R v Finlayson
[2008] VSCA 50
•26 March 2008
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 45 of 2008
| THE QUEEN |
| V |
| JOHN FINLAYSON |
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JUDGES: | BUCHANAN, VINCENT and ASHLEY JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 26 March 2008 | |
DATE OF JUDGMENT: | 26 March 2008 | |
MEDIUM NEUTRAL CITATION: | [2008] VSCA 50 | |
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Criminal law – Sentence – Indecent assaults – Offences committed more than 30 years ago – Offender sustained brain injury – Neuropsychologist’s opinion that the brain injury played a significant role in the offending rejected by sentencing judge – Sentencing judge failed to alert counsel that she might reject the neuropsychologist’s opinion – Offender re-sentenced to two years’ imprisonment – Unserved portion of the sentence wholly suspended.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J D McArdle QC | Ms A Cannon, Solicitor for Public Prosecutions |
| For the Applicant | Mr S R Johns | Victoria Legal Aid |
BUCHANAN JA:
The applicant was arraigned in the County Court and pleaded guilty to a presentment containing two counts of indecent assault. After a plea, the applicant was sentenced to be imprisoned for a term of 18 months on each count. It was directed that six months of the sentence on the second count be served cumulatively upon the sentence on the first count, creating a total effective sentence of two years' imprisonment. The sentencing judge directed that 21 months of the sentence be suspended for a period of 21 months.
The victim of the offences was an apprentice jockey at stables in Caulfield at which the applicant was employed as a strapper. The victim was living at the stables. The applicant also lived in the area. The offences occurred between 1 April 1974 and 31 August 1975, when the victim was aged between 15 and 17 years and the applicant was in his early twenties. In the stables at which the victim was employed, there was a practice of subjecting apprentices to degrading assaults. One of the practices was called greasing. The victim was held down, stripped naked and painted with hoof oil, a thick black grease. Sometimes the assailants went further.
On the first occasion the subject matter of the charges against the applicant, the victim was held down by the applicant and another man, while a third pushed his fingers into the victim's anus. On the second occasion the same three men were present, and the neck of a beer bottle was inserted into the victim's anus. The victim could not say which of the three men inserted the bottle. The sentencing judge accepted that the applicant was not the instigator of the assaults, but rather an enthusiastic follower.
The applicant commenced an apprenticeship as a jockey at the age of 14 years. His career as a jockey ended in 1972, when he was seriously injured in a fall from a racehorse. The applicant sustained head and neck injuries and a broken leg. The applicant's skull was fractured and he was unconscious for six days. After the accident the applicant was unable to work for two years. He then worked as a strapper until about 1991, when he suffered a back injury. The applicant has not worked since and survives on an invalid pension. For the last 16 years the applicant has lived in a rooming house at Grafton. The sentencing judge found that the applicant led 'a quiet and harmless life in a relatively small circle'. He has had two short-lived marriages. There were no children of the marriages.
After the accident, the applicant began to drink heavily, and apparently alcohol played a part in the offences. The victim, in a statement that was tendered in the course of the plea, said:
Mr Finlayson had a serious problem with alcohol. The offences mostly occurred following drinking sessions at a local hotel, and I acknowledge that his judgment might have been impaired by this. An immature, weak man, with far too much regard for his standing among his drinking buddies, who allowed himself to be used as muscle, for a laugh. A failed apprentice jockey himself who seemed to care nothing for the progressive damage he helped inflict upon my own career, and that of others. All this, but a man who was clearly damaged himself, and who was not without redeeming qualities, as evidenced, I submit, by his guilty plea in this matter.
A report by Professor Reid, a clinical neuropsychologist, was tendered in the course of the plea. Professor Reid reported that the brain injury sustained by the applicant in 1972 caused marked deficits in his memory and in frontal executive functions, with evidence of organic behaviour and personality and mood change consistent with frontal lobe damage. The psychologist stated:
With regard to the alleged offence, on the balance of probability, I am of the opinion that Mr Finlayson's brain injury and the damage caused by that brain injury played a significant part in his behaviour at the time of the alleged offence.
It is only necessary to refer to one of the grounds of the application, which is as follows:
The learned sentencing judge erred in having determined that she did not accept Professor Reid's opinion that the applicant's brain injury contributed to the commission of the offences, in failing to give counsel for the applicant an opportunity to address her or to call further evidence on the issue.
