whilst it was not the subject of a specific ground of appeal, allowing this question was unfair to the applicant. First, the only available expert opinion about the applicant’s mental health and its role in the offending behaviour was Mr Borenstein, who identified and explained its contributing role in his two reports. There was no expert report offering a contrary view. The Crown Prosecutor had no proper basis to ask that question.

25. Second, the question itself was unfair in its form because it put two separate states of mind together as one proposition: “how you were feeling” and “any depression you had”.

26. The objection taken by counsel for the applicant should have been upheld - although the basis of the objection was not perhaps articulated as fully as it could have been.

27. The applicant’s non-expert evidence as to what role “any depression” or “how he was feeling” had in his offending should not have been received and should not have been taken into account, particularly given that the sentencing judge cited it as a key finding underpinning, amongst other things, the question of moral culpability.

28. After the cross-examination and submissions concluded, the sentencing judge stated that it was “a pity Mr Borenstein wasn’t here”, and that there was an “undeveloped” and “very troubling” passage in the report about the applicant having an understanding of his son’s interest (in bestiality). The sentencing judge stated that he would stand the matter down for a month so that he could look at the transcript, observing: “There’s a tension that I want to study between the evidence of the offender and the assumptions made by Mr Borenstein. I want to think about that very carefully”.

29. Also tendered in the subjective case was a report of A/Prof Connor explaining the applicant’s ulcerative colitis, its inadequate treatment in custody and the effect of that inadequate treatment, a letter from the applicant to the Court expressing his remorse, references from the local Parish Priest as well as from a former colleague and a friend, and certificates acknowledging charitable works by the applicant in the community in 2006, 2007 and 2018.

Findings of the sentencing judge

(i) Objective seriousness

30. The sentencing judge concluded that the incite bestiality offence was of “mid-range” seriousness highlighting these features:

“Although in a subsequent interview with police, to which I shall return, you stated that the conversation was purely fantasy and that, at the time you had the conversation with your son, you had no intention of committing bestiality, when you gave oral evidence on 7 February 2022, you admitted that, at the time of the conversation, it was your intention to engage in the specific acts which you had discussed.

I also note that, in a report prepared on your behalf by Mr Borenstein, you admitted that, at the time you were speaking with your son about engaging in sexual activity with him and a dog, it was your intention to act upon those words, but that subsequently you came to believe that you would not have “followed through” with the specific actions - but, more significantly, by having regard to the first offence for which you are to be sentenced, you acknowledged that your son may well have done so - and that you incited him to do so.”

31. For the incite incest offence, the effect of the conversation that the applicant had with his son was recounted by the sentencing judge and a conclusion reached by him that the son “might have followed through”:

“In the course of this conversation, you incited your son to commit incest with your daughter, [REDACTED], who was at that time 51 years old. In this discussion, it was not only your son who would be sexually violating your daughter, but that you also would participate - and that you would go so far as to pay her money to do so. I do not intend to set out, in any great detail what it was that you in your son discussed. It is set out all too clearly in para 11 of the agreed statement of facts. But the discussed acts included both of you performing sexual acts upon your daughter (and his sister) including: digital penetration of her vagina; and penile/vaginal and penile/anal intercourse. You also discussed your son taking a video of him having sexual activity with your daughter (his sister) - and then showing it to you for your sexual gratification. You also discussed your listening on the phone to your son having sexual activity with your daughter (his sister).

Although Mr Borenstein does not appear to have explicitly taken a similar history in connection with the incest offence to that which he took in connection with the bestiality offence (that is, that although you might not have “followed through” with the specific action, your son may well have - and that you incited him to do so), a fair reading of the report and taking into account your oral evidence at transcript pp 24 to 26, I am of the opinion that the same observation applies to the incest offence. I am strengthened in that conclusion by reference to para 11(c) of the agreed facts:

“both [the applicant] and [son] were curious if [son] still masturbated. [Son] turned the conversation to sexual acts he committed upon [his sister] when she was a child.”

