R v CA

[2019] NSWDC 863

District Court

New South Wales

Medium Neutral Citation:	R v CA [2019] NSWDC 863
Hearing dates:	20 September 2019; 4 October 2019
Date of orders:	04 October 2019
Decision date:	04 October 2019
Jurisdiction:	Criminal
Before:	Judge W Hunt
Decision:	There is a qualified finding of guilt against CA. The Court imposes a limiting term under section 23 of the Mental Health (Forensic Provisions) Act 1990. CA is referred to the Mental Health Review Tribunal.
Catchwords:	CRIMINAL LAW – Special hearing- Sentence following special Hearing - Sexual intercourse with a child under 10 – Offence carries a standard non-parole period - Vulnerable victim – Breach of trust - Offender’s intellectual disability – Longstanding impairment – Reduce moral culpability
Legislation Cited:	Crimes Act 1900. Crimes (Sentencing Procedure )Act
Cases Cited:	Bugmy v The Queen [2013] 249 CLR 571 40 DPP (Commonwealth) v De La Rosa [2010] 79 NSWLR 1 177. Muldrock v The Queen [2011] 244 CLR 120 53. R v Hemsley [2004] NSWCCA 228 R v Mooney (unreported; Court of Criminal Appeal Victoria 21/6/78)
Category:	Sentence
Parties:	The Crown CA
Representation:	Counsel: Ms O’Reilly – Crown Mr T Thorpe - Offender
File Number(s):	2017/00085972
Publication restriction:	There is to be no publication of the name of the complainant or of any material which may tend to identify the complainant including the name of the offender.

Judgment

1. HIS HONOUR:  These are extempore remarks to explain the reasons why I impose limiting terms on CA.  CA was committed for trial on 19 September 2017 from Nowra Local Court to the Nowra District Court.  On 16 August 2018, after an inquiry into that issue at Nowra District Court, I found CA unfit to be tried and referred his matter to the Mental Health Review Tribunal.  The Mental Health Review Tribunal, in due course, determined that he was unlikely to become fit to be tried within 12 months and thereafter the Court received advice from the Director of Public Prosecutions that further proceedings were to be taken and accordingly it was determined that a special hearing be conducted.  There was no election by either party for the special hearing to proceed in front of a jury and accordingly the special hearing proceeded by judge alone before me on 12 August 2019.

2. On 30 August 2019 on the limited material available before me, I was satisfied that CA had committed two offences of sexual intercourse with a child under the age of ten years in breach of s 66A(1) of the Crimes Act 1900.  These proceedings have been conducted on the basis of an acceptance by Mr Thorpe, who appears for Mr CA, that if he were a person either found or having pleaded guilty and not being unfit to be tried that such a notional offender would serve a period of imprisonment. Accordingly, it falls to me to determine what are the appropriate limiting terms to be set in what both the parties accept and I consider to be a challenging exercise in judicial determination of the proper disposition of this matter.

3. The following facts are consistent with my verdict.  The victim in the matter is ME, who at the relevant time was aged seven to eight years of age.  CA at the relevant time was aged either 28 or 29 years old.  He has an intellectual disability and has been in receipt of a disability support pension.  I will say more about Mr CA's intellectual deficits in due course.  Both of the victim's parents, GE and SP have intellectual disabilities and had them at the time of the offences.  They were also in receipt of disability support pensions.  There is nothing in the material that suggests that the offender became acquainted with GE and SP to gain access to their daughter for malign purposes.  It was rather the case that the friendship between all of those parties developed in about October 2016 when the offender met the victim's parents at a local bowling alley.

4. After that initial meeting the offender began to spend time in the victim’s family home.  That household consisted of ME, her older sister NE and a younger sibling, LE, who was at the relevant time was four years old.  The offender would play with ME and sometimes the other children in the front and back yards of the family home.  The offender and the children would generally play in an unsupervised fashion and the offender took a particular interest in playing with ME.  Although he ultimately trespassed on the trust that ME's parents reposed in him and that ME reposed in him by the end of their relationship, I am persuaded on the balance of probabilities that for some period of time the offender developed a genuine friendship with ME that was not consistent with grooming conduct, but rather was consistent with there being a genuine affection between them before matters went awry in terms of the offending.

