R v Capar

[2002] NSWCCA 285

Reported Decision: (2002) 132 A Crim R 160

New South Wales

Court of Criminal Appeal

CITATION:	R v Capar [2002] NSWCCA 285
FILE NUMBER(S):	CCA 60217/02
HEARING DATE(S):	1 July 2002
JUDGMENT DATE:	19 July 2002
PARTIES :	Crown - Appellant Muhammad Capar - Respondent
JUDGMENT OF:	Mason P at 1; Hulme J at 24; Simpson J at 29

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/21/0140
LOWER COURT JUDICIAL OFFICER :	Tupman DCJ

COUNSEL :	GIO Rowling - Crown RJ Button - Respondent
SOLICITORS:	SE O'Connor - Crown DJ Humphreys - Respondent
CATCHWORDS:	Crown appeal against asserted leniency of sentence - threaten to inflict actual bodily harm by means of offensive weapon with intent to have sexual intercourse - offence objectively serious - psychiatric disorder - suspended sentence - principles of general and specific deterrence - exercise of discretion of Court of Criminal Appeal not to interfere with inadequate sentence
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Bus and AS (unreported, CCA, 3 November 1995) R v Fabian (1992) 64 A Crim R 365 R v Thomson and Houlton [2000] NSW CCA 309; (2000) 49 NSWLR 383 R v Fahda [1999] NSWCCA 267 R v Harb [2001] NSWCCA 249 R v Lauritsen (2000) 114 A Crim R 333 R v Tsiaras [1996] 1 VR 398, and, most recently R v Israil [2002] NSWCCA 255, unreported, 19 June 2002
DECISION:	By majority (Hulme and Simpson JJ, Mason P dissenting) Crown appeal dismissed.

60217/02

MASON P
HULME J
SIMPSON J

19 July 2002

REGINA v Muhammad CAPAR

Judgment

1 MASON P: I have had the benefit of reading the judgments of Hulme J and Simpson J.

2 The charge to which the respondent pleaded guilty was that he:

on 15 March 2001… did threaten to inflict actual bodily harm on [the victim] by means of an offensive weapon, to wit, a kitchen knife with intent to have sexual intercourse with her.

3 The seriousness of the offence is confirmed by the maximum penalty of 20 years imprisonment.

4 The facts of the particular offence are set out by Simpson J. The respondent went to the victim’s work place. The encounter that followed included a threat by knifepoint accompanied by actual violence, made with intent to have sexual intercourse, including a threat to kill the victim after he had had sex with her. The violent assault came to an end only because the victim managed to escape. The victim’s occupation as a sex worker provided no mitigation.

5 I entirely agree with Judge Phegan’s assessment of the objective circumstances, when he said in his remarks on sentence:

It can be said, without any hesitation, that from that description of the offence, the victim was subjected to the most terrifying experience at the hands of the prisoner. The use of a knife, the application of physical force, the covering of her face with the towel, the production of the plastic loop for the purpose of tying her up, must have, both individually and in combination, subjected the victim to the very real fear that she was likely to be subjected to the most violent of physical interference.
This, in an objective sense, constitutes what has to be regarded as a very serious example of the offence to which the prisoner has pleaded guilty. It went well beyond some mere threatening gesture of some kind to both threats of a very serious kind accompanied by the application of actual physical force of a variety of kinds.

6 The Crown appeals against the suspended sentence of two years imprisonment on grounds of manifest inadequacy and particular errors.

7 The plea of guilty was entered late, with the eventual abandonment by the respondent of his prior account to the police that he had attacked the victim because he suspected her to have stolen money from him on a previous occasion; and acceptance of the charge that his violence was with intent to have sexual intercourse. The respondent was arrested near the scene of the crime, walking away having discarded his identifying clothing and the knife used in the attack. The plea was entered on 3 December 2001, the second occasion that the matter had been listed for trial.

8 There were prior driving offences and a dishonesty conviction which had resulted in a three month sentence of imprisonment suspended on condition to be of good behaviour for two years. That sentence was imposed on 1 May 2000, with the consequence that the present offence occurred during the period of the bond.

9 Judge Phegan was moved to impose the sentence that he did by reason of the subjective factors touching the respondent’s background and psychiatric condition stemming from it.

