Dorey, R.R. v The Queen

[1986] FCA 148

.1' +'

ICrlminal law - ,Tress indecency - appeal agalnst sentence -

appellant sentenced to term of imprlsonment - whether non-parole

perlod excessive - appellant lntellectually dlsabled and reyulrinu

pspchiatrlc treatment - whether condltional release approprlate

/

XI AFFEAL FROM THE SUFREME COURT OF THE NORTHERN	TERRITORY
OF AUSTRALIA
3C No. 52-3 of 1985

RODNE? RICHARD DGREP v. T H E OTJEEN

No. NT G23 of 1985

TOOHEI.	MORLING	&	BEaUMONT JJ.
DARWIN

10 A P R I L 1986

IiJ TFiE FEDERAL COUFiT

OF AUSTRALId

VORTHERN TERRITORY

QF dUSTRALIA

EIOTRICT REGISTRY GENERAL DIVISION

O N AFFEAL FROM THE 3TJP"nME L'OrJRT

OF THE NOFTHERN TEZRITORY

,?F AlJSTFALId

B E T W E E N :

RODNEY RICHARD DORET

Appellant

and

THE QUEEN

Respondent

MINUTE OF ORDER

JUDGES MAKING OREER: Toohey, Morling & Beaumont JJ.

DATE OF ORDER:	10 April 1986
WHEF'.E MADE:	Darwin

THE COURT 0RDm.S THAT:

The appeal be allowed bp reducing the non-parole perlod

to l8 months, otherwise the appeal be dismlssed.

Note: Settlement and entry of orders is dealt

with in Order 36 of the Federal Court Rules.

i N THE FEDERAL COURT	)
OF AUSTRALIA	l
NORTFERN TERRITORY	i No. NT G23 of 1905

OF AUSTRALIA i

IjISTRICT REGISTRY )

GENEEWL	DIVISION	)
ON AFFEL F R O M THE SUFREME COURT OF THE NORTHERN TERKITORY
OF AUSTRALIA
3C NO. 52-3 of 1985
B E T W E E N : RODNE'J RICHARD DOREP

Appellant

and

THE QUEEN

Respondent

U:	Toohey, Morling & Beaumount JJ.
10 April 1986

REASONS FOR JUDGMENT

THE COURT

This is an appeal against sentence.

On 1 2 august 1985 in the Supreme Court of the Northern

Territo ry. following the ap mpellant's plea of guilty to a charge of

qross indecency upon a female under the age of sixteen years, he

was sentenced to a term of five years imprisonment with hard

labour, with a non-parole period of two years.

Section 1 2 5 of the Crlmlnal Code lmposes a maximum

penalty of mprlsonment for fcurteen years In the case of gross

Indecency by an adult on a female under the age of fourteen. The

female in question was a chlld of four.

Tne offence took place on 16 December 1984 in Darwin.

At thit tlme the appellant was staymq with relatlves. having

come up from Adslalde a few weeks earller. On 15 December frlends

of the appellant's relatives arrlved in Darwm from Jabiru to stay

for the-weekend. On Sunday, l6 December the two families decided to qo to a barbecue that night and the appellant volunteered to stay home to babysit the friends' young daughters, one aqed four (the child in respect of whom the offence was commltted) and one aged two.

The children were ready for bed and at about 8 p.m..

some one and a half hours after the families had left for the

barbecue, the offence took place. It involved the appellant

placing his finger In the child's vagina. causing her some

injuries. The next mornlng the child's mother noticed blood

stains on the chlld's pants and the police were notified.

At flrst the appellant'denled havinq interfered with the

child but, at the second police	intervlew on 17 December 1584. he
made admisslons.

3 .

The opinlon of Dr. Anderson. a speclalist obstetriclan

gynaecologist at Royal Darwin Hospital, was that the child

"suffered a sexual assault by the inrroduction of probably a

finger repeatedly into the vagina, which resulted in the bruising

of the left labla and tearlng of the hymen".

The appellant was seen by Dr. Ferris, a vlsiting

psychlatrist. Dr. Ferris found no signs or symptoms of any

psychotic disorder but concluded that the appellant's manner of

speaking and answering questions and his general demeanour were

consistent with a mild to moderate degree of intellectual

retardation. Dr. Ferris considered that the appellant also showed

evidence of	a persistent and significant degree	of	emotional
immaturity.

"Despite extensive efforts he seems unable to maintain

any long term, stable, lntimate sexual relationships

with people of hi5 own age and peer group. There is no

evidence that he is currently, or has been, suffering

from any specific psychiatric disorder such as requires

or would respond to treatment."