5. Over time the offender spent more and more time at the family home of the victim, ultimately sleeping there a couple of nights a week.  He would generally sleep in the lounge room area but he also erected a tent in the backyard that he would sometimes sleep in.  The evidence disclosed that he would occasionally go into the children's bedrooms but only when there were adults around.  After a number of months a neighbour who lived two doors down by the name of RK became concerned about the welfare of the children.  Because a house between her property and victim’s family home had been destroyed in an explosion in 2015, RK was able to view both the front and back yards of the victim’s family property.  There were certain sections of the backyard that were out of view, particularly an area behind a back shed.  RK often observed the offender playing unsupervised with the children in both the front and back yards and she became concerned that the offender as an adult male was being overly "touchy feely" with the children.

6. At around 15 or 16 March 2017, RK asked ME and NE if the offender had ever touched them "in places that are yours".  NE said “no” but ME said, "He's touched me down there", and pointed to her genital area and she demonstrated the way in which the accused had touched her, using a teddy bear.  RK reported that disclosure to SP, advising her to contact the police, and she also made her own report to the police.

7. The facts in relation to the count 1 are that on 20 March 2017, ME, who is the victim, was interviewed by police at Nowra Community Services Centre.  She disclosed that the offender had touched her in her "bad area" which she referred to as her "pussy" which she used for "weeing".  ME said that she was decorating her clubby, which was a cubbyhouse in the backyard near the back gate, when the accused inserted his fingers "into my pussy".  She said that the offender put his fingers there under her clothes "where ‑ around where you wee" and that it hurt.  The victim indicated that she told the offender to stop it and his reply was that, "I love you".  The evidence is consistent with him in fact stopping it when requested to do so.

8. In cross‑examination ME said that the first time that the offender had touched her “pussy” was the morning after an episode at Friday night bowling, and that he had touched her in that way in her clubby at the back of the shed.  There was a tree next to the clubby that meant that adults had to crawl to get into the relevant area.  She accounted that the offender had touched her on her "private part" and "went in and it hurted".  The victim said that the offender's finger went "inside", that it took a minute, which she categorised as being a short time.

9. The facts in relation to the second count are that during the same interview to which I have already averted, ME disclosed that after dinner "last Friday" she went into the backyard to feed her dog having earlier had a meal from McDonald's for dinner. She was climbing in a tree at the back of the house when the offender "put his finger up my crap hole".  ME told him to stop and told him to stop and said, "Ouch", because it hurt her.  The evidence discloses that the offender in fact did stop when requested.  Although there is no particular evidence about how long that event took, it is available to safely draw an inference that it was shorter than the occasion in relation to count 1.  It is effectively because the victim described feeling immediate pain and making immediate complaint that had the effect of the offender stopping.  In cross‑examination the complainant described the offender climbing up at the time that she had already climbed into a tree and that he "started touching my bum".  He "lifted up my dress and put his hand under my knickers" and touched her where "the poop comes out" and on the "inside".

10. The offender was interviewed in the absence of a disability support worker and during the course of that interview he was served with a personal apprehended violence order that restricted his conduct and ability to be in the vicinity of ME and her family.

11. In terms of assaying the objective seriousness of the offending before I come to matters that are personal to the offender and relate particularly to his pervasive developmental delay, the following is relevant.  Both of the offences were committed in the victim's home.  Her age at six or seven was some years younger than the maximum threshold of victims for this particular offence, being under ten.  The offender was in his late twenties, so the age differential between the victim and the offender was quite significant.  Although the victim was vulnerable partly because of her own intellectual deficits and more particularly because of her parents' developmental delay and arguably a lack of appropriate supervisory skills, that circumstance has less weight to sound in the equation than might otherwise be the case because of the offender's own intellectual deficits.

12. Both the vulnerability of the victim and the implicit breach of trust by the offender, being becoming involved in and trusted in a family situation would both be far more aggravating circumstances were the offender a person of adult mind who took those things into account in planning the offending.  There is nothing to suggest that the offending was planned.  Although the offender has a limited mental age of about twelve and a half, there is nothing to suggest that he did not know that the offending was wrong.  As I have indicated, both of the temporal passages of offending were thankfully short and in each occasion the offender desisted upon request from the victim.

