R v Dalgety

[2000] WASCA 10

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   COURT OF CRIMINAL APPEAL

CITATION:   R -v- DALGETY [2000] WASCA 10

CORAM:   KENNEDY J

WALLWORK J
MURRAY J

HEARD:   9 DECEMBER 1999

DELIVERED          :   3 FEBRUARY 2000

FILE NO/S:   CCA 203 of 1999

BETWEEN:   THE QUEEN

Appellant

AND

WILLIAM DALGETY
Respondent

Catchwords:

Criminal law and procedure - Sentencing - Crown appeal - One count of sexual penetration of a child under 13 and three counts of indecent dealing with a child under 13 - Victim aged 7 - Sentences of 18 months' imprisonment suspended for 12 months in relation to the count of sexual penetration and a 12 months' intensive supervision order made with a community service requirement of 175 hours in relation to the remaining counts - 156 hours of community service performed - Respondent intellectually retarded - General deterrence should not be eliminated but should still operate, "sensibly moderated" - Although sentencing Judge in error in not having regard to general deterrence, appeal should be dismissed

Legislation:

Nil

Result:

Appeal dismissed

Representation:

Counsel:

Appellant:     Mr R E Cock QC & Mr J W M Foulsham

Respondent:     Mr P G Giudice

Solicitors:

Appellant:     State Director of Public Prosecutions

Respondent:     George Giudice

Case(s) referred to in judgment(s):

Celetano v The Queen, unreported; CCA SCt of WA; Library No 960150; 21 March 1996

Director of Public Prosecutions v Bannam (1985) 14 A Crim R 475

Griffiths v The Queen (1977) 137 CLR 293

Lowndes v The Queen (1999) 73 ALJR 1007

R v Allpass (1993) 72 A Crim R 561

R v Anderson [1981] VR 155

R v Attard (1999) 105 A Crim R 431

R v Champion (1992) 64 A Crim R 244

R v Clarke (1996) 85 A Crim R 114

R v Dumas [1988] VR 65

R v Grein [1989] WAR 178

R v Halliday, unreported; CCA SCt of WA; Library No 980143; 3 April 1998

R v Leucus (1995) 78 A Crim R 40

R v Roadley (1990) 51 A Crim R 336

R v Scognamiglio (1991) 56 A Crim R 81

R v Tsiaras [1996] 1 VR 398

Case(s) also cited:

Dao v R, unreported; CCA SCt of WA; Library No 990015; 22 January 1999

Dempsey v The Queen, unreported; CCA SCt of WA; Library No 960059; 9 February 1996

Griffiths v R (1977) 15 ALR 1

R v Allpass (1993) 72 A Crim R 561

R v Causby [1984] Tas R 54

R v Clarke (1996) 85 A Crim R 114

R v Dickson, unreported; CCA SCt of WA; Library No 990203; 23 April 1999

R v Everett (1994) 74 A Crim R 241

R v GP (1997) 18 WAR 196

R v Halliday, unreported; CCA SCt of WA; Library No 980143; 3 April 1998

R v Herring, unreported; CCA SCt of WA; Library No 940519; 22 September 1994

R v Liddington (1997) 18 WAR 394

R v Lonesbrough, unreported; CCA SCt of WA; Library No 950421; 15 August 1995

R v Osenkowski (1982) 5 A Crim R 394

R v Richards [1999] WASCA 105

R v Tait (1979) 46 FLR 386

R v Wilson, unreported; CCA SCt of WA; Library No 950258; 26 March 1995

1. KENNEDY J:  The respondent was presented in the District Court of Western Australia on an indictment containing four counts, as follows -

   1.Between 1 April 1997 and 31 August 1997, at Dongara, the respondent indecently dealt with J, a child under the age of 13 years, by touching her vaginal area.

   2.On the same unknown date and at the same place, the respondent indecently dealt with J, a child under the age of 13 years, by placing her hand on his penis.

   3.On the same unknown date and at the same place, the respondent sexually penetrated J, a child under the age of 13 years, by inserting his penis in her mouth.