Dr. Ferris thought that there was some risk	of the commission of
similar offences in the future.

The appellant has previous offences. One related to

house-breaking and larceny in Adelaide in 1978. Another related

to two counts of carnal knowledge with a young girl whom the

appellant later married. In 1973 he was convicted of indecent

assault and sentenced to imprisonment for nine months though the

4.

3entence was suspendec! on hxn entermq into a bond. Apparently

that offence related t o a chil3 of similar aqe as the child

concerned in this appeal.

The primary judge referred to the "very obvious

intellectual dlsadvantages" from which the appellant suffered. custodial sentence. His Honour thouyht it inappropriate to order

the appellant's conditional release. leaving it to the para12

board to consider	the	appellant's situation at	the. end of	two
years .

The appellant contends that the sentence was in all the

circumstances manifestly excessive and, in particular, that the

sentencing judge failed to give due regard to the appellant's

personal circumstances and hls intellectual disability.

The appellant was placed in a position of trust by the

parents of two young children. He abused that trust in

circumstances where he caused physical injury	to one of those
chlldren.

It is apparent from Dr. Ferris' report and from other

material before the Court	that the appellant has a need for
continued long term support,	help, guidance and training, whether
he is imprisoned or not.

5.

The onlp mitiqarinq factors would seem to be those

mentioned by 2r. Fetris VIZ. that the offence occurred

"m a settlnq of intellectual retardation. perslstinq

emotional lmmaturltp, and contlnuing frustratlon at his

lack of success In r'lndinq more appropriate outlets for

h15 sexual drives by formlnq stable relacionships	wlth
women of his own aqe".

It is apparent that h1s Hunour =as alive to these

consideratlms but tnat he felt they were outweicrhed by the need

to Impose a sentence marklnq the seriousness of the,offence and

paying regard to the deterrent aspects of a sentence of

imprlsonment. He concluded that a custodial	sentence	was
approprlate.

The appellant appeared in person but. at the instance of

the Bar. counsel appeared	as amicus curiae and made submissions on
behalf of the appellant.

Counsel said that the appellant did not attack the head

sentence of flve years. Having regard	to other declsions of the
Supreme Court of the Northern Terrltory	to which we were referred,

the sentence was on the hiqh slde. But it was a serlous offence

and we are not persuaded that the sentence was excessive.

The real question for consideration by this Court 1 s

whether the non-parole period was excesslve in all the

circumstances. B non-parole term of two years in a head sentence

0 . -

tdf flve years would :lot ordinarliy be held excessive. There are

hoxever spe rm1 ccnsldecatrons operatlnu ~n the present case,

consldecatlons to wh~ch the primary judge adverted but to whlch ln

cur respectful opinion his Honour uave insufflclent weiuht.

Tire appellant 1 s emotionally immature and is

intellectually retarded. Dr. Ferris was of the opinion that the

appellant would experience more than the usual difficulty in

coplnq with prison envlronment. That proqnosls has been borne out

by what we were told of ch? appellant's situation since he has

been in prison. resulting In hls asking to be placed in separate

confinement. Since 30 March this year he has been in medlum

securltp but has asked to be put back in separate confinement.

The prospects for successful psychiatric treatment are

greater outslde prlson than inside. It is clearly in the

appellant's interests that he receive such treatment.

Throuuh counsel the appellant asked the Court to permit

his release under the provisions of the Crimmal Law (Conditional

Release of Offenders; Act. This was a course his Honour decllned

to adopt. The appellant has now been in custody nearly sixteen

months. Nevertheless condltional release	is a course we	decline
to adopt.

However we are of the view that in all the circumstances

and havinu particular reqard to the matters mentioned earlier, the

.app.'ilant should be lqlven the opportunity of carller parole than

L S poss15ie #under the existlng sentence. We propose to vary the

rxistina sentence by reduclnq the non-parole per i3d t o elghteen

months. Whether the appellant wlil be paroled at the end of that

time will of course be a decision for the Parole Board. The Boar:

will be i n a positlon to assess the varims matters to which we

have referred and any other matters it regards as relevant.

To that extent then, the appeal wlll be allowed

I certlfy that this and the preceding s i x

pages are a true copy of t h e ~ o l n t r e a s o n s for Judgment herein of thelr Honours Toohey, Morling and Beaumont JJ.

Assoclate

Dated: / 9 8 6 .