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.

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Gommers

Details

AGLC: R v Gommers [2005] SASC 493
Case: [2005] SASC 493
Decision Date: 22 December 2005

CaseChat Overview and Summary

In the case of R v Gommers, the appellant appealed against his sentence for four counts of unlawful sexual intercourse and one count of rape involving three victims aged between 11 and 13 years. The appellant was diagnosed with mild to borderline intellectual disability, placing his global intelligence in the bottom two per cent of the population. The court had to determine whether the sentence of 13 years’ imprisonment with a non-parole period of 8 years was appropriate given the appellant's intellectual disability and history of further sexual offending post the initial offences. The appeal raised questions about the weight given to the appellant's intellectual disability, the relevance of deterrence and punishment, and whether the prospects of the appellant's rehabilitation were properly considered.

The court examined the sentencing judge's approach to the appellant's intellectual disability and the impact it had on his capacity to appreciate the wrongfulness of his actions. The court noted that the judge had considered the appellant's disability but did not err in the weight given to it. The importance of deterrence and punishment for the very serious nature of the offences was also recognised. The court found that the appellant's prospects of rehabilitation were problematic, and this consideration was open to the judge. The sentence and non-parole period were deemed not to be manifestly excessive, especially given the need to protect the community.

The appeal was dismissed by the majority of the court. The judges concluded that the sentence and non-parole period were within the range available to the sentencing judge, particularly considering the severity of the offences and the vulnerability of the victims. The appellant's intellectual disability and history of sexual abuse were acknowledged, but the overall seriousness of the crimes and the need for community protection justified the imposed sentence. The final orders confirmed the dismissal of the appeal and upheld the original sentence.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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