GN v R
[2012] NSWCCA 96
•17 May 2012
Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: GN v R [2012] NSWCCA 96 Hearing dates: 17 April 2012 Decision date: 17 May 2012 Before: Basten JA at [1];
Blanch J at [18];
Beech-Jones J at [19]Decision: (1)Grant the applicant leave to appeal from the sentence imposed on him by Lakatos DCJ on 15 April 2011.
(2)Set aside the sentence and in place thereof impose:
(a)a non-parole period of six years to date from 8 December 2009 and to expire on 7 December 2015;
(b)a balance of term of three years to expire on 7 December 2018.
(3)The applicant will be eligible for release on parole on 8 December 2015.
Catchwords: CRIMINAL LAW - appeal on sentence - standard non-parole periods - Muldrock - intellectual impairment - special circumstances. Legislation Cited: Crimes Act 1900 (NSW), s 66A
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 28, 44, 54A; Div 1A, Pt 4
Criminal Appeal Act 1912 (NSW), s 6Cases Cited: Butler v R [2012] NSWCCA 23
DPP (Cth) v De la Rosa [2010] NSWCCA 194; 79 NSWLR 1
Markarian v R [2005] HCA 25; 228 CLR 357
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
R v Engert (1995) 84 A Crim R 67
R v Koloamatangi [2011] NSWCCA 288
R v Muldrock; Muldrock v R [2010] NSWCCA 106
R v Way [2004] NSWCCA 131; 60 NSWLR 168
Veen v The Queen [No 2] [1988] HCA 14; 164 CLR 465Category: Principal judgment Parties: GN (Applicant)
Crown (Respondent)Representation: Counsel:
Mr D Barrow - Applicant
Legal Aid NSW (Applicant)
Ms F Veltro - Respondent
Solicitors:
Solicitor for Public Prosecutions (Respondent)
File Number(s): CCA 2009/277269 Decision under appeal
- Date of Decision:
- 2011-04-15 00:00:00
- Before:
- Lakatos DCJ
- File Number(s):
- DC 2009/277269
Judgment
BASTEN JA: The applicant seeks leave to appeal against a sentence imposed on him on 15 April 2011 in the District Court by Lakatos DCJ for an offence of sexual intercourse with a person under the age of 10 years. The offence was aggravated by the fact that the child was under his authority, as her stepfather: Crimes Act 1900 (NSW), s 66A(2) and (3)(d). That section commenced on 1 January 2009.
The aggravated offence carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years, which applies in respect of both the unaggravated and aggravated forms of the offence. (The unaggravated offence carries a maximum penalty of 25 years imprisonment.) The sentence imposed involved a non-parole period of eight years, with a balance of term of two years eight months.
As explained by Beech-Jones J, the trial judge erred in his approach to sentencing the applicant in adopting the approach required by this Court in R v Way [2004] NSWCCA 131; 60 NSWLR 168, which was overruled by the High Court in Muldrock v The Queen [2011] HCA 39; 244 CLR 120, the latter judgment being delivered after the sentence was imposed in this case. Whilst the error was without fault on the part of the sentencing judge, it remains a fact that he adopted an erroneous approach which tended to result in a higher sentence than he would otherwise have imposed.
Despite the error, if this Court were of the view that no less severe sentence were warranted in law, it is obliged to dismiss the appeal: Criminal Appeal Act 1912 (NSW), s 6(3). The error made by the sentencing judge was not immaterial; it appears that he would otherwise have imposed a lesser sentence, a course with which I would respectfully agree, for reasons given below.
The trial judge imposed a balance of term which was one-third of the non-parole period. That proportion was appropriate, absent a finding of "special circumstances"; a greater proportion was open with such a finding: Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Procedure Act"), s 44(2). For reasons given below, this was a case in which there should have been a finding of special circumstances.
Term of sentence
The aggravating features of the offending were significant. First, the assault involved vaginal penile penetration. Secondly, the victim was nine years and four months of age at the time of the offence. Thirdly, the applicant was her stepfather, having been in a relationship for several years with the victim's mother. (The applicant and the mother had three other children together.) Those features alone warranted a lengthy sentence of imprisonment.
There were also two significant mitigating factors. First, it appears that the applicant himself had suffered "persistent sexual abuse by his stepfather, which comprised oral and anal penetration on a weekly to fortnightly basis from age six until he was 18 years old": Dr Emma Collins, Psychological Assessment Report, 6 September 2010, par 8. Secondly, the applicant was sufficiently low on intelligence testing scales as to be characterised as intellectually disabled. A report prepared in June 1988, after he had demonstrated an inability to calculate change when working in the newsagency operated by his mother and stepfather, found that he was "within the mildly intellectually handicapped range" and suggested that "open market employment would be very unlikely". Dr Collins summarised the scores he achieved on the verbal scale as being "within the extremely low range of ability, outperforming less than the bottom 1% of the normative sample for his age": report, par 25. She stated that his score on the non-verbal scale fell within "the borderline to below average ability range, outscoring the bottom 8% of the normative aged sample": ibid. The applicant's intellectual limitations appeared to affect the level of his moral culpability. Dr Collins reported (par 20):
"He advised 'she was trying to tempt me' and as such showed a preoccupation with sexualising the behaviour of children and misreading perceived 'cues' given by the victim, highlighting pro-offence attitudes and interests. [The applicant] was able to articulate the understanding of lack of consent in children, but only to a superficial extent."
There is no finding that he had an understanding which he could not articulate and I would not draw that inference from the report.