10 The respondent was 26 at the time of the offence, the youngest of three brothers born to parents who migrated from Turkey before his birth. The cultural differences between parents and son had caused a difficult childhood and were an obvious factor to be recognised in a proper understanding of his circumstances.

11 The respondent is intelligent within normal range. He obtained the Higher School Certificate in 1993 attaining a TER level of 89. He commenced a university course in education but later discontinued it. His employment record was spasmodic and he was unemployed at the time of the offence.

12 Various psychiatric reports were tendered at the sentencing proceedings without challenge. They offer cautious hope for the future, because they disclose that the respondent has begun to address his psychiatric problems with medication and counselling. The force of the opinions is, however, qualified by the fact that the respondent maintained to the doctors the false account of the offence that he had given the police in his ERISP interview.

13 Dr Clark saw the respondent in June 2001. He was told that the respondent denied having threatened the victim with intent to have sexual intercourse, while admitting threatening her with a knife in the course of demanding that she repay the money he then believed she owed him arising out of the earlier encounter.

14 Dr Clark described the respondent as coming from “what sounds like a very incongruous and disturbed family”, mentioning in particular his extremely authoritarian father. The doctor observed no signs of a mental illness as such. Nevertheless the appellant demonstrated an “overwhelming anxiety”. He had been suicidal many times. The psychiatric diagnosis was one of “a chronic unremitting depression”.

15 Dr Clark observed that the respondent was (by June 2001) working in a fulltime job for the first time in his life, as an assistant manager at a restaurant. He was being treated with potent anti-depressants and was taking his medication regularly. The doctor said that it would be advisable that the respondent continue in his newfound pattern of stability.

16 Adverting to the circumstances of the offence, the doctor said that this appeared to be “a confused act to some degree”. He observed that the respondent’s version was entirely different to the victim’s version. Dr Clark also said this:

It is necessary to gauge his actual mental state at the time of the offence by his behaviour, and according to the interview. He says that he ran out of the place without a shirt on, having taken his shirt off outside. This is an odd way to organise oneself and is evidence he was panicking at that time. He says he remembers crying and panicking.

17 Dr Olav Nielssen, a consultant psychiatrist, interviewed the respondent in August 2001. He was given a history of the offence consistent with what the appellant had first told the police, in other words “that statements by the alleged victim were completely false”. The respondent told the doctor that at no stage did he ask for sex.

18 The psychiatric history taken by Dr Nielssen was one of depression, low self-esteem and anxiety in social settings for many years. The criticism and abuse from the respondent’s parents had made him more depressed. Suicide had been attempted on several occasions, but treatment for it had never been sought. Dr Nielssen recorded that the respondent was then continuing to see Dr Clark regularly for treatment and that he was taking prescribed anti-depressant medication.

19 The doctor observed no signs of acute psychiatric illness. Nevertheless, he referred to a “disabling Anxiety Disorder complicated by the onset of a Depressive illness”. This was a disability which affected “his capacity to form friendships and relationships, and to participate in education and the workforce”. The ultimate diagnosis was:

1. Depressive illness, in partial remission

2. Anxiety disorder, with features of social phobia.

20 Dr Nielssen opined that there was “something decidedly odd” about the respondent’s account of the offence. He concluded that the respondent would benefit from a long term counselling relationship, and expert psychiatric care, including tests to exclude neurological disorders, a higher dose of anti-depressant medication, and treatment with anti-psychotic medication if it emerged that the respondent was mentally ill.

21 This evidence does not support a conclusion that the offence arose out of or was symptomatic of an acute psychiatric disturbance. On the other hand, it showed a substantial linkage between this young man’s social alienation and the depressive condition that stemmed from it and the difficulties associated with his upbringing. This said, one is still dealing with a person of above average intelligence. There could be no suggestion that he was at any stage unaware of the seriousness of his misconduct directed at the victim.

22 In my view the circumstances of the offence were of such gravity that the failure to impose a custodial sentence betokens appealable error, notwithstanding the constraint that must be exercised in relation to a Crown appeal. The principles of general and specific deterrence remain problematic, but they should have been adverted to expressly by his Honour and they mean, to my mind, that appellate intervention is appropriate.

