R v DOUGLASS

[2019] SASCFC 67

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v DOUGLASS

[2019] SASCFC 67

Judgment of The Court of Criminal Appeal

(The Honourable Justice Kelly, The Honourable Justice Stanley and The Honourable Justice Parker)

17 June 2019

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - NATURE AND CIRCUMSTANCES OF OFFENDER - INTELLECTUALLY HANDICAPPED OFFENDER

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE

This is an appeal against the sentence imposed in the District Court following the appellant’s guilty pleas to a series of sexual offences against a child. The appellant contends that the sentence imposed is manifestly excessive, in that insufficient recognition was given to his intellectual disability.

Held, per Parker J (Kelly and Stanley JJ agreeing), upholding the appeal:

1. Section 11(1)(f) of the Sentencing Act 2017 (SA) requires that consideration be given to a defendant’s mental condition, including any cognitive impairment (at [35]).

2.  Because of the appellant’s intellectual disability, general deterrence was of lesser significance and the decision of this Court in R v D should not be given full effect (at [36]-[39]).

3.  The sentence imposed was manifestly excessive in view of the limited relevance of the sentencing principles stated in R v D, the lesser significance of general deterrence and the fact that the appellant’s intellectual disability substantially reduced his moral culpability for the offending (at [40]).

Criminal Law Consolidation Act 1935 (SA) ss 49, 56, 58; Sentencing Act 2017 (SA) ss 11, 54, 68, referred to.
Muldrock v The Queen (2011) 244 CLR 120; R v Mooney (Unreported, Court of Criminal Appeal (Vic), 21 June 1978), applied.
R v D (1997) 69 SASR 413, considered.

R v DOUGLASS
[2019] SASCFC 67

Court of Criminal Appeal:       Kelly, Stanley and Parker JJ

1. KELLY J:             The appeal should be allowed for the reasons given by Parker J.

2. STANLEY J:         I would allow the appeal.  I agree with the reasons of Parker J and the orders he proposes.

3. PARKER J:          This is an appeal against the sentence imposed in the District Court following the appellant’s guilty pleas to a series of sexual offences against a child.  For the reasons that follow, I would uphold the appeal, set aside the sentence imposed in the District Court and resentence the appellant.

   Background

4. The appellant pleaded guilty at the commencement of his trial to three counts of aggravated indecent assault (s 56 of the Criminal Law Consolidation Act 1935 (SA) (the CLCA)), two counts of unlawful sexual intercourse with a person under 14 years (s 49(1) of the CLCA), and one count of inciting or procuring an act of gross indecency (s 58(1)(b) of the CLCA). The offences occurred between September 2014 and March 2015.

5. The three counts of aggravated indecent assault included kissing and the touching of the complainant’s genital area with the appellant’s hand and penis.  That conduct occurred against a background of other indecent assaults.  The first count of unlawful sexual intercourse was an isolated act of fellatio.  The second count of unlawful sexual intercourse involved the digital penetration of the complainant’s vagina.  That was also an isolated act.  The count of procuring an act of gross indecency was constituted by the appellant causing the complainant to masturbate him.  Once again, that was an isolated event.

6. In sentencing the appellant, the Judge adopted a starting point of imprisonment for eight years.  Her Honour reduced that sentence by 10% on account of the guilty pleas by the appellant at the commencement of his trial.  Thus, the head sentence was imprisonment for seven years, two months and 13 days.  The non-parole period was fixed at three years and six months.

   The appeal

7. The appellant appeals against both the sentence and the non-parole period on the ground that they are manifestly excessive.  In essence, the appellant contends that insufficient recognition was given to his intellectual disability.  A Judge of this Court granted permission to appeal. 

   Personal circumstances

8. The appellant was aged 28 years at the time of the first offence.  He has no previous convictions.  Some time prior to the commencement of the offending the appellant had left his mother’s home for the first time to share a house with a friend he had met at work.  Subsequently, the friend invited his partner and her children to live at the house.  The complainant is one of those children. She was aged from nine to ten years when the offences occurred. The complainant has an intellectual disability, mild autism and an attention deficit disorder.  She also suffers post-traumatic effects resulting from earlier sexual abuse.