The applicant also suffered a level of mental illness. Dr Collins stated that he scored "in the moderate range for anxiety and stress, and within the extremely severe range for depression": Report, par 24. So far as sentencing is concerned, the applicant's intellectual disability is double-edged. His tendency to respond to the perceived sexuality of children is a matter of concern. As explained at [44] to [46] by Beech-Jones J the applicant had been convicted on two prior occasions of indecent assault, and an act of indecency with a girl under the age of 10 years. On each occasion he received a bond. Dr Collins' opinion was that he posed a moderate to high risk of re-offending: at pars 26-28. On the other hand, she stated at par 33:
"[The applicant] shows some evidence of long-term relationships, however it is concerning that it is at that time, when he has regular access to children, that he is most likely to sexually offend. It seems to be a combination of his own abuse experiences and perhaps the confusion this has created regarding intimacy, in addition to the disinhibiting effect alcohol has upon his behaviour that exacerbates sexual deviance and the underlying sexual interest in children.... Moreover, he reports intermittent depression and general mood dysregulation that is another antecedent to his offending. [His] sexualised conduct needs to be understood in the context of these aforementioned psychosocial factors. It is commendable that he is quite frank about his sexual offending and attitudes, and this bodes well for treatment. Furthermore, it is positive that he appears genuinely motivated to engage in offence-specific intervention."
Dr Collins' assessment of his "relatively high" risk of recidivism was qualified by her comment that his behaviour and attitudes "whilst concerning, are relatively typical for untreated sex offenders and should moderate following intervention, pending his potentially good treatment progress": at par 34. She considered he would "require ongoing intervention as part of his eventual release back into the community" and that "the option for a period of community-based supervision would be beneficial in order to best manage his ongoing risk in the community". She expressed a concern that his cognitive ability may require individual therapy, which appears not to be available through the Custody Based Intensive Treatment Program available within the prison system.
There are individuals who pose such a high risk of serious offending, apparently without the understanding or ability to control their own behaviour, that demands of protection of society and the need for the sentence to conform to an appropriate assessment of the moral culpability of the actual offence may give rise to an acute tension. The point was helpfully articulated in Veen v The Queen [No 2] [1988] HCA 14; 164 CLR 465 in the judgment of Mason CJ, Brennan, Dawson and Toohey JJ in the following terms, at 476-477:
"The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions. And so a mental abnormality which makes an offender a danger to society when he is at large but which diminishes his moral culpability for a particular crime is a factor which has two countervailing effects: one which tends towards a longer custodial sentence, the other towards a shorter. These effects may balance out, but consideration of the danger to society cannot lead to the imposition of a more severe penalty than would have been imposed if the offender had not been suffering from a mental abnormality."
Subject to the limiting consideration of the sentence which would be imposed on someone without a mental disability, it is appropriate to give careful consideration to circumstances in which the evidence indicates that the offending may to a significant extent be the product of serious and prolonged sexual abuse throughout childhood, together with a lack of understanding, to a noticeable degree, of the emotional and intellectual controls required to avoid the infliction of similar harm on others. The critical issue in the present case is the possibility, affirmed by Dr Collins, that treatment should moderate the risk of recidivism for the applicant. In those circumstances, it is possible to moderate the sentence which would otherwise have been required to take account of the likely limited effects of extended punishment as a form of personal deterrence and the lowered value of punishment as a form of general deterrence, in a case of reduced moral culpability.
In considering the appropriate term, it is, of course, necessary to take into account the fact that the maximum penalty for the offence is life imprisonment and that there is a standard non-parole period of 15 years. However, the latter must not be used as a guidepost or benchmark "from which to commence the sentencing exercise," in terms adopted by the sentencing judge. It is a factor to be taken into account. Usually, the "objective seriousness" of the offence is equated with the level of moral culpability of the offender. However, although the circumstances of the offence may justify the description of being "in the middle of the range of objective seriousness" for such an offence, in the language of s 54A(2) of the Sentencing Procedure Act, where the personal characteristics of the offender reduce the level of moral culpability, that description does not identify the level of moral culpability: see Muldrock at [54].
In these circumstances, a term of imprisonment of 12 years would have been appropriate, which, subject to the accepted 25% discount for the plea of guilty, would result in a term of nine years imprisonment.
Non-parole period
Two factors warrant a finding of special circumstances, for the purposes of s 44 of the Sentencing Procedure Act. First, although this is not the first occasion of similar offending, it is the first time that a custodial sentence has been imposed. Secondly, there is a strong indication in the report of Dr Collins, quoted in part above, that an extended period of ongoing intervention after release on parole will be desirable, if not essential, for rehabilitation. Further, there is at least a possibility that the necessary form of treatment for inappropriate sexual behaviour will need to be undertaken after release. She also recommended monitoring after release.
It may also be accepted that the period of imprisonment will impact more severely on the applicant than on other offenders, not only because of his intellectual disability, but also because he will be, and indeed the evidence demonstrates has been, identified by other inmates as a child sex offender.
In all the circumstances, a non-parole period of six years is appropriate.
Orders
In my view, the Court should make the following orders:
(1)Grant the applicant leave to appeal from the sentence imposed on him by Lakatos DCJ on 15 April 2011.
(2)Set aside the sentence and in place thereof impose:
(a)a non-parole period of six years to date from 8 December 2009 and to expire on 7 December 2015;
(b)a balance of term of three years to expire on 7 December 2018.
(3)The applicant will be eligible for release on parole on 8 December 2015.
BLANCH J: I agree with Basten JA.
BEECH-JONES J: This is an application for leave to appeal from a sentence imposed by His Honour Judge Lakatos DCJ. The applicant pleaded guilty to one charge under s 66A(2) of the Crimes Act 1900 that on 4 December 2009 he had sexual intercourse with a person under the age of 10 years in circumstances of aggravation. The circumstance of aggravation was that the victim, his step-daughter, was under his authority (s 66(A)(3)(d)).
Allowing for a full 25% discount on account of the applicant's plea of guilty, his Honour sentenced the applicant to a non-parole period of 8 years and an additional term of 2 years and 8 months. His Honour declined to vary the ratio between the non-parole period and the balance of the term in accordance with s 44(2) of the Sentencing Procedure Act.
