R v Bonilla
[2020] SADC 149
•26 October 2020
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BONILLA
[2020] SADC 149
Reasons for Decision of Her Honour Judge McIntyre
26 October 2020
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER
The Defendant pleaded guilty to three counts of aggravated producing child exploitation material. He is therefore a serious repeat offender.
Held:
1. The Defendant’s personal circumstances are so exceptional as to outweigh the paramount consideration of protecting the safety of the community and personal and general deterrence; and
2. It is in all of the circumstances not appropriate to sentence the Defendant as a serious repeat offender.
Sentencing Act 2017 s71(2)(b)(ii), s96(3)(b)(a); Criminal Law Consolidation Act 1935 s54,54(2), referred to.
R v Skinner (2016) 126 SASR 120; R v Bagguley [2015] SADC 137; R v Douglass [2019] SASCFC 67, considered.
R v BONILLA
[2020] SADC 149
Mr Bonilla pleaded guilty to three counts of aggravated producing child exploitation material. The maximum penalty for each of these offences is imprisonment for 12 years. The issue is whether he ought to be sentenced as a serious repeat offender. For the reasons that follow, I conclude that Mr Bonilla’s personal circumstances are so exceptional as to outweigh the paramount consideration of protecting the safety of the community and personal and general deterrence. I further conclude that it is in all of the circumstances not appropriate to sentence him as a serious repeat offender
Circumstances of the offending
The offending occurred in 2018. Mr Bonilla was then living with his wife and her three children (his step-children). The children are the victims of the three offences. Mr Bonilla used his smart phone on four separate occasions to covertly record his step-children as follows:
·On 7 April 2018, Mr Bonilla recorded his then 14-year-old step-daughter in her underwear as she dressed and redressed in her bedroom and naked in the bathroom. He also recorded his then 13-year-old step-son naked in the shower.
·On 8 August 2018, Mr Bonilla recorded both his then 13-year-old step-sons naked in the shower and his step-daughter, by then 15 years of age, in her underwear standing in the bathroom.
·On 9 September 2018, Mr Bonilla covertly filmed his naked 15-year-old step-daughter drying herself in the bathroom.
The offending came to light when Mr Bonilla and his wife sought assistance in relation to his mental health. They understood that the psychologist was a mandatory reporter and would be obliged to report these matters to the police. Following that report, the police attended at Mr Bonilla’s home on 21 September 2018 and seized several electronic items from Mr Bonilla’s home for analysis. The material to which I have referred was located on a Samsung smart phone and on an Apple iPhone which Mr Bonilla told police belonged to him. There was no other child exploitation material located on these or other devices. It does not appear that this material was shared or catalogued by Mr Bonilla.
Legislation
It was conceded, during sentencing submissions, that these offences are “serious sexual offences” under s71(2)(b)(ii) and s96(3)(b)(a) of the Sentencing Act 2017. This has the consequence that any prison sentence imposed on Mr Bonilla may not be suspended by the court, nor is the court permitted to order that any such sentence be served on home detention conditions unless the offending occurred in prescribed circumstances which do not apply in this case.
It was further conceded that Mr Bonilla is a serious repeat offender by virtue of the fact that he has committed, on at least three separate occasions, an offence to which Part 3 Division 4 of the Sentencing Act applies; specifically, three offences under Part 3 of the Criminal Law Consolidation Act 1935. Accordingly, the provisions of s54 of the Sentencing Act apply. Section 54 provides as follows:
54—Sentencing of serious repeat offenders
(1)The following provisions apply in relation to the sentencing of a person who is a serious repeat offender for an offence (including an offence that resulted in the person being a serious repeat offender):
(a)the court sentencing the person is not bound to ensure that the sentence it imposes for the offence is proportional to the offence;
(b)any non‑parole period fixed in relation to the sentence must be at least four‑fifths the length of the sentence.
(2)However, a court that is sentencing a person who is a serious repeat offender for an offence may declare that subsection (1) does not apply if the person satisfies the court, by evidence given on oath, that—
(a)the person's personal circumstances are so exceptional as to outweigh the paramount consideration of protecting the safety of the community (whether as individuals or in general) and personal and general deterrence; and
(b)it is, in all the circumstances, not appropriate that the person be sentenced as a serious repeat offender.
