R v Gammon

[2017] SASCFC 84

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v GAMMON

[2017] SASCFC 84

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis and The Honourable Justice Nicholson)

20 July 2017

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - EFFECT OF SENTENCE OF IMPRISONMENT ON PRISONER

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - FRESH EVIDENCE AND EVENTS OCCURRING AFTER SENTENCE

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE

Application for permission to appeal against sentence.

The applicant and victim met at a mission in New South Wales in 1989 after the victim ran away from home. They travelled to Adelaide on the false premise that the applicant had somewhere to stay. The victim first told the applicant, who was 27, that he was 16 but later told him that he was 13 years old. While they stayed at a hotel in the city the applicant engaged in two counts of unlawful sexual intercourse in the course of indecent touching. When the applicant was arrested, he admitted to the charges. He was granted bail but absconded. In March 2016 the applicant as extradited to South Australia.

The applicant has a range of mental health issues, including social phobia and obsessive compulsive disorder for which he receives medication. The applicant has also developed leg ulcers which require specialised treatment.

After pleading guilty, the applicant was sentenced in the District Court to two years and four months with a non-parole period of one year fixed.  It is agreed that the sentencing Judge must have started with a sentence of approximately three years and four months.  The applicant appeals that sentence on the grounds that it is manifestly excessive; the Judge erred in failing to suspend the sentence; and, that the Judge erred in proceeding on the basis that the applicant’s medical and psychological difficulties could be dealt with in prison.

The applicant seeks to adduce fresh evidence including an affidavit, and a report of a psychologist. The respondent seeks to produce a report by the prison medical officer employed where the applicant has been held in custody.

Held per the Court (Kourakis CJ and Nicholson J), refusing permission to appeal:

1.      The offending occurred in the context of a relationship of trust and the victim being particularly vulnerable and a great distance from home. The sentence is not manifestly excessive (at [17], [19]).

2.      The Judge’s decision to refuse to suspend the sentence is not attended by any demonstrable error (at [18]).

3.      On an appeal against sentence the further evidence must at the very least substantially alter the relative weight of the material before the sentencing Judge. It is not arguable that the further evidence should be received or that it would lead to a conclusion that the sentence is manifestly excessive (at [26]-[28]).

Criminal Law Consolidation Act 1935 (SA) s 49, referred to.
R v C (2004) 89 SASR 270, applied.

R v GAMMON
[2017] SASCFC 84

Court of Criminal Appeal:  Kourakis CJ and Nicholson JJ

1. KOURAKIS CJ:       This is an application for permission to appeal against a sentence imposed in the District Court on two counts of unlawful sexual intercourse.[1] The application for permission has been renewed in the Full Court after the refusal of permission by a single Judge of this Court on 1 June 2017. When the renewed application was called on, I made a determination pursuant to s 357(3) of the Criminal Law Consolidation Act 1935 (SA) that the Full Court be constituted of only two Judges.

   [1] Contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA).

2. The applicant, Mr Gammon, pleaded guilty to two counts of unlawful sexual intercourse in the Magistrates Court and was committed for sentence to the District Court.  The timing of his guilty plea entitled him to a reduction of sentence of up to 30 per cent.  The Judge indicated in his reasons that he applied that reduction in full and that he also took into account 22 days which Mr Gammon had spent in custody after his extradition from Tasmania and prior to his release on bail.  The Judge imposed a sentence of two years and four months with a non-parole period of one year to commence from the date of his sentencing on 9 March 2017.  It is common ground that the starting point selected by the Judge before the aforementioned reductions was approximately three years and four months.

3. Mr Gammon is 54 years of age.  He committed the offences between 17 October 1989 and 30 October 1989 when he was 27 years of age.  The victim, C, was then a 13 year old boy whom Mr Gammon befriended at the Newtown Mission in New South Wales where C was living after running away from home.  Mr Gammon enticed his young victim to Adelaide by promising him a safe and secure home in a house which Mr Gammon kept in Adelaide.  Over a period of about one month they travelled together to Adelaide.  In Adelaide, instead of providing C with a safe home, Mr Gammon took up a room in an inner-city hotel.  It was in that hotel room that the two counts of unlawful sexual intercourse were committed.  The prosecuting counsel informed the Judge, without objection from Mr Gammon’s counsel, that the offences were not isolated but committed in the context of other indecent touching over the two week period they stayed together in the hotel.  The Judge expressly stated that he would sentence Mr Gammon only on the offences to which he had pleaded guilty.