9. The sentencing Judge was provided with three reports prepared by Mr Greg Ireland, a clinical and forensic psychologist, who also gave oral evidence.  Mr Ireland reported that the appellant had attended school to the year 11 level.  He was in the special or assisted education stream.  Mr Ireland undertook psychometric testing.  The appellant’s verbal IQ fell in the range from 65 to 78, which placed him in the bottom 2% of the population, while his full scale IQ was in the range from 58 to 72.  That score was in the bottom 1%.  Mr Ireland indicated that these results “place him into the mild intellectually impaired range although he sits on the margin.”  Mr Ireland described the appellant as “a straightforward, naive, simple, and compliant man.”

10. The appellant receives a disability pension.  He supplemented his pension by working for seven years packing shelves in a supermarket.  He was made redundant following a change of management.  He later worked for nine months as a trolley pusher at a major shopping centre.  He lost this job when his employer undertook a restructure.  His subsequent efforts to find work have been unsuccessful.

11. Mr Ireland reported that the appellant lives with his mother and a brother aged 35 years, who also has an intellectual disability.  The appellant’s mother is quite ill with emphysema.

12. The appellant was attending a work skills program for two to three days each week.  His mother and others assist him with the payment of bills and shopping.  He is able to use public transport without assistance.  He informed Mr Ireland that he is a moderate consumer of alcohol and cannabis. 

13. Mr Ireland reported that, on balance, the appellant has sufficient capacity to be considered fit to instruct and plead, although it would be necessary to spend a good deal of time explaining issues and the legal implications to him.  He should be treated as a “cognitively challenged and very naive individual whose issues have led him into conduct, with limited awareness, that is considered very serious in the eyes of the law”.  Mr Ireland did not regard the appellant as particularly predatory in his conduct but naive and relatively childlike with a limited awareness.  His verbal reasoning and functioning “looks a lot like the average 9 to 9.5 year old”.

14. Two reports from the Department of Correctional Services (DCS) were provided to the Judge. The report writer suggested that the most appropriate program to address the appellant’s sexual offending would be a DCS Sexual Behaviour Clinic (SBC-Me). Other correspondence from DCS supplied to the Court indicated that this is a high intensity program designed for sexual offenders with cognitive or neuropsychological deficits. The program is conducted in prison and requires attendance for 300 hours spread over 15 months.

15. While Mr Ireland considered that the appellant was at a low risk of reoffending, the author of the DCS reports indicated that there was scope for him to score in the moderate range.  Amongst other considerations referred to by the author in support of that conclusion were the general minimising by the appellant of his offending and his blaming of the victim.  Concern was also expressed that some of the offending had occurred in the presence of the complainant’s younger brother, who had shared a bedroom with the appellant.

    Victim impact

16. As previously noted, the complainant was aged from nine to ten years at the time of the offending.  She suffers from an intellectual disability, mild autism and an attention deficit disorder.  She also suffers post-traumatic effects resulting from earlier sexual abuse.

17. Victim impact statements were provided to the Court by the complainant, her mother and her brother and also the former friend of the appellant who had invited him to share his house. They each referred to the loss of trust they have suffered, bad dreams and nightmares, anxiety and stress. The complainant’s mother has also suffered from depression, PTSD, panic attacks and anger. 

    Sentencing remarks

18. The Judge referred at some length to the contents of Mr Ireland’s reports.  Her Honour stated that because of the appellant’s intellectual disability the issue of general deterrence was of lesser significance.  Because of his intellectual disability, the decision of this Court in R v D should not be given full effect.[1]

    [1] (1997) 69 SASR 413.

