PS v The Queen

[2015] NSWCCA 20

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	PS v R [2015] NSWCCA 20
Hearing dates:	20 February 2015
Date of orders:	05 March 2015
Decision date:	05 March 2015
Before:	Hoeben CJ at CL at [1] R A Hulme at [2] Davies J at [3]
Decision:	1. Leave to appeal granted. 2. Appeal dismissed.
Catchwords:	CRIMINAL LAW – sentence – sexual offences with child – applicant with cognitive and intellectual difficulties – whether taken into account by sentencing judge – no causal link to offending – whether reduced weight should have been given to general deterrence – whether protection of society significant – no error demonstrated
Legislation Cited:	Court Suppression and Non-publication Orders Act 2010 (NSW) Crimes Act 1900 (NSW)
Cases Cited:	R v Engert (1995) 84 A Crim R 67 Zaharos v R [2008] NSWCCA 336
Category:	Principal judgment
Parties:	PJS (Applicant) Crown (Respondent)
Representation:	Counsel: T Gartelmann (Applicant) N Williams (Respondent) Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2013/201413
Publication restriction:	The name and any information identifying the applicant not be published in accordance with the powers of the Court pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW). The order is necessary to protect the victim.
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 06 December 2013 Before: Charteris DCJ File Number(s): 2013/201413

Judgment

1. HOEBEN CJ AT CL:   I agree with Davies J.

2. R A HULME J:   I agree with Davies J.

3. DAVIES J:   On 28 August 2013 the Applicant pleaded guilty in Tamworth Local Court to the offence of sexual intercourse with a person under the age of ten years. The maximum penalty for this offence is 25 years imprisonment and there is a standard non-parole period of 15 years. The Applicant asked that two offences of indecent assault on a person under the age of 16 years be taken into account on a Form 1.

4. The Applicant was sentenced by Judge Charteris in the District Court on 6 December 2013 to a non-parole period of three years and six months commencing 2 July 2013 and expiring 1 January 2017 with an additional term of three years expiring 1 January 2020.

5. The Applicant appeals against the sentence on one ground only:

The judge erred in failing properly to take into account the applicant’s mental condition in determining the sentence.

Facts

6. The victim was born on 14 April 2007 and at the time of the offence between May and June 2013 she was six years and one or two months old. Her mother is the natural younger sister of the Applicant.

7. On an undetermined night in May or June 2013, the Applicant injected himself with a quantity of home-made alcohol and cola using a syringe. Later that night, he went to his sister's home. She resided there with her daughter, the Applicant’s niece. The Applicant sat outside talking with friends.

8. After some time the Applicant went inside where he found the victim asleep on a lounge. He picked her up, carried her to a caravan in the backyard and placed her on a bed in that caravan. He pulled the bed covers up over her and he then got into the bed himself under the bed covers.

9. The Applicant then placed his hand down the child's pants and touched her on the outside of her vagina. That matter is the first offence included on the Form 1.

10. Having placed his hand on the outside of the child's vagina, he removed his hand and moved down the bed, placing his head in the area of the child's groin. He removed her pants and started licking her on the outside and then the inside of her vagina for somewhere between 5 and 10 minutes. That was the offence for which he was sentenced. When the child told him to stop, he did so.

11. He then moved up behind her. He took hold of her hand and put it down the front of his own pants, causing her hand to come into some contact with his penis. That act of indecent assault is the second matter on the Form 1.

12. The child then removed her hand from the Applicant’s pants. She got up from the bed and told the Applicant that she wanted to go. He told her not to tell anyone what had happened, and the child went inside the house.

13. About one month later, the Applicant approached his younger sister, the mother of the victim. He confessed to her that he had something to tell her and later said, "I touched X", naming the child. He was asked by his sister how he had touched the victim, and he said, "with my tongue". Later that day the sister contacted police.

14. An investigation was commenced. The Applicant was interviewed and made full admissions. He was then arrested and charged.

