Farr v The Queen
[2010] VSCA 351
•17 December 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2009 0503 | |
| IAN HEINZ FARR | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | MAXWELL P and REDLICH JA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 9 November 2010 |
| DATE OF JUDGMENT | 17 December 2010 |
| MEDIUM NEUTRAL CITATION | [2010] VSCA 351 1st Revision, 21 January 2011 |
| JUDGMENT APPEALED FROM | R v Ian Farr (Unreported, County Court of Victoria, Judge Parsons, 16 January 2009) |
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CRIMINAL LAW – Sentencing – Numerous sexual offences committed against six male victims under 16 years of age – Appellant with significant intellectual disability – Sentenced to be detained in a residential treatment facility for five years – Sentences of imprisonment wholly suspended – Whether sentencing judge erred in making numerous residential treatment orders and directing partial cumulation – s 80 Sentencing Act 1991 (Vic) – Whether power under the Sentencing Act 1991 (Vic) to make multiple residential treatment orders – No power to make orders for cumulation – R v Jolly [1994] 1 VR 446, R v Sirillas (2004) 8 VR 138 considered – Appeal allowed – Appellant re-sentenced to single residential treatment order of five years’ duration.
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Appearances: | Counsel | Solicitors |
| For the Appellant | Mr G M Hughan | C Marshall & Associates |
| For the Crown | Mr J D McArdle QC | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL P
REDLICH JA:
Summary
The appellant pleaded guilty to a large number of sexual offences. There were six different victims, each of whom was a boy under the age of 16. The offending occurred over a period of more than 20 years.
The appellant has a significant intellectual disability. An assessment in 2008 found him to have an overall full-scale IQ of 54, which placed him
in the significantly intellectually impaired range of functioning and indicates moderate mental retardation.
The appellant was also assessed as posing a high risk of sexual re-offending.
Acceding to a submission by defence counsel (who also appeared on the appeal), the sentencing judge made orders in respect of nine of the 25 counts the effect of which was that the appellant be detained for a period of five years in a ‘residential treatment facility’. For this purpose, the sentencing judge made a number of ‘residential treatment orders’ under s 80 of the Sentencing Act 1991 (Vic) (‘Sentencing Act’) and purported to order cumulation of parts of those orders. (On the remaining counts, his Honour imposed sentences of imprisonment, which were then wholly suspended).
There was no challenge on the appeal to the appropriateness of imposing a residential treatment order on this offender. Rather, the grounds of appeal were directed at establishing that multiple orders could not be made and that there was no power to cumulate portions of these orders. It was submitted that upon re-sentencing, this Court should impose one residential treatment order, and of a shorter duration.
As will appear, the Crown – correctly, in our view – conceded the second of the asserted errors (regarding cumulation), and it falls to this Court to re-sentence the appellant. For reasons which follow, however, we have come to the conclusion that we should make one order which will be to the same effect as those made by the sentencing judge, such that the appellant remains subject to a residential treatment order for a period of five years.
The power to make a residential treatment order
It was the Disability Act 2006 which introduced the residential treatment order as an available sentence under the Sentencing Act. By s 151 of the former Act, the Governor in Council is authorised to proclaim premises to be a ‘residential treatment facility’. The admission of a person to such a facility is permitted only if the Secretary of the Department of Human Services is satisfied of various matters listed in s 152(1) of the Disability Act 2006, the last of which is that
an order specified under subsection (2) applies to the person enabling compulsory treatment to be provided.
Section 152(2) of the Disability Act 2006 provides:
(2)For the purposes of sub-section (1)(f), the following orders are specified –
(a)a residential treatment order made under the Sentencing Act 1991 (Vic);
(b)a parole order made under the Corrections Act 1986;
(c)a custodial supervision order made under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997;
(d)an order transferring the person from a prison under section 166;
(e)an extended supervision order made under the Serious Sex Offenders Monitoring Act 2005.