19. The Judge adopted a starting point of imprisonment for eight years but reduced that by 10% on account of the appellant’s guilty plea at the commencement of the trial.  Thus, the head sentence imposed was seven years, two months and 13 days.  The Judge noted that ordinarily the appellant must be treated as a serious repeat offender.  However, having heard evidence from Mr Ireland on oath, her Honour was satisfied that the personal circumstances of the appellant were so exceptional as to outweigh the paramount consideration of the safety of the community and personal and general deterrence. In all the circumstances, it was not appropriate that he be sentenced as a serious repeat offender.[2] 

    [2]    Sentencing Act 2017 (SA) s 54(2).

20. The Judge also held that because of the appellant’s personal circumstances it was appropriate to fix a lower than usual non-parole period.  If the appellant received the appropriate intervention his prospects for rehabilitation are positive.

21. The Judge determined that the seriousness of the appellant’s offending was such that, despite the significant personal factors in favour of suspension, the sentence could not be suspended.  An immediate period of imprisonment was the only appropriate penalty.  DCS had advised that the particular needs of the appellant could be accommodated while he was in custody.  Her Honour also concluded that it was not open for her to order that the term of imprisonment be served on home detention. 

    The appellant’s submissions

22. Senior counsel for the appellant submitted that the sentencing Judge should have adopted a starting point well below eight years. Counsel referred to the circumstances in which the offending had occurred, the appellant’s intellectual disability, the likely delay in provision of appropriate rehabilitation while he was in custody and his family circumstances.

23. The prosecution had conceded that because of the appellant’s intellectual disability, general deterrence was of lesser significance and the decision in R v D should not be given full effect.  The DCS reports indicated that the appellant may not be included in the SBC-Me program until October 2020.  However, if he was living in the community he could undertake a program at Owenia House.  Other community based rehabilitation options were also available. 

24. Senior counsel observed that the starting point of eight years was two‑thirds of that suggested in R v D and subsequently adopted by the Parliament in s 68 of the Sentencing Act 2017 (SA). That standard was expressed to apply in the case of multiple offences of unlawful sexual intercourse committed over a period of time. However, the present offending involved two isolated acts of unlawful sexual intercourse against a background of offences of aggravated indecent assault. The circumstances of the offending and the disability of the appellant required a different approach to that which would apply to an offender without his level of disability. The appellant’s intellectual disability affected his level of understanding as to the seriousness of his offending and also his ability to avoid the situation in which the offending was occurring. His reduced capacity to reason about the wrongfulness of his conduct substantially lessened his moral culpability. The sentence did not properly reflect these considerations.

    The respondent’s submissions

25. Senior counsel for the respondent noted that although the offences of unlawful sexual intercourse and of gross indecency were isolated, that was not the case with the three indecent assaults. The offending and the appellant’s understanding must be assessed against the background of his other acts of kissing the complainant and touching her genital area with his hands and penis. 

26. Although the Judge had accepted that the complainant had welcomed the appellant’s attention, and some of the offending had occurred after she went to his bedroom, he was sentenced on the basis that he had initiated the offending conduct.  When interviewed, the complainant had referred to her efforts to push the appellant away, telling him to stop and being scared.  However, in some instances the complainant had apparently initiated the offending conduct. 

27. Although the attempts of the appellant to conceal his conduct were not sophisticated, he was sufficiently aware of his wrongdoing to make rudimentary attempts to conceal the offending. That included lying when suspicions were raised.

28. Senior counsel submitted that the issue is not whether the sentencing Judge gave insufficient weight to the appellant’s intellectual impairment, but whether the sentence was outside the permissible range for this offending by this offender. There is a considerable difference between a determination that general deterrence should have no significance and a determination that it was of lesser significance.  Sexual gratification was a powerful motivating feature in this type of offending. The Court must be slow to assume that general deterrence had no role when sentencing offenders of lower intellectual capacity.  A fear of imprisonment is not a difficult concept to understand. 

29. The nature of the offending, the efforts made by the appellant to avoid detection and the evidence before the Court could not justify a submission that general deterrence or retribution was of no significance.  Moreover, such a submission was not made to the sentencing Judge.