23 I am conscious and saddened by the prospect that incarceration would interrupt the apparent progress in the recognition and treatment of this young man’s significant depression. Nevertheless these issues can be accommodated (to some degree) by ordering that the sentence – as imposed by Judge Phegan – be served by way of periodic detention. To my mind nothing less would mark an appropriate response to a very serious assault.

24 HULME J: Simpson J has set out at some length the facts and history of this matter and I can accordingly be brief. Like Her Honour I do not find it necessary to decide whether error occurred in the original sentencing exercise of Phegan DCJ. Certainly the Respondent’s subjective circumstances were sufficiently striking as to merit far more than the usual weight. The fact that part of these was a psychiatric disorder added, in accordance with the authorities to which Her Honour referred, an additional dimension in the Respondent’s favour. To these authorities might be added R v Bus and AS (unreported, CCA, 3 November 1995) wherein it was said:-

“It (is) and accepted principal of sentencing – 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.”

25 And whether His Honour’s decision was right or wrong an additional factor has now intervened. A report of 26 June from a psychiatrist, Dr Clark shows that the Respondent has been participating in psychiatric treatment regularly and his psychiatric condition is much improved, albeit he still remains a suicide risk. Dr Clark opined that the Respondent is unlikely to re-offend but needs to continue in treatment for another 2 years. Dr Clark said that the type of treatment is not available in prison. His report concluded:-

“From a psychiatric point of view, he has a good prognosis and indeed this whole episode has been a great turning point for him. This is the sort of transformation which we all hope to effect in many of our patients but do not often get the chance to do so.”

26 A report of 19 June of another psychiatrist, Dr Neillsen was more guarded in some respects but also indicated that the Respondent would be unlikely to receive suitable psychiatric treatment in prison and imprisonment would likely to cause deterioration in his condition.

27 The authorities show that where imprisonment would put at serious risk of destruction, rehabilitation already achieved, that circumstance is entitled to significant weight – see Fabian (1992) 64 A Crim R 365 at 377-8.

28 That is the situation here, and because of it I favour the dismissal of the appeal in the exercise of this Court’s discretion.

29 SIMPSON J: This is a Crown appeal against the asserted leniency of a sentence imposed upon the respondent by Phegan DCJ on 18 February 2002, following the respondent’s plea of guilty to a charge of threatening to inflict actual bodily harm by means of an offensive weapon with intent to have sexual intercourse. By s61K(b) of the Crimes Act 1900 the respondent was liable to a maximum penalty of imprisonment for twenty years. Phegan DCJ imposed a sentence of imprisonment for two years which he suspended upon the respondent’s entering into a good behaviour bond for the term of the sentence and subject to specified conditions.

30 The offence was a very serious one of its type. It was committed during the morning of 15 March 2001, when the respondent attended a massage parlour and brothel in Croydon Park. The respondent rang the front door bell and was admitted by the victim, a sex worker. A conversation concerning the cost of sexual services ensued. The respondent grabbed the victim’s dress, produced from his pocket a knife which he directed at the victim’s throat, telling her that he would hurt her if she screamed. He pushed her back onto a bed, continuing to hold her dress, knelt on top of her with his knees on either side of her body and continued to hold the knife at her throat. He told her not to scream or shout and that he wanted to have sexual relations with her. She told him that she could not do so because she was menstruating at the time and demonstrated this to be the case. He then took hold of the victim by the back of the head and ordered her to perform fellatio upon him, without a condom. The victim refused. The respondent placed a towel over her face, covering her eyes and then produced a looped black plastic tie. He told her again not to scream and that he intended to tie her up. The victim pleaded with him. He allowed her off the bed and to stand up. He took hold of the back of her dress and they both walked into the living room. The victim screamed, broke free and escaped.

31 The respondent ran from the premises. He was apprehended shortly after, having discarded most of his clothes, and wearing only black trousers and shoes. He admitted that he had been at the premises and agreed to return there with police. He was placed under arrest, and, whilst being taken to the Auburn Police Station, he directed police to a location where he had placed some of his clothes.

