R v Carlton

[2007] NSWDC 71

CITATION:	R v Carlton [2007] NSWDC 71
HEARING DATE(S):	24-31 July 2006, 1-3 August 2006
JUDGMENT DATE:	23 February 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Nield DCJ
DECISION:	For each of the four offences offender convicted. For each offence, offender sentenced to imprisonment for 13 years four months, with a non parole period of eight years six months, to commence from 21 August 2005 and to expire on 20 February 2014, on which date the offender is to be eligible to be released on parole, and a parole period of four years 10 months, to commence on 21 February 2014 and to expire on 20 December 2018. Order that each sentence be served concurrently. Order that the offender be subject to supervision by the New South Wales Parole Service whilst on parole during the parole period.
CATCHWORDS:	Criminal law - sentence after trial - sexual assault by an adult upon a child - multiple offences
LEGISLATION CITED:	Crimes Act; s61J(1) Crimes (Sentencing Procedure) Act 1999; s3A, s21A
PARTIES:	Regina Adam Rawdon Carlton
FILE NUMBER(S):	06/61/0001
COUNSEL:	Mr D. Wilson (Crown) Mr W. Walsh (Offender)
SOLICITORS:	DPP Bathurst Jones Rolfe Rudd, Orange

JUDGMENT

SENTENCE - NON PUBLICATION ORDER

HIS HONOUR: As to the sentencing of Adam Rawdon Carlton:

1 The offender is Adam Rawdon Carlton. He was born on 4 October 1970. Accordingly, he was aged 34 years 10 months when, on 20 August 2005, he committed the subject offences, to which I will refer shortly, and he is aged 36 years four months now.

2 The offender is the older of his parents’ two children. He has a sister. His parents separated when he was aged about four years. He has not had any contact with his father since he was aged either about four years or seven years.

3 The offender’s mother remarried when he was aged about seven years. He has a half sister from his mother’s marriage to his stepfather. His mother and stepfather separated when he was aged about 13 years.

4 The offender has a close relationship with his mother and half sister and a good relationship, albeit not a close one, with his sister.

5 Notwithstanding the breakdown of his mother’s marriage to his father and her later marriage to his stepfather, the offender was raised, mainly by his mother, in a happy and supportive environment.

6 The offender attended various primary and secondary schools due to his stepfather’s moves about the country as a member of the armed forces. He completed year 10 and obtained the School Certificate. He commenced but did not complete year 11. After leaving school, he attended a TAFE college for a few months but did not complete any course.

7 Notwithstanding that he has undergone appendectomy and tonsillectomy and that he suffered concussion as the result of a motor vehicle collision, there is nothing untoward with the offender’s physical health.

8 The offender commenced to smoke cannabis in his mid teens. He progressed - if that be the correct word - to using other prohibited drugs including LSD, ecstasy, amphetamine, cocaine and heroin. His abuse of prohibited drugs caused his downward spiral into a life of crime.

9 During some time between August 2001 and May 2002 the offender was treated with medication for a mental illness. In September 2002 he was diagnosed by Dr Robert Tym, psychiatrist, as suffering from schizophrenia, which may have been latent until unmasked by his abuse of prohibited drugs. He has failed to take the medication prescribed for him as and when required and, as it transpired, he was not taking his medication and he was using prohibited drugs at the time when he committed the subject offences.

10 The offender has had a number of unskilled employments since leaving school but for most of the time since leaving school he has been unemployed and in receipt of unemployment benefits.

11 The offender is single, never having married and he does not have anyone dependent upon him. Since he was aged about 18 years he has had a number of relationships which were short lived and one relationship, his last before his commission of the subject offences, which lasted about 18 months and which caused him depression upon the ending of the relationship.

12 As indicated, the offender does not have an unblemished character. He has a criminal record in the Australian Capital Territory - see exhibit T1 - and in New South Wales - see exhibit T2. In the Australian Capital Territory he has been dealt with for 84 offences and in New South Wales he has been dealt with for two offences. I suspect, in the absence of being told to the contrary, that his offences, particularly those involving dishonesty, were related to his abuse of prohibited drugs.