13. Although these matters do not serve to mitigate the objective seriousness, I note that there is an absence of some aggravating features that would make the offending far worse.  For instance, a degree of planning, a degree of grooming, threats of violence, actions of violence or physical injury to the child as a result of the sexual trespasses against her.  Although I was invited by the Crown to contemplate that the objective seriousness to the offending might be about the mid-range, having regard to the different modes of sexual intercourse that is caught by this offending and the lengths of duration. I take into account that the objective seriousness of the offending in relation to each case is below the mid-range but does not reach the lower range of objective seriousness of offending.

14. There was evidence before me that was admitted on a tendency basis, that in June of 2019 when he was admitted as an involuntary patient to the psychiatric unit of Shellharbour Hospital, the offender said to a nurse a number of things, including that he had previously been told that he had "sex offenders disability".  The doctors had tried to control that condition with medication so that he would not do it anymore.  A number of comments were attributed to him, including in relation to the general issue of sexual interest and/or action with children.  He "did not want to stop it";  "I like doing it";  "I've thought about sex and children for a long time";  "I've always thought about it"; "I think about children all the time";  "When I see a child I get excited";  "I just look at them";  "That's why I did those things to that boy"; "I liked it";  "He was near me";  "I can't help it";  "I like to look at pictures too";  "When children walk past I think about them a lot";  "I get excited";  "I won't ever stop doing it";  "No one can make me stop";  "Tablets won't stop it";  "I'm never going to be in gaol because it's my disability";  "So it doesn't matter";  "I did it before";  and "I can't help it".

15. Clearly that material, if true and still accurate of the offender's state of mind, is troubling in terms of the issue of future dangerousness.  It clearly points out that apart from whatever treatments may or may not be available for his psychiatric and psychological and developmental issues, that this is a man that needs some sex offender treatment.  I do take in to account that there was no explicit evidence as to why the offender was an involuntary patient at the time he made those assertions.  It is clear that there must have been some serious alteration in his mental state for him to be so admitted.  Although the material is troubling and clearly the offender was misguided if it remained his belief that he would not be locked up as a result of his disability given his current predicament, it is difficult to assay exactly how much weight to give that material because of his troubled psychiatric condition at the time that he made those comments.

16. Coming to some matters that are personal to the offender, he has no criminal convictions which goes to mitigate the offending.  He spent ten days in custody as a result of an apparent breach of bail and it is common ground between the parties that when I impose limiting terms that the first limiting term should be announced to commence ten days ago to give effect to that period of prior custody.  It is clear that the fact that the offender has no criminal convictions means that he is entitled to a leniency that somebody who had criminal convictions would not be.  Although sometimes an absence of criminal convictions in relation to child sexual offending will have less weight to play, most particularly where an absence of a record, say in the instance of a school teacher or the like, had some impact in terms of access to a victim.  That is not the case here.

17. There are two principal tranches of material that have a particular effect in terms of Mr CA's personal circumstances.  It is undisputed between the parties that the offender suffers from a mental condition.  Dr Furst in his report of 21 March 2018 opined that the offender met the criteria for a diagnosis of intellectual disability and bipolar affective disorder.  He was considered to suffer from a mild to moderate intellectual disability.  When Dr Furst gave evidence before me at the fitness hearing on 9 August 2018 he expressed an opinion that the offender's mental age was that of about a twelve and a half year old and developed that to say, "We are talking about someone who would have a childish understanding of things".

18. In his further report of 16 July 2018, Dr Furst indicated that people with intellectual disabilities of the type suffered by the offender generally have widespread cognitive impairments.  Specific deficits generally relate to their executive functioning, including poor planning, poor organisational skills, difficulties with mental flexibility, deficits in verbal reasoning and significant impairments in memory, concentration and processing speed.  I am satisfied that there is a causal link between at least Mr CA's intellectual disability and the offences in relation to which I am dealing with him today.

19. Dr White, who is a member of Dr Pullman's practice, in her report of 5 August 2019 noted that the offender has a reported history of limited intellectual functioning and mental health issues.  As a result of the neuropsychological assessment that Dr White conducted, it was indicated that his intellectual functioning was within the Extremely Low range consistent with premorbid estimation.  It was noted that in relation to his adaptive functioning the offender and reports of his care workers indicate that he is functioning in the extremely low range commensurate with his intellectual and cognitive functioning.

