R v Gommers - [2005] SASC 493

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v GOMMERS
Judgment of The Court of Criminal Appeal
(The Honourable Justice Besanko, The Honourable Justice Vanstone and The Honourable Justice Layton)
22 December 2005
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCING
Appeal against sentence – four counts unlawful sexual intercourse – one count rape – three victims aged 11 to 13 years – appellant diagnosed with mild to borderline intellectual disability – global intelligence at bottom two per cent of general population – history of further sexual offending after offences – sentenced to 13 years’ imprisonment and non-parole period of 8 years.
Held, dismissing appeal – finding that appellant appreciated wrongfulness of offending open to judge – judge did not err in weight given to appellant’s intellectual disability – importance of deterrence and punishment – appellant failed to establish lower sentencing standards or patterns in 1982-1984 – finding that appellant’s prospects of rehabilitation problematic open to judge – sentence and non-parole period not manifestly excessive.
Criminal Law Consolidation Act 1935 s 49; Criminal Law (Sentencing) Act 1988 ss 10, 18A, 29D, referred to.
R v Kench (2005) 152 A Crim R 294; R v D (1997) 69 SASR 413; R v Engert (1995) 84 A Crim R 67; R v Wiskich (2000) 207 LSJS 431; R v Cambridge [2004] SASC 399; R v M, WJ [2005] SASC 272; R v Olbrich (1999) 199 CLR 270; R v Storey [1998] 1 VR 359; R v Lobban (2001) 80 SASR 550; R v Shrestha (1991) 173 CLR 48; R v Miller (2000) 76 SASR 151, considered.

R v GOMMERS
[2005] SASC 493
Court of Criminal Appeal: Besanko, Vanstone and Layton JJ

BESANKO J: This is an appeal by leave against a sentence imposed by a judge of the District Court. The appellant pleaded guilty to four counts of unlawful sexual intercourse and one count of rape. His offending involved three young boys.
The first count alleged the offence of unlawful sexual intercourse with a boy under the age of twelve years in respect of which the maximum penalty is imprisonment for life (s 49(1) Criminal Law Consolidation Act 1935 (“CLCA”)). The second count alleged the offence of rape for which the maximum penalty is imprisonment for life (s 48 CLCA). The other three relevant counts alleged the offence of unlawful sexual intercourse with a boy of or above the age of twelve years and under the age of seventeen years in respect of which the maximum penalty is imprisonment for a term not exceeding seven years (s 49(3) CLCA).
On 25 May 2005 the judge imposed a sentence of 13 years’ imprisonment and fixed a non-parole period of 8 years, to commence immediately. In fixing those periods, the judge took into account the fact that the appellant had been in custody since 1 October 2004.
The appellant appeals to this Court on the ground that the sentence and non-parole period are manifestly excessive. He complains of the sentencing judge’s findings in relation to a number of matters.
The circumstances of the offending and the appellant’s personal circumstances
The background to the offending was that in 1982 and 1983 the appellant lived in a flat in a suburb in Adelaide. He was about 31 or 32 years of age. He encouraged young boys who lived in surrounding suburbs to visit his flat, where he provided them with refreshments, alcohol and cigarettes. He had a weights room in the flat and he encouraged the young boys to perform exercises involving weights with him from time to time.
The first offence of unlawful sexual intercourse involved a young boy aged 11 years, whom I will call G. The offence took place between 1 February 1983 and 1 April 1983 and involved the appellant inserting G’s penis into his mouth. G was a boy who visited the appellant’s flat and performed exercises involving weights with him. On most occasions when G visited the appellant’s flat, other boys were also present. The appellant would show the boys pornographic videos and magazines. On the day of the offending involving G, the appellant had given him some beer and had shown him and another boy a pornographic video. The appellant masturbated in their presence and encouraged them to remove their clothes and lie naked on the bed with him. The appellant put his arm across G’s chest so that he could not move and he performed an act of fellatio on G that continued for some time. While on the bed the appellant rubbed his erect penis on the other boy’s bottom and after a short time ejaculated on that boy. G was terrified during the incident and very upset afterwards. He never returned to the appellant’s flat.
The offence of rape involved the anal rape of a boy who was about 12 or 13 years of age. The offence occurred between 1 January 1982 and 1 January 1984. The victim, whom I will call K, was a boy who visited the appellant’s flat after the appellant had met K and other young boys playing in a park. The pattern of what occurred at the appellant’s flat was similar to what occurred with G in that the appellant showed K and other young boys pornographic videos and magazines. The appellant raped K in the bedroom of his flat and held him down in the course of doing so. The appellant’s actions included physical violence. The appellant told K not to tell anyone what had happened and he gave him some money. K never returned to the appellant’s flat.
The third, fourth and fifth offences occurred in 1982 and 1983. They involved a boy who was about 12 years of age at the time of the offending, whom I will call R. R was a boy who visited the appellant’s flat. As with the other young boys, R was given cigarettes and alcohol and he was shown pornographic videos and magazines. The third offence occurred when the appellant offered R the sum of $10 to perform an act of fellatio on him. The sentencing judge found that the third offence was representative of a course of conduct, whereby the appellant caused R to perform the act of fellatio on him on a number of occasions. The fourth and fifth offences occurred some time after the third offence when, on the same day, the appellant performed fellatio on R and later penetrated his anus with his penis. During the commission of the latter offence R cried out and started to cry, at which point the appellant stopped.
It will be apparent from this brief summary that the offending is very serious. It involved a number of offences against young boys. The appellant’s conduct was predatory and included grooming and enticements. One offence involved physical violence. If regard is had only to the objective circumstances of the offending, there can be no doubt that substantial penalties were called for.
The appellant is now 54 years of age. He has what the sentencing judge described as a mild to borderline intellectual disability, with a global intelligence at the bottom two per cent of the general population.