13 The offender was on conditional liberty at the time when he committed the subject offences. On 19 September 2003 he was sentenced to imprisonment for 18 months by a magistrate in the Australian Capital Territory Magistrates Court for an offence of burglary, with execution of the sentence being suspended on his entering into a bond to be of good behaviour for three years - that is, to 19 September 2006. His commission of the subject offences on 20 August 2005 amounted to a breach of the bond. This is an aggravating factor of the offences.

14 As I have said already, on 20 August 2005 the offender committed the subject offences and on 21 August 2005 the offender was arrested, after which he was interviewed and then charged with, inter alia, the subject offences. He has been in custody, bail refused, since his arrest on 21 August 2005.

15 On 24 July 2006 the offender appeared before me in the court at Bathurst to stand his trial. He was represented by Mr Walsh of counsel, instructed by Mr Rolfe, solicitor.

16 On the offender being called for trial, Mr Walsh informed me that the offender objected to the Crown Prosecutor adducing evidence of the police search of the premises which had been occupied by the offender and in which the subject offences were alleged to have happened because the application, which had been made for the issue of the search warrant, had not been verified by oath or affirmation as required by s 11 of the Search Warrants Act.

17 Accordingly, I conducted a voir dire as to the admissibility of the police search of the premises and as to what had happened during that search, during which voir dire I received documentary material from the Crown Prosecutor - exhibits A to H and J to M - and the offender’s counsel - exhibit 1 - and I heard evidence from Detective Senior Constable McKechnie, the author of exhibit F, and submissions from the Crown Prosecutor and Mr Walsh, after which I allowed the Crown Prosecutor to adduce evidence of the police search of the premises and of what happened during that search.

18 My reasons for allowing the Crown Prosecutor to adduce evidence of the police search of the premises were that, as the application for the issue of the search warrant was an application made by telephone, as provided for by s 12 of the Search Warrants Act, the application was not required to be verified on oath or affirmation and that the requirements of s 12, as to the issue of the search warrant, had been met such that the search warrant was issued properly and was valid.

19 I mention that during his submissions Mr Walsh commented - I think in passing - that the requirements of s 15A of the Search Warrants Act may not have been dealt with but the evidence satisfied me that those requirements had been met.

20 Thus, on 25 July 2006 the offender appeared before me again to stand his trial. The Crown Prosecutor presented an indictment which charged the offender with six counts of aggravated sexual intercourse without consent, knowing the absence of consent - counts 1 to 4, 6 and 7 - one count of attempted aggravated sexual intercourse without consent, knowing the absence of consent - count 5 - and one count of aggravated indecent assault - count 8 - with, as to each count, the aggravating factor being that, at the time of the commission of the offence, the complainant was a child under the age of 16 years. Upon being arraigned the offender pleaded not guilty to each charge. A jury was empanelled. The jury heard evidence from 16 witnesses, all called by the Crown Prosecutor, and it received 18 exhibits, all presented by the Crown Prosecutor, over five days, 25th to 31 July 2006, counsel’s addresses over one day, 31 July 2006, and my summing up over one day, 1 August 2006. In the course of his submissions, the Crown Prosecutor informed the jury of the existence of an alternative charge to counts 1 to 7 of the indictment based upon a different aggravating factor, namely that, at the time of the commission of the offence, the complainant was under the authority of the offender rather than that, at the time of the commission of the offence, the complainant was a child under the age of 16 years.

21 On 3 August 2006, after deliberating over three days, the jury returned its verdicts. The jury found the offender to be guilty of counts 1 to 4 and to be not guilty of counts 5 to 8 and of the alternative charges to counts 5 to 7. After taking the jury’s verdicts, I stood over the sentencing proceedings.

22 The offences of which the jury found the offender to be guilty were: (1) Count 1 of the indictment, penetration of the complainant’s anus by one of the offender’s fingers; (2) Count 2 of the indictment, penetration of the complainant’s anus by the offender’s penis; (3) Count 3 of the indictment, penetration of the complainant’s anus by a dildo; and (4) Count 4 of the indictment, penetration of the complainant’s genitalia by the offender’s penis.