The relevant provisions of the Sentencing Act are as follows:
Division 6—Special conditions for intellectually disabled offenders
80 Special condition of justice plans
(1) If a court finds a person guilty of an offence and is considering—
[sub-paragraph (a) has been repealed]
(b) making a community-based order in respect of the person; or
(ba) making a residential treatment order; or
(c) under Subdivision (2) or (3) of Division 5 releasing the offender on an adjournment, with or without recording a conviction—
it may request—
(d) a statement from the Secretary to the Department of Human Services that the person has an intellectual disability within the meaning of the Disability Act 2006; and
(e) a plan of available services; and
(f) a pre-sentence report prepared in accordance with Division 2 of Part 6.
(2) If the court receives the statement, plan and report referred to in subsection (1) and, after having considered them, the court decides to—
(a)impose a sentence referred to in subsection (1)(b) or (1)(c), the court may impose a special condition that the offender participate in the services specified in the justice plan for a period of up to 2 years specified by the court or the period of the sentence, whichever is the shorter; or
(b)impose a sentence referred to in subsection (1)(ba), if the court is satisfied that subsection (2A) applies, the court may make a residential treatment order requiring the offender to be detained for a period of up to 5 years as is specified in the order in the residential treatment facility specified in the plan of available services to receive the treatment specified in the plan of available services.
(2A) A court may only impose a sentence referred to in subsection (1)(ba) if—
(a)the offence is a serious offence within the meaning of subsection (2B); and
(b)the Secretary to the Department of Human Services has specified—
(i)that the person is suitable for admission to a residential treatment facility; and
(ii)in the plan of available services that services are available in a residential treatment facility.
(2B)In subsection (2A), serious offence means—
(a)a serious offence within the meaning of the definition of serious offence in section 3(1); or
(b)an offence against section 39 of the Crimes Act 1958 (indecent assault).
(3)If a court imposes a special condition under subsection (2), it must cause a copy of the sentence to be supplied to the Secretary.
We should first point out that, although s 80(1)(ba) assumes the existence of a power in the sentencing court to make a residential treatment order, that power is nowhere expressly conferred by the Sentencing Act. Section 7(1) of the Act sets out what purports to be an exhaustive list of the sentencing options available where a person is found guilty of an offence. For example, under s 7(1)(a), the Court may
with or without recording a conviction, make a community-based order in respect of the offender.
It is this power on which s 80(1)(b) is premised.
The list of sentencing options in s 7(1) does not, however, include residential treatment orders. That is an omission which should be rectified, without delay. There is, however, a general power under s 7(1)(k) to
impose any other sentence or make any order that it is authorised by this or any other Act.
When s 80(1)(ba) and s 80(2)(b) are read together, it can be seen that – at least by necessary implication – the making of a residential treatment order is authorised by the Act, and will constitute the ‘imposition of a sentence’.[1]
[1]See, for example, the references to a residential treatment order as a ‘sentence’ in ss 80(2)(b) and (2A), and s 82A(5). Also, the power in s 80 to make a residential treatment order is only enlivened once a court ‘finds a person guilty of an offence’; language which is identical to that used to describe the precondition for all the sentences in s 7.
The nature of a residential treatment order
In accordance with s 80(1), the sentencing judge requested, and received, the statement, plan and report there referred to. The plan contained the following helpful explanation of the nature of a residential treatment order.
The Statewide Forensic Service (SFS) provides services to people with an intellectual disability who demonstrate offence-specific and offence related behaviour and/or dangerous anti-social behaviours and are involved with the criminal justice system.
The Intensive Residential Treatment Program (IRTP) is a component of SFS and is a 19-bed residential treatment facility that consist of four stages of varying levels of security, supervision, program intensity and community access. The first three stages are located at the Fairfield complex of SFS and provide the highest levels of security and supervision. The final stage is the least restrictive and is located in a suburban setting.
The primary focus of treatment within the IRTP is to reduce the likelihood of re-offending by increasing the person’s ability to self-regulate and manage the offence-specific and related thoughts and behaviours with the ultimate aim of living in a less restrictive environment. The treatment process is based on individually tailored objective. Progress through the treatment stages of the IRTP is determined by measurable and observable changes related to the acquisition of self-management skills and the regulation of thoughts and behaviour.