   4.On another unknown date between 1 April 1997 and 31 August 1997, at Dongara, the respondent indecently dealt with J, a child under the age of 13 years, by touching her vaginal area.

2. The respondent pleaded not guilty to each of the counts; but, after the trial had proceeded to the stage where the respondent had completed his own evidence, he changed his pleas to guilty on each of the counts, and judgments of conviction were recorded accordingly.

3. The respondent was a friend of the complainant's family.  During the football season, he travelled from Geraldton, where he resided with his elderly parents, to Dongara in order to play football.  He was accustomed then to staying with the complainant's family over the weekend.  The complainant was at the relevant time aged seven years.  As a result of a complaint made by her, the respondent was interviewed by police officers.  Initially, he denied the allegations which had been made against him, but he then made certain admissions.  An obvious difficulty which faced the learned sentencing Judge was the fact that the only evidence before him came from the police interview, in the course of which, although ultimately he admitted the offences, the respondent did not provide very much detail as to what had occurred.  His own evidence in the trial was extremely vague and frequently interspersed with claims that he could not remember.  In the end, the complainant had not been accepted as being a competent witness to give evidence in the trial.  The first three offences were committed on one occasion and the remaining offence on a subsequent occasion.  All of them took place in the complainant's bedroom.  There was no suggestion of any force having been used at any time.  The first count may well have involved a touching outside the complainant's clothing.  The second count involved the respondent's taking his penis out of his shorts and placing the complainant's hand on it.  It was not then erect.  As to the third count, the respondent suggested that the complainant had herself put his penis in her mouth, his penis then being partially erect.  Even if the complainant had done what the respondent suggested, it would not have diminished the criminality of his conduct.

4. At the time of sentencing, the respondent was 43 years of age.  He was the eighth eldest of 16 siblings, three of whom are now deceased.  He has never married or had children, but he has a widely extended family in the Geraldton area, amongst whom there are many small children to whom he has always related well and without any known cause for concern.  His previous convictions are of little consequence.  He has recorded against him a conviction for damage some 25 years ago, for which he was fined $30, an offence under the Police Act some 22 years ago, for which he had been fined $20, and Traffic Act matters in 1979, 1981 and 1987.  He has had no convictions of any kind since 1987.  His Honour indicated that the respondent was entitled to some credit for his very late pleas of guilty.  He regarded the respondent's getting himself drunk as the prime factor in his committing the offences.  The author of the pre‑sentence report reached the conclusion that the respondent's consumption of alcohol fell into the hazardous category.  This does not, of course, provide any excuse for his actions. 

5. The respondent has had regular part-time and casual employment since his school days.  For the past five years he has worked in the garden services section of the CDP Aboriginal Development programme in Geraldton.  His chief recreational activity up to 1999 was football.

6. Psychometric testing by a clinical psychologist has revealed that the respondent has general and significant deficits in the verbal and performance domain.  He is considered to be in the "extremely low" range in the verbal performance and full scale spheres, scoring at a range equal to or better than 1 per cent of his age‑related peers, with 99 per cent being expected to score better than he had.  Another psychological report indicated that the respondent had an intellectual level in the "mentally retarded" range, representing the lowest 2 per cent of the sample from which the categories have been developed.  He was described in this report as functioning well below the level considered normal.  This intellectual level results in poor ability to abstract, difficulty with sequential thought, and ease of confusion. 

7. The respondent did not attempt to minimise his offending behaviour in any way.  Importantly, he admitted to understanding that sexual behaviour with children is unacceptable; but his conceptualisation of why it is unacceptable was said to be limited.  The primary problem in relation to the respondent's treatment was identified as being his limited cognitive ability.

8. The respondent's risk of re‑offending was assessed as being low to medium, on the basis that his offences were extra‑familial, that there was only one victim, that there was no reported violence used in the commission of the offence and that there was no reported history of violence or sexual offending.  The present offences appear to have been opportunistic rather than predatory.  According to the report, this fact, and the fact that the respondent participated in the assessment process to the best of his ability, that his social network remained strong and that he has continued prospects of work in the community, augured well for him in the future.  On the other hand, he has a longstanding problem relating to alcohol abuse, he has possible access to a number of young children, due to his large extended family, and his offences have progressed in seriousness from touching to penetration.  These were, the writer of the report indicated, factors which needed to be taken into account.