20. I note that the evidence before me both on the fitness hearing and tangentially in the special hearing was that the offender continues to live in a supported accommodation provided to him by the House With No Steps organisation. At every step of the proceedings before me he has been, happily, accompanied by two care workers and that level of support to him is very much appreciated by the Court.  It is noted by Dr White that the offender's affairs are oversen by the Public Guardian and Public Trustee.

21. Dr White's opinion was that the offender met the criteria for a mild intellectual disability, that his impairment is longstanding and has been present throughout his life and was present at the time of the offences.  It is considered to be a permanent condition that will be unalterable during the course of his lifetime.  Given his limited intellectual functioning, the offender's insight into his mental health and daily functioning capacity is likely to be reduced, such that he is less likely to recognise when it is that he requires help and how to go about reaching it.

22. Dr White assessed, perhaps unremarkably, that if it were to be the case that the offender received some type of custodial sentence he is more likely to be vulnerable, more vulnerable than the average inmate.  This is particularly so in circumstances in which he has no prior experience in the criminal justice system. I find he is likely to be vulnerable to a number of external influences and, particularly, having regard to the nature of the offences that I have found established which will bring him into custody.  There are recommendations which I propose to follow in terms of a reference to support services within the custodial environment.

23. The Crown conceded that it was appropriate that the Court have regard to the offender's mental condition for purposes of this "sentencing" exercise.  An offender's mental condition can have the effect of reducing a person's moral culpability and matters such as general deterrence, retribution and enunciation have less weight; see Muldrock v The Queen [2011] 244 CLR 120 53. This will be particularly the case where the mental condition as I have found contributed to the commission of the offence in a material way; see DPP (Commonwealth) v De La Rosa [2010] 79 NSWLR 1 177.

24. The way in which the High Court explained the rationale for these principles in Muldrock at para 53 was this,

"One purpose of sentencing is to deter others who might be minded to offend as the offender has done". 

25. Young CJ; in R v Mooney (unreported; 21/6/78 Vic CCA) in a passage that has been frequently cited said this at p 5,

"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". 

26. Here additionally, the offender's moral culpability is significantly reduced because of his low mental age and very limited level of intellectual function.  Additionally, as I accept from Dr White, his time in custody or quasi custody will be significantly more onerous.

27. I accept the submission of the Crown, that the material disclosed at Shellharbour Hospital, even if not given full weight, gives rise to concerns about future dangerousness; or what is often known in R v Hemsley [2004] NSWCCA 228 and other cases as the fourth and countervailing consideration in these kinds of cases. That will be particularly so in circumstances where the offender's condition is pervasive. While I accept that his bipolar affective disorder will be able to be managed by appropriate medication, his pervasive intellectual function is not amenable to treatment or improvement. Those matters relating to his mental function mean that the way in which the offender will be sentenced will be not insignificantly ameliorated compared to a fully functioning offender who behaved in this impermissible way.

26. Both the legislature, by the significant penalties and standard non‑parole period imposed for this matter, have indicated the seriousness with which the legislature views this kind of offending.  Similarly, the community has an understandable abhorrence for sexual trespasses, particularly including sexual intercourse against children of a very tender age, who are entitled to grow up free of sexual interference and developing their own sexuality at the time that their body and the law permits.

27. A second and significant circumstance to be taken into account in relation to CA relates to his family and residential history as a younger person, experienced of course alongside the intellectual deficits that I have already identified.  The material discloses that the offender was one of a significant number of siblings, that he was removed from his biological mother's care at a very young age and spent some years in foster care and later in youth services, particularly by Anglicare.

28. Reports available to the Court suggest a possible history of neglect and physical abuse while he was in foster care.  Of course he graduated out of what I would call the out of home care system to become a young man with remaining deficits.  Happily, for some years he has been constructively engaged with The House With No Steps and material that has become known to me over of the course of the proceedings indicate that from time to time he has been able to be fully employed, albeit in a supported employment situation designed to employ people with the kind of subjective difficulties that he experiences.

29. His parlous and deprived upbringing is another circumstance that means that the offender's moral culpability is reduced when compared to that of an offender whose formative years have not been marred in that fashion; see Bugmy v The Queen [2013] 249 CLR 571 40. It was accepted by the High Court and in authorities that follow Bugmy that, "The effects of profound deprivation do not diminish over time and should be given full weight", in determining the sentence in every case; see Bugmy at paras 42 and 43.