The IRTP has been proclaimed as a short-term residential treatment facility (RTF) within the meaning of the Disability Act.[2]
The purpose of an RTF is to provide a secure environment where compulsory treatment for people with an intellectual disability who are subject to a Residential Treatment Order (RTO) or other type of criminal order as specified under Sec 152(2) of the Act can be conducted.
A person can only be admitted to a short-term RIT for treatment for a maximum period of 5 years, however, [sic] may be readmitted if a new order applies to the person following a reconviction.
[2]See [22] below.
The sentencing judge also had before him a forensic assessment report on the appellant prepared by the Statewide Forensic Service (SFS). In addition to the findings with respect to his intellectual impairment and the high risk of recidivism referred to earlier,[3] the assessment said:
[3]See [2] above.
c)All less restrictive options have been tried or are considered unsuitable
Mr Farr has not received formal treatment addressing his offending behaviour. He has demonstrated longstanding, entrenched deviant sexual arousal to young male children, in the absence of any sexual relationships with adults. Based on the current assessment Mr Farr has been assessed to be at High risk of sexual recidivism. According to the best practice ‘risk’ principle, sexual offenders with an intellectual disability, who have been assessed as being at high risk of re-offending need to participate in intensive intervention for at least two years to sustain a reduction on the risk of recidivism.
Mr Farr has extensive history of engaging in sexual misconduct with children under the age of 16, and has made efforts to deny, minimise and justify his offending behaviour. Less restrictive options, such as community-based interventions are not considered suitable in providing effective management and treatment for Mr Farr’s offending behaviours. However, Mr Farr’s risk and treatment needs could be suitably and appropriately met through the provision of an intensive residential intervention provided by SFS for intellectually disabled sexual offenders.
The SFS assessment recommended as follows:
RECOMMENDATIONS
1.Given Mr Farr’s assessed High risk for sexual recidivism and untreated status, it is respectfully recommended that he is unsuitable to remain in the community on a Community Based Order (CBO).
2.Should Mr Farr be considered appropriate for an RTO, it is respectfully recommended that he be admitted to the Intensive Residential Treatment Program (IRTP) at SFS for accommodation, treatment and graduated reintegration into the community. It is anticipated that Mr Farr will require intensive group therapy and individual psychological intervention. Therefore it is recommended that Mr Farr reside at the IRTP for a minimum period of three years, which would include 12 months for reintegration into the community.
The sentencing judge’s orders
The appellant fell to be sentenced on 25 separate counts, as follows:
·one count of gross indecency;
·one count of indecent assault;
·14 counts of committing an indecent act with a child under 16;
·seven counts of sexual penetration of a child under 16; and
·two counts of sexual penetration of a child under 10.
The Crown submission on the plea was that, but for the appellant’s intellectual disability, the offending called for ‘a very significant term of imprisonment’. The prosecutor conceded that his disability warranted a significant reduction in penalty but argued that ‘an immediate significant term of imprisonment’ should nevertheless be imposed. The defence submission was that the Court should consider either a community-based order, with a justice plan component (as contemplated by ss 80(1)(b) and 80(2)(a)), or a residential treatment order (as contemplated by ss 80(1)(ba) and 80(2)(b)).
The Court having obtained the reports already referred to, defence counsel abandoned the submission that a community-based order was appropriate. Counsel contended that the most suitable option, both for the appellant and for the community, was his placement in the intensive residential treatment program, as recommended by the forensic assessment report. The Crown for its part maintained that there should be a sentence of imprisonment, arguing that there were within the prison system adequate facilities to care for the appellant.
His Honour agreed with defence counsel:
I have no doubt in the circumstances outlined in the various exhibits to which I have referred that an intensive residential treatment order seemed to me to be the most appropriate sentence with respect to having Mr Farr deal with his sexual offending. Of course, that is not the only relevant sentencing matter. There are a significant range of other matters to which I must have regard in sentencing Mr Farr and of course I will address those matters. However, it seems to me to be very clear on the materials available to me with respect to his treatment that the facilities offered at the intensive residential treatment program are more appropriate than those which are able to be provided in prison and I find that the assessments made by those persons better reflect Mr Farr’s condition and proclivities as I find them to be.[4]
[4]R v Ian Farr (Unreported, County Court of Victoria, Judge Parsons, 16 January 2009) [66].