The appellant had an unfortunate and unhappy childhood. He was abandoned by his parents when he was five years of age and until he was eighteen years of age he lived at Minda Home, where he learned subjects such as woodwork and metalwork and living skills. He could not read or write when he left Minda Home. The sentencing judge was told, and appeared to accept, that whilst at Minda Home the appellant was sexually and physically abused.
After leaving Minda Home, the appellant was engaged in selling newspapers for a time and then, from about 1970 until 1991, he was, other than for a short period of time, employed by Monier Tiles. In about 1991, the appellant was placed on a disability support pension. Prior to the subject offences, the appellant had committed what the sentencing judge described as “only two minor offences”. However, after the subject offences the appellant committed the offence of indecent assault involving a nine-year-old boy in 1987 and the same offence involving a four-year-old boy in 1992. The sentencing judge said that as these offences were not prior offences they were not to be taken into account, although they were relevant to the sentencing process in that they were relevant to the issue of personal deterrence.
The sentencing judge had before him a number of reports from a psychologist, Mr R Balfour. Mr Balfour carried out a psychological assessment of the appellant. In his sentencing remarks, the sentencing judge referred to Mr Balfour’s opinions to the following effect:
1That the appellant met the criteria for homosexual paedophilia.
2That the appellant is an example of an intellectually disabled adult who has developed sexual aberrant behaviour in response to institutionalised childhood sexual abuse, sexual ignorance and deprivation of sexual education and opportunity to develop his sexuality in a socially sanctioned manner.
3That the appellant has not re-offended since attending a sexual offenders treatment and assessment programme (“SOTAP”) in 1993; he has insight into his offending and is motivated not to offend again. He appears to have been responsive to the SOTAP.
The judge also had before him a report from a therapist at SOTAP, Mr P Toman, dated 20 January 2003. This report was prepared in relation to another matter involving sexual offending by the appellant. Mr Toman states that the appellant attended SOTAP subsequent to his incarceration for sexual offences in 1993 and that he voluntarily attended SOTAP from 13 May 2002. Mr Toman notes that the appellant has stated an intention not to offend again. Mr Toman states that the appellant has a well-entrenched system of cognitive distortions and beliefs, which, if left untreated and intact, will almost certainly lead to him offending again in a sexually inappropriate manner. Mr Toman states that the appellant needs long-term treatment in relation to his sexual arousal to children.
The approach of the sentencing judge
The judge noted the above matters in the course of his sentencing remarks.
The judge noted that the appellant pleaded guilty a few days before trial and therefore the victims were not required to give evidence. He reduced the sentence he would otherwise have imposed by approximately 10 per cent to reflect that fact.
The judge said that the offending was grave criminal conduct and he referred to the victim impact statements and the devastating effect the appellant’s offending has had on the lives of each of the victims.
The judge said that while the offending was committed against the background of the appellant’s intellectual disability, the appellant understood that what he was doing was wrong at the time he committed the offences. The judge said that because of the appellant’s own experiences of sexual abuse, he was aware of the terrible impact of his offending on each of the victims.
The judge referred to the importance in the sentencing process of general deterrence, personal deterrence and punishment. The judge said he would take into account the appellant’s personal circumstances but they needed to “largely give way” to the requirements of deterrence and punishment.
The judge said that by reason of the decision in R v Kench (2005) 152 A Crim R 294 he was bound to sentence the appellant by having regard to sentencing patterns prior to R v D (1997) 69 SASR 413.
The judge utilised the power in s 18A of the Criminal Law (Sentencing) Act 1988 to impose one penalty in relation to the five offences.
In considering the appropriate non-parole period, the judge referred to the respective opinions of Mr Balfour and Mr Toman, and concluded that whether the appellant had the capacity to rehabilitate was “problematic”.
Issues on appeal
The appellant submits that when account is taken of the 10 per cent reduction for the pleas of guilty and the period of eight months spent in custody prior to sentencing, the judge’s starting point must have been approximately 15 years. That was said to be manifestly excessive and it was also said that the non-parole period was manifestly excessive. It was submitted that the judge had erred in a number of respects. First, it was submitted that the appellant had a lower level of mental functioning than an ordinary member of the community and in those circumstances general deterrence and exemplary punishment had a much lesser role to play in the sentencing process. It was submitted that the judge failed to recognise this fact. Secondly, it was submitted that the judge had failed to recognise that the appellant was to be sentenced in accordance with sentencing standards at the time the offences were committed in the period 1982‑1984 and that those standards were lower than they are today. Thirdly, it was submitted that the judge erred on the evidence in forming the view he did on the appellant’s prospects of rehabilitation. Fourthly, it was submitted that the judge erred in placing inadequate weight on the fact that the appellant was unlikely to receive adequate treatment for his condition whilst in prison.
I will deal with each point separately, although the ultimate question is whether the factors relevant to the sentencing process and their relationship to each other were such that the sentence imposed was within the proper exercise of the discretion of the sentencing judge.
The appellant’s mental capacity
As I have said, the appellant has an intellectual disability, which was assessed as mild to borderline, and he has a global level of intelligence at the bottom two per cent of the general population. The sentencing judge appears to have accepted Mr Balfour’s opinion that the appellant is an example of an intellectually disabled adult who has developed aberrant sexual behaviour in response to institutionalised childhood sexual abuse, sexual ignorance and deprivation of sexual education and opportunity to develop his sexuality in a socially sanctioned manner.
It was submitted by the appellant that the sentencing judge erred in finding that the appellant knew at the time of the offending that the conduct was wrong and of the terrible effect his conduct would have on his victims. Counsel for the appellant submitted that, in view of the appellant’s intellectual disability, the background of sexual abuse of him by others and lack of education as to appropriate sexual conduct, the judge should have found that in 1982-1984 when the offences were committed the appellant had a lesser appreciation of the wrongfulness of his offending than a person of normal intelligence and background.