The maximum penalty for the offence was imprisonment for life. The standard non-parole period was 15 years.
The Offence
Before his Honour there was no dispute as to the circumstances surrounding the offence. It was set out in an agreed statement of facts.
At the time the offence was committed the victim was aged 9 years and 4 months. The applicant had been living with the victim's mother since January 2007. The applicant and victim's mother had three children, twin boys born in 2007 and another child born in late 2009.
On 4 December 2009 the victim's mother was hospitalised due to complications with her pregnancy. The victim and the twins were left in the care of the applicant. During the evening the victim was in the shower washing her hair. The applicant entered the bathroom and told her to "get out of the shower". He was clothed. The victim got out of the shower and the applicant then re-entered the bathroom. He was now naked. The applicant placed a towel around the victim's shoulders and picked her up and carried her into his bedroom. He placed a towel on the bed. He placed the victim on top of the towel lying down on her back. She was still naked. The applicant then lay on top of the victim so that his stomach was touching her and he inserted his penis into her vagina. The victim later stated that she could feel his penis inserted about half way into her vagina and she felt pain.
The victim managed to get away. She ran from the room and locked herself in the bedroom and dressed herself. She waited in that room until the offender left the bedroom. She ran back into the bedroom and locked herself in. She later returned to her room and slept the night there.
The next day the applicant, the victim and her siblings visited the victim's mother in hospital. The victim asked her mother if she could stay with her at the hospital and not go home with the applicant. She was told she could not. She did not tell her mother of the previous night's assault.
On the next day the victim disclosed the offence to her mother. The victim's mother then confronted the applicant. During the confrontation she said to him:
"Why would you do something like this?"
The applicant replied:
"I've only done it a couple of times, she is a cock tease and you're sick all the time and I didn't want to stress you out."
The victim's mother then contacted the applicant's mother and told her to collect him. As he left he threatened to kill himself. He sent the victim's mother a number of text messages including ones that said "I had been drinking. I am sorry I love you and the kids" and "I did it one time, I going to kill myself you be happy then."
In an interview, the victim disclosed that the applicant had engaged in acts of a sexual nature with her on other occasions prior to 2009. The victim said she was told by the offender "don't tell anyone", "I'll hurt you" and "I've never touched you" after each occasion. The victim reported that as a consequence she had cut her arm with scissors about one month prior to December 2009. The victim's mother had noticed a number of marks on her forearm about that time.
I address below other aspects of the material that was before his Honour as well as findings his Honour made during the course of sentencing.
Grounds 2(i) and 3: Approach to Standard Non Parole Period
At the hearing of the appeal the applicant was granted leave to amend his grounds of appeal to include a new ground 2(i) which alleged that his Honour erred in the application of Division 1A of Part 4 of the Sentencing Procedure Act by attaching to standard non-parole periods a significance that the statutory scheme does not justify.
At the time of the sentence hearing, his Honour was bound to apply Division 1A in accordance with the decision of this Court in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168. Way was applied by this Court in R v Muldrock; Muldrock v R [2010] NSWCCA 106. His Honour was specifically referred to this Court's judgment in Muldrock during the course of submissions. That decision was successfully appealed to the High Court: Muldrock v R [2011] HCA 39; (2011) 244 CLR 120. The High Court's decision in Muldrock was published after his Honour's judgment on sentence. The High Court found, inter alia, that this Court's decision in Muldrock had reflected the analysis of Division 1A in R v Way and that, in this respect, Way was wrongly decided:
"25... it follows from that acceptance that Way was wrongly decided. As will appear, it was an error to characterise s 54B(2) as framed in mandatory terms. The Court is not required when sentencing for a Div 1A offence to commence by asking whether there are reasons for not imposing the standard non-parole period nor to proceed on assessment of whether the offence is within the mid-range of objective seriousness.
...
28.Nothing in the amendments introduced by the Amending Act requires or permits the Court to engage in a two-stage approach to the sentencing of offenders for Div 1A offences, commencing with an assessment of whether the offence falls within the middle range of objective seriousness by comparison with the hypothesised offence answering that description and, in the event that it does, by inquiring if there are matters justifying a longer or shorter period."
By his amended ground 2(i) the applicant contends that his Honour made the same mistake as the High Court found had occurred in Muldrock. He points to the following part of his Honour's judgment as revealing an error of the type identified in the above extracts:
"The Crown contends in his written submissions and orally that the objective seriousness of the present offence is at the mid-range given the various factors which I have reviewed. Accordingly, he contended the standard non-parole period of 15 years should be used as a guide post or bench-mark from which to commence the sentencing process. Having reviewed a number of those Court of Criminal Appeal authorities, I am of the view that contention is made good.
...
I conclude as the Crown contends that this offence is at the mid range of seriousness of this offence.
The offender's plea of guilty provides a reason for departing from the standard non-parole period. Furthermore, I accept that he has an intellectual disability which makes him in my opinion an inappropriate vehicle for general deterrence to the fullest extent..." (emphasis added)
I agree that these passages reveal that his Honour adopted an approach to the standard non-parole period which the High Court in Muldrock found was impermissible. Needless to say this is not a criticism of his Honour. His Honour was bound by this Court's decisions in Way and Muldrock and the Crown had referred to the latter extensively.
The Crown sought to resist this conclusion and pointed to the following statement in Butler v R [2012] NSWCCA 23 at [26] per Davies J (with whom Whealy JA and Rothman J agreed):
"Merely showing that a sentencing judge sentenced pre Muldrock following the dictates of Way will not be sufficient to demonstrate error. What should be ascertained in each case is whether a reliance on Way has sufficiently infected a sentence with such error that this Court must intervene. Ordinarily this might occur in cases when an applicant is found guilty by a jury with the result that the sentencing judge will consider that a two-stage process must be applied and that the standard non-parole period is mandatory unless factors could be found to justify a variation from it. It is far less likely that intervention will be required from this Court where a sentence has been imposed following a plea of guilty and the sentencing judge has referred to the standard non-parole period as simply a guide or yardstick." (emphasis added)
However his Honour did not refer to the standard non-parole period as "simply a guideline or yardstick". Instead, the passages which I have extracted above reveal that his Honour adopted an approach of commencing with the standard non-parole period and then seeking to find factors which could "justify a variation from it".