9. In summarising the position, the clinical psychologist indicated that, for a person with such cognitive deficits as the respondent had, he has achieved a good level of functioning in the community and he has held down employment for approximately five years.  A lengthy prison sentence would have the possibility of reducing his adaptive skills and further exacerbating his deficit.  The psychologist favoured his being reunited with his family in Geraldton, either through the Greenough Regional Prison, or in the community, at the earliest opportunity.  The respondent was considered suitable for individual counselling specifically tailored to his cognitive ability and level of understanding.

10. A psychiatric report before the learned sentencing Judge noted that, when the respondent was 17 years of age, he was in a serious motor vehicle accident which had resulted in his being brought from Meekatharra to Perth.  The hospital admission summary indicates that he had sustained a head injury, losing consciousness for several hours, but without any skull fracture or neurological deficit.  There was nothing to indicate that the accident was the source of any subsequent problem in relation to the respondent's cognition.  The psychiatrist found no formal psychiatric illness, nor any history suggesting such an illness.  He found no clear memory deficit.  The respondent did, however, have a below average IQ and often struggled to comprehend questions which the psychiatrist would have expected could have been dealt with fairly readily by someone with average intelligence.

11. The learned sentencing Judge was conscious of the fact that the offence constituted by the sexual penetration was extremely serious and he observed that he could not recall any occasion on which he had not imposed an immediate sentence of imprisonment in relation to such an offence.  He also noted that it was clear from the decisions of this Court that, ordinarily, the only appropriate sentence for such an offence, because of its seriousness, is a sentence of immediate imprisonment.  His Honour placed the respondent in the category of a person operating under a mental disorder, having regard to the fact that he was in the bottom 1 per cent of the community in terms of his mental functioning.  He expressed the view that, with persons operating under such a disability, general deterrence does not feature as one of the sentencing aims.  He regarded rehabilitation as plainly an important matter in the case of the respondent, but he indicated that this could be addressed equally as well in the community as it could in prison.  So far as personal deterrence was concerned, his Honour noted the respondent's prior good record and the fact that his over‑consumption of alcohol, coupled with his limited intellectual capacity, seemed to have been the prime causes of his offending.  If that aspect were to be addressed, then, together with the sex offender programme, it seemed to his Honour that the likelihood of his re‑offending would be quite low.  He also noted that the respondent had already spent 21 days in custody.

12. Having given consideration to all these matters, his Honour concluded that a sentence of imprisonment ought to be imposed, but that it should be suspended.  In relation to count 3, he imposed a sentence of 18 months' imprisonment, which he suspended for a period of 12 months.  In relation to the remaining counts, his Honour placed the respondent on an intensive supervision order for a period of 12 months.  He also imposed a programme requirement that the respondent should consult doctors and social workers and undergo any treatment or counselling he was directed to undergo.  In addition, he imposed a community service requirement of 175 hours' community service work and ordered that the respondent should undertake at least 12 hours of that work in any seven day period.

13. The Crown has appealed against the sentencing Judge's disposition in respect of the four offences.  The first ground of appeal was that his Honour erred in suspending the period of imprisonment.  The particulars provided were as follows:

    (a)The sentences failed adequately to reflect the seriousness of these offences and the circumstances in which they were committed, including

    (i)the disparity in age between the complainant and the respondent;

    (ii)the fact that the offences occurred on two separate dates;

    (iii)the breach of trust involved in the commission of the offences; and

    (iv)the respondent's extremely late plea of guilty.

    (b)The sentences failed sufficiently to take account of the need for deterrence in that

    (i)undue emphasis was placed on factors personal to the respondent, particularly his mental disability;

    (ii)the learned sentencing Judge erred in finding that general deterrence was not one of the relevant sentencing factors. 

14. The second ground of appeal was that the sentences were so inadequate as to manifest error in the exercise of the sentencing discretion.