30. Although the exercise of setting a limiting term is slightly different to that engaged in classic sentencing, those principles as well as the De La Rosa principles in relation to his mental condition must impact upon the proper execution of the task with which I am engaged today.  I consider that the Bugmy principles are engaged in this case.

31. It will flow from what I have said that somebody without Mr CA's deprived upbringing, somebody without Mr CA's limited level of intellectual functioning and/or somebody without his unblemished criminal history, would necessarily attract a stouter sentence at law if being sentenced for these two serious invasions on the victim's person.  In determining the appropriate limiting terms to impose I take into account that when somebody is not fit to be tried there can be no way of assaying remorse and that is the case in these proceedings similarly in circumstances where a person is unfit to be tried and there is a necessity for a special hearing.  Any ability to apply a utilitarian discount is absent.

32. While I of course have regard to the maximum penalty and to a lesser degree the standard non‑parole period as guide posts or benchmarks in the way contemplated by the authorities, those matters are less pertinent in this particular exercise.  Of course I have regard to all the purposes of sentencing for purposes of s 3A of the Crime Sentencing Procedure Act in setting limiting terms taking into account what I have said.  Although specific deterrence will have a lesser role to play notwithstanding some of the comments that CA made, even if unwell, at Shellharbour Hospital, I am persuaded that by the imposition of a limiting term that will have him in custody I expect for a significant period of time, there is likely to be some specifically deterrent effect of the disposition of these matters notwithstanding his limited intellectual functioning.

33. In finally determining the matter and returning to the particular emphasis that I am obliged to have regard to in terms of Mr CA's limited intellectual functioning, I am reminded of what President Allsop, as he then was, observed at the time that Mr Muldrock was resentenced in the Court of Criminal Appeal after the High Court remitted the matter to be determined.  His Honour said:

"The appellant's mental disability was highly relevant to the sentencing process.  That disability was significant at least at the conclusion that Mr Muldrock had only a superficial understanding of his moral culpability.  Thus to the extent that specific deterrence should play a part in the sentencing process it was a limited factor.  The mental disability also meant that he had limited moral culpability for the offence.  In this light there is no requirement for general deterrence to play a part in sentencing him and punishment in the sense of retribution and denunciation do not require significant emphasis."

36. Although the factual situation was of course different and the relevant mental condition was perhaps more extreme in Mr Muldrock's case, those principles sound in this particular exercise.

37. I now come to announce the formal orders.  I am of the view that a notional person who was fit to be tried who either pleaded guilty or was found guilty that these offences would attract a period of imprisonment.  Accordingly, I am obliged to set limiting terms on this offender.  I have had regard to principles of totality.  I have determined to exercise, although there were two separate episodes of offending, a significant degree of partial concurrence and a modest degree of partial accumulation in all the circumstances.

38. Accordingly, in relation to these matters in relation to count 1, I set a limiting term of imprisonment of four years and three months to commence taking into account pre‑custody from 24 September 2019 and to expire on 23 December 2023. On count 2, I set a limiting term of four years and six months to commence on 24 March 2020 and to expire on 23 September 2024.

39. I have set a slightly lengthier limiting term in relation to count 2 partly on the basis that it was second episode of offending and partly on the basis that I took the objective seriousness of the digital anal penetration to be slightly more serious than the other offence.

40. The formal orders that I make are that:

1. Pursuant to s 24(I)A of the mental Health Forensic Provisions Act the offender is referred to the Mental Health Review Tribunal.

2. I make an interim detention order pursuant to s 24(1)B that the offender remain in custody pending any determination of the Mental Health Review Tribunal.

3. I recommend that he be accommodated at the Additional Support Unit, Metropolitan Special Purpose Centre Area 2.

41. The following documents are to be forwarded both to the Mental Health Tribunal and to travel with CAand the warrant, which are the reports of Dr Susan Pullman & Associates dated 5 August 2019, the report of Dr Sampson F Roberts dated 20 May 2018 and the reports of Dr Richard Furst dated 21 March 2018 and 16 July 2018.

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Decision last updated: 30 March 2020