NJB v The State of Western Australia
[2016] WASCA 114
•7 JULY 2016
NJB -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 114
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 114 | |
| THE COURT OF APPEAL (WA) | 07/07/2016 | ||
| Case No: | CACR:52/2016 | 9 JUNE 2016 | |
| Coram: | McLURE P MAZZA JA MITCHELL J | 9/06/16 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| B | |||
| PDF Version |
| Parties: | NJB THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence Sexual offending against incapable person by offender suffering autism spectrum disorder Whether immediate imprisonment the only appropriate sentencing option |
Legislation: | Criminal Code (WA) |
Case References: | Bennell v The State of Western Australia [2011] WASCA 174 HMN v The State of Western Australia [2015] WASCA 128 Naysmith v The Queen [2013] WASCA 32 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : NJB -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 114 CORAM : McLURE P
- MAZZA JA
MITCHELL J
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : DERRICK DCJ
File No : IND 1402 of 2015
Catchwords:
Criminal law - Appeal against sentence - Sexual offending against incapable person by offender suffering autism spectrum disorder - Whether immediate imprisonment the only appropriate sentencing option
Legislation:
Criminal Code (WA)
Result:
Appeal allowed
Category: B
Representation:
Counsel:
Appellant : Ms K Farley SC
Respondent : Mr L M Fox
Solicitors:
Appellant : Legal Aid (WA)
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Bennell v The State of Western Australia [2011] WASCA 174
HMN v The State of Western Australia [2015] WASCA 128
Naysmith v The Queen [2013] WASCA 32
1 McLURE P: This is an appeal against sentence. On 9 June 2016, this court upheld the appeal and resentenced the appellant to a total effective sentence of 14 months imprisonment, suspended for 12 months, with programme and supervision requirements. These are my reasons for joining in the orders.
2 The appellant was convicted on his fast-track pleas of guilty of 15 counts of sexual offending contrary to s 330 of the Criminal Code (WA). Thirteen of the offences were of indecent dealing and two were of sexual penetration. The victim of all the offences suffers from autism. She is severely disabled and non-verbal.
3 On 1 April 2016, the appellant was sentenced to a total effective sentence of 20 months immediate imprisonment. The appellant claimed the sentencing judge erred in failing to suspend the term of imprisonment or, in the alternative, that the total sentence was manifestly excessive in length.
4 The offences occurred on 16 February 2015. The victim and the appellant, who also suffers from autism, were both in a respite care facility for people with disabilities. The offences were committed over a period of up to one and a half hours, in the absence of resident carers at the facility. The penetration offences were for digital vaginal penetration (one count) and digital anal penetration (one count). The indecent dealing offences were for fondling breasts (six counts), sucking breasts (one count), rubbing vagina (two counts), touching buttocks (one count), licking vagina (one count) and rubbing penis on breasts (one count) and face (one count). In view of the nature and extent of the victim's disabilities, the sentencing judge was not able to make a finding as to the extent of any impact the appellant's offending had on her emotional well-being. The sentencing judge found that the appellant knew what he did was wrong.
5 The appellant was aged 18 when he committed the offences. He had no prior history of offending. On 12 November 2015, the State Administrative Tribunal (Tribunal) appointed the Office of the Public Advocate as the appellant's plenary guardian. In doing so, the Tribunal declared that the appellant was incapable of looking after his own health and safety, unable to make reasonable judgments in respect of matters relating to his person and in need of oversight, care or control in the interests of his own health and safety or for the protection of others.
6 The sentencing judge accepted the expert opinion of consultant forensic psychiatrist, Dr V Pascu, concerning the appellant. Dr Pascu said there was no evidence of a major mental illness or personality disorder and no evidence to suggest the appellant was a sexual predator or had an underlying sexual dysfunction or distorted preferences. She said:
In my opinion he is a young man, a teenager, with a disability, an autism spectrum disorder who has never had a sexual relationship. I believe that his sexualised behaviour towards the victim was in the context of teenager curiosity, in someone who, due to his disability has difficulties in social skills and in reading and interpreting social cues.
7 The sentencing judge accepted Dr Pascu's opinion that the appellant's autism spectrum disorder impaired the appellant's ability to control his actions, to exercise appropriate judgment, to make calm, rational choices and to think carefully about his conduct. He was satisfied on the balance of probabilities that there was a material causal relationship between the appellant's autism spectrum disorder and his offending, with the result that his culpability was significantly reduced.
8 Based on the expert opinion of Dr Pascu, the sentencing judge found that the appellant's risk of committing further offences of a sexual or violent nature was low, provided he receive appropriate counselling. As a result, the sentencing judge concluded, correctly on any view, that the sentencing considerations of personal deterrence, general deterrence and the protection of the public did not assume any particular significance in this case.
9 The sentencing judge also accepted Dr Pascu's opinion that the appellant would find imprisonment more onerous than a person without a disability. Dr Pascu's evidence on the subject was summarised by the sentencing judge as follows:
In her report Dr Pascu states that given your young age, your autism and your overall immaturity, she would have significant concerns about you being in prison.
She states that you are very vulnerable to all types of exploitation, bullying and harm from other inmates, given your odd language and overall presentation which are part of your developmental disorder. She states that given you have difficulties coping with your impulsive behaviours, limited coping and problem solving skills and that real and perceived stressful situations contribute to conflict with ones close to you, you will have huge difficulties in a custodial environment.
She states that when you are stressed you have a history of impulsive deliberate self-harm behaviours and that in a prison without your carers and your mother she is concerned about the risk of you developing a depressive episode with an increased risk of harm to yourself.
Dr Pascu goes on to state that with the level of mental health services available in prison you are unlikely to receive the level of individual support that you currently receive in the community. She states that the provision of mental health services in prison is focused on managing people with behavioural disturbances and this potentially leads to people like you, who do not create problems, being overlooked (ts 38 - 39).
10 In addition to the appellant's youth, his fast-track plea of guilty, his disability and the fact that imprisonment would be more onerous for him, there are other significant mitigating factors in this case. The sentencing judge found that the appellant was convicted of the offences solely because he voluntarily disclosed his offending in detail to police when he was interviewed and that he was genuinely remorseful, and accepted responsibility, for his conduct.
11 Ordinarily, a person who commits offences of this nature against a vulnerable victim would and should receive a lengthy period of immediate imprisonment, for the reasons discussed by this court in Bennell v The State of Western Australia [2011] WASCA 174. However, this tragic case is exceptional because the offending was caused by the appellant's own significant disability. That is a very weighty sentencing consideration. See Naysmith v The Queen [2013] WASCA 32 and HMN v The State of Western Australia [2015] WASCA 128. Having regard to the appellant's disability and the other significant mitigating factors, the only appropriate course was to suspend the terms of imprisonment imposed for the offences, with programme and supervision requirements. The total effective sentence was reduced to 14 months because of the time the appellant has spent in custody.
12 MAZZA JA: I agree with McLure P.
13 MITCHELL J: I agree with McLure P.
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