It follows that ground 2(i) should be upheld. A similar complaint was made in ground 3. It contended that his Honour erred in adopting a two-tiered approach as opposed to the "instinctive synthesis" approach to sentencing discussed by McHugh J in Markarian v R [2005] HCA 25; (2005) 228 CLR 357 at [51] to [56]. This ground is also made out for the same reason. His Honour's reliance on this Court's decision in Muldrock which in turn relied on Way meant that a two tiered approach was adopted.
Before embarking upon any reconsideration of the exercise of the sentencing discretion I would need to be satisfied that some other sentence is warranted in law (s 6(3) of the Criminal Appeal Act). It is convenient to address the factors affecting both issues together. In doing so I will address the substance of the debate raised by the remaining grounds of appeal which concern the applicant's intellectual disability (ground 1), his Honour's assessment of the "objective seriousness" of the offence (ground 2(ii)) and the failure to find special circumstances (ground 4).
The Applicant's Circumstances
At the time he committed the offence, the applicant was 40 years of age. His parents separated when he was four and he was raised by his mother. He had little contact with his father. When he was six his mother remarried. His step-father had two children from a previous relationship and relations between the step-father, his biological children and the applicant were said to be problematic.
His Honour recorded the applicant as having stated that his step-father sexually abused him and is now serving a custodial sentence inter-state for that abuse. I am proceeding on the basis that his Honour accepted that claim. The applicant had a difficult relationship with the mother as a result of her not having accepted the claims he made against his step-father. The relationship subsequently improved.
The applicant had a number of relationships with women in his adulthood. Five of them were described as being "long-term". He was estranged from a fourteen year old son from one of those relationships because of his commission of this offence. He had had a number of children from the other relationship including the twin sons he was supervising on the evening of 4 December 2009.
The applicant attended a special school for a substantial part of his schooling. I summarise the evidence concerning his intellectual functioning below. He apparently had a long history of employment in manual jobs. The material before his Honour indicated that he had a long-term problem with alcohol abuse.
His Honour described the applicant's criminal history as not being lengthy but having contained a number of matters "of like nature" to the offence to which he pleaded guilty. In 2001 and 2002 he was convicted of contravening an apprehended violence order. On the first occasion he was placed on a bond and on the second occasion he was fined. In 2004 he received a bond under s 9 of the Sentencing Procedure Act for two counts of assault. He received another bond under s 9 in 2005 when he was convicted of common assault and an offence of "peep or pry".
There were two further convictions of much greater concern. In 2002 he was convicted of an offence of indecent assault on a person under the age of 10 years. For that offence he received a bond under s 9. The offence occurred on 4 November 2000. The victim was the daughter of his then defacto. She was 8 years old. The family was camping. The victim's mother was absent from the family tent for a brief period while she was attending to the needs of one of her other children. While she was absent the applicant rubbed the victim's vagina.
On 12 December 2006 the applicant was convicted of a further act of indecency with a victim under the age of 10 years. The applicant masturbated in the presence of his then defacto's 13 month old daughter. He was given another bond under s 9 of the Sentencing Procedure Act. The bond was for a period of 4 years and was subject to a number of conditions concerning supervision and participation in a Specialist Adult Sexual Offender Program.
The supervision required by the bond was terminated in May 2008. Until that time it appears that there had been close monitoring of the applicant.
The Applicant's Intellectual Functioning and Likelihood of reoffending
Tendered to his Honour were a probation and parole pre-sentence report dated 9 March 2011, a psychological pre-sentence assessment report prepared by a psychologist retained on behalf of the Crown (Mr Baird) and a report from a forensic psychologist retained on behalf of the applicant (Dr Collins). Some older reports and material concerning his intellectual functioning were also tendered.
It is necessary to consider this material in some detail having regard to four issues: (i) the level of his intellectual function; (ii) the connection, if any, between any impairment in his intellectual functioning and his offending behaviour; (iii) the likelihood of his reoffending; and (iv) the rehabilitative options that were said to be available.
In relation to the first issue, Mr Baird stated that the material recorded that the applicant was on "the lower extreme of intellectual functioning" and was "functioning in the mildly delayed ability range".
Dr Collins had access to some recently completed intelligence testing. She described the testing and its outcome as follows:
"[GN] completed the Wechsler Abbreviated Scale of Intelligence (WASI) on 7 July 2010, which is a brief, four-tasks intelligence test that is broken into two tasks testing verbal and non verbal skill areas. The verbal scale assesses language, comprehension, word knowledge and the capacity for verbal abstract reasoning, whilst the non-verbal scale is measured by visual-spatial reasoning and visual-motor ability. On the verbal scale, [GN] achieved a score that places him within the extremely low range of ability, out performing less than the bottom 1% of the normative sample for his age. His score on the non-verbal scale was contrastingly higher, falling in the borderline to below average ability range, outscoring the bottom 8% of the normative aged sample. The disparity between these two scores meant that it is inappropriate to give an overall assessment of [GN's] intelligence. He presents with low non-verbal skills but impaired verbal competence. The results highlight that he is a generally low functioning individual which is consistent with his personal history and presentation and interview. He is considered to meet the criteria of an intellectual disability on the basis of these results."
In relation to the second issue, Mr Baird identified a number of what he described as "dynamic factors" that it appeared had played a role in the applicant's offending history. He identified a sexual "curiosity" regarding children, an elevated sex drive and social isolation. He added:
"The extent to which [GN's] intellectual limitations contribute to impulsivity regarding his sexual urges around children and poor problem solving regarding satisfying his needs should be explored further in a treatment setting. Finally, it may be important to explore, in a treatment setting, the contribution to [GN's] sexual offending, of his own sexual abuse when he was younger."