It is appropriate at this point to set out a very brief chronology so far as it can be gleaned from the evidence.
1Between 1982 and 1984 the five offences which are the subject of the present appeal were committed.
2In 1988 the appellant was sentenced to nine months’ imprisonment for two counts of indecent assault committed in April 1987. The term of imprisonment was suspended. The victim was the appellant’s nine-year-old nephew.
3In 1994 the appellant was sentenced to two years’ imprisonment for one count of indecent assault committed in December 1992. The victim was a four-year-old boy.
4It seems that on, or at some stage after, serving the term of imprisonment referred to in 4 above, the appellant attended SOTAP.
5In April 2003 the appellant was sentenced to three years and nine months’ imprisonment with a non-parole period of one year and six months for one count of indecent assault and one count of unlawful sexual intercourse committed in 1983. The victim was a thirteen-year-old boy. It appears that as a result of being charged with these offences the appellant voluntarily re-established contact with SOTAP in May 2002.
6In May 2005 the appellant was sentenced in relation to the present offences.
It was not in dispute that in more recent times the appellant has appreciated that his conduct was wrong and would adversely affect his victims. The following passage appears in Mr Balfour’s report dated 19 January 2003.
I asked [G] what is his attitude towards his offending behaviour and he replied “I’m sorry what I done. I told the police I was sorry. I shouldn’t have done it.”
I asked [G] to explain to me why his offending behaviour is wrong and he replied “It’s wrong yeah. I know it’s wrong. I know I shouldn’t have done it. Under age.”
I asked [G] who were the victims of his offending behaviour and he replied “Children. They’d be hurt inside.”
I asked [G] to describe what impact his offending behaviour would have had upon the victims and he replied “They feel dirty. They’re angry.”
I asked [G] what important lessons had he learned as a result of his offending behaviour and he replied “I dunno. I’ll make sure that it won’t happen again. It’s wrong to have sex with a young lad, a boy.”
When interviewed by police in April 2002, in connection with the offending for which he was sentenced in April 2003, the appellant said:
Q How did you feel when you were sexually abused?
ABad, you know shocking, nothing I could do about it, they don’t believe, they don’t believe it what happened to me.
QHow do you think the boys that you sexually abused felt?
AAbout the same as me.
Counsel for the appellant submitted that the judge erred in inferring that this was the appellant’s appreciation at the time of the offending in 1982-1984. He submitted that in view of his intellectual disability and background, it is likely that the appellant gained his appreciation of the wrongfulness of his offending and the effects of it from events after 1982-1984, including his involvement with SOTAP.
There is no challenge to the conclusion that the appellant now understands that the offending was wrong and that it would have an adverse impact on his victims. Although there was no direct evidence as to his understanding in the period 1982-1984, I do not think the sentencing judge erred in finding that that was also his understanding at that time. His intellectual disability does not prevent him from having that understanding. He was 31 or 32 years of age at the time of the offending and between 1970 and 1991 he was able to maintain steady employment. The offending involved some fairly sophisticated features, including grooming and enticements, and some of the victims were offered money for performing sexual acts and told not to tell anyone what had happened.
Even if I am wrong and the appellant’s appreciation of the wrongfulness of his conduct and the likely effect on his victims was somewhat less than that of a person without an intellectual disability, it does not follow that the sentencing judge was wrong in treating general deterrence, personal deterrence and punishment as important factors in sentencing the appellant.
In R v Engert (1995) 84 A Crim R 67 Gleeson CJ, as Chief Justice of New South Wales, said (at 68):
Persons suffering from mental disorders frequently come into collision with the criminal justice system. Sentencing such persons commonly confronts judicial officers with the need to make a sensitive discretionary decision. Sentencing is essentially a discretionary exercise requiring consideration of the extremely variable facts and circumstances of individual cases and the application of those facts and circumstances to the principles laid down by statute or established by the common law. The principles to be applied in sentencing are in turn developed by reference to the purposes of criminal punishment. Those purposes were set by the High Court in Veen (No 2) (1988) 164 CLR 465 at 476; 33 A Crim R 230 at 237-238 as follows:
“...protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform.”
A moment’s consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration. For example, in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance. That was the particular problem being examined by the court in the case of Veen (No 2). Again, in a particular case, a feature which lessens what might otherwise be the importance of general deterrence, might, at the same time increase the importance of deterrence of the offender.
It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise.
A little later his Honour said (at 71):
In truth however, for the reasons given at the commencement of this judgment, the question of the relationship, if any, between the mental disorder and the commission of the offence, goes to circumstances of the individual case to be taken into account in the application of the relevant principles. The existence of such a causal relationship in a particular case does not automatically produce the result that the offender will receive a lesser sentence, any more than the absence of such a causal connection produces the automatic result that an offender will not receive a lesser sentence in a particular case. For example, the existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence, and increase the importance of particular deterrence or of the need to protect the public. By the same token, there may be a case in which there is an absence of connection between the mental disorder and the commission of the offence for which a person is being sentenced, but the mental disorder may be very important to considerations of rehabilitation, or the need for treatment outside the prison system.