In the event, his Honour made a residential treatment order on each of nine counts. In each case, the order was expressed to be for a period of four years. His Honour purported to direct that the four year order imposed on count 3 be the base, on which would be cumulated six weeks of the term of the order imposed on each of the other eight counts, creating a ‘total effective order’ in respect of those counts of five years under a residential treatment order.
On each of the other counts, his Honour imposed a sentence of imprisonment, of between one and nine months. He made orders for concurrency[5] resulting in a total effective sentence of 33 months’ imprisonment. His Honour directed that this sentence would be wholly suspended for a period of three years.
[5]Because s 6E of the Act was applicable, there was a presumption of cumulation.
Power to make multiple orders
Under the first ground of appeal it was contended that the sentencing judge had no power to make multiple residential treatment orders in relation to a particular offender. It was submitted that a legislative intention could be discerned, from the Sentencing Act and/or from the Disability Act2006, that only a single residential treatment order could be made, even in a case (like the present) where multiple offences had been committed. The appellant had submitted that the fact that the Act did not address the question of how multiple residential treatment orders imposed at the same time were to be served (ie concurrently or cumulatively) militated against the existence of a power to make such multiple orders.[6]
[6]The appellant distinguished this from the position in relation to multiple terms of imprisonment (see s 16 of the Sentencing Act), multiple terms of detention imposed on young offenders (see s 33) and multiple community-based orders (see s 42)
This ground must be rejected, in our view. As counsel for the appellant conceded in the course of argument, there is nothing in the Sentencing Act which establishes, either expressly or by necessary implication, a prohibition on the making of multiple residential treatment orders for a person found guilty of multiple offences. Whether the making of multiple residential orders is an appropriate course for the sentencing court to take is a different question, which we deal with later in these reasons. We have no reason to doubt, however, that there is power under the Act to make multiple residential treatment orders.
Nor is the position affected by the Disability Act 2006. In the absence of express provision, it would be a surprising result if anything in the Disability Act2006 operated to impose a limit on the power of a judge under s 80(1) of the Sentencing Act, being a limit which the latter Act itself did not impose. There is certainly no basis for such a contention in the present case. The provisions of the Disability Act2006 will operate effectively provided that a residential treatment order is in force in relation to the person. The existence of multiple such orders would not affect the position.
Reliance was placed on the decision of the Court of Criminal Appeal in R v Jolly.[7] That case concerned an order of a quite different kind – a hospital security order under s 93 (now s 93A) of the Sentencing Act. It also concerned a different question, namely, whether a sentencing judge had the power to make a single hospital security order by way of sentence for two offences. The Court (per Brooking J) concluded that the power existed. No question arose as to whether two separate hospital security orders might have been made, although Brooking J said in obiter that he doubted whether there was power to make two hospital security orders at the same time. His Honour said:
If such orders were made, one question which might arise is whether, if the offender was discharged under the Mental Health Act 1986, so that each order had effect as a sentence of imprisonment for its unexpired portion, those sentences were to be served concurrently or cumulatively. In other words, one would have to consider whether s 93(5) brought into operation s 16(1) of the Sentencing Act 1991.[8]
[7][1994] 1 VR 446 (‘Jolly’).
[8]Ibid 450.
As then in force, s 93(5) of the Act provided as follows:
If at any time before the end of the period specified in a hospital security order the Mental Health Review Board or the chief psychiatrist discharges the person under the Mental Health Act 1986, the hospital security order has effect as a sentence of imprisonment for the unexpired portion of it and that unexpired portion must be served in a prison unless the person is released on parole.
The present s 93A(7) is essentially to the same effect.
The residential treatment regime is quite different. It is invoked because of intellectual disability, not mental illness, and is governed by the Disability Act 2006, not by the Mental Health Act 1986. There is no provision equivalent to the former s 93(5) and hence the question of concurrency or cumulation identified by Brooking J in Jolly,[9] could not arise in relation to a residential treatment order.
[9]Ibid.