4. In submissions Mr Gammon’s counsel informed the Judge that he denied that he lured the victim to South Australia intending to sexually assault him.  However Mr Gammon admitted that he was told before their arrival in Adelaide that C was only 13.  The Judge, by reference to C’s victim impact statement provided to him, observed that the offending ‘has had a profound effect upon [C’s] life encompassing his own feelings and emotions, his education and relationships’.

5. Mr Gammon admitted to the offending when he was arrested at the hotel on 30 October 1989.  He was granted bail but absconded, and a bench warrant was issued 18 January 1990.  On 2 March 2016 Mr Gammon was extradited from Tasmania to face the charges in South Australia.

6. Mr Gammon was convicted in the 1980’s for dishonesty but has no convictions for sexual offending.  His only offending since he absconded has been for minor assaults and street offences in 2007 and 2016.  Mr Gammon made a statement in the course of the sentencing submissions expressing remorse for his offending. 

7. The Judge was told that Mr Gammon was born in 1962 in New South Wales.  He was placed for adoption at birth by his mother who was of Aboriginal heritage.  His adoptive parents moved to Tasmania when he was about three years of age.  Sadly his adoptive mother died unexpectedly of a heart attack when Mr Gammon was eight.  His adoptive father remarried his step mother, Ms Helena Gammon, who provided a supportive letter for the purposes of sentencing. 

8. Mr Gammon was afflicted by behavioural difficulties from an early age.  He found school difficult and was mostly educated in a special school.  Mr Gammon can read but has difficulties with writing.  After leaving school he ‘fell in with a bad crowd’ during which time he committed the dishonesty offences to which I have referred and was sentenced to  imprisonment for them.  The Judge was informed that Mr Gammon was traumatised by his prison experiences.  After serving his sentences for those offences, Mr Gammon travelled throughout mainland Australia and it was in the course of those travels that he found himself in New South Wales where he met C. 

9. The Judge received a report from Mr Gammon’s general practitioner in Tasmania.  The report described Mr Gammon’s main symptoms as anxiety arising from social phobia and an obsessive compulsive disorder.  The report also referred to a family history of autism spectrum disorder.  The report disclosed that Mr Gammon was in a close and supportive relationship with another man, Mr Kent, who was his carer.  Mr Kent also provided a letter of support for the purposes of sentencing.  A medication summary received by the Judge showed that Mr Gammon was taking the medication Aropax for his obsessive compulsive disorder and Alprazolam, a benzodiazepine, to treat anxiety.  It also showed that Mr Gammon was prescribed an ointment for topical application.

10. A summary of medical treatment provided by the Royal Hobart Hospital received by the Judge showed that Mr Gammon had suffered from leg ulcers and was undergoing compression therapy for bilateral lymphodema of his legs.  The compression dressings require regular changing. 

11. A psychiatric report provided to the sentencing Judge referred to previous diagnoses of schizophrenia and autism but concluded that:

    ·Mr Gammon suffered obsessive compulsive symptoms of a quasi autistic nature but that the preferred diagnosis was mixed personality disorder, both antisocial and obsessional.

    ·The psychiatric condition did not significantly affect his capacity to appreciate the wrongness of his conduct.

    ·He had a low to moderate risk of reoffending.

    ·His socialisation and poor mobility would make his life in prison difficult.

12. The report also referred to Mr Gammon suffering from flashbacks and other symptoms of anxiety and depression after his imprisonment in Tasmania.  The report records that Mr Gammon attributed his decision to go ‘walkabout’ on his release to an attempt to ‘block the trauma from his consciousness’.

13. The Judge was told that in the period when Mr Gammon was in custody after his extradition, he was denied his preferred medication for his panic attacks.  Counsel asked the Judge to take into account the poor state of Mr Gammon’s current physical and mental health.