The significance to the sentencing process of the fact that a defendant suffers from a mental disorder was considered by this Court in R v Wiskich (2000) 207 LSJS 431. Martin J (with whom Prior and Williams JJ agreed) carried out an exhaustive examination of the relevant authorities both here and interstate and expressed his conclusions in the following passage (at 457-458):
In sentencing persons suffering from mental disorders it is important to bear in mind the general observations of Gleeson CJ in Engert to which I have already referred. The existence of a mental disorder is always a relevant factor in the sentencing process, but its impact upon that process and the various issues that arise in sentencing will vary considerably according to the circumstances of the individual case. An assessment of the severity of the disorder is required. A sentencing court must determine the impact of the disorder upon both the offender’s thought processes and the capacity of the offender to appreciate the gravity and significance of the criminal conduct. In this respect I agree with the approach taken in the Victorian and New South Wales authorities that, as a general proposition, if an offender acts with knowledge of what is being done and with knowledge of the gravity of the criminal conduct, the importance of the element of general deterrence otherwise appropriate in the particular circumstances is not greatly affected. The gravity of the criminal conduct is also an important consideration. It is not difficult to understand that the element of general deterrence can readily be given considerably less weight in the case of an offender suffering from a significant mental disorder who commits a minor crime, particularly if a causal relationship exists between the mental disorder and the commission of such an offence. In some circumstances, however, the mental disorder may not be serious or causally related to the commission of the crime, and the circumstances of the crime so grave, that very little weight in mitigation can be given to the existence of the mental disorder and full weight must be afforded to the element of general deterrence. In between those extremes, an infinite variety of circumstances will arise in which competing considerations must be balanced.
The criminal conduct in this case is very serious. The sentencing judge took into account the appellant’s intellectual disability and the fact that he knew that what he was doing was wrong and likely to have an adverse effect on his victims. In the circumstances he did not err in placing relatively little weight on the appellant’s intellectual disability.
The relevant sentencing standards
Counsel for the appellant submitted that the judge erred in applying current sentencing standards rather than those that applied in 1982-1984. It was submitted that the earlier standards for the offences committed by the appellant were lower than they are today.
The sentencing judge said that he needed to take note of the decision of this Court in R v Kench (supra). He said that whilst the decision of R v D (supra) was not relevant to the sentencing process he was undertaking, he was mindful of the fact that as a result of the decision in R v Kench (supra), he was bound to sentence the appellant having regard to sentencing standards prior to the decision in R v D (supra).
Assuming for the sake of argument that the appellant is right and the sentencing judge was required to have regard to the standards that applied in 1982-1984, nevertheless, the appellant cannot succeed unless he can clearly show that the standards in 1982-1984 were lower than they are today, and that the judge’s sentence reflects current standards. The starting point for the appellant’s submission is proof of the sentencing standards or patterns that applied in 1982‑1984. Counsel for the appellant handed to the Court, without objection, documents containing statistical information as to penalties imposed for various sexual offences in the period 1982-1987. At first blush, at least some of the penalties seem lower than the penalties that would be imposed today. However, there is no information as to the circumstances surrounding the offences or the personal circumstances of the offenders in the documents. In other words, there was no information as to all the circumstances that would clearly have been relevant to the imposition of the sentences referred to in the documents. I am not satisfied on the information provided to the Court that the sentence imposed by the judge in this case was beyond the boundaries of the standards that applied in 1982-1984. In reaching that conclusion, I have had regard in particular to the multiple offences committed by the appellant, including the serious offence of rape, and the age of the victims at the time of the offending.
I should say that even if, contrary to the conclusion I have just expressed, the appellant had established that the sentencing judge had had regard to more recent and higher sentencing standards or patterns, it would not follow that the judge had erred. The first question that would then arise is whether this was the type of offending to which the Chief Justice’s observations in R v D (supra) applied. As I understand it, neither party on appeal submitted that this was the type of case to which the observations of the Chief Justice applied. In that regard, they may have had in mind the observations of this Court in R v Cambridge [2004] SASC 399 per Doyle CJ at [3]; per Vanstone J at [46]. If it is not a case to which the observations of the Chief Justice in R v D (supra) are applicable, then the appellant faces the difficulty (which he is unable to overcome in this case) of establishing earlier and lower sentencing standards or patterns: R v M, WJ [2005] SASC 272 per Besanko J at [7]; per Sulan J at [48]‑[49]. If, on the other hand, this is a case to which the observations of the Chief Justice in R v D (supra) are applicable, it would not follow, even assuming that the sentencing judge had had regard to higher sentencing standards or patterns, that the appeal would be allowed. After the sentencing judge passed sentence and before this Court heard the appeal, s 29D of the Criminal Law (Sentencing) Act 1988 has come into operation (11 August 2005). On the face of it, that section requires a sentencing court (presumably including this Court if re‑sentencing an offender) to apply the heavier penalties referred to in R v D (supra). The effect of s 29D was not the subject of detailed submissions and it is not necessary for me to consider the question any further. The appellant’s submission fails at the outset because he has not shown in relation to this offending that there were earlier standards or patterns which were clearly lower than the sentence imposed by the judge.
The appellant’s prospects of rehabilitation
The judge addressed the prospects of rehabilitation and made the following observations:
I turn to your non-parole period. Whether you have the capacity to rehabilitate yourself is problematic. In January 2003 a report was prepared by the Sexual Offenders Treatment and Assessment Program. This was obtained for the purpose of sentencing you for your previous offending. The Report indicates that you attended at SOTAP subsequent to your incarceration for sexual offences in 1993. You voluntarily attended SOTAP from 13 May 2002. The SOTAP Report indicates that you have stated an intention not to offend again.
The Report indicates that you have an entrenched system of cognitive distortions and beliefs which, if left untreated, will almost certainly lead you into offending again in a sexually inappropriate manner. It states that you will need to be involved in long-term treatment if you are to refrain from offending again.
On the other hand, Mr Balfour is more positive regarding your risk of re-offending. He notes that you have not re-offended since you were discharged from the SOTAP program in 1993, that you have insight into your offending and you are motivated not to offend again. He says you appear to have been responsive to the SOTAP treatment program.
The sentencing judge said that whether the appellant had the capacity to rehabilitate himself was “problematic”. The appellant submitted that that was too pessimistic a view of his prospects of rehabilitation and he pointed to the fact that there is no evidence of offending since the offences committed in December 1992.
The fact that there has been no known offending by the appellant since December 1992 is a relevant matter in assessing the appellant’s prospects of rehabilitation. However, there are a number of other relevant matters including the nature of the offending, the other offending since 1982-1984, Mr Balfour’s opinion that the appellant met the criteria for homosexual paedophilia and the observations of Mr Toman.