In terms of its objective seriousness for an offence of its kind, it is slightly below a mid-range offence. In this context, I note that the proposed victim of your offending was a mature aged woman whom you and your son assumed would be a willing participant in the sexual activity. There is, however, nothing in the evidence to even remotely suggest that that lady would have been a willing participant.”

(ii) Evaluation of the subjective case

32. The applicant’s age of 84 at the time of sentence was noted as was his work history as a printer and then in the mines. His volunteer work after retirement at Liverpool Hospital was referred to as well as some involvement with the Catholic Church.

33. The sentencing judge noted the loss of the applicant’s wife in 2008 and the applicant’s unresolved and complicated grief as a result of that. His Honour concluded that loneliness and isolation led to the applicant watching pornography including, relevantly, bestiality. He also made reference, somewhat irrelevantly, to unproven allegations of sexual abuse of a granddaughter with which he was never charged, but which apparently led to further isolation of the applicant from family.

34. The sentencing judge remarked on the results of a forensic download from the applicant’s computer which included 132 images of bestiality and some key word searches of a sexual nature, none of which was the subject of any criminal charges.

35. It seems that the sentencing judge placed weight on this material to conclude that he could not accept that the applicant’s offending was “out of character”. He noted that the applicant was entitled to leniency given the absence of any criminal record.

36. The sentencing judge did not refer to Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 (“De La Rosa”) or Aslan v R [2014] NSWCCA 114 (“Aslan”) and made no findings about the principles from those cases having a role in the sentencing exercise.

37. The special circumstances finding was limited to physical ill-health, advanced age and that this was the applicant’s first time in custody.

38. The sentencing judge having apparently entirely rejected Mr Borenstein’s analysis concluded that there was no remorse and only guarded prospects of rehabilitation. He rejected Mr Borenstein’s opinion that the applicant was at low risk of reoffending, although he made no overt finding as to what he assessed the risk of re-offending to be. His Honour concluded, somewhat enigmatically, that: “both specific and general deterrence are fully engaged”.

(iii) Rejection of Mr Borenstein’s opinion

39. His Honour’s basis for the rejection of Mr Borenstein’s views was stated as follows:

“Mr Borenstein does not explain how grief, depression and anxiety would cause a mature person to develop the depraved sexual topics with which you were interested. Nor does he explain why, in seeking to engage with your son, (apparently the only member of your family with whom you had any contact) you chose to engage by discussing the topics of bestiality and incest – as opposed to discussing, for example, any common sporting interest or other legitimate recreational interest.

In the result, I am not persuaded, on the balance of probabilities, that there is, in fact, any real causal connection between your mental health issues and your criminal offending.”

40. His Honour then proceeded to state his own assessment:

“Rather, I am satisfied that you had somehow developed (from when I cannot say), depraved sexual interests which you shared with your son. You found the subject matter of those conversations sexually arousing; you found discussing that subject matter with your son sexually arousing; and you were further sexually aroused in knowing that he was becoming sexually aroused in the conversations.”

Ground 1: The sentencing judge erred in his assessment of the objective seriousness of the offending

41. Counsel for the applicant, Mr Averre, submitted that a single conversation comprising each offence, notwithstanding its repugnant content, could not found an assessment of anything other than an offence at the very bottom of the range of objective seriousness. This is particularly so when there is no evidence that anyone acted on the conversation.

42. Mr Averre also submitted that his Honour was in error in including in his analysis as a matter relevant to objective seriousness, the applicant’s own future intention to personally do certain things. This is entirely irrelevant to the objective seriousness of a charge of inciting someone else.

43. The Crown submitted that whether or not someone acted on the conversation was not relevant to the assessment of objective seriousness and does not lessen the gravity of the offending. The gravamen of the offence is the inciting. Whether the substantive offence(s) eventuated is irrelevant. The two conversations that led to each charge included the practical details as to how the offences could be accomplished. There was a strong nexus to the applicant’s stated sexual desires and those acts of incitement and that directly informed the moral culpability for the offending. Moral culpability is not wholly divorced from an assessment of objective seriousness. The two concepts overlap: Kelley v R [2021] NSWCCA 173 at [39] per Bell P (as the Chief Justice then was), Rothman and Bellew JJ agreeing.