32 At the Police Station he was interviewed and admitted having attended the premises in possession of a kitchen knife and the black plastic tie. He stated that, about a month earlier, he had used the services of a prostitute in Kings Cross and that she had stolen one thousand dollars from his wallet. She had given him the Croydon Park address and he had gone there in the hope of recovering his money. He denied some of the allegations made by the victim.

33 Although he was arrested and charged on the date of the offence, 15 March 2001, the respondent did not enter a plea of guilty until 3 December 2001, which appears to have been the date the matter was fixed for trial. The plea of guilty was therefore a very late one, and that is relevant to the extent of leniency the respondent was entitled to expect as a result of his plea of guilty: R v Thomson and Houlton [2000] NSW CCA 309; (2000) 49 NSWLR 383.

34 On the face of it, it can be seen that the offence is very serious and, in the ordinary course, a suspended sentence would be a quite inappropriate penalty to impose. However, there was a great deal of subjective material before the sentencing judge. This principally took the form of a series of psychiatric reports. For example, in August 2001, Dr Clark, a consultant forensic psychiatrist, certified that the respondent was “in acute stress state” and incapable of giving evidence; in September he again certified to similar effect. He did, on that occasion, express the view that the respondent would be more settled within the next few weeks.

35 Two psychiatrists, Drs Clark and Nielssen, examined and reported upon the respondent. These reports disclosed a troubled family history. The respondent was born on 1 October 1974 and was twenty-six years of age at the time of the offence. Apart from driving offences, (including driving whilst licence suspended), his only previous conviction had been for obtaining a payment which was not payable, in respect of which a suspended sentence was imposed. That suspended sentence, and a good behaviour bond on which the respondent was released, were current at the date of the present offence. The respondent was born of Turkish migrant parents, after their migration to Australia. His parents had made little adjustment to the Australian way of life and were strict and authoritarian. There were incidents of domestic violence directed from his father to his mother and also to the respondent. He had two older brothers, both of whom are estranged from their parents.

36 Both psychiatrists diagnosed anxiety with depression. They recorded thoughts of suicide and at least one attempt at suicide.

37 Notwithstanding the unsatisfactory nature of his family life, the respondent had achieved well at school and had gained entry to a Bachelor of Education Degree course at the University of Technology. He had withdrawn from this course partly as a result of the emotional problems he was experiencing, and partly as a result of a knee injury he suffered whilst working.

38 Dr Nielssen diagnosed a depressive illness, in partial remission with anxiety disorder, with features of social phobia. Dr Clark diagnosed chronic unremitting depression.

39 Judge Phegan undertook a careful analysis of the evidence. He attributed appropriate weight to the obvious gravity of the events. He said:

“It can be said, without any hesitation, that from that description of the offence, the victim was subjected to the most terrifying experience at the hands of the prisoner. The use of a knife, the application of physical force, the covering of her face with the towel, the production of the plastic loop for the purpose of tying her up, must have, both individually and in combination, subjected the victim to the very real fear that she was likely to be subjected to the most violent of physical interference.
This, in an objective sense, constitutes what has to be regarded as a very serious example of the offence to which the prisoner has pleaded guilty. It went well beyond some mere threatening gesture of some kind to both threats of a very serious kind accompanied by the application of actual physical force of a variety of kinds.”

40 His Honour went on to observe that a victim of such an offence is entitled to the protection of the law. There can be no quarrel with that proposition.

41 He then, however, turned to the subjective factors and concluded that a term of imprisonment would be counter-productive and disruptive of the respondent’s rehabilitation. For those reasons he resolved to suspend the sentence.

42 In considering the benefit to which the respondent was entitled by reason of his plea of guilty, Judge Phegan observed that, coming as late as it did, it ought not count greatly in reduction of the sentence. Nonetheless, he explicitly stated that he intended to reduce what would otherwise be a sentence of two and a half years to two years. This is a reduction of 20%, which is, in my view, towards the top of the range of reductions available even in cases where the plea is entered at an early stage.

43 On behalf of the Crown it was contended that the sentence was manifestly inadequate and that specific error could be identified in a number of respects. These were said to be a failure to reflect the recognised objective seriousness of the offence in the sentence; that his Honour made no mention of the need for deterrence, either general or specific; that he failed to have adequate regard to the attitude of this Court to the use of knives in the commission of offences; that the reduction in sentence allowed in respect of the plea of guilty was in the circumstances excessive; and, finally, that he made no reference to the fact that the respondent was at the time of the offence on the bond imposed in respect of the offence I have mentioned.