Having regard to all relevant matters, I think that the judge’s conclusion that the prospects of rehabilitation are problematic was open to him and in fact I agree with it.
The opportunity to obtain treatment
The sentencing judge noted that Dr Balfour said that the prison system now offers a sex offender rehabilitation programme. Nevertheless, the appellant submitted that the judge erred by failing to take into account the fact that it would be easier for him to attend such a programme on parole, rather than whilst in prison. That can be a relevant factor to the fixing of the non-parole period. However, I do not think in this case it should have led to a lower non-parole period, which was in any event a not unreasonable one, having regard to the term of the head sentence.
Conclusion
The judge’s starting point of about 15 years was high and the sentence imposed of 13 years’ imprisonment was a heavy one. However, I do not think the sentence and non-parole period are manifestly excessive, particularly having regard to the importance in this case of the need to protect the community.
I would dismiss the appeal.
VANSTONE J: I agree with the conclusion of Besanko J that this appeal should be dismissed. In particular I agree with his remarks as to the relevance of the appellant’s mental capacity.
In my view the single sentence imposed and the non-parole period were within the range available to the learned sentencing Judge. That is so, particularly having regard to the following matters: that this course of offending involved five offences on different occasions, that the maximum penalty for two of those is life imprisonment, that all three victims were aged 11 or 12 years and that the boys were, over a period of time, lured to the appellant’s home for sexual purposes; that in the case of each offence of unlawful sexual intercourse the offending was explicitly said to be, and accepted by defence counsel as being, representative of other similar sexual conduct; that the features of the crimes included physical coercion, provision of liquor, payment of money for sexual conduct and, on the victims’ side, marked distress of a long-standing nature. In all these circumstances, and notwithstanding the unfortunate background and circumstances of the appellant, I do not think it can be said that the sentence is excessive.
The appeal should be dismissed.
LAYTON J: I am grateful to have had the advantage of reading the draft reasons of Besanko and Vanstone JJ. However, contrary to their conclusions, it is my view that the appeal should be allowed.
In my view the sentence imposed was manifestly excessive. In sentencing the appellant for acts committed 20 years earlier, the learned sentencing Judge was required to treat him as a first offender in relation to these offences. The sentencing remarks indicate that in imposing a sentence of imprisonment on this appellant in 2005, his Honour had as his starting point a head sentence of fifteen years, which after taking into account a 10 per cent reduction for the pleas of guilty and the 8 months spent in custody, resulted in a head sentence of 13 years imprisonment with a non-parole period of eight years.
This sentence was imposed in circumstances where the appellant suffered from significant intellectual disability and had a past history of having been himself a victim of sexual abuse whilst institutionalised, which in turn led him to suffer from homosexual paedophilia. He had not, at the time of these offences, had the benefit of any treatment for his homosexual paedophilia and since subsequently receiving treatment, there is no suggestion he has re-offended.
For reasons discussed hereafter, I consider that the sentencing Judge fell into error in that inadequate account was taken of the appellant’s personal circumstances. At the same time I consider that the sentencing Judge gave too much weight to general deterrence and punishment for the appellant’s crimes against the three young boys, which were undisputedly very serious offences. There were, in my view, errors of fact made by the Judge in relation to aggravating factors of the offending, which could not on the evidence have been proved beyond reasonable doubt. I also consider that there was a failure to apply the correct sentencing principles to this man in the circumstances of his intellectual disability and mental disorder.
Brief Background
The background details of the appellant and the offences are set out in the reasons for decision of Besanko J but I will set out some aspects of these matters in order to provide a context for these reasons.
The appellant is 54 years of age and he committed these crimes between 1982 and 1984 when he was aged 31 or 32. He has a mild to borderline intellectual disability and a global intelligence of the bottom two per cent of the population. From the age of five years until aged 18 years he was institutionalised and was sexually abused.
He has four convictions for sexual assaults on young boys but they all post-date the commission of these offences. His first conviction was in 1988 for indecent assault committed in 1987, for which he received a suspended sentence; his second was in 1994 for an indecent assault committed in 1992 for which he was sentenced to two years imprisonment; the third and fourth were in 2003 for two offences committed in 1983 of indecent assault and unlawful sexual intercourse for which he was sentenced to three years and nine months imprisonment with a non-parole period of 18 months. He did not receive any treatment for his paedophilic behaviour until 1993 following his imprisonment for his 1992 offence and there is no suggestion he has offended since that time.
Therefore these five offences all predate the above convictions as well as the treatment he received in 1993 and again in 2003 with Sexual Offenders Treatment Assessment Program (“SOTAP”).
Intellectual disability and homosexual paedophilia
I agree with the applicability of the principles of sentencing in respect of persons with either mental disorders or intellectual disability, as referred to in reasons for decision of Besanko J at [33] and [34]. In particular the cases of R v Engert (1996) 84 A Crim R 67 per Gleeson CJ at 68 and 71, as well as this Court in R v Wiskich (2000) 207 LSJS 431 at 457-8. However, I do not consider that the principles in these cases were appropriately applied in this case. It is convenient to set out a summary of the principles expressed by Martin J in Wiskich at 457-458:
In sentencing persons suffering from mental disorders it is important to bear in mind the general observations of Gleeson CJ in Engert to which I have already referred. The existence of a mental disorder is always a relevant factor in the sentencing process, but its impact upon that process and the various issues that arise in sentencing will vary considerably according to the circumstances of the individual case. An assessment of the severity of the disorder is required. A sentencing court must determine the impact of the disorder upon both the offender’s thought processes and the capacity of the offender to appreciate the gravity and significance of the criminal conduct. In this respect I agree with the approach taken in the Victorian and New South Wales authorities that, as a general proposition, if an offender acts with knowledge of what is being done and with knowledge of the gravity of the criminal conduct, the importance of the element of general deterrence otherwise appropriate in the particular circumstances is not greatly affected. The gravity of the criminal conduct is also an important consideration. It is not difficult to understand that the element of general deterrence can readily be given considerably less weight in the case of an offender suffering from a significant mental disorder who commits a minor crime, particularly if a causal relationship exists between the mental disorder and the commission of such an offence. In some circumstances, however, the mental disorder may not be serious or causally related to the commission of the crime, and the circumstances of the crime so grave, that very little weight in mitigation can be given to the existence of the mental disorder and full weight must be afforded to the element of general deterrence. In between those extremes, an infinite variety of circumstances will arise in which competing considerations must be balanced.