Dr Collins did not specifically address the existence of any connection between the applicant's intellectual impairment and his offending behaviour. However, the following conclusion in her report appears to exclude any such connection:
"It seems to be a combination of his own abuse experiences and perhaps the confusion this has created regarding intimacy, in addition to the disinhibiting effect alcohol has upon his behaviour that exacerbates sexual deviance and the underlying sexual interest in children for [GN]."
Counsel for the applicant pointed to a statement in Dr Collins' report that he was "able to articulate the understanding of lack of consent in children, but only to a superficial extent" as suggestive of a causal connection between his impairment and his offending behaviour. However the reference to his inability to "articulate" a matter needs to be considered in the context of the disparity between his verbal and non-verbal ability that Dr Collins explained in the extract set out above. Dr Collins' report did not suggest that the applicant's intellectual impairment affected his ability to control his actions or appreciate that they were wrong.
At its highest this material suggested only a weak connection between his intellectual impairment and his offending behaviour.
Third, both psychological reports assessed the applicant's prospects of re-offending. His Honour described both reports as "essentially" coming to the same conclusions. Mr Baird described his "overall general risk level" as "Moderate-High" which rose to "High" in the circumstance that he was living with children and not the beneficiary of "sex offender specific treatment". Dr Collins concluded:
"On the basis of the current assessment, [GN] presents an overall moderate-high risk of sexual recidivism. Risk will be highest in relation to his development of future relationships with partners who have children, given the repeated pattern of such behaviour."
Fourth, both sets of psychologists suggested that if he received a custodial sentence he would need to be assessed by "custody based sex offender program staff" to determine a suitable treatment program. Mr Baird suggested that he would be more suited to the "Self Regulation Programme" rather than a program which catered for offenders with intellectual disabilities. He added that the applicant would "need a non parole period of between 12 and 18 months to complete the "Self Regulation Program". Dr Collins also suggested that he should be assessed. She stated that his behaviour "should moderate following intervention, pending his potentially good treatment progress". As noted, Mr Baird only considered that the absence of specific treatment would lead to a moderate to high risk of recidivism being elevated to a high risk.
Other Findings
I will briefly note a number of findings made by his Honour.
First, his Honour found that the applicant was genuinely remorseful.
Second, his Honour heard and accepted evidence from the applicant that there are difficulties with his incarceration including his having been assaulted.
Third, the applicant gave evidence that he was taking tablets to restrict his sex drive. I assume his Honour accepted that evidence.
Fourth, having regard to the evidence of the victim to the effect that she had been abused on earlier occasions and the statements that had been made to her by the applicant, his Honour concluded that the offence was not an isolated occurrence and that the applicant was not entitled to any leniency on that account.
Fifth, his Honour noted that the victim suffered physical pain during the incident, that it was a serious form of intercourse and that there were clearly psychological consequences for the victim. In accordance with s 28 of the Sentencing Procedure Act his Honour received a statement from the maternal grandmother of the victim. It appears that the victim now lives with her grandmother. She described a number of adverse changes in the victim's behaviour including that the victim was now more "wary of people, particularly males", appeared to be suffering from anxiety and had become withdrawn. Whereas previously she was a compliant child, she had become more emotional and easily moved to tears. She experienced poor sleep patterns and nightmares.
Annexed to that statement was a letter written by the victim on 16 October 2010 to her mother. It describes her anguish at being separated from her mother and her siblings. It seems that she had been taken from them and placed with her grandmother. Distressingly, she blames herself for that having occurred. She wrote that, if she had not disclosed the applicant's conduct, she might be still living with her mother and siblings. In describing this, his Honour found, "as sad a picture as it paints, the physical and mental harm are I believe of no greater substantial harm than would normally occur to a 10 year old sexually molested by her step-father".
This finding needs to be put in context. His Honour was required to characterise the harm in that manner because it would have been erroneous to take into account a characteristic or consequence of the offence, which even though not an element of the offence, is likely to be reflected in the maximum penalty and any applicable standard non-parole period (see R v Koloamatangi [2011] NSWCCA 288 at [25] per Basten JA and cases there cited). In this case, the maximum penalty for the offence is a sentence of life imprisonment. The standard non-parole period is 15 years. Such penalties comprehend very serious consequences for the victims and others if the provision is contravened. The circumstances of this case amply demonstrate that.
Sixth, overall his Honour characterised the offence "at the mid range of the seriousness of this offence." Ground 2(ii) of the appeal complained that in doing so his Honour impermissibly strayed from considering only "the nature of the offending" (Muldrock at [28]) and had regard to the fact that the applicant was still the subject of a bond under s 9 of the Sentencing Procedure Act at the time he committed the offence. This can be accepted but his Honour's overall characterisation of the seriousness of the offence was still correct.
Further Evidence
At the hearing of the application an affidavit from the applicant was read on the basis that the Court would consider in the event that it proposed to resentence the applicant. He describes being abused and assaulted by other inmates who suspect (correctly) that he is a sex offender. He describes brief contact with his mother and how he misses his family. He has undertaken some wood-working courses. He states that he has seen the "mental health lady" once and is taking anti-depressants and blood pressure medicine. He states that he wants to undertake a "Sex Offenders' Program" but it is his belief that it is not available at the gaol at which he is detained.
An affidavit from a solicitor for the Crown was also read on the appeal on the same basis. Based on her inquiries it appears that the applicant undertook a "Problem Solving Program" for people with disabilities in 2010. He attends Alcoholic Anonymous meetings every second week and has completed a "Work Readiness Course". The affidavit confirms that he has been recommended for the "Preparatory Sex Offenders' Program" which is available at his current gaol and the "Self Regulation Sex Offenders' Program". He is on a waiting list for the latter program. When a place becomes available he will be transferred to the gaol which administers that program. It is not stated how long that will take.