For completeness, we note that in R v Sirillas,[10] this Court (per Vincent JA) treated the decision in Jolly as authority for the proposition that, where more than one offence was involved, ‘only a single [hospital security] order need be made’.[11] It was, in other words, entirely sufficient for a single order to be made.
[10](2004) 8 VR 138 (‘Sirillas’).
[11]Ibid 140.
No power to order cumulation
As noted earlier, the sentencing judge purported to direct cumulation as between the various residential treatment orders. As senior counsel for the Crown readily conceded on the appeal, however, the power to direct cumulation, conferred by s 16(1) of the Sentencing Act, is exercisable only in relation to terms of imprisonment. Although a residential treatment order is expressly recognised by s 80(2)(b) as ‘a sentence’, it is not a sentence of imprisonment. There is, accordingly, no power to order that any part of a residential treatment order be ‘served cumulatively’ on any other order.
The sentencing judge referred to Sirillas in support of the course he took in making multiple residential treatment orders and orders for partial cumulation. As already noted, that case concerned the making of a hospital security order. The Court was there considering what is now ss 93A(4) and (6) of the Sentencing Act, which provide as follows:
(4)A hospital security order must specify the duration of the order, which must not exceed the period of imprisonment to which the person would have been sentenced had the order not been made.
…
(6)A court, when making a hospital security order, must fix a non-parole period in accordance with section 11 as if the order were a term of imprisonment.
Vincent JA pointed out that, if (as Jolly contemplated) only a single hospital security order were made in respect of multiple offences, it would follow that the duration of the single order
would necessarily be limited to what would otherwise have been the appropriate total effective sentence in the circumstances. A sentencing judge when dealing with multiple offences must therefore address the issues relevant to the determination of the total effective period that the offender would have been required to serve had a sentence of imprisonment been imposed. Attention would need to be given to the otherwise appropriate dispositions for the separate offences, any directions that would have been required with respect to cumulation and the application of the principle of totality. This approach would apply to both the period of operation of the order and the non-parole period fixed.[12]
[12]Ibid.
In the case at hand, Vincent JA concluded that a hospital security order should be made. His Honour then said:
As earlier indicated, the period of that order is limited by the length of imprisonment which would otherwise have been imposed. In my opinion the otherwise appropriate sentence for the offence encompassed by count 1 would have been four years and six months’ imprisonment, and that for the offence in count 2 — three years’ imprisonment. An order for partial cumulation to reflect the commission of quite separate offences, at different locations and against separate victims, although proximate in both distance and time, would have been required. I consider that this would have been appropriately addressed by making the service of 18 months of the sentence on count 2 cumulative upon that imposed on count 1. The effective period of incarceration if imprisonment had been imposed would, accordingly, have been six years. That, I consider, should be the operative period of the order under s 93(1)(e). I would then fix a non-parole period of four years.[13]
[13]Ibid 143.
It will be apparent from these excerpts that what the Court did in Sirillas was quite different from what the sentencing judge purported to do in the present case. In Sirillas, the Court undertook – as it was obliged to do – a notional sentencing exercise, in order to determine what length of imprisonment term would have been appropriate in respect of the offences committed, had the Court been proceeding to sentence the offender to imprisonment. The purpose of that exercise was to determine the maximum duration of the hospital security order, as required by s 93A(4) of the Sentencing Act, and to fix the non-parole period, as required by s 93A(6).
In the present case, by contrast, the learned judge purported to make actual directions for cumulation as between multiple residential treatment orders. As we have said, there was no power to do so. Moreover, no occasion arises under s 80 for the sentencing court to undertake the ‘notional’ sentencing exercise which must be undertaken before a hospital security order is made. There is, as we have pointed out, no equivalent provision to s 93A(4) limiting the duration of a residential treatment order to the duration of the sentence of imprisonment which would otherwise have been imposed. Instead, the maximum period for such an order in any case is five years, as specified by s 80(2)(b).