In this particular case the relevant principles that I highlight are first, that the existence of either a mental disorder or intellectual disability are always relevant factors in sentencing.
Secondly, the sentencing court must “determine the impact of the disorder upon the offender’s thought processes and the capacity of the offender to appreciate the gravity and significance of the criminal conduct”.
Thirdly, the Court should also consider whether there is any causal relationship between the mental disorder or the intellectual disability and the commission of the offence.
Fourthly, the Court is to have regard to the seriousness of the offence as well as the aspect of general deterrence.
Fifthly, if there is either a causal connection between the mental disorder or intellectual disability and the commission of the offence, or if by reason of the mental disorder or intellectual disability the person does not appreciate the gravity of the criminal conduct, then these circumstances may reduce the importance of general deterrence in a given case but increase the importance of specific deterrence.
In my view the learned sentencing Judge clearly gave weight to the first and fourth of those principles but in my view did not properly apply the second, third and fifth principles.
Whether the appellant appreciated the gravity and significance of his conduct
In my view the learned sentencing Judge was in error when he stated that:
… because of your own experiences of sexual abuse, you were aware of the terrible impact your criminal conduct would have had on each of these young boys.
This conclusion by the sentencing Judge was a finding of an aggravating circumstance which should have been proved beyond reasonable doubt.[1] It was not disputed that the appellant understood the wrongfulness of his conduct as indeed the Judge found and this was also the conclusion of the psychologist Mr Balfour. But the second aspect required to be considered was whether the appellant had the capacity to appreciate the gravity and significance of his conduct at the time of these offences and in this case the Judge found that he was aware of the “terrible impact” of his criminal conduct “because of his own experiences of sexual abuse.”
[1] See R v Olbrich (1999) 199 CLR 270; R v Storey [1998] 1 VR 359, 369; R v Lobban (2001) 80 SASR 550, 556-7.
The sentencing Judge had before him reports from Mr Richard Balfour, a psychologist, well experienced in forensic psychological assessments. His reports are dated 19 January 2003, 24 February 2003 and 4 May 2005. In addition there was a report from Mr Peter Toman, a therapist with SOTAP, dated 20 January 2003. Although the reports between the two experts differ, various commonalities can found, namely that the appellant has an intellectual functioning which is “within the Borderline Range of Intelligence”. In the case of Mr Balfour, after psychometrically testing the appellant, he formed the conclusion that the appellant had “a mild to borderline intellectual disability” (that is, he has a global level of intelligence in the bottom 2 per cent of the general population for his age group of 45-54).

The extent of the intellectual disability as well as his inadequate education and level of function is indicated by the following:
·He suffers from slight speech enunciation problems and poor vocabulary.
·He was not taught basic academic subjects such as reading and writing.
·He can only read single words rather than complex sentences.
·He has a rudimentary understanding of the mechanics of sexual intercourse and reproduction.
·He has a mental age which is the equivalent of a six to eight year old child, but that does not take into account his general life experience and social maturity which enabled him to be employed as a factory hand until 1991.
This intellectual disability was compounded by a dysfunctional childhood in which he was raised in a succession of juvenile residential institutions starting with Glandore Boys Home when he was aged five, then transferring to Minda Home which was essentially for the intellectually disabled, from the age of seven where he remained until he was 18.
During his institutionalisation from the age of eight he was frequently sexually abused by other residents and occasional carers. The report of Mr Balfour indicated that “the sexual abuse encompassed all forms of behaviour” and included anal intercourse. He was also psychologically abused and “bashed up”. Mr Balfour reported that as a result of his experiences in Minda Home the appellant was “confused and just learned to accept the sexual activity as being normal”. A similar expression was used by Mr Toman who expressed the view that the appellant was:
likely to have a lower than expected comprehension of the expectations, the nuances of social interaction ... [he] has a very low level of knowledge of general sexual knowledge. He has little understanding of what most people would consider to be normal sexual mores…
Mr Balfour summed up the situation in the following way:
Society frequently deprives intellectually disabled individuals of the appropriate psychosexual developmental opportunities to explore their sexuality in a socially sanctioned manner and this compounds the sexuality issues that they are confronted with. For example, they are often denied an appropriate sexual education and grow-up sexually ignorant. The end result is that their sexuality is often denied and they may act in an aberrant manner or engage in invasive behaviours as a form of sexual displacement activity. Their denied sexuality often makes them vulnerable to sexual exploitation by other individuals of normal intelligence who may indoctrinate them into sexually inappropriate behaviours.
I believe that Mr Gommers is an example of an intellectually disabled adult who has developed sexually aberrant behaviour in response to the aforementioned issues of institutionalised childhood sexual abuse, sexual ignorance and being deprived of a sexual education and opportunities to develop his sexuality in a socially sanctioned manner.
The only material before the Court upon which it could have drawn the conclusion that the appellant, because of his own experiences, was aware at the time of the offences of the terrible impact of his criminal behaviour on the children consists of an interview which was conducted by Mr Balfour on 3 September 2002 and the appellant’s interview with police in April 2002.
Both interviews took place well after these offences had occurred, well after his convictions for later behaviour and after the appellant had already undergone some psychological treatment for his paedophilia.