Intellectually Impaired Offenders
The applicant sought to draw support from Muldrock in four respects. First, he relied on Muldrock to establish that his Honour erred in the approach that was adopted to the standard non-parole period. Second, he relied on the discussion in Muldrock as to the approach to be adopted in sentencing offenders who suffer from an intellectual disability. Third, he relied on the reasoning in Muldrock for the overturning of this Court's failure to find "special circumstances" in that case. Fourth, he relied on the reasoning in Muldrock for quashing the head sentence of nine years on the basis that it was manifestly excessive (Muldrock at [60]). He contends that his circumstances were sufficiently similar to warrant a conclusion that a lesser sentence was "warranted in law".
I have already accepted the first contention and will now address the second issue. In describing the approach to be taken towards offenders who suffer from an intellectual disability the High Court in Muldrock stated (at [53] to [55]):
"53.... One purpose of sentencing is to deter others who might be minded to offend as the offender has done. Young CJ, in a passage that has been frequently cited, said this [citing R v Mooney (unreported, Supreme Court, Vic, Full Court, 1 June 1978)]:
"General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others."
In the same case, Lush J explained the reason for the principle in this way:
"[The] significance [of general deterrence] in a particular case will, however, at least usually be related to the kindred concept of retribution or punishment in which is involved an element of instinctive appreciation of the appropriateness of the sentence to the case. A sentence imposed with deterrence in view will not be acceptable if its retributive effect on the offender is felt to be inappropriate to his situation and to the needs of the community."
54The principle is well recognised [authorities cited]. It applies in sentencing offenders suffering from mental illness, and those with an intellectual handicap. A question will often arise as to the causal relation, if any, between an offender's mental illness and the commission of the offence [citing R v Engert (1995) 84 A Crim R 67 at 71]. 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.
55In this case, there was unchallenged evidence of the causal relation between the appellant's retardation and his offending in the reports of Dr Muir and Ms Daniels. The fact that the appellant possessed the superficial understanding of a mentally retarded adult that it was wrong to engage in sexual contact with a child and that he told childish lies in the hope of shifting the blame from himself were not reasons to assess his criminality as significant [citation omitted], much less to use him as a medium by which to deter others from offending."
The unchallenged evidence of Dr Muir and Ms Daniels was material suggesting that the appellant in Muldrock had little or no control over his actions due to his mental retardation (Muldrock at [40] to [41]).
One of the cases cited in [54] of Muldock as recognising the relevant principle was R v Engert (1995) 84 A Crim R 67. The second sentence of [54] cites the judgment of Gleeson CJ in Engert at 71. At 71 his Honour stated, inter alia:
"Similarly, in Letteri (NSW CCA unreported 18 March 1992), Badgery- Parker J said:
The principle then is clear enough. It is correctly stated as follows: that whereas general deterrence is a relevant consideration in every sentencing exercise, it is a consideration to which less weight should be given in the case of an offender suffering from a mental disorder or severe intellectual handicap. In an extreme case, the proper application of this principle may produce the result that considerations of general deterrence are totally outweighed by other factors. In every case it is a matter of balancing the relevant factors in a manner no different from that which is involved in every sentencing exercise.
I emphasise the concluding sentence in that passage.
.........
In truth however, for the reasons given at the commencement of this judgement, the question of the relationship, if any, between the mental disorder and the commission of the offence, goes to circumstances of the individual case to be taken into account in the application of the relevant principles. The existence of such a causal relationship in a particular case does not automatically produce the result that the offender will receive a lesser sentence, any more than the absence of such a causal connection produces the automatic result that an offender will not receive a lesser sentence in a particular case. For example, the existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence, and increase the importance of particular deterrence or of the need to protect the public. By the same token, there may be a case in which there is an absence of connection between the mental disorder and the commission of the offence for which a person is being sentenced, but the mental disorder may be very important to considerations of rehabilitation, or the need for treatment outside the prison system." (emphasis)
The reference to the "commencement of the judgment" in this passage is to 84 A Crim R 67 which includes the following statement (at 69.6):
"It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in light of the purpose to be served by the sentencing exercise."
I have cited these passages from Engert at length in order to demonstrate that Muldrock did not overturn the principles usually applied in this State to dealing with offenders who suffer from a mental disorder or an intellectual disability. To the contrary it confirmed their application (see DPP (Cth) v De la Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 at [177], per McClellan CJ at CL).
For the purposes of this application two matters should be noted. First, a conclusion that an offender suffers from an intellectual disability does not necessarily lead to a complete rejection of either general deterrence, retribution or denunciation as factors in sentencing. Such a conclusion might have no consequence or only result in a diminution in the weight attached to that factor. The extent of that diminution, if any, is a matter for the sentencing judge at first instance and will depend upon an interplay of factors including the extent of the disability. It may be that in some cases the need for general deterrence is completely removed and the weight to be attached to denunciation and retribution is substantially diminished. Thus later in Muldrock at [58] the High Court found that punishment and denunciation did not require "significant emphasis" in that case and there "was no requirement for general deterrence". This result followed from an assessment of the evidence of Dr Muir and Ms Daniels that I have described.
Second, the diminution of the weight attached to, or even the removal of, general deterrence, denunciation and retribution as factors in the sentencing process may, but not necessarily will, lead to a lesser sentence being imposed. Although Gleeson CJ's comments in Engert concerned persons suffering from a mental disorder they are equally applicable to persons who have an intellectual disability. Thus, the greater weight that attaches to such factors as specific deterrence, the need to protect the community and the prospects of rehabilitation which flow from the diminution in weight attaching to other factors, does not necessarily operate in the offender's favour. An example is a case where the offender's intellectual disability is considered relatively mild, culpability is high and the prospects of rehabilitation are bleak. In such a case the need for specific deterrence and protection of the public may warrant a sentence no lesser in length than if general deterrence was fully engaged.