15. The principles associated with Crown appeals against sentence are well established - see R v Grein [1989] WAR 178, at 180. In Lowndes v The Queen (1999) 73 ALJR 1007, at 1010 in a joint judgment, the High Court, in relation to s 89 and s 98 of the Sentencing Act 1995, which, it was accepted, involved the making of discretionary judgments, said:

    "The principles according to which an appellate court may interfere with such a discretionary judgment by a sentencing judge are well established.  In their application to a Crown appeal against sentence, they were summarised in R v Allpass (1993) 72 A Crim R 541 and R v Clarke [1996] 2 VR 520. Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice."

16. Another aspect of Crown appeals in the context of criminal proceedings was considered in Griffiths v The Queen (1977) 137 CLR 293, in which, at 310, Barwick CJ said:

    "On my view of the proper meaning of s 5D [which conferred upon the New South Wales Attorney General a right of appeal against any sentence pronounced by the Supreme Court or the District Court in its criminal jurisdiction] in the context of the Criminal Appeal Act, an appeal by the Attorney General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons."

    This passage was cited with approval in both R v Allpass (1993) 72 A Crim R 561 at 562 and in R v Clarke (1996) 85 A Crim R 114 at 116, which were both referred to in Lowndes' case (supra).  In the former case, at 562 ‑ 563, the Court of Criminal Appeal in New South Wales said, "An appellate court has an overriding discretion which may lead it to decline to intervene, even if it comes to the conclusion that error has been shown in the original sentencing process".  It should be noted, however, that the High Court in Lowndes' case did not refer to s 689(3) of the Criminal Code which lays down the manner in which appeals against sentence are to be dealt with by this Court.

17. As his Honour recognised, it is indeed a rare case in which a conviction for sexual penetration of a young child should not be visited with an immediate sentence of imprisonment; but he went on to express the view that it was not appropriate in this case to treat general deterrence as one of the relevant sentencing factors because the respondent was operating under a mental disorder and that it was considered in Celetano v The Queen, unreported; CCA SCt of WA; Library No 960150; 21 March 1996 that the reason that general deterrence does not feature as one of the sentencing aims is that persons who operate under such disabilities are not regarded as appropriate objects to be made examples of.  His Honour nevertheless appeared to express the view that there was a need for retribution.  Nor did he reject personal deterrence, as distinct from general deterrence, as a material consideration.  He did not advert to the fact that there was no evidence before him to warrant any conclusion that the respondent was not aware of what he was doing, that he was not aware that it was wrong, or that he was in any way not responsible for what he did – see Director of Public Prosecutions v Bannam (1985) 14 A Crim R 475 per Young CJ at 478. The fact that the respondent was intellectually impaired could have been recognised by imposing a lesser sentence than would have been imposed had the respondent been a person of more normal intelligence.

18. With respect, the facts in Celetano's case were clearly different from those in the present case.  Celetano suffered from a mental disease in the form of paranoid schizophrenia.  That disease, it was accepted, although it did not deprive him of criminal responsibility for his actions, had resulted in his impaired motivation, volition and judgment.  In this case, there is no significant evidence of the relevant effect upon the respondent of his being mentally retarded.  There is certainly no evidence of any mental disease or other disorder.  There is, in fact, very little evidence of any impact which the respondent's intellectual impairment had on his daily life.

19. The proper approach to this matter is to be found in a number of authorities decided in Victoria and in New South Wales – see R v Anderson [1981] VR 155 per Young CJ and Jenkinson J at 160 – 161; R v Dumas [1988] VR 65 per Young CJ, Murray and McGarvie JJ at 72; R v Roadley (1990) 51 A Crim R 336 per Crockett, O'Bryan and McDonald JJ at 346 – 347; R v Scognamiglio (1991) 56 A Crim R 81 per Grove J at 85 – 86; and R v Champion (1992) 64 A Crim R 244.

