EVAN Lloyd Mason-Stuart v R No. SCCRM93/311 Judgment No. 4322 Number of Pages 4 Criminal Law and Procedure (1993) 68 a Crim R 163 (1993) 61 Sasr 204

[1993] SASC 4322

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL KING CJ(1), MILLHOUSE(2) AND OLSSON(3) JJ

CWDS
Criminal law and procedure - sentence - rape - diminished responsibility - reduced importance of punitive and general deterrent purposes of punishment in cases of diminished responsibility - need to protect public by personal deterrence and rehabilitative measures - head sentence 4 years' imprisonment affirmed - non-parole period of 2 years reduced to 9 months with indication to Parole Board as to conditions of parole ensuring counselling treatment and supervision.

HRNG ADELAIDE, 7 December 1993 #DATE 7:12:1993
Counsel for appellant:     Mr C J Kourakis
Solicitors for appellant:    Mcquade Hill and Co
Counsel for respondent:     Ms W J Abraham
Solicitors for respondent: Director of Public Prosecutions

ORDER
Appeal allowed.

JUDGE1 KING CJ This is an appeal against a sentence imposed in the District Court for the crime of rape, a sentence of imprisonment for 4 years with a non-parole period of 2 years. 2. The facts of the crime, to which the appellant pleaded guilty, are serious. A 12 year old girl was playing with her friends in a public reserve. The appellant, who was known to her, spoke to her. The friends broke up and went their respective ways. The girl victim began to make her way towards her home. The appellant followed. He dragged her into a toilet and there raped her by penetrating her anus with his penis. 3. The sexual act perpetrated upon the victim was itself grave. In addition there is the aggravating feature of having accosted a young girl in a public place and dragged her away for the purpose of committing the offence. There is no doubt that, were it not for matters to which I shall shortly refer, the sentence which the court would have imposed for that crime would have been very much more severe than that which was imposed upon the appellant. 4. There are, however, special features associated with this matter. The appellant is 20 years of age. He sustained brain damage before birth and the damage which he then sustained has had a severe stunting effect upon his physical growth and upon his mental capacity. He is of low average intelligence. He is able to function in the community and, indeed, has held down a job but his capacity to appreciate the nature of inter-personal relationships and sexual relationships and to appreciate the consequences of his actions, appears to be impaired. His stunted growth and impaired intellect combine to make him a rather pathetic individual. 5. It can fairly be said, therefore, that there is a substantial degree of diminished responsibility. 6. He has only one prior conviction and the facts surrounding that matter appear also to be related to the inadequacy of his personality arising from the cerebral damage. 7. The task confronting a court in devising a proper sentence for a person of diminished responsibility who has committed what is objectively a grave crime is always difficult and the learned sentencing judge, in this case, faced a difficult task. He endeavoured to solve his problem by passing a sentence which was considerably less than would have been passed on a person of full responsibility, and by fixing a non-parole period which was a substantially lower proportion of the head sentence than might otherwise have been expected. 8. Nevertheless, it would mean that this appellant, in the unfortunate situation in which he exists, would have to spend a substantial period of time in prison. 9. It seems to me that the degree of the appellant's subjective responsibility is so diminished by the damage to the brain which he has suffered, that a court must try to find some way of protecting the public which does not impose the heavy burden of a long period of imprisonment upon a person whose subjective responsibility has been so diminished. 10. It is a problem of reconciling the mercy which ought to be shown to a person whose subjective moral responsibility is low, with the need to protect the public from this sort of act of which the appellant was guilty. The importance of fixing a sentence which is proportionate to the gravity of the crime and which operates as a deterrent to other members of the public, is considerably less when the court is dealing with a person of diminished responsibility than it otherwise would be. 11. A person of seriously diminished responsibility is not an appropriate subject for exemplary punishment with a view to deterring others and the ends of justice are not served by insisting that the punishment be proportionate to the gravity of the crime viewed objectively, as distinct from the subjective gravity of the particular offender's offending. The problem is to find a solution which will enable the public to be protected, without imposing a harsh punishment upon a person whose subjective moral responsibility is seriously diminished. 12. I can see no basis upon which this court should reduce the head sentence. It is the lowest sentence which could reasonably have been imposed for a crime of this sort. Mr Kourakis, who appeared for the appellant before us, however, urged that the sentencing discretion had miscarried in that the circumstances indicated that this sentence ought to have been suspended. 13. I do not think that the judge was wrong in refusing to suspend the sentence. It was a grave crime. I think it called for some punishment, and I think that whilst elements of proportionality and general deterrence may not be important in this matter, the need to deter the appellant, personally, is important. It is important that he should understand that the sort of conduct in which he engaged on this occasion cannot be tolerated and must lead to punishment. 14. Nevertheless, I think that it is open to this court to interfere to mitigate the severity of the punishment and endeavour to open the door to measures which might operate, perhaps more effectively, for the protection of the public other than a long period in custody. 15. I think that the ends of justice would be served if the non-parole period were reduced to a period of nine months. Assuming that the appellant has earned good conduct remissions that should enable his release, on parole, at a reasonably early date. 16. The conditions upon which parole is offered to the appellant are, of course, a matter for the Parole Board, but I would wish to indicate to the Parole Board that the court considers that it should impose conditions which would ensure that the appellant is psychologically examined and assessed, and which ensure that he receives an appropriate degree of supervision, and, if appropriate, treatment and psychological counselling. I would expect that that can be done in consultation with the Sexual Offenders Treatment and Assessment Programme. I would hope that before release an assessment of the appellant can be carried out and that the Parole Board can devise conditions which will promote the protection of the public by means of appropriate psychological counselling, treatment and the proper degree of supervision. 17. In my opinion, therefore, this appeal should be allowed. The head sentence should be affirmed, but the non-parole period should be reduced to a period of nine months commencing on the date on which the sentence commenced, namely, 20 August 1993. The order of the court will be, appeal allowed. Head sentence affirmed. Non-parole period reduced to nine months commencing on 20 August 1993. 18. The remarks of the court will be forwarded to the appropriate quarters in the expectation that effect will be given to them by the Parole Board.

JUDGE2 MILLHOUSE J I agree. The crime was too serious to allow the appeal to the extent sought by Mr Kourakis, suspending the sentence imposed by Judge Allan. On the other hand the appellant needs, and given his disabilities and the misery they have caused him from time to time, deserves help and support. 2. The course proposed by the Chief Justice offers the opportunity for this whilst still acknowledging the requirement for a period in gaol, even for this man, in view of his actions. 3. It is not a perfect solution but the most appropriate open to us. We can only hope that the Parole Board is able to devise a programme which will give the appellant the support he needs once he is released, and, in particular, that the Sexual Offenders Treatment and Assessment Programme may be of help to him.

JUDGE3 OLSSON J I also agree. It is well nigh impossible, of course, in a case of this type, to fashion a sentencing strategy which truly satisfies what are really conflicting sentencing factors which do come into play in a situation such as this. However, it seems to me that what is proposed by the Chief Justice is that strategy which best meets the justice of the case.