14. In his sentencing remarks, the Judge expressly referred in his sentencing remarks to the submissions made on behalf of Mr Gammon about his antecedent history.  He referred to the support given to Mr Gammon by his carer and friend Mr Kent.  With respect to Mr Gammon’s medical conditions, the Judge remarked:

    Your medical, psychiatric and physical problems have been referred to at length in the report and notes of Dr Gardener and the recent treatment for lymphedema, cellulitis and ulceration of your legs.  You need specifically fitted compression bandages which need to be changed by nursing staff twice a week.  The conditions affect your mobility and also require nursing assistance with showering.

    I have also taken into account Dr Begg’s report.  It is clear you have significant personality problems but these do not appear to have any bearing upon your offending on the material available to him and you do not appear to meet the diagnostic criteria for autism spectrum disorder.

15. The applicant seeks permission to appeal on the grounds that:

    ·the sentence was manifestly excessive;

    ·the Judge erred in failing to suspend the sentence;

    ·the Judge erred in proceeding on the basis that the medical and psychological difficulties of the applicant could adequately be dealt with in prison.

16. The first two grounds of appeal can be dealt with shortly. 

17. The sentence is a relatively moderate one for two, not isolated, offences of unlawful sexual intercourse committed on a child of C’s young age.  The offences are relatively serious having regard to C’s young age and the circumstance that they were committed over a two weeks period in which C had little choice but to remain with Mr Gammon.  The offending is made all the more serious by the exploitation of C’s additional vulnerability in having been enticed a long way from his family and his home State where he might more easily have accessed support services.  In his victim impact statement, C characterises Mr Gammon’s conduct as robbing him of an opportunity of a more secure and supportive placement.  I would not accept, and the Judge need not have accepted in the absence of sworn evidence, the applicant’s protestation that he did not have sexual offending in mind when he persuaded C to travel with him.  However, giving Mr Gammon the benefit of the doubt on that circumstance of aggravation, the fact remains that at the time of the offending, the applicant knew that C had placed trust in his protection and was all the more vulnerable for it. I accept that Mr Gammon’s psycho-social functioning was impaired by his own experiences and that weight must be given to that mitigating circumstance.  However, the need for general deterrence in sentencing for offences of this kind is particularly strong.

18. Even though there were some circumstances supporting an exercise of the discretion to suspend the sentence of imprisonment, the Judge’s refusal to do so is not attended by any demonstrable error.

19. It is not arguable that the sentence or the non-parole period are manifestly excessive. 

20. In support of the third ground of appeal, the applicant seeks to adduce fresh evidence.  He seeks to rely on a report of the psychologist, Mr Fugler, obtained after he was sentenced.  Mr Fugler’s report records Mr Gammon’s complaint that prison authorities did not allow him the drug Alprazolam.  Mr Gammon complained to Mr Fugler of symptoms of extreme anxiety which were producing somatoform disorders.  Mr Fugler also opines that there was ‘reason to believe he probably has a post-traumatic stress disorder in which he continues to experience a number of unresolved effects, including anxiety, flashbacks, depression and hypervigilance, as a result of his early prison experiences in Tasmania.

21. As I have observed, the Judge was informed of Mr Gammon’s anxiety even though the symptoms were not attributed to his early experiences in prison.  In particular, the Judge was told that the applicant had suffered ‘social isolation … claustrophobia, anxiety and panic attacks, agoraphobia and excessive compulsive disorder with a particular preoccupation about germs and hygiene’ in the period of his remand in custody after his extradition.  The Judge was also told that Mr Gammon was denied some of his medication in prison. 