15. Prior to his arrest, the police had interviewed the victim and she disclosed what had happened to her. She told police that the Applicant had touched her with his tongue and she was able to mark a diagram in the area of the vulva saying that was where she had been touched.

Subjective matters

16. The Applicant was born on 16 September 1972. He was therefore aged 40 years at the time of his offending. He had no convictions in New South Wales. He had a number of convictions in Queensland but they were all for relatively minor offences. He only had one prison sentence imposed for a three month period and that sentence was suspended.

17. He has had a long history of abuse of alcohol and drugs and, to some extent, his criminal record in Queensland evidences that.

18. The Applicant had a troubled upbringing. He was the second in a family of one boy and three girls. His younger sister, the victim’s mother, was born two years after him.

19. Both parents were heavy drinkers. The father was very violent and bashed the Applicant’s mother violently and regularly. The children were also subject to beatings. The Applicant used to wet his bed and was severely punished for doing so. The beatings of him ceased when he was 14 years of age and big enough to challenge his father.

20. He left home at the age of 15. He had a brief period of stable accommodation and found local employment. He spent most of his life in Queensland but never stayed long in one place. At the time of the offending he had lived in Tamworth for four years. He and his younger sister were always close. He would try to protect her from his father’s violence.

21. He had learning difficulties and was transferred from a mainstream high school to a special school in Toowoomba because he was slow to learn. He cannot read much and his writing is very basic. He has had a number of labouring and truck-driving jobs as well as working on prawn trawlers. For the four years he has been in Tamworth he has been on a disability pension which he believes was granted to him because of his alcoholism and drug dependence.

22. He has had several relationships although the longest was only for five months.

23. He has been admitted to Tamworth Base Hospital several times for psychiatric reasons. Those included alcohol intoxication and suicidal ideas in July 2012, and mental and behavioural disorders in October 2012 due to acute intoxication, psychoactive substances and suicidal ideation. In November 2012 he threatened suicide by jumping from a roof.

24. Since admission into custody he has been on an antidepressant and has complied with that treatment. He was first placed in a safe cell because he felt suicidal.

25. In early years he abused cannabis and amphetamines. In recent times that has involved using amphetamines intravenously for four to five days and then taking cannabis “to come down”.

26. He started drinking alcohol when he was only 11. From the age of 14 he was a heavy drinker. The psychologist who examined him said that the length and severity of his substance abuse history would be expected to have caused physical and cognitive impairment.

Remarks on Sentence

27. The Sentencing Judge found that the nature of his criminal record entitled him to some leniency. However, his Honour said that the two offences on the Form 1 aggravated the penalty to be imposed. His Honour noted the Victim Impact Statement relating to the child prepared by the victim’s mother.

28. His Honour noted the Record of Interview and the expressions of guilt and regret made in that interview together with the admissions made. His Honour said that the Applicant was entitled to credit for his frankness with the police and for his confession to his sister initially which brought the matter to light.

29. His Honour noted the psychological report from Ms Anna Robilliard. His Honour detailed many of the matters contained in that report. His Honour accepted Ms Robilliard’s opinion and described her report as helpful.

30. His Honour noted the evidence given at the sentencing hearing by the Applicant which his Honour described as frank and showing insight. His Honour was comfortably satisfied that the Applicant much regretted his conduct. His Honour accepted the Applicant’s evidence and said that he thought that the Applicant was very genuine in his concern as to working out why he engaged in the conduct.

31. His Honour accepted that the age of the victim was an aggravating matter and there was a breach of trust between an uncle and a child but he did not see how that would necessarily result in an aggravation of the penalty. He found that the criminality was within the broad middle range of offences that s 66A of the Crimes Act 1900 (NSW) covered. His Honour said that he would reduce the sentence by 35% to give weight to the early plea of guilty and his confession and co-operation with authorities.