The report of Mr Toman indicated that the appellant had attended SOTAP after he had been imprisoned for his offences in 1993 and that he had ceased attendance because he thought it was not required. Mr Toman commenced seeing the appellant on 21 March 2002, when the appellant came to see him voluntarily before he was the formally referred to SOTAP on 13 May 2002. Mr Toman saw the appellant on ten occasions prior to 20 January 2003. Therefore there had already been a significant amount of counselling before the appellant had the interview with Mr Balfour in September 2002. Mr Toman reports in January 2003 on the progress of the appellant in treatment as follows:
Mr Gommers has attended for treatment on a regular basis over the past few months. He is aware that the nature of his offences is likely to damage the children that he abused. His intellectual capacity means that any progress that he makes is slow and any changes that he makes are in relatively minor increments.
Psychological treatment for paedophilia is focussed upon making the patient accept responsibility for the offences and the serious effect they have had on victims. Mr Toman had achieved progress over the period of his counselling with the appellant.
The answers given by the appellant to Mr Balfour in September 2002 are consistent with that progress in treatment. Mr Balfour reports that:
I asked Mr Gommers who were the victims of his offending behaviour, and he replied “Children. They’d be hurt inside”.
I asked Mr Gommers to describe what impact his offending behaviour would have had upon the victims and he replied “They feel dirty. They’re angry”.
I asked Mr Gommers what important lessons had he learned as a result of his offending behaviour and he replied “I dunno, I’ll make sure that it won’t happen again. It’s wrong to have sex with a young lad, a boy”.
In my opinion these statements by the appellant cannot demonstrate beyond reasonable doubt that, at the time of the offences 20 years before, the appellant was aware of the terrible impact of his actions on the victims or that it was “because of [his] own experiences”. On the contrary, the evidence before the sentencing Judge indicates the contrary. The intellectual disability of the appellant in combination with what Mr Toman described as his “well entrenched system of cognitive distortions and beliefs” suggest little insight on this topic, which is the very reason why treatment of the appellant is needed and according to Mr Toman should “continue … for an extended time”.
The same is true also of the interview which the appellant gave to police in April 2002 when the following conversation took place:
Q      How did you feel when you were sexually abused?
ABad, you know shocking, nothing I could do about it, they don’t believe, they don’t believe it what happened to me.
Q      How do you think the boys that you sexually abused felt?
A      About the same as me.
In summary the answers given by the appellant did not permit the sentencing Judge to find beyond reasonable doubt the aggravating circumstance that at the time he was aware of the terrible effect on his victims. The mere fact that the appellant may himself have suffered anguish at the hands of others when he was younger does not automatically mean, particularly given his mental disability, that he had the insight at that time to realise the same hurt that would be experienced by the victims of his actions.
Causal relationship between the intellectual disability and mental disorder and the commission as of the offences
The other feature which the learned sentencing Judge found to be an aggravating factor of the appellant’s criminal conduct was that:
In each case you engaged in predatory sexual behaviour with young boys. You groomed and primed your victims by the use of pornographic videos and pornographic magazines. Your use of these videos and of pornographic magazines is a circumstance of aggravation with respect to each offence. You encouraged the boys to come to your flat with offers of cigarettes and alcohol.
Bearing in mind that the appellant was himself a victim of abuse from a very early age, it would not be surprising if these matters were learned behaviour as a consequence of what had occurred with him. As Mr Balfour said:
His adult offending represents him projecting his own aberrant childhood sexual experiences onto young boys. His dysfunctional childhood in Minda Home deprived him of normal psychosexual development experiences and perverted his sexual and social development leading him engaging in paedophilic behaviour.
Mr Toman also noted that:
Mr Gommers has used pornography as a regular part of his own sexual behaviour. While this on its own is not problematic, his use of it during his earlier offending behaviour as an enticement to his premises for young boys is problematic.
It should be noted that his inclination to make friends with young boys is not to be assessed as always being for predatory sexual purposes. Mr Toman refers to his difficulty in establishing long-term relationships and that he has few close friends. More importantly, Mr Toman observes:
In addition, his intellectual functioning makes it difficult for him to resist the friendships that are available to him. His inclination is to make friends with people who have young children because he is comfortable in these surroundings and circumstances. His interest in children can easily be confused with genuine caring.
Whilst it is a fact that the appellant encouraged boys to come to the flat by offering cigarettes and alcohol, that of itself would not indicate predatory sexual behaviour. It is also a fact that the appellant showed the boys pornographic videos and magazines. This behaviour, at least in part, could be due to his overall intellectual disability, distorted cognitive behaviour because of his homosexual paedophilia, his own history of sexual abuse and his personal use of pornography. In this case it is not clear that such behavioural circumstances were an “aggravation with respect to the offence” which could be found beyond reasonable doubt as the learned sentencing Judge found, as distinct from behaviour which was causally connected to his intellectual disability, psychological condition and his personal history of abuse.
There is also the issue of offering of payment of money ($10) in two cases and in my view this is more indicative of his knowledge of the wrongful nature of his conduct. Overall this behaviour in the appellant’s case does not demonstrate beyond reasonable doubt that he had a sophisticated grooming process designed to entice these boys to be used for sexual purposes.
However, the important point is that the sentencing Judge did not consider the third important principle as to whether there was a causal connection between the intellectual disability and the condition of homosexual paedophilia and the circumstances of the commission of the crimes against these children. Instead the Judge found these aggravating factors to have existed without excluding them as being connected with his intellectual disability and psychological condition.
General Deterrence
The cases of Engert and Wiskich indicate that all matters of general deterrence, particular deterrence, gravity of the conduct and individual circumstances must be balanced. But as set out previously the cases are also authority for the proposition that if there is either a causal connection between the mental disorder or intellectual disability and the offence, or if by reason of the mental disorder or intellectual disability the person does not appreciate the gravity of the criminal conduct, either of these factors may reduce the importance of general deterrence in a given case.