22. In an affidavit in support of the application for permission to appeal against the sentence sworn on 31 May 2017, Mr Gammon deposed that:

    ·he was receiving treatment from the Royal Hobart Hospital for ulcers, cellulitis and oedema during 2016;

    ·he wore specially fitted compression stockings which required changing with the assistance of nursing staff;

    ·the stockings were a prophylactic measure to prevent ulceration of his legs;

    ·on his initial imprisonment after sentencing, he was placed in E Division in Yatala Labour Prison and was not allowed to continue Alprazolam but was given the antidepressant Paroxetine instead;

    ·on 9 March 2017 he requested a consultation with the doctor about his legs and medication but was denied assistance with the changing of bandages being informed that he had to wash the bandages himself in the prison laundry or the sink in his cell where there was no disinfectant;

    ·he removed the bandages on 16 March 2017 so that he could shower for the first time after being taken into custody;

    ·the bandages sat unwashed in his cell until he was transferred to the Mount Gambier Prison on 13 April 2017;

    ·the bandages were locked in his property at the Mount Gambier Prison and he is has not been wearing leg compressions since 16 March;

    ·he was over anxious to the point of hyperventilating because of the cramped conditions in the police van which was poorly ventilated; and

    ·he suffered somatic symptoms on arrival at Mount Gambier Prison.

23. A report from Dr Kavanagh, who has been the prison medical officer at Mount Gambier for 13 years, dated 29 May 2017 was placed before this Court in response to Mr Gammon’s complaints.  Dr Kavanagh reported that:

    ·he reviewed Mr Gammon first on 18 April and again on 15 May 2017;

    ·on 15 May his legs were not showing any signs of ulceration but that he was found to have long thickened toenails which Dr Kavanagh trimmed and made arrangements for Mr Gammon to see the local podiatrist;

    ·he was reviewed on 22 May 2017 complaining of pains in his face which felt as if his whole head was distorted but very little was found on neurological or physical examination except that he was slow on coordination tests;

    ·Dr Kavanagh arranged a CT scan of his head and brain and referred him to an optician for complaints of cloudy vision.  Dr Kavanagh was not sure whether these symptoms were neurological or a manifestation of a psychotic process;

    ·Mr Gammon was not taking neulactil, a medication which would have helped with his symptoms; and

    ·Mr Gammon was medicated with Frusemide to reduce excess fluid and Paroxetine for depression and anxiety but Mr Gammon was insisting on taking his ‘usual medications’. 

24. Dr Kavanagh had not been aware of Mr Gammon’s need for compression leg therapy before reviewing him.  Dr Kavanagh reported that he would put in place arrangements for that therapy as soon as possible.  Dr Kavanagh commented that Mr Gammon’s personal hygiene was generally very poor and that he would need to shower every morning so that the bandages could be applied by nurses but indicated that Mr Gammon may need to learn to remove the bandages himself because of the unavailability of nurses at that time.  Dr Kavanagh reported that Mr Gammon was not compliant with his paroxetine and neulactil medications.   Finally, Dr Kavanagh advised that he would make arrangements for Mr Gammon to be seen by the visiting prison psychiatrist. 

25. The Judge recognised that imprisonment would be more of a burden for Mr Gammon than would normally be the case because of his poor health.  Dr Kavanagh’s report shows that the difficulties experienced by Mr Gammon in the management of his medical conditions are not beyond that which is a necessary incident of his imprisonment and which were within the contemplation of the Judge.  Moreover, those difficulties are not of an order which would amount to such exceptional or undue hardship that appellate review of the sentence is required.

26. The scope of the statutory power to receive further evidence in criminal appeals was comprehensively considered by Doyle CJ in R v C.[2]  The power which is by rehearing is ancillary to the appellate jurisdiction of the Full Court and in which an error in the exercise of the sentencing discretion must be established.  In exercising the discretion to admit further evidence, the Full Court must balance two broad considerations:  the public interest in the finality of litigation and the likelihood that the further material would have an important influence on the result of the case. 

    [2] (2004) 89 SASR 270, 274-281 at [13]-[36].

27. On appeal against sentence the further evidence must at the very least substantially alter the relative weight of the material which was before the sentencing Judge.  For that reason, evidence of the materialisation of contingencies which were within the contemplation of the sentencing court will not, generally, be admitted on appeal against sentence.

28. It is not arguable that the further material should be received and not arguable that, if received, it would lead to the conclusion that the sentence was manifestly excessive.   Permission to appeal on the third ground of appeal must also be refused.

1. I would dismiss the application for permission to appeal against the sentence imposed in the District Court.

2. NICHOLSON J:      I agree with the Chief Justice.