23 These offences are offences contrary to s 61J(1) of the Crimes Act, for which the prescribed penalty is imprisonment for a maximum of 20 years. They are offences that cannot be dealt with summarily. They are offences which, if they fall within the middle range of objective seriousness for offences of their kind, carry a standard non parole period of 10 years.

24 The circumstances in which the offender committed the offences are these: The offender had met the complainant once or twice before 20 August 2005. The first meeting was a few weeks before 20 August 2005. At about lunchtime on 20 August 2005 the offender came to the complainant’s father’s home. The complainant asked the defendant whether he would take her to a property outside town so she could visit her friend Bianca. Notwithstanding that he knew that the only car available to him was unusable because the car’s windscreen was broken, the offender asked the complainant’s father whether it would be all right for him to take the complainant to visit Bianca. the complainant’s father said that it would be all right. The offender and the complainant left the complainant’s father’s home and walked to 68 Ferguson Street, at where the offender obtained a pornographic DVD. Then, en route to 48A Gaskill Street, he telephoned Bianca’s mother to ask whether it was all right to bring out the complainant to play with Bianca and he was told that Bianca was not at home but was at a sleepover. However, rather than taking the complainant back to her father’s home, the offender took the complainant to 48A Gaskill Street, at where the offender was staying while the occupier was away. While they were at 48A Gaskill Street, the offender injected himself with something, which he told the complainant was “speed”, into his left arm and he watched the pornographic DVD, forcing the complainant to watch it. Then he pulled down the complainant’s pants and he penetrated the complainant’s anus with one of his fingers, then he penetrated her anus with his penis, then he penetrated her anus with a dildo and finally, after using vegetable oil to lubricate his penis, he penetrated her genitalia with his penis, after which he withdrew and ejaculated onto a pillow slip covering a pillow. The offender returned the complainant to her father’s home at about 7pm, at where he was confronted by the complainant’s father who was concerned for the complainant because, at about 6pm, he had spoken by telephone with Bianca’s mother and was told by her that the complainant had not visited Bianca that day. After arriving home, the complainant told her father and then her next door neighbour and then police what had happened during the time when she was with the offender at 48A Gaskill Street.

25 The offender’s counsel Mr Doyle, who appeared on the sentencing proceedings, submitted that the offences were unplanned, being rather spur of the moment and opportunistic. I do not agree. The conduct of the offender before the commission of the offences showed his intention to do what he did and his planning to achieve his intention.

26 The offender’s counsel submitted that the offences were not accompanied with the use of violence. I accept that the offender did not use any violence upon the complainant, albeit that he held her hand as they walked to 48A Gaskill Street. However, he led her to believe that she could not leave the premises because the front door was locked and he threatened her when telling her not to tell anybody about what had happened.

27 The offender’s counsel submitted that the complainant had not suffered any injury as a result of the offences and that, if she had suffered an injury, the injury was not substantial. Although I accept that the complainant did not suffer any physical injury, I do not agree that she did not suffer any injury. I consider that, notwithstanding that I have not been provided with any victim impact statement related to the effect of the offences upon the complainant, the likelihood is that the offences will have an adverse effect upon the sexual and emotional development of the complainant, although the adverse effect is not likely to manifest itself until she is in her late teenage years. Only time will tell whether the emotional harm will be substantial or insubstantial.

28 The offender’s counsel submitted that the offender’s mental illness and his failure to take the medication prescribed for his illness contributed towards his commission of the offences in the sense that he was not thinking clearly or rationally, resulting in his acting inappropriately. I accept, notwithstanding the opinion of Professor Greenberg, that the offender has a mental illness and that, at the time when he committed the offences, he was not taking the prescribed medication for his illness and I consider that, as he had not previously committed any offence of a sexual kind, his untreated mental illness played a part in his commission of the offences and that, therefore, his moral responsibility for the offences is reduced.

29 In determining appropriate sentences to impose upon the offender for the offences I must recognise the purposes of sentencing stated in s 3A of the Crimes (Sentencing Procedure) Act and I must take into account such of the aggravating factors referred to in s 21A(2) of the Act as are present and such of the mitigating factors referred to in subs (3) of that section as are present and any other relevant factor.