In our view, what is required under s 80(2)(b) is that a sentencing judge considering the making of a residential treatment order should determine, on the basis of the material before the Court relating both to the offending and to the offender, what is the appropriate period for such an order. There is no necessity to postulate what term of imprisonment might have been appropriate, or to structure the sentence as if it were a prison term, as the learned sentencing judge did.[14] But there must always be an appropriate proportionality between the offending conduct and the residential treatment order.
[14]R v Ian Farr (Unreported, County Court of Victoria, Judge Parsons, 16 January 2009) [76].
Power to make a single order
In our view, the appropriate course in a case such as the present is to make a single residential treatment order in respect of all the relevant offences.[15] Since they are all offences of the same kind, to which the same treatment program will be relevant, it seems unnecessary and artificial to make more than a single order. There being no power to cumulate, the making of additional orders of the same length would seem to be entirely redundant. Just as the Court in Jolly concluded that there was power to make a single hospital security order in respect of more than one offence, we think there is clearly power to make a single residential treatment order in respect of multiple offences. This view is (indirectly) bolstered by s 82A(5) of the Sentencing Act, which provides that if, upon review of a residential treatment order, a sentencing court cancels the residential treatment order, it may
deal with the offender for the offence or offences with respect to which the sentence was imposed in any manner in which the court could deal with the offender if it had just found the offender guilty of that offence or those offences.[16]
[15]A residential treatment order can only be imposed in respect of a ‘serious offence’ (as defined in s 3 of the Sentencing Act 1991 (Vic)) or the offence of indecent assault contrary to s 39 of the Crimes Act 1958 (Vic): Sentencing Act 1991 (Vic) s 80(2A) and (2B).
[16]Emphasis added.
Re-sentencing
Counsel for the appellant submitted that if the Court were satisfied that the sentencing judge erred in imposing individual residential treatment orders and/or making orders for cumulation, the Court ought to re-sentence the appellant to a residential treatment order of a lesser duration than five years. The purpose of the offender’s placement in a residential treatment facility is ‘to receive the treatment specified in the plan of available services’.[17] There is otherwise a lack of statutory guidance as to how a sentencing judge is to arrive at the appropriate length of a residential treatment order for a particular offender. But, as we have said, although the Act does not dictate that the sentencing judge assess the appropriate length of a residential treatment order by reference to what would have been the appropriate length of imprisonment, the order must be proportionate to the offending conduct.
[17]Sentencing Act 1991 (Vic) s 80(2)(b).
As noted earlier, the SFS assessment report recommended that the appellant be in the residential treatment program for a minimum of three years. Given the seriousness of the offending, its scale and duration, and the high risk of re-offending which the appellant represents, we respectfully agree with the sentencing judge that the maximum period of five years is appropriate.
In the present case, therefore, we would set aside the residential treatment orders made and order (in respect of the relevant counts) that the appellant be detained for a period of five years in the residential treatment facility specified in the plan of available services, to receive the treatment specified in that plan.
There was no challenge to the suspended sentences of imprisonment which the judge imposed on a number of counts, and they do not affect the operation of the residential treatment order. We will make the same orders as his Honour did on those counts.
The final matter concerns the declaration under s 6AAA of the Sentencing Act. The sentencing judge, by the indent of sentence has recorded that pursuant to s 6AAA he would have imposed a sentence of eight years’ imprisonment with a non-parole period of five years on the counts which were the subject of a residential treatment order. It must be assumed that his Honour imposed a less severe sentence – namely an R.T.O. – than he otherwise would have imposed – namely terms of imprisonment – had the appellant pleaded not guilty. His Honour did not deal with this question in his sentencing remarks. Ex facie it is difficult to see why, given the nature of the appellant’s disability and the fact that R.T.O.s were made, it should have mattered whether the appellant had pleaded guilty or not guilty. The Crown not having pressed the Court to make such a declaration, and in the absence of any reasons from the sentencing judge as to why he did so, we are not disposed to make such a declaration.
Conclusion
Defence counsel is very much to be commended for having identified, and proposed to the sentencing judge, the sentencing option of a residential treatment order. We respectfully endorse his Honour’s thoughtful and sensitive approach, and his conclusion that, for this offender, placement in a residential treatment program is clearly preferable to a term of imprisonment, in his own interests and the community’s.
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