30. Mr Ireland had wrongly assumed that the complainant was responsible for initiating the offending conduct.  Mr Ireland acknowledged in cross-examination that the accuracy of his opinion and also his assessment of the appellant’s future risk level would be affected if he had preceded on incorrect assumptions. 

31. Senior counsel also submitted that the suggestion by Mr Ireland that the appellant’s offending was influenced by his lack of knowledge of the law was not supported by enquiries he had made of the appellant.  Mr Ireland had not questioned the appellant to establish his understanding of the wrongfulness of his conduct.  In fact, Mr Ireland had acknowledged that it was unlikely that the appellant did not understand the wrongfulness of causing the complainant to perform fellatio and placing his fingers into her vagina. 

32. Senior counsel contended that there was no basis for Mr Ireland’s opinion that the appellant was at a low risk of reoffending.  Mr Ireland had not asked the appellant about his sexual attraction to the appellant nor had he enquired whether his use of cannabis coincided with the offending.

33. Senior counsel submitted that the principles stated in R v D were applicable to this offending.  Thus, in ordinary circumstances, a starting point of about 12 years would have been appropriate.  The lower starting point of eight years reflected the reduced weight given to general deterrence while recognising the need for personal deterrence. 

34. The non-parole period of three years and six months was less than 50 % of the head sentence.  The Judge clearly had regard to the personal circumstances of the appellant, including his vulnerability in custody.  The non-parole period provided sufficient scope to ensure rehabilitation by allowing the appellant to have an extended period of supervision to gain the skills he needs to live independently.

    Consideration

35. Amongst the many individual factors that must be taken into account when determining a sentence for an offence, s 11(1)(f) of the Sentencing Act requires that consideration be given to a defendant’s mental condition, including any cognitive impairment. 

36. In Muldrock v The Queen, the High Court considered the principles to be applied in sentencing persons described by the Court as “mentally retarded”.[3]  The Court noted that the hierarchical classification of intellectual disability has limited utility and can sometimes be misleading.  Thus, persons without a full understanding of the disability may consider that a “mild” intellectual disability is inconsequential. 

    [3] (2011) 244 CLR 120.

37. In Muldrock, the High Court cited with approval the observation by Young CJ of the Victoria Court of Criminal Appeal in R v Mooney that:[4]

    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. 

    [4] Ibid at 138 [53] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) quoting R v Mooney (Unreported, Court of Criminal Appeal (Vic), 21 June 1978) at 5 (Young CJ).

38. The High Court also stated in Muldrock that:[5]

    The principle is well recognised.  It applies in sentencing offenders suffering from mental illness, and those with an intellectual handicap.  A question will often arise as to the causal relation, if any, between an offender’s mental illness and the commission of the offence.  Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender’s moral culpability for the offence.  The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community.

    (Footnotes omitted)

    [5] (2011) 244 CLR 120 at 139 [54] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).

39. I do not consider that the sentencing remarks of the Judge display any process error.  Her Honour approached the matter in accordance with the principles stated by the High Court in Muldrock. Her Honour correctly recognised that because of the appellant’s intellectual disability general deterrence was of lesser significance, and because of that disability the decision of this Court in R v D should not be given full effect. 

40. While there is no process error evident in the sentencing remarks, I consider that the notional head sentence of imprisonment for eight years indicates an outcome error.  In other words, the sentence was manifestly excessive in view of the limited relevance of the sentencing principles stated in R v D, the lesser significance of general deterrence and the fact that the appellant’s intellectual disability substantially reduced his moral culpability for the offending. 

1. Having regard to these matters, and also the particular circumstances of the offending, I consider that the appropriate notional starting point is a sentence of imprisonment for six years.  In recognition of the appellant’s guilty plea the notional starting point should be reduced by 10% to a sentence of imprisonment for five years, four months and 24 days.  I would set the non-parole period at two years and six months.  The sentence and non-parole period should commence from 12 November 2018 when the appellant was sentenced in the District Court. 

   Conclusion

2. I would uphold the appeal, set aside the sentence imposed in the District Court and resentence the appellant as indicated above.