32. In relation to his mental state generally his Honour said this:

Various psychological testing was administered to him. The offender returned a very low ranking. In the view of the psychologist his total IQ was in the extremely low range with a percentile rating of one, meaning that he was in the bottom one per cent of the population. I have seen the offender give evidence before the Court. He had somewhat of a dull effect. I would not have placed him however in the bottom one per cent but I accept that was the conclusion of the psychologist from the results that she had obtained. He was able to answer the questions asked of him, I thought, in evidence but I do not dispute that he would have some cognitive impairment. The psychologist arrived at her opinion for the reasons that she has given. The IQ test, she noted, was not diagnostic of brain damage but the history of alcohol and drug abuse over years would make it very likely that he suffers a substance related brain damage. The additional effect of alcohol and drugs has a particularly damaging impact on the behaviour of individuals with pre existing cognitive impairment. He has a well entrenched pattern of behavioural disregulation and suicidal ideation when highly intoxicated.

…

I accept Ms Parker's submission that the offender has a reduced or impaired cognitive functioning. As I have already indicated, having seen him in the witness box, I thought he was being honest with the Court. However I would not have placed his cognitive capacity as low as the psychologist has done. It is urged upon me that, because of his cognitive impairment, his case is not a good vehicle for reflection of general deterrence. I have regard to the principles of R v Hemsley [2004] NSWCCA 228. Of course, as has been observed in other cases, although the case might not be a good vehicle for general deterrence, other purposes of sentencing may carry greater weight including the need to protect others from the offender.

…

It is urged upon me that I will conclude on the balance of probabilities that he is unlikely to re-offend. I cannot be satisfied of that on the balance of probabilities, nor could I be satisfied that he is likely to re-offend on the balance of probabilities. The Court simply does not know. I can draw inferences from the evidence but in my view it would be speculative to make a finding. I take into account his relatively good record. I accept he has prospects of rehabilitation because of his insight and his seeking that his problem be addressed. (emphasis added)

33. His Honour found special circumstances by reason of the Applicant’s being in protection, that he had never been to prison previously and that he had some cognitive dysfunction. He said that the community would be advantaged if the Applicant were given a longer period of supervision than would be the case absent a finding of special circumstances.

34. His Honour said that the starting point for the offence should be a period of ten years imprisonment.

The Applicant’s submissions

35. The Applicant’s counsel drew particular attention to the highlighted passages in the extracts in [32] above and then to the final sentence in the second of those passages. He submitted that the Sentencing Judge did not further address the question of the weight to be given to general deterrence and did not ultimately state whether general deterrence was given lesser weight or whether protection of society was given more weight in determining the sentence. He further submitted, however, that the balance of the remarks set out suggest that increased weight was given to the protection of society.

36. Counsel further submitted that to the extent that the Remarks of the Sentencing Judge implied that any reduction in the weight given to general deterrence would invariably be offset by an increase in weight for protection of society there was an error of principle disclosed. Reference was made to R v Engert (1995) 84 A Crim R 67 at 68.

37. It was submitted that a reduced weight for general deterrence was warranted by reason of the Applicant’s cognitive and intellectual problems but there was no basis in the evidence for increased weight to be given to protection of society. The nature of the Applicant’s mental condition, it was said, was not inherently such as to give rise to a significant risk of further offending. There had been no sexual or violent offences in the past.

Consideration

38. I do not consider that, on any fair reading of the part of his Honour’s Remarks complained of, those Remarks could be seen as implying that any reduction in the weight given to general deterrence would invariably be offset by an increase in weight for protection of society. His Honour said only that other purposes of sentencing “may” carry greater weight. To the extent that error is asserted on that paragraph, I reject the assertion.

39. Nor can it be determined from his Honour’s Remarks if he considered that the Applicant’s case was a good vehicle for general deterrence. However, it would have been open to his Honour to conclude that it remained a good vehicle notwithstanding the intellectual and cognitive difficulties the Applicant had.