30 I consider that, having regard to what I have said about the offences and the offender, the aggravating factors present are those lettered (b) because of the threatened use of violence; (j) because the offender was subject to the bond to be of good behaviour when he committed the offences; (k) because the offender had assumed responsibility for the complainant while she was in his care; (l) because the age of the complainant, then only 10 years six months, made her vulnerable; and (n) because the offences were planned, albeit not without much sophistication, in s 21A(2) of the Act and that none of the mitigating factors lettered in subs (3) of the section is present.

31 The offender’s counsel submitted that, as the subject offences are the only offences of a sexual kind committed by the offender, as the offender’s mother will support him on his release from prison and if the offender takes the medication prescribed for his mental illness as and when required, there is a reasonable chance that the offender will be rehabilitated and will not re-offend. Although the evidence as to the offender’s rehabilitation is meagre and although the offender’s past does not instil confidence in me that he will be rehabilitated and will not re-offend, I accept that, if he accepts and complies with treatment for his mental illness, there is a reasonable chance that the offender will be rehabilitated and will not re-offend.

32 One factor not mentioned in s 21A of the Crimes (Sentencing Procedure) Act is deterrence. I accept that, in view of the offender’s mental illness, deterrence, both personal and general, is not as important in this case as it might be in another case.

33 What, then, is an appropriate sentence to impose upon the offender for each offence?

34 The offender’s counsel submitted that the offences fell toward the bottom of the middle of the range of objective seriousness for offences of their kind and he conceded that the applicable standard non parole period was the starting point, albeit that he submitted that, in view of the offender’s mental illness, the non parole period that should be fixed should be less than the standard non parole period. The Crown Prosecutor submitted that the offences fell in the high end of the range of objective seriousness for offences of their kind. It is difficult to say in any given case where a particular offence falls within the range from high to low of objective seriousness for offences of the kind but I consider, having regard to the circumstance in which the offences were committed and to the factors to which I have referred, that the offences fall within the middle of the range of objective seriousness and that, therefore, the standard non parole period is the starting point for the determination of appropriate sentences.

35 I have determined that, balancing everything that I have said about the offences and the offender, that the standard non parole period of 10 years is the appropriate starting point for the sentences, so that the appropriate sentence for each offence is imprisonment for 13 years four months.

36 As to whether the sentences should be served concurrently or consecutively or partly concurrently and partly consecutively, the offender’s counsel has submitted that, as the offences were committed by the one offender upon the one complainant over a relatively short period of time, the offences should be served concurrently and the Crown Prosecutor submitted that, to punish properly the offender for having committed four separate and distinct offences upon the one complainant, the offences should be served partly concurrently and partly consecutively. I consider that for the reasons given by the offender’s counsel, and notwithstanding the force of the Crown Prosecutor’s submission, the sentences should be served concurrently.

37 As to special circumstances, the offender’s counsel submitted that the offender’s need for appropriate long term treatment for his mental illness and his classification as a “non association” prisoner are special circumstances which justify a reduction in the non parole period with a corresponding increase in the parole period. Although I do not accept that the offender’s need for treatment for his mental illness is a special circumstance, particularly as the parole period would be three years four months if the non parole period were ten years, I accept that his classification as a “non association” prisoner will make prison life more onerous than it should be and I consider this to be a special circumstance to reduce the non parole period to eight years six months and to increase the parole period to four years 10 months.

38 Accordingly, Adam Rawdon Carlton, for each of the four offences of aggravated sexual intercourse upon a child under the age of 16 years, of which the jury has found you to be guilty, you are convicted. For each offence I sentence you to imprisonment for 13 years four months. I fix a non parole period of eight years six months, to commence from 21 August 2005 and to expire on 20 February 2014, on which date you are to be eligible to be released on parole, and a parole period of four years 10 months, to commence on 21 February 2014 and to expire on 20 December 2018. I order that each sentence be served concurrently. I order that you be subject to supervision by the New South Wales Parole Service whilst on parole during the parole period.

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