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

KELLY J: The appeal should be allowed for the reasons given by Parker J.
STANLEY J: I would allow the appeal. I agree with the reasons of Parker J and the orders he proposes.
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
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: R v DOUGLASS [2019] SASCFC 67
Case: [2019] SASCFC 67
Decision Date: 17 June 2019

CaseChat Overview and Summary

This case concerned an appeal against sentence by the appellant, R v Douglass, before the Court of Appeal. The dispute centred on the appropriateness of the sentence imposed by the District Court for sexual offences, with particular regard to the appellant's intellectual disability.

The Court of Appeal was required to determine whether the sentencing judge had erred in principle when considering the appellant's intellectual impairment and its impact on the sentence, including the non-parole period. Specifically, the court had to assess whether the principles established in *Muldrock v The Queen* regarding the sentencing of offenders with intellectual disabilities were correctly applied.

The Court of Appeal reasoned that the sentencing judge had correctly applied the principles from *Muldrock v The Queen*. This involved recognising that general deterrence is of lesser significance for an offender with an intellectual disability, as they are not an appropriate vehicle for making an example to others. Furthermore, the court acknowledged that the appellant's intellectual disability could substantially lessen his moral culpability. The non-parole period of three years and six months was considered appropriate, being less than 50% of the head sentence, and providing sufficient scope for rehabilitation and supervision.

The appeal was upheld, the sentence imposed in the District Court was set aside, and the appellant was resentenced. The Court of Appeal imposed a head sentence of five years, four months, and 24 days, with a non-parole period of two years and six months, commencing from 12 November 2018.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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 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. 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. 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). 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). 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.