In the course of the plea, counsel for the applicant drew attention to Professor Reid's opinion of the relationship between the brain injury and the commission of the offences and sought to rely upon the principles enunciated in R v Verdins[1]. The prosecutor did not make any submission to the contrary. In the course of her sentencing remarks, her Honour said that she did not accept that the brain injury sustained by the applicant caused or contributed to the commission of the offences. Her Honour did not put counsel on notice that she was minded not to accept Professor Reid's opinion.
[1](2007) 16 VR 269.
In this Court, counsel for the respondent accepted, correctly in my view, that, in failing to alert counsel to the need to address the point, the sentencing judge erred.[2] For the reasons which I will set out, I consider that a different sentence should have been passed. Accordingly, the application for leave to appeal should be granted and the appellant re-sentenced by this Court.
[2]See R v Young (1996) 85 A Crim R 104; Pantorno v R (1989) 166 CLR 466, 482.
The crimes committed by the applicant represented cowardly bullying, forcibly subjecting a vulnerable boy to humiliating, degrading and frightening treatment which was likely to and has produced long-term ill effects. Such conduct normally calls for punishment which denounces it and acts as a general deterrent. On the other hand, in the present case there were powerful mitigating factors. The applicant pleaded guilty. He had no prior convictions and a subsequent conviction in 1978 for a minor assault, which is hardly relevant. The applicant did not play a leading role in the assaults upon the victim.
I see no reason to doubt the opinion of Professor Reid that the applicant's brain injury played a significant role in the commission of the offences. In a further report dated 25 March 2008, Professor Reid has enlarged upon his opinion that there was a causal relationship between the applicant's brain injury and the commission of the offences. He said:
Studies have further shown that individuals with frontal lobe damage, especially for those with extensive or bilateral injuries, develop problems with impulsivity, reduced insight and foresight, low frustration tolerance, aggressive behaviour, lack of empathy, emotional lability or apathy, limited motivation and poor reasoning and judgment. As such, I am of the opinion the problems Mr Finlayson clearly demonstrates date from the time of his brain injury.
The applicant's mental state rendered the applicant an inappropriate vehicle for general deterrence. There is no need in this case for a sentence to deter the applicant from further offending. The delay in bringing the charges was extreme, and in the meantime the applicant has been rehabilitated. He suffers from mental and physical ill health which is likely to render prison more onerous to him. The applicant has been in prison for some 52 days. I would re-affirm the sentences imposed below and the order for cumulation, but suspend what now remains of the sentence for a period of two years.
In my opinion, this brain damaged man should not have been incarcerated for offences committed more than 30 years ago. The hearing of the appeal has been accelerated, but the applicant has necessarily served a period of imprisonment. To reduce the period of suspension of the sentence by such a short time on one view might be seen as fiddling, but it is the only course open to this Court to ameliorate the position.
VINCENT JA:
I agree.
ASHLEY JA:
I also agree.
I would add this. The concession having been rightly made by the Crown that ground 2 was made out, it has been unnecessary to consider the language by which the sentencing judge rejected Professor Reid's opinion. On two occasions, her Honour expressed herself as being ‘not convinced’ of his conclusion. If that was no mere slip, then it was a wrong way of considering evidence put in mitigation. I mention this only so that, if it was a slip in language twice repeated, it is not repeated so as to cause a problem on some future occasion.
BUCHANAN JA:
The orders of the Court will be as follows:
1. The application for leave to appeal against sentence is granted.
2.The appeal is treated as instituted and heard instanter and is allowed.
3.The sentence passed below is set aside and in lieu thereof the appellant is sentenced to be imprisoned for a term of 18 months on each of counts 1 and 2. Six months of the sentence imposed in respect of count 2 is to be served cumulatively upon the sentence imposed in respect of count 1. The total effective sentence is two years' imprisonment.
4.The whole of the sentence save for the period already served is suspended for a period of two years.
5.The period of 52 days is to be reckoned as already served under the sentence and it is ordered that the fact that that declaration has been made and its details be entered in the records of the Court.
Mr Finlayson, you have already been, I think, on a prior occasion told by the sentencing judge in the County Court what the consequences are of suspending for a period of time part of a sentence, but I am obliged also to repeat what she would have told you. That is that if you commit another offence punishable by a period of imprisonment during the period of suspension, which is two years from this date, you will be liable for further proceedings to be taken against you and you potentially may spend the remainder of the suspended period in prison. Do you understand that?
APPELLANT:
Yes, I do.
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