44. Counsel appearing for the applicant on sentence had submitted that both offences were in the lower range of objective seriousness given the absence of any follow up action or conversation. No steps were taken, no money changed hands, there was no sex act with a person or animal. There was no contact with the proposed female victim and no awareness on her part of the discussion the subject of the charge. There was no suggestion that she was of an age or was a person vulnerable to such an approach. The “incitement” by the applicant comprised one conversation only per charge and the conversations were within a few days of each other and so effectively, all the offending amount to isolated conduct.

45. As a matter of principle this Court should be slow to interfere with the sentencing judge’s conclusions on objective seriousness. As Simpson J said in Mulato v Regina [2006] NSWCCA 282:

“[46] The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. It is, if not a finding of fact, then the exercise of an evaluative process akin to fact finding or the exercise of a discretion. As such it is reviewable in this Court only on the principles stated in House v The King (1936) 55 CLR 49; [1936] HCA 40. The importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge. That is not because objective seriousness is something determined by reference to the evaluation of the credibility of witnesses, in respect of which it is conventionally held that the first instance judge is in a superior position. It is because it is a fundamental aspect of the appellate system. Each judicial officer in the hierarchy has his or her own function, and those at appellate level need to take care not to trespass upon the role of those at first instance.”

46. Here however there was overt error in the way his Honour approached this part of the sentencing exercise. He clearly placed weight on the irrelevant consideration of what the applicant himself intended to do in the context of his Honour’s assessment of where the offences fell on a theoretical range of objective seriousness. To do so was incorrect. Ground 1 is made out, and the findings regarding the objective seriousness of each offence will be revisited on resentence.

47. Because of the way in which the sentencing judge dealt with the expert opinion of Mr Borenstein, it is necessary to also consider ground 2 of the appeal and whether on resentence Mr Borenstein’s views should be taken into account, and if so in what way and to what effect, if any.

Ground 2: The sentencing judge erred in finding that there was no causal connection between the applicant’s mental health and the offending and/or failed to have regard to other relevant principles applicable to offenders suffering from mental health issues

48. The fundamental principle regarding the causal role of mental illness in the commission of an offence and its potential role in sentencing was stated in these terms by the High Court in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [54]:

“[54] … A question will often arise as to the causal relation, if any, between an offender's mental illness and the commission of the offence.  Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender's moral culpability for the offence.  The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community.” 

49. The practical application of this principle as explained by McClellan CJ at CL in De La Rosa was further contextualised by Simpson J (as her Honour then was) in Aslan at [33] to [34]:

“[33] This Court has frequently had to grapple with the effect on sentencing (especially with respect to serious or violent crimes) of mental illness, intellectual handicap or other mental or emotional impairment or disability. The compassion and sympathy that such a condition engenders collide with the need for sentences to reflect the objective gravity of the offence in question, the community's interest in general deterrence, and that criminal conduct must be met with appropriate denunciation and retribution. Over the years, the applicable principles have evolved. They were most recently re-stated by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [177]. They are as follows:

“[Principle 1] Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence ...

[Principle 2] It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed ...

[Principle 3] It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced ...

[Principle 4] It may reduce or eliminate the significance of specific deterrence ...

[Principle 5] Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence ... Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public ...” (internal citations omitted, italics added)

[34] It will be observed that none of these principles is stated as absolute. What is recognised is the potential effect, in any given case, of a mental disability. It does not follow that, because an offender suffers from some mental impairment or disability, his or her moral culpability is reduced (principle 1); nor that he or she is an inappropriate vehicle for general deterrence (principle 2); nor that a custodial sentence will weigh more heavily upon him or her (principle 3); nor that the significance of specific deterrence is reduced or eliminated (principle 4). Nor, on the other hand, does it follow that a person with mental impairment is a danger to the community, indicating a need for community protection (principle 5). Too often, the mere fact of mental illness is advanced to this Court as necessarily calling for a more lenient sentence. What the principles spelled out by McClellan CJ at CL do is direct attention to considerations that experience has shown commonly arise in such cases. There is, however, no presumption. It remains necessary for the sentencing court to examine the relevant facts in order to determine whether, in the specific case, the mental condition has the consequence contended for.”