40. In Zaharos v R [2008] NSWCCA 336 McClellan CJ at CL (with whom Grove and Howie JJ agreed) said:

[13]   The sentencing judge rejected a submission that the applicant’s mental illness was causally connected to the commission of the offence. His Honour did not accept the diagnosis of Dr Nielssen, it being apparent that the account of the events which the applicant told the psychiatrist was at odds with the agreed facts placed before his Honour. In particular his Honour rejected the suggestion by Dr Nielssen that the applicant was acting “in response to a defect of reason in the form of persecutory beliefs arising from acute symptoms of mental illness” and further rejected the suggestion that the applicant did not know that what he was doing was “morally wrong.”

[14]   To my mind the finding which his Honour made was soundly based. Where mental illness has played a part in the offending, the need for general deterrence may be diminished: R v Wright (1997) 93 A Crim R 48. However, where an offender understands what he is doing and the gravity of his actions, general deterrence may be of continuing significance: Wright at 51; R v Henry & Ors [1999] NSWCCA 111; (1999) 46 NSWLR 346 at [252]-[254]. The issue is further discussed in R v Matthews [2004] NSWCCA 112; (2004) 145 A Crim R 445 and R v Hemsley [2004] NSWCCA 228 at [33]-[36].

41. In the present case his Honour did not reach a conclusion that what may be described as the Applicant’s mental issues played a part in the offending. No causal link in that regard was identified in Ms Robilliard’s report.

42. The evidence disclosed that the Applicant was very intoxicated at the time of the commission of the offence – he had injected himself with 42 proof alcohol. The Sentencing Judge found:

However he was not so affected that he was not alert to the fact that what he was doing was seriously wrong - he told the little child not to tell anyone about it.

43. It may also be added that when the child told him to stop doing what he was doing he did so. Further, when he first informed his sister of what happened and subsequently the police, he was able to remember the details of what he did.

44. It was open to the Sentencing Judge, therefore, to form the view that the Applicant’s mental issues were not responsible for his offending and that general deterrence was to be given some weight in the matter.

45. In any event, as far as protection of society was concerned his Honour was unable to be satisfied one way or the other whether the Applicant was likely to reoffend. Whilst his criminal record disclosed no evidence of prior crimes involving sexual violence he volunteered in his ERISP the following:

I feel real bad for her [his sister]. I told her there this morning, I feel angry. And I feel I’m gonna kill myself. She said, You don’t have to do that, go and get help, you need help before you do rape a kid … you know, these girls go past and I get these urges. You can’t touch em. Some of them you don’t even know if they’re the right age, or they’re under age, ‘cause their breasts are that big.

It may be accepted that when asked by the police if he had had urges like that before he said that he had not. Nevertheless, the information volunteered by him needs to be considered on the issue of the likelihood of reoffending and protection of society.

46. Although the Applicant’s counsel suggested that the Sentencing Judge’s Remarks in [32] above suggested that his Honour may have increased the weight to be given to the protection of society, counsel frankly accepted that there was doubt about whether his Honour had done so. The suggestion appeared to be that the sentence itself was sufficiently harsh, particularly the starting point, that his Honour must have done so.

47. Although viewed from the perspective of a first offence of this nature, the starting point for the sentence might be thought to be high, the maximum penalty and the standard non-parole period provide indications of the seriousness of the offence. The child was not only very young but the Applicant by his relationship to her was in a position of trust which was sorely abused. His Honour made a considerable adjustment by the finding of special circumstances to reduce the statutory ratio to 53.85%.

48. Further, there is nothing in his Honour’s Remarks, apart from his inability to come to a view about likely re-offending, that suggest any increased weight was given to protection of society nor, if he did so, such an approach demonstrated error. Protection of society was a consideration for the Sentencing judge, and the weight to be accorded to it was within his Honour’s discretion.

49. During the sentencing hearing the Applicant’s counsel (not counsel who appeared on the appeal) submitted that the Applicant’s intellectual disability should result in general deterrence being given less weight. The Sentencing Judge asked if protection of society should get more weight, and counsel replied:

Well I think that has to be your Honour’s primary objective in sentencing this offender for this type of offence.

50. In my view, no error has been demonstrated.

51. I propose the following orders:

1.   Leave to appeal granted.

2.   Appeal dismissed.

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Decision last updated: 05 March 2015