It is contended that Mr Bonilla falls within s54(2). Evidence was called concerning his personal circumstances.
The accused’s personal circumstances
The accused was 46 at the time of these offences. His personal circumstances are set out in some detail in a psychological report of Susan Heinrich, Clinical Psychologist dated 23 October 2019. I will not repeat those here but I have taken them into account. In summary, Mr Bonilla is now 48 years of age. He has no prior convictions of relevance. He was born in El Salvador. Due to civil unrest in El Salvador he and his parents migrated to Australia in 1991. Since leaving school he has been gainfully employed in the manufacturing sector. He and his wife, the mother of the victims, met about 8 years ago and married in 2016. Whilst he has had to leave the family home because of these matters the family remain supportive of him and wish to resume living together as a family.
The key area of relevance for present purposes is that, in early 2015, Mr Bonilla consulted his general practitioner because of progressively deteriorating sexual function over the previous two and a half years. Investigation demonstrated that he had low testosterone and an elevated blood level of a hormone call prolactin. Prolactin inhibits the mechanisms in the brain that control the production of the male hormone testosterone. An MRI scan showed a small pituitary tumour that was the likely source of the prolactin. Amongst other things, Mr Bonilla was prescribed Cabergoline (also known as Dostinex); a class of medication called a Dopamine type 2 (D2) receptor agonist. This drug inhibits the production of prolactin. He commenced a dose of .25mcg taken twice a week in late April, early May 2015. Mr Bonilla was also referred to Professor Gary Wittert, an Endocrinologist. Professor Wittert was called to give evidence on this matter.
Professor Wittert’s evidence
Professor Wittert provided his impressive curriculum vitae and gave brief evidence as to his qualifications and experience. This was not contested. Professor Wittert gave evidence about his consultations with Mr Bonilla and also gave opinion evidence concerning Cabergoline and its side effects. Professor Wittert is well qualified to provide that expert opinion. I accept his evidence.
In addition to his oral evidence Professor Wittert provided a report to the court dated 6 January 2019, copies of medical imaging and blood test results relating to Mr Bonilla and a copy of a letter that he wrote to Mr Bonilla’s general practitioner dated 11 September 2018. Professor Wittert was also asked about Mr Bonilla’s PBS patient summary setting out the medication that was prescribed and supplied from 20 February 2017 until 17 August 2018.
In summary, Professor Wittert considers that, at the time of the offending, Mr Bonilla had a pharmacologically induced impulse control disorder based on the nature of the activity in which he had engaged and because the medication Mr Bonilla was taking increased the risk of that disorder. He further considered that this impulse control disorder cause Mr Bonilla to engage in behaviour that he would not ordinarily engage in.
Professor Wittert first saw Mr Bonilla on 3 June 2015 following referral from his general practitioner. Professor Wittert reviewed Mr Bonilla’s medical investigations which showed that his testosterone level had normalised following the prescription of Cabergoline. Professor Wittert implemented a management plan to deal with the various medical issues suffered by Mr Bonilla and reviewed him on a further three occasions throughout 2015. There were no untoward side effects from the Cabergoline during that period.
Professor Wittert next saw Mr Bonilla on 11 July 2018. On that occasion Mr Bonilla reported severe muscle ache. Mr Bonilla told Professor Wittert that he had commenced taking Tapentadol, an opioid receptor agonist, about 8 months prior to this appointment following a work-related injury. Mr Bonilla also mentioned that he was under extreme stress. Professor Wittert advised Mr Bonilla very strongly to discontinue taking the Tapentadol because of the likelihood of adverse interaction with Cabergoline. Professor Wittert arranged for some blood tests. He saw Mr Bonilla to review these on 11 September 2018. The blood tests showed a normal prolactin and testosterone suggesting Mr Bonilla was taking the Cabergoline as prescribed. On this occasion, Mr Bonilla told Professor Wittert that he was having problems with hyper-sexuality, increased obsession with pornography and an interest in gaming. Professor Wittert, in his letter to Mr Bonilla’s general practitioner dated 11 September 2018, indicated that there is a well-established association between those problems and treatment with a D2 agonist such as Cabergoline. Professor Wittert recommended a management plan which included discontinuance of the Cabergoline. It was his opinion that these symptoms should remit on drug withdrawal. Mr Bonilla did cease taking the Cabergoline. As indicated above, these offences came to light shortly thereafter on 21 September 2018.