50. The sentencing judge made no reference to any of these cases or the principles stated in them. He concluded that he was not satisfied on the balance of probabilities that there was “any causal link” between the (applicant’s) offending and “any (as yet) identified mental health issues”. This conclusion comprised a rejection of Mr Borenstein’s opinion in the absence of any other expert view. I do not suggest a sentencing judge must accept all or even part of every expert opinion proffered, but there must be good reason given to reject it.

51. The applicant’s own perception or understanding of the role of his mental health condition(s) in his offending behaviour was, in the circumstances described above, irrelevant, yet the sentencing judge accepted evidence of that perception (over objection by counsel for the applicant and in the context of an unfairly expressed question), and appears to have placed weight on the applicant’s answer as a further basis to reject the validity of Mr Borenstein’s analysis.

52. The question for consideration is not whether there was a “causal link” between the mental health condition and the offending, but whether the mental health condition contributed to the commission of the offence in a material way.

53. I agree with and adopt the observations of Button J in Moiler v R [2021] NSWCCA 73:

“[59] It is well known that the assessment of the extent of a mental condition, its causative connection (if any) with offending, and any concomitant reduction in moral culpability and sentence to be imposed are all very much a matter for a sentencing judge: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]. Even so, in my opinion care should be taken not to take too prescriptive an approach, in a process of instinctive synthesis, whereby mitigating features such as mental illness or cognitive impairment are thought to require establishment as the direct or precipitating cause of an offence before they can operate to reduce the appropriate sentence. It is noteworthy that the first dot point of that oft-quoted paragraph speaks of material contribution to offending, not singular or direct causation of it.”

54. The sentencing judge posed a higher bar than is required for the mental health of the applicant to be considered as a possible basis for reduction in moral culpability, and rejected, without adequate reasoning the only evidence that could validly answer that question.

55. Here the sentencing judge did not assess the question of whether the applicant’s poor mental health materially contributed to the offending; only whether it caused it. This approach meant that all subtleties in Mr Borenstein’s opinions, explaining how the condition contributed materially to the offending, were disregarded.

56. There is a further aspect to the application of De La Rosa that the sentencing judge did not mention and that is the question of whether the applicant’s mental or emotional impairment would cause a custodial sentence to weigh more heavily upon him and thus make the custodial term more onerous. The applicant’s poor mental health was canvassed in Mr Borenstein’s reports. Paragraph [177] of De La Rosa was reproduced in the applicant’s written submissions on sentence. There can be no doubt reliance was placed on all the relevant principles that come from De La Rosa.

57. Whilst there is no need to slavishly repeat every relevant principle in sentencing remarks, there needs to be at the least, remarks that indicate that consideration was given to those principles and their application to the circumstances of the offending as part of the instinctive synthesis.

58. Mr Averre submitted to this Court that the sentencing judge’s finding that “both specific and general deterrence were fully engaged” was not open in the face of the applicant’s mental health situation, in the context of the offending and the other subjective circumstances.

59. I do not accept that it was not at least open to the sentencing judge to make the findings that he did but correct application of principle is required and that did not occur. Consistently with De La Rosa and Aslan there is of course no assumption that taking the applicant’s mental health condition into account necessarily will affect moral culpability, but it still needed to be considered in a way consistent with the available evidence and principle and it appears that it was not.

60. There was no mention in the remarks on sentence of the applicant’s current depression and anxiety and its potential to cause custodial sentence to weigh more heavily upon him. Nor is it mentioned in the consideration of special circumstances. To fail to refer to and deal with this additional aspect of De La Rosa was also an error. Ground 2 of the appeal is established.

Ground 3: The aggregate sentence imposed was manifestly excessive in the circumstances of the case.

61. As grounds 1 and 2 of the appeal succeeded, requiring that the applicant be resentenced, there is no need to separately examine ground 3. The Court did however unanimously agree that a significantly shorter sentence should be imposed and this shared view led to the orders made on the day of the appeal was heard.