The Applicant's Sentence
I will turn to the third and fourth matters raised by the applicant in reliance on Muldrock. At the outset it should be noted that on these issues the applicant has moved from relying on the principles stated in Muldrock to seeking to rely on the specific findings made by the High Court in Muldrock. I address the argument as framed but it needs to be firmly kept in mind that those findings concern another case involving different facts. They are not binding on me in the exercise of the function that I am undertaking at this point under s 6(3) of the Criminal Appeal Act. That said, the High Court's reasoning in support of its finding that the sentence imposed on Muldrock was manifestly excessive provides an example of the application of the principles it stated and its conclusions inform the task that I am undertaking. Further the approach of comparing and contrasting the features of this case with those of Muldrock assists in the elucidation of my reasoning.
The appellant in Muldrock pleaded guilty to one offence under s 66A of the Crimes Act 1900. He had sucked the penis of a nine year old boy. At the time he committed the offence the appellant was aged 30. He had been assessed as suffering a "mild intellectual disability". The appellant had committed a similar offence seven years previously while living with his parents in Queensland. At the sentence hearing evidence was received that he was eligible for admission to a residential treatment facility known as "Selwood Lane". It was designed to assist intellectually handicapped individuals to moderate their sexually inappropriate behaviour. It was a secure facility where staff were directed to maintain "line of sight supervision [of residents] at all times" (Muldrock at [45]).
The sentencing judge in Muldrock imposed a term of imprisonment of nine years with a non-parole period of 96 days. The ratio of those two periods reflected a finding of special circumstances. The non-parole period was backdated to the commencement of his incarceration so that he was to be released on the date of the imposition of his sentence. It was a condition of his release on parole that he reside at Selwood Lane. This was erroneous as his Honour did not have power to impose a parole condition for a sentence of more than three years (Muldrock at [4]).
The Court of Criminal Appeal rejected an appeal against the term of nine years but upheld a Crown appeal against the non-parole period. It overturned the finding of special circumstances (R v Muldrock [2010] NSWCCA 106 at [34]). The Court substituted a non-parole period of six years and eight months and a balance of sentence of two years and four months.
The High Court found that the Court of Criminal Appeal erred in finding that there were no special circumstances (Muldrock at [58]) and quashed the term of nine years imprisonment on the basis that it was manifestly excessive (Muldrock at [60]). The case was remitted to the Court of Criminal Appeal for the appellant to be resentenced in accordance with the High Court's reasons. His resentencing is yet to occur. Nothing in these reasons addresses what the outcome of that process should be.
As I have stated, in contending for both a shorter term of imprisonment and a finding of special circumstances the applicant points to the various similarities between his case and that of Muldrock. He submitted:
"Like the appellant in Muldrock, the applicant met the criteria for mild intellectual disability, he was effectively illiterate, had attended a special school, had suffered from sexual assault whilst he was a child and had committed prior related offences."
Bearing in mind the limitations on this exercise of comparison that I have referred to above, I will address this argument by comparing and contrasting the evidence concerning the intellectual disability of the appellant in Muldrock and its connection with the offence he committed and that of the applicant. I have already referred to the two reports in Muldrock which were prepared for his sentencing for an earlier offence which described the history and extent of his impairment (Muldrock at [39] to [40]). The High Court's description of the evidence concerning his intellectual functioning included the following (at [42]):
"Professor Hayes reported that the appellant's IQ Composite Standard Score of 62 was indicative of a mild intellectual disability. The appellant functions at a level lower than 99% of the population. His receptive and expressive language is equivalent to that of a child aged five and a half years. Test results measuring the appellant's ability to communicate, daily living skills and level of socialisation (adaptive behaviour) confirmed the diagnosis of mild intellectual disability. The appellant functions in the lowest 0.1% of the population in terms of his adaptive behaviour."
The High Court recorded that Professor Hayes' evidence was that the appellant had "deficits in empathy" ([43]) and "would benefit from a program designed for a sex offender with an intellectual disability" ([44]).
I have described the evidence concerning the applicant's intellectual functioning above. Although it was impaired it was qualitatively superior to that of the appellant in Muldrock. On the non-verbal scale he functioned above the bottom 8%. Although his functioning on the verbal scale was less than 1% nothing in the material suggested he had the "receptive and adaptive language of a child aged five and a half years" as was the case with the appellant in Muldrock. Further, as I have explained, the connection between his intellectual functioning and the commission of the offence was at best weak. There was no evidentiary equivalent of the evidence of Dr Muir and Ms Daniels.
In Muldrock the Court considered that the material concerning the causal relation between the appellant's retardation and his offending behaviour meant that he had "limited moral culpability for his offence" (at [58]). The Court found that there "was no requirement for general deterrence" and that retribution and denunciation "did not require significant emphasis" (at [58]). In this case his Honour found the applicant's intellectual disability makes him "an inappropriate vehicle for general deterrence to the fullest extent." I consider that reflects the correct approach for this case. His intellectual functioning was impaired but not to a degree that significantly affected his moral culpability for the offence. It did not warrant the removal of general deterrence as a factor altogether. Further, the other sentencing factors remained. I will consider these further in the context of considering whether special circumstances exist, but their comparative elevation did not warrant any lesser overall term of imprisonment in the circumstances of this case.
One obvious difference between the two cases is that the applicant's offence was committed in circumstances of aggravation. The appellant in Muldrock was convicted under a previous form of s 66A which prohibited sexual intercourse with a person under the age of 10 years and specified a maximum penalty of 25 years. Since 1 January 2009 that offence and penalty is found in s 66A(1) of the Crimes Act. Subsection 66A(2) prohibited that conduct in circumstances of aggravation and provides for a maximum penalty of imprisonment for life (see Crimes Amendments (Serious Offences) Act 2008). A maximum term of life imprisonment is the most emphatic statement of the seriousness of the offence that the legislature may make.