20. In the last mentioned case, Kirby P considered the relevance of deterrence in the case of a person with an intellectual handicap.  At 254, his Honour said:

    "In Letteri [unreported, Court of Criminal Appeal, NSW, 18 March 1992], Badgery‑Parker J (with the concurrence of Gleeson CJ and Sheller JA) said (at p 14): 

    'The principle … is clear enough.  It is correctly stated as follows – that whereas general deterrence is a relevant consideration in every sentencing exercise, it is a consideration to which less weight should be given in the case of an offender suffering from a mental disorder or severe intellectual handicap.  In an extreme case, the proper application of this principle may produce the result [that] considerations of general deterrence are totally outweighed by other factors.'

    The reason for this variation on the usual theme is not hard to find.  It is imputed to the general community that it will understand that a person with the intellectual capacities of a child will need to be deterred but may need special attention in order that the deterrence will be effective.  Moreover, the full understanding of the authority and requirements of the law, which may be attributed to the ordinary individual of adult intellectual capacities, cannot be expected of a person who, although adult in bodily form, retains the intellectual capacities of a child.  Because the constraints which may be demanded of a person with ordinary adult intellectual capacities may not operate, or operate as effectively, in the case of a person with significant mental handicaps, the community (reflected by the Judges) applies to such people the principles of general deterrence in a way that is sensibly moderated to the particular circumstances of their case.  General deterrence still operates:  see Roadley (at 343). It is in place for the protection of the community and the victims of offences which the community rightly takes most seriously. But as that principle falls upon a person such as this applicant, it is necessarily a consideration to which less weight can, and therefore should, be given."

    See further R v Tsiaras [1996] 1 VR 398 per Charles, Callaway JJA and Vincent AJA at 400; R v Clarke (supra) per Charles JA at 116 – 118.

1. In R v Attard (1999) 105 A Crim R 431 at 434, Charles JA cited with approval the passage in the judgment of Kirby P just quoted, which, he noted, had been approved in Victoria. He went on to indicate that, whether in a particular case, a psychiatric condition should reduce or eliminate general deterrence as an appropriate purpose in sentencing will depend on the nature and severity of its symptoms and its effect on the mental capacity of the offender.

2. In my opinion, the learned sentencing Judge erred in eliminating general deterrence as a factor in the sentences which he imposed.  In my opinion, the case called for an immediate sentence of imprisonment.  However, in the time which has elapsed between his sentencing and the hearing of the Crown appeal, he has completed 156 of the 175 hours of community service which he was ordered to perform.  No doubt, by this time, he will have completed the balance of his service.  In the circumstances, having regard to the approach which has been accepted in relation to double jeopardy, I am of the view that the appeal should be dismissed.

1. WALLWORK J:  I agree that the appeal should be dismissed.

2. Kennedy J has set out in his reasons the facts of the matter and the relevant law to be applied.

3. As Kennedy J says in his reasons:

   "Another psychological report indicated that the respondent had an intellectual level in the 'mentally retarded' range, representing the lowest 2 per cent of the sample from which the categories have been developed.  He was described in this report as functioning well below the level considered normal.  This intellectual level results in poor ability to abstract, difficulty with sequential thought, and ease of confusion."

4. In my view and in accord with the decided cases, the learned sentencing Judge in this case was correct in coming to the conclusion that an immediate sentence of imprisonment was not required.  The past history of the respondent and the level of his intellect justified this approach.

5. In my opinion no error has been demonstrated in the reasons of the learned sentencing Judge.

6. MURRAY J:  I respectfully agree with Kennedy J in his identification of the error made by the learned sentencing Judge.  But this is a Crown appeal, involving the well‑known element of double jeopardy: R v Leucus (1995) 78 A Crim R 40, 51. I agree that the appeal should be dismissed.

7. The Crown did not appeal upon the basis that different or more severe non‑custodial orders should have been made.  The appeal was directed to the proposition that for the offences in question the only appropriate sentences were of imprisonment to be immediately served.

8. In the particular circumstances in which these offences were committed and having regard to the established intellectual capacity and the history of the respondent, I am not persuaded that imprisonment was inevitable: cf R v Halliday, unreported; CCA SCt of WA; Library No 980143; 3 April 1998, where the relevance of intellectual defecit to the sentencing process was discussed in detail by Murray J, with whom Franklyn and Anderson JJ agreed.