R v Grech

[1999] NSWCCA 268

CITATION:

Regina v Mark Andrew Grech [1999] NSWCCA 268

FILE NUMBER(S):

CCA 60252 of 1998

HEARING DATE(S):

6 August 1999

JUDGMENT DATE:

6 September 1999

PARTIES :

REGINA

v

MARK ANDREW GRECH

JUDGMENT OF:

Levine J at 1; Carruthers AJ at 2

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/21/2214
LOWER COURT JUDICIAL OFFICER:	Sides DCJ

COUNSEL:	M Ierace (Applicant) R D Ellis (Crown)
SOLICITORS:	T A Murphy (Applicant) C K Smith (Crown)
CATCHWORDS:	Criminal Law - appeal against severity of sentence - person in authority having sexual intercourse with person who has intellectual disability - Crimes Act 1900 (NSW) s 66F - importance of deterrence - relevance of alleged mutual loving relationship - whether a matter of aggravation or amelioration
ACTS CITED:	Regina v Moore (CCA, unreported, 12 April 1994) Regina v Parsons (CCA, unreported, 17 December 1990)
CASES CITED:	Crimes Act 1900 (NSW) s 66F
DECISION:	See paragraph 38

IN THE COURT
OF CRIMINAL APPEAL

60252/98

LEVINE J
CARRUTHERS AJ

MONDAY 6 SEPTEMBER 1999

REGINA v MARK ANDREW GRECH

LEVINE J:

1    With what Carruthers AJ has said, I am in complete agreement. The orders will be as proposed by him, namely that leave to appeal be granted but the appeal be dismissed.

IN THE COURT
OF CRIMINAL APPEAL

60252/98

LEVINE J
CARRUTHERS AJ

MONDAY 6 SEPTEMBER 1999

REGINA v MARK ANDREW GRECH

2 CARRUTHERS AJ: Mark Andrew Grech seeks leave to appeal against sentences imposed upon him by his Honour Judge Sides QC at the Liverpool District Court on 28 April 1998 following the applicant’s conviction of two offences under s 66F(2) of the CrimesAct 1900 as amended (the Act). In respect of each count, his Honour sentenced the applicant to a minimum term of three years penal servitude to commence on 28 April 1998 and to expire on 27 April 2001. His Honour imposed an additional term of two years to commence on 28 April 2001 and to expire on 27 April 2003. 3 Section 66F is in the following terms:

“66F Sexual intercourse---intellectual disability

(1) In this section:

“intellectual disability” means an appreciably below average general intellectual function that results in the person requiring supervision or social habilitation in connection with daily life activities.

(2) Any person who has sexual intercourse with another person who:

(a) has an intellectual disability; and

(b) is (whether generally or at the time of the sexual intercourse only) under the authority of the person in connection with any facility or programme providing services to persons who have intellectual disabilities,

shall be liable to penal servitude for 10 years.

(3) Any person who has sexual intercourse with another person who has an intellectual disability, with the intention of taking advantage of the other person’s vulnerability to sexual exploitation, shall be liable to penal servitude for 8 years.

(4) Any person who attempts to commit an offence under this section upon another person who has an intellectual disability shall be liable to the penalty provided for the commission of the offences.

(5) A person does not commit an offence under this section unless the person knows that the person concerned has an intellectual disability.

(6) No prosecution for an offence against this section shall be commenced without the approval of the Attorney General”.

4 The applicant came to trial before Judge Sides on 22 April 1998. He was arraigned on an indictment containing three counts under s 66F(2). The first count was that he had sexual intercourse with the complainant between 1 June 1992 and 31 December 1992. The second count was that he had sexual intercourse with the complainant between 1 June 1995 and 31 December 1995 and the third count was that he had sexual intercourse with the complainant between 1 December 1996 and 31 December 1996. 5 On 28 April 1998 the jury returned a verdict of not guilty on the first count and guilty on the second and third counts. In his remarks on sentence his Honour expressed the view that the jury probably were not satisfied beyond reasonable doubt that the first act of oral intercourse, to which the first count related, occurred in the period pleaded in the indictment. 6 Before turning to the factual background of the offences, it is convenient to note that the essence of an offence under s 66F(2) is sexual intercourse by a person in authority with a person with an intellectual disability. Consent is not relevant. It was common ground at the trial that over a protracted period the applicant had consensual sexual intercourse (including anal intercourse) with the complainant. The defence put in issue, however, that the complainant has an intellectual disability within the meaning of s 66F(2). That issue was, of course, resolved against the applicant. 7 The complainant, who was born on 10 August 1975, was adopted when he was six months old. He was made a ward of the State in about 1991. From 1991 he lived in a group home operated by the Department of Community Services (DOCS), located at Smithfield in Sydney. The applicant commenced working at the home as a team leader on 11 August 1992. On 11 November 1996 the complainant was placed in a flat owned by the Department of Housing, a few minutes walk from the group home. The same DOCS team, led by the applicant, continued to provide him with support and assistance. 8 On 27 December 1996, the complainant’s parents became aware of the sexual relationship between the applicant and the complainant, and informed a DOCS senior officer accordingly. When interviewed by that officer the applicant admitted a sexual relationship with the complainant, saying that it was the reason his marriage had broken up. He also said to the officer: “I can’t explain it. I don’t understand why I care for him, it just happened. I don’t feel the same way for other men. I love the guy.” 9    On 14 January 1997 the applicant was interviewed by police officers to whom he admitted that he had a sexual relationship with the complainant who had an intellectual disability which required that some support be provided to him. The applicant was aged 26 and 27 at the time of the two offences in respect of which he was convicted and the complainant was aged 20 and 21 respectively. 10    The complainant gave evidence at the trial. He deposed that sexual contact commenced between himself and the applicant when he turned 18. This was in August 1993 and accounts for the acquittal on the first count. The complainant said that their relationship commenced with oral intercourse and an intense and frequent relationship of anal intercourse followed. Intercourse took place at the applicant’s residence which was also at Smithfield. The complainant said that sexual intercourse did not take place at the group home but he and the applicant (who were in love with each other) would kiss and hug each other at the home, in the room which was occupied by the complainant. The complainant said, in evidence, that he had seen the applicant in the last few weeks prior to the commencement of the trial at the applicant’s home. He said that he wanted to continue his relationship with the applicant and that he continued to love him. 11    As part of the Crown case the ERISP video of the police interview of 14 January 1997 was tendered and played to the jury. In that interview the applicant admitted that he had an almost daily sexual relationship with the complainant over the previous 18 months. However, the applicant asserted that the complainant had initiated the sexual contact. The applicant said that he first had anal sex with the complainant in about mid 1992 at the group home at Smithfield where the complainant resided because he had “a mild intellectual disability.” He told the police that the complainant needed “support... to access the community to keep him sort of active so he doesn’t become too isolated.” 12    As to his