In concluding that the sentence of nine years imposed by the sentencing judge in Muldrock was manifestly excessive the High Court found (at [60]):
"A fundamental precept of the criminal law is that a sentence should not be increased beyond that which is proportionate to the crime in order to extend the period of protection of the community [citations omitted]. The distinction between extending a sentence to protect society and taking into account society's protection in determining the appropriate sentence may not always be easy to draw [citations omitted]. The expert evidence did not provide a foundation for the conclusion that the appellant's sexually aberrant behaviour could not be controlled by treatment and a program addressing the matters identified in Professor Hayes' report. The appellant's mental retardation and the fact that he has not previously served a sentence of full-time custody, together with the circumstances of the offence, the nature of the intercourse, its short duration and the absence of accompanying threats or other intimidating behaviour, did not warrant the imposition of a term of nine years' imprisonment (after reduction for the plea of guilty). The sentence was manifestly excessive."
This passage highlights the significant differences between the applicant's case and the appellant's case in Muldrock. In the applicant's case the expert evidence did not provide a foundation for a conclusion that his aberrant behaviour could be controlled by treatment or any program available in or out of custody. Dr Collins was only prepared to state that his behaviour "should moderate" if suitable treatment was available. The extent of the moderation was not predicted. Given her assessment of him as having a moderate to high risk of recidivism it would be unlikely to be significant. Neither Mr Baird's report nor his past history would support such an assessment.
The "circumstances of the offence" including the "nature of the intercourse" and its duration were all more severe in the applicant's case compared with the appellant in Muldrock. I have already described the intercourse that occurred. The events transpired over a period of time and involved the victim feeling terrified and vulnerable in her own home. Unlike the appellant in Muldrock, in the applicant's case there were "accompanying threats" and "other intimidating behaviour".
The above discussion highlights that there are a number of points of difference between this case and Muldrock namely the level of the applicant's intellectual functioning, the connection between his impaired functioning and the commission of the offence, his moral culpability, the maximum sentence and the circumstances of the offence. Those factors and the other matters that arose on the sentencing that I have described above lead me to the conclusion that, subject to considering the question of special circumstances, no interference with the sentence imposed is warranted.
Special Circumstances
There remains the applicant's contention that a finding of "special circumstances" for the purposes of s 44(2) of the Sentencing Procedure Act was and is warranted. Again he relies on Muldrock. I repeat the comments I have made above concerning the difficulties with that approach.
At [57] of the judgment in Muldrock, the High Court found that the Court of Criminal Appeal erred in determining the structure of a sentence "upon a view that the appellant would benefit from treatment while in full time custody." The Court stated that such custody is punitive and the availability of rehabilitative programs is a matter for the executive and "no confident prediction" can be made that an offender would participate in any such program. The affidavits read on this application are completely consistent with this. Their Honours continued (at [58]):
"The desirability of the appellant undergoing suitable rehabilitative treatment was plainly capable of being a special circumstance justifying a departure from the statutory proportion between the non-parole period and the term of the sentence. The Court of Criminal Appeal was wrong to hold that Black DCJ had been diverted by the evidence concerning Selwood Lane, and that he failed to carry out the task required of a sentencing judge [reference omitted] in focusing on rehabilitation and not on denunciation, punishment and deterrence [reference omitted]. As explained, punishment, in the sense of retribution, and denunciation did not require significant emphasis in light of the appellant's limited moral culpability for his offence. And there was no requirement for general deterrence. It was open to Black DCJ to view personal deterrence as likely to be advanced by a sentence that required the appellant to undergo appropriately tailored treatment in a secure facility such as Selwood Lane. The Court of Criminal Appeal erred in finding that there were no special circumstances within s44(2) of the Sentencing Act [citations omitted]." (emphasis added)
The emphasised part of this paragraph confirms that an exercise of the power conferred by s 44(2) of the Sentencing Procedure Act in a manner favourable to the offender does not involve merely considering whether there are any distinctive features of the offender's case but whether any such features warrant a variation of the ratio between the non parole period and the additional term. Subsection 44(2) refers to a Court deciding that there are "special circumstances for [the balance of term] being more" than one third of the non-parole period.
The applicant's intellectual impairment and the circumstance that, prior to committing this offence, he had not previously served a period of imprisonment, were clearly capable of contributing to a finding that there were "special circumstances for [the balance of term] being more" than one third of the non-parole period. However that is not the conclusion of the inquiry. In Muldrock the requirement for general deterrence was removed. Retribution and denunciation were said not to require significant emphasis (Muldrock at [58]). One can see how the objectives of specific deterrence and rehabilitation could be furthered by varying the statutory ratio so as to enable him to take up a place (at some point) in the heavily supervised environment of Selwood Lane.
Unlike the sentencing judge in Muldrock, in this case his Honour was not presented with any program of "suitable rehabilitative treatment" which could justify any variation in the statutory ratio (cf Muldrock at [58]). Further the requirement for general deterrence was not removed although it had reduced emphasis. The objectives of specific deterrence, rehabilitation and denunciation remain. Nothing in the evidence suggested that these objectives, or any of them, would be furthered by any variation in the statutory ratio. In particular the material did not suggest that any period of intensive treatment or supervision beyond that which was likely to occur during a balance of term which bore the usual ratio to the non-parole period would make any appreciable difference to the applicant's risk of reoffending. The further evidence tendered on the appeal does not alter this assessment.
It follows that I do not consider that a finding under s 44(2) of the Sentencing Procedure Act should be made and that I do not consider that a different sentence to that imposed by His Honour is warranted in law.
Accordingly the orders I propose are:
(1)The application for leave to appeal be granted; and
(2)The appeal be dismissed.
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Decision last updated: 17 May 2012
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