By contrast, in this case the Judge in his reasons said as follows:
General deterrence, personal deterrence and punishment are important factors in sentencing youth. The sentence must reflect the need to protect young children in our society. I take into account your personal circumstances, as I have outlined them, but they need to largely give way to the requirements of general deterrence, personal deterrence and punishment. (emphasis added)
In stating the balance in that way, in my view the learned sentencing Judge erred. In this case where the intellectual disability coupled with the homosexual paedophilia due to his past history were causally connected to the commission of offences and where there was likely to have been little insight by him into the gravity and significance of his conduct to his victims, his personal circumstances ought not to “largely give way” to the requirements of general deterrence, personal deterrence and punishment.
Instead, it was a matter of balancing all of these aspects taking into account that in a case such as this, it was appropriate that lesser prominence be given to general deterrence and more to his personal factors and personal deterrence.
Personal deterrence
The issue of personal deterrence and rehabilitation was considered by the learned sentencing Judge, expressly in relation to the setting of a non-parole period as indicated when he said:
I turn to your non-parole period. Whether you have the capacity to rehabilitate yourself is problematic. In January 2003 a report was prepared by the Sexual Offenders Treatment and Assessment Program. This was obtained for the purpose of sentencing you for your previous offending. The Report indicates that you attended at SOTAP subsequent to your incarceration for sexual offences in 1993. You voluntarily attended SOTAP from 13 May 2002. The SOTAP Report indicates that you have stated an intention not to offend again.
The Report indicates that you have entrenched system of cognitive distortions and beliefs which, if left untreated, will almost certainly lead you into offending again in a sexually inappropriate manner. It states that you will need to be involved in long-term treatment if you are to refrain from offending again.
On the other hand, Mr Balfour is more positive regarding your risk of re-offending. He notes that you have not re-offended since you were discharged from the SOTAP program in 1993, that you have insight into your offending and you are motivated not to offend again. He says you appear to have been responsive to the SOTAP treatment program.
His Honour also adds:
Finally, I direct the Reports of Mr Balfour dated 19 January 2003, 24 February 2003 and 4 May 2005 and the SOTAP Report of 20 January 2003 be delivered to the Department of Correctional Services and I commend the recommendations contained in these reports to the Department. Both Mr Balfour and the SOTAP Reports recommend that your Sex Offender Rehabilitation treatment be continued. Your contact with the SOTAP program ceased when you were imprisoned on 1 April 2003.
Mr Balfour reports that the prison system now offers a Sex Offender Rehabilitation Program. Clearly it is in your interests and that of the community that you undertake that program whilst you are in prison. It is hoped that you will be offered the opportunity to participate in that program by the relevant authorities.
These paragraphs correctly reflect both the preparedness of the appellant to undergo treatment and the differing opinions of the two experts on the risks of re-offending. However, both Mr Balfour and Mr Toman agree that the appellant has made progress and also note the fact that there has been no re-offending since 1993. This latter factor is highly significant in that the appellant was in the community for 10 years from 1993 until he was imprisoned again in 2003 for two offences committed in 1983, and there is no suggestion of any re-offending. The appellant is being sentenced now in 2005 for offences committed between 1982 and 1984.
Although his Honour, in the comments in relation to the head sentence set out in [88] of these reasons, refers to “personal deterrence” and “personal circumstances”, no reference is made to rehabilitation, and no further reference to personal deterrence until his Honour turns to consideration of the non-parole period. Whilst it is recognised that the mere absence of a specific reference to a topic in sentencing remarks does not necessarily indicate that a judge has failed to take that topic into account, the contrast appears stark in this instance. These matters, and in particular the prospects of rehabilitation, were required to be considered in setting the head sentence,[2] and there is no clear indication in the otherwise detailed remarks of the Judge, that they were.
[2] Criminal Law (Sentencing) Act 1988 s 10(1)(j) and (m); see also R v Shrestha (1991) 173 CLR 48, 68-9; R v Miller (2000) 76 SASR 151, 158-9.
Conclusions
In summary, I consider that the learned sentencing Judge erred for the reasons that I have indicated. The starting point for the head sentence by the Judge was approximately 15 years for this man who was required to be sentenced as a first offender for acts committed 20 years earlier. This, in my view, was manifestly excessive for these offences, albeit that they were serious and consisted in essence of three acts of fellatio, two of anal intercourse, the most serious accompanied by force and physical violence. In that instance he held the boy down and shook him because he thought that the boy had lied to him. Imprisonment was unquestionably appropriate but not for this length in all of the circumstances. Such a sentence fails to take adequate account of the combination of his intellectual disability; the past history of having been himself a victim of sexual abuse whilst in Minda Home, which in turn led to him suffer from homosexual paedophilia; that at the time of these offences he had not had the benefit of any treatment for his homosexual paedophilia; that there is no suggestion he has offended since his treatment in 1993 and that he has already progressed and wishes to continue with his treatment.
Further, such a head sentence does not sit easily with the sentences imposed previously, albeit for more minor offences, of an unsuspended sentence, two years imprisonment and three years and nine months imprisonment for the later offences of indecent assaults and unlawful intercourse.
I consider that taking into account, as the sentencing Judge appeared to do, a reduction of ten percent for the plea and the eight months spent in custody at the time of the sentencing, a total head sentence of 8 years and 6 months is appropriate. It is not relevant for me to indicate an appropriate non-parole period, which I also consider should have been less than that which was imposed.
It is my view that this appellant needs to maximise his opportunities to undergo psychological treatment to change his behaviour and that this is better done outside the prison environment, and under the strict supervision of the Parole Board. This would be the best and most effective way to protect both society and himself for the future. In the meantime it is vital that treatment be made available to him in prison.
I would allow the appeal and set aside the sentence imposed by the sentencing Judge, and in lieu thereof impose a single sentence of eight years and six months.