Resentence

62. The effect of the errors identified in ground 1 of this appeal means that this Court should substitute its own finding on objective seriousness. I assess the offences as both falling within the low range of objective seriousness. They go no further than disgusting chatter. Both conversations were significantly removed from any act done to further the matters discussed. There was no purchase of a dog or arrangement made to meet at a place or time. There was no evidence that the applicant’s daughter would ever have been involved in what was discussed or that she ever knew of the discussion.

63. The reports of Mr Borenstein persuasively explain the materially contributing role of the applicant’s depression and poor mental state. I accept these as having had a significant role in the offending behaviour.

64. Affidavit evidence of the applicant’s solicitor was tendered on resentence. The affidavit attached medical reports confirming that on 1 April 2023 the applicant was assaulted in custody by another inmate. He sustained injuries to his face and head, including a subarachnoid haemorrhage, bruising and abrasions to his face and a right mandibular fracture requiring surgical fixation.

65. Notes from Justice Health confirmed that the applicant has ulcerative colitis and in November 2022 was treated for bleeding from his bowel due to active ulcerative colitis caused by a failure by the Department of Corrective Services to provide his necessary medication since his incarceration in March 2022. (That particular problem with provision of medication appeared to have been rectified by the time of the appeal hearing).

66. The applicant’s affidavit referred to the assault in April 2023 which caused his jaw to be broken as well as a broken denture which still (as at 1 June 2023) had not been fixed. The applicant stated that his jaw had been surgically wired and that he had been having difficulties eating. He had asked for psychological assistance to discuss his feelings of anxiety and depression and feeling “disgusted with himself” but counselling still had not been provided at the time the affidavit was affirmed.

62. At the time of resentence by the Court on 23 June 2023 the applicant was almost 86 years old. He has a serious systemic illness in the form of ulcerative colitis. He suffers from depression and anxiety.

63. I accept Mr Borenstein’s opinions that explain the offending conduct as misguided and pathetic attempts to fill his overwhelming loneliness and underlying depression and to reconnect with his son whom he knew had such an interest.

64. In the circumstances and context as explained by Mr Borenstein I consider the applicant’s moral culpability to be reduced, and so not an appropriate case to bear the full weight of general deterrence. I consider that the applicant is truly remorseful as he stated in his evidence on oath. I assess his prospects of rehabilitation as very good, and his risk of reoffending to be negligible. In my view specific deterrence has almost no role to play.

65. I accept the applicant’s evidence that he has sought psychological support in custody but that was not forthcoming.

66. There is no doubt that a custodial sentence would weigh more heavily upon the applicant given his depression and anxiety. This is a consideration that operates separately and in addition to the physical health issues that have also made his time in custody more onerous. He also suffered a serious assault in custody in April 2023 causing a fracture to his jaw that required surgery.

67. The applicant is entitled to leniency given his clean criminal record for 83 years prior to this offending.

68. For the offence of incite bestiality, the indicative sentence I would propose is 18 months.

69. For the offence of incite incest, the indicative sentence I would propose is 12 months.

70. There are special circumstances comprising the applicant’s physical and mental health, advanced age and the fact that this was his first time in custody.

71. There should be a high degree of concurrence given the proximity in time of the phone calls that comprised the totality of the offending, and to reflect the different offences, a degree of accumulation. The aggregate sentence agreed upon by the Court was 2 years with a non-parole period of 1 year.

Orders

77. The orders of the Court (made and entered on 23 June 2023) were as follows:

1. Leave to appeal granted.

2. Appeal allowed.

3. The sentence imposed by Colefax SC DCJ on 7 March 2022 is quashed and in lieu thereof the following sentence is imposed. An aggregate sentence of 2 years commencing on 7 March 2022 and expiring on 6 March 2024 with a non-parole period of 1 year commencing on 7 March 2022 and expiring on 6 March 2023.

4. The Court notes that the applicant is entitled to immediate release to parole.

78. DHANJI J: I agree with Lonergan J.

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Decision last updated: 19 December 2023