44 It was also argued that an inference is available that his Honour, determined to impose a suspended sentence, deliberately selected the sentence of two years in order to allow him to do so. (By s12 of the Crimes (Sentencing Procedure) Act 1999, only a sentence of two years or less may be suspended.)

45 In my opinion, this matter presented an extremely difficult sentencing exercise. On the one hand the objective seriousness of the offence demanded a term of full-time imprisonment. On the other, the subjective circumstances pointed towards leniency. It is well recognised that psychiatric disorder in an offender is relevant to the sentencing process, and can diminish the impact of the general deterrence which is otherwise an important sentencing factor: see R v Fahda [1999] NSWCCA 267; R v Harb [2001] NSWCCA 249; R v Lauritsen (2000) 114 A Crim R 333; R v Tsiaras [1996] 1 VR 398, and, most recently, R v Israil [2002] NSWCCA 255, unreported, 19 June 2002.

46 The passage I have extracted above makes it clear that Judge Phegan was fully conscious of the objective seriousness of the offence. The cases I have referred to above demonstrate that, where psychiatric illness is involved, principles of general deterrence can be regarded of lesser importance. The same applies to specific deterrence.

47 I would not infer, from the absence of express reference to the attitude of the courts to the use of knives, or the existence of the bond, that his Honour overlooked those circumstances. I think there is some substance in the complaint concerning the size of the reduction attributable to the plea of guilty, but this, of itself, does not persuade me that error has been established. I reject the proposition that the length of the sentence was selected in order to allow the sentence to be suspended.

48 In these circumstances, I find it difficult to conclude that the sentencing judge was in error in the decision he made. There is a good deal to be said for the proposition that, in this case, the sentencing judge allowed the subjective factors to outweigh the objective gravity of the offence. I do not find it necessary to reach a firm conclusion on that question because I am satisfied that the residual discretion which lies in this Court to dismiss a Crown appeal notwithstanding error on the part of the sentencing judge should here be exercised. In this Court additional psychiatric evidence was admitted, relevant to the question of the exercise of discretion, or, should it come to that, to re-sentencing. That evidence, in the form of updated reports by the same two psychiatrists, shows that the respondent has taken significant steps towards his rehabilitation. He has been attending a social phobia treatment program at St Vincent’s Hospital. Dr Nielssen, who saw him on 19 June 2002, found him to be slightly improved but still very anxious, and still exhibiting impaired social skills. Dr Clark also considered him improved in some respects, and both psychiatrists noted a significant improvement in his relationship with his parents. Dr Clark referred to the late entry of the plea of guilty, and wrote:

“The guilty plea surfaced late in the case and reflects his extreme anxiety and the almost paralysing fear state he was in at times, such that he could hardly stand up when he came to Court. I witnessed this myself on two occasions.”

49 The respondent himself affirmed an affidavit in which he deposed to his course of treatment and his efforts at rehabilitation. He said that he had been reaccepted into the adult education course at the University of Technology, but deferred his re-entry to that course until July 2002 in order to complete his course of treatment.

50 The extent of his rehabilitation, which should, in my opinion, be classified as exceptional, can be seen from a passage in a report of Dr Clark dated 26 June. Dr Clark wrote:

“From a psychiatric point of view, he has a good prognosis and indeed this whole episode has been a great turning point for him. This is the sort of transformation which we all hope to effect in many of our patients but do not often get the chance to do so.”

51 I regard this as an extremely unusual case in which a sentence which would otherwise appear manifestly inadequate should not be disturbed. I wish to underline that I reach this conclusion notwithstanding the seriousness of the offence and I particularly wish to observe that the victim in this case is as entitled to the protection of the law as any other citizen. Her profession plays no part in my views that the Crown appeal should be dismissed. Indeed, she is to be seen as a vulnerable person who must be able to turn to the law for assistance. Notwithstanding that, I propose that, in the exercise of this Court’s discretion, the Crown appeal be dismissed.

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