Professor Wittert gave evidence that there is an established association between the use of D2 agonists such as Cabergoline and impulse control disorders. Professor Wittert referred to the literature supporting this proposition. Professor Wittert also said that an impulse control disorder does not necessarily develop within the first few months of commencing treatment. It can occur at any time. He agreed that Mr Bonilla was on a low dose of Cabergoline but said that the literature does not preclude an impulse control disorder developing at quite low doses. The threshold at which it occurs can be affected by factors such as stress and interaction with other medication. It was for that reason he gave advice to Mr Bonilla that he stop taking Tapentadol. Professor Wittert said that, whilst he could not be categorical about opioid interaction, it is expected to interact with Cabergoline. There is a presumption that medication which interferes with the stress system such as opioids may change the threshold of effect of Cabergoline.
Professor Wittert explained what is meant by an impulse control disorder saying:[1]
A.An impulse control disorder is an action that is engaged in with a degree of spontaneity and without regard to consequences so that people will engage in spontaneous risky behaviour that would have often catastrophic social, financial and legal consequences and quite frequently all three of those.
Q.Is there any degree of compulsion in this impulse control disorder.
A.Yes. In the context of the impulse control disorder that is often seen in clinical practise but particularly in relation to the use of dopamine agonist is an element of compulsion where the activity's engaged in because it can't be resisted. So there's an element of impulse so that at any particular point in time why would you do it, it's unplanned, there's no fathomable reason for why it should occur at that time, it's a spontaneous action but the compulsion is the inability to resist engaging in the particular action and is often linked to a marked reduction in anxiety. So it's not done for pleasure other than the fact that the excitement and action engaged in reduces some underlying tension or anxiety and then that's the primary goal of a compulsion.
Q.An impulse control disorder, is this something that we would expect to see continually or is it something we would expect to see intermittently.
A.The very nature of it is the intermittency of the disorder so there are no circumstances where one would continually and predictably engage in something. It's not like you get up and have breakfast every day because you're hungry. The intermittency is what characterises the behaviour and the associated compulsion and the consequences thereof which people seem, despite everything, unable to resist. It appears there is some individual variation in susceptibility to this condition and also that other medications and circumstances and psychiatric comorbidity may change the way it's expressed, so under conditions of stress you may more likely express this disorder, if there's another medication involved then you may more likely express this disorder.
[1] Transcript 16 October 2020 p4 [22] – p5 [23]
In cross-examination Professor Wittert conceded that there are no blood test results for the 12-month period prior to the first offence on 7 April 2018 to establish Mr Bonilla’s prolactin levels and whether he was taking Cabergoline as prescribed. Professor Wittert was asked about the PBS patient summary detailing the days the prescriptions that Mr Bonilla had received for Cabergoline and the dates upon which that prescription had been filled.
There are some obvious gaps in the filling of those prescriptions evident from the patient summary. Specifically, it is evident from the PBS records that Mr Bonilla was supplied with Cabergoline sufficient for 8 weeks on 21 February 2017; 18 April 2017; 26 June 217;14 July 2017 and 22 November 2017. It is further evident that he was supplied with sufficient Cabergoline for 16 weeks on 27 March 2018 and 16 July 2018. Assuming that Mr Bonilla was taking the drugs at what Professor Wittert understood was the dose prescribed by his general practitioner, it seems that he may have not been taking the drugs for some 5 to 6 weeks between July and November 2017 and for some 9 to 10 weeks between November 2017 and March 2018. Professor Wittert was asked about the effect of this if it was assumed that Mr Bonilla only resumed taking Cabergoline on 27 March 2018 when he had the prescription filled at the pharmacy. This was some 10 days prior to his committing the first offence on 7 April 2017. Professor Wittert pointed out that he did not know whether Mr Bonilla was complying with the prescribed dosage nor did he know the time at which he took the drugs. If Mr Bonilla was taking .25 mgs twice weekly as prescribed, Professor Wittert said that this would mean that he had taken 11/2 to 2 tablets over a 10-day period. Professor Wittert was then asked as follows:[2]
[2] Transcript 16 October 2020 p18 [27] – p19 [25]
Q.So is it your evidence that one, possibly one and a half tablets taken would be sufficient for Mr Bonilla to have suffered any impulse control disorder at the time of the first offence which was 7 April 2018.
A.It's certainly plausible if the drug has a physiological effect that is relatively rapid in its onset, that's exactly what I would expect. The other point is I don't know whether, if he's got a supply of tablets, he's taking them intermittently or continually - that's not a question I asked. So someone who has a supply of tablets may take some some days and not on other days, I simply don't know the answer to that question.
Q.Is it your evidence that it's more likely than not that one to one and a half tablets of cabergoline could cause an impulse control disorder within 10 days.
A.Yes, I believe that to be the case.
Q.Is there any evidence or academic work as far as you're aware that examines the speed within which a person can reach an impulse control disorder threshold.
A.Well, I'm not aware that, within the majority of the studies that are done, the dates of onset have been systematically documented, and I personally would have to go back and check but, in terms of the pharmacokinetics and the effect, the rapidity with which you were to get an effect on a prolactin level you would certainly get a pharmacological effect within that time interval.
Q.You'd agree that the research suggests that higher levels of cabergoline are required or usually result in -
A.No, I don't agree with that at all. The work that was - that was certainly the prior assumption, it certainly had been my assumption, but the paper that was published by one of my colleagues in 2018 showed quite clearly that this could occur in quite small doses and at unpredictable intervals. That's the paper by Dr De Sousa.
Professor Wittert was then cross-examined about the nature and extent of Mr Bonilla’s activities surrounding the charged events. He agreed that Mr Bonilla would have needed to undertake several steps in order to film the children and that on 7 April 2018 that he undertook filming in two separate locations. The following exchange then took place:[3]
[3] Transcript 16 October 2020 p23 [12] – p25 [9]
Q.I suggest to you that Mr Bonilla's offending took planning, would you agree with that.
A.It does take planning, but someone that decides to go out and gamble takes planning - you have to get in the car, you have to drive there, you have to buy your chips or whatever it happens to be. The impulse, which is the irresistible urge to engage in an action, as in at what point does it trigger you to get up and go and do the thing - you put the ladder there, you do this, you do that. They're a series of actions that are required, that have to be planned. It doesn't deny the fact that it's an impulse.
Q.If I suggest to you that his conduct wasn't impulsive, would you agree with that.
A.No, I would not. In the context of an impulse control disorder - and if I have I've misled you with the example I gave as being exceedingly concrete I apologise for that, it was meant to illustrate the nature of an action that you wouldn't otherwise engage in. The fact that it occurs on the spur of the moment is the point that it doesn't occur continuously, it occurs intermittently, but this is the typical sort of thing that would constitute an impulse control disorder. And it's typical of the sort of range of activities that are engaged in in people that have been reported to have impulse control disorders while taking dopamine and agonists.
Q.So, if we look at 7 April 2018, the two separate acts, is that two separate impulses or is that a single impulse.
A.There may be a single impulse or two separate impulses as part of the compulsion, but it's part of the range of what you get with this condition. The same as the punding which are the, you know, purposeless repetitive movements which can occur on a number of occasions. These are unpredictable events, they occur in a spatially separated time, but whether they're compressed by hours, days, weeks or months is part of the randomness of this.
Q.But would you agree his conduct wasn't spontaneous.
A.Well, in a sense. There is planning involved but what makes you make a decision to do something and the impulse I've decided to do this, I have an element of compulsion, the thought having crossed my mind I may have a compulsion to do this, it's exciting, there's a reward involved, which is the diminution of the anxiety and so on and so forth, it fills all of the criteria of an impulse control disorder.
Submissions
Defence contend that the circumstances of the offending and Mr Bonilla’s personal circumstances are exceptional and accordingly I need not apply a non-parole period which is 80% of the head sentence. Given the circumstances it is said that Mr Bonilla is not a person for whom general or personal deterrence are significant concerns and that, in view of the fact that Mr Bonilla has ceased Cabergoline the impulse control disorder is no longer an issue. It is said that Mr Bonilla is a man without history who has committed serious offences that he is unlikely to commit again.
The prosecution on the other hand say that Mr Bonilla has failed to establish, on the balance of probabilities, that his use of Cabergoline impacted on his ability to control his conduct. It is said that the Court cannot be confident that Mr Bonilla was consistently taking the Cabergoline in the 12-month period leading up to the first offence given that the evidence suggests that he only resumed taking it about 10 days before he committed the first offence. Further it is said that his offending occurred on 4 occasions over a 4-month period. It is said that the offending required planning and was targeted and that accordingly the offending was not impulsive. Prosecution conceded that if I found that Mr Bonilla’s conduct was impacted by the use of prescription medication that may give rise to exceptional circumstances justifying not sentencing him as a serious repeat offender.
Conclusion
Mr Bonilla was prescribed Cabergoline in the 12 months prior to the first offence. There were however, as I have outlined above, periods in which he would not have had sufficient Cabergoline to take the prescribed dosage. In particular there is a substantial gap between the filling of an 8-week prescription on 22 November 2017 and a 16-week prescription on 27 March 2018. There are no blood tests for this period. It is not clear whether there were periods of time in which Mr Bonilla did not take the drug or whether he simply reduced the dosage. Mr Bonilla did not give evidence and accordingly I do not know when and how much medication he was taking. It seems likely however that, having filled the prescription, Mr Bonilla would have resumed taking the medication. At the prescribed dose this means he could have taken 1 ½ to 2 tablets. The prosecution is correct in making the submission that I cannot be confident that Mr Bonilla was consistently taking Cabergoline in the 12-month period prior to the first offence. However, given Professor Wittert’s evidence that it is more likely than not that 1 to 11/2 tablets of Cabergoline could cause an impulse control disorder within 10 days, it does not matter that there may have been a period of weeks in which Mr Bonilla did not take Cabergoline. Certainly, when Mr Bonilla had the blood tests ordered by Professor Wittert on 8 September 2018 his prolactin and testosterone records were normal; suggesting that Mr Bonilla was taking the Cabergoline as prescribed by that time. This blood test was of course taken the day before the offence on 9 September 2018. It is also noteworthy that on 11 September 2018 Mr Bonilla told Professor Wittert that he was having problems with hyper-sexuality and increased obsession with pornography.
As to the submission that the offending conduct occurred on four occasions over a four-month period Professor Wittert’s evidence was that intermittent behaviour is typical of an impulse control disorder. I accept the prosecution submission that the offending required planning and was targeted towards the children however, I do not consider that this is inconsistent with Mr Bonilla suffering an impulse control disorder for the reasons explained by Professor Wittert. Accordingly, I accept Professor Wittert’s opinion that Mr Bonilla had a pharmacologically induced impulse control disorder as a result of his taking the prescription drug Cabergoline.
What does this mean in relation to Mr Bonilla’s culpability? It is clear that Mr Bonilla was able to exercise some levels of control given what he said to Professor Wittert about his interest in gambling and the downloading of an app to facilitate gambling. He did not pursue that. Accordingly, he had some measure of control over his behaviour and cannot avail himself of a defence under Part 8A of the Criminal Law Consolidation Act 1935. It is not clear why he was able to control an obsession with gambling but unable to control the impulse to film his step children. However, I accept Professor Wittert’s opinion that in doing so he was acting under an irresistible impulse and consequently engaged in behaviour that he would not ordinarily engage in.
I now need to consider whether these personal circumstances are so exceptional as to outweigh the paramount consideration of protecting the safety of the community and personal and general deterrence. Exceptional circumstances are those that are out of the ordinary course or unusual or special or uncommon. They can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors.[4] It is my view that the prescription of Cabergoline and its effect upon Mr Bonilla does amount to exceptional circumstances. The prescription of that drug and its effect upon Mr Bonilla have caused him to act in a way that he would not otherwise do. This is demonstrated by his lack of prior criminal history. It is recognised by his wife as being out of character.
[4] R v Bagguley [2015] SADC 137, R v Skinner (2016) 126 SASR 120
Balancing his circumstances against the paramount consideration of protecting the safety of the community there appears to be no reason to believe that the safety of the community is imperilled by Mr Bonilla given that he has ceased taking this medication and, has sought medical and psychological assistance to deal with the issue. He is moreover committed to further rehabilitation as recommended. For the same reasons, personal and general deterrence does not play such a large factor in sentencing Mr Bonilla as would usually be the case.[5]
[5] R v Douglass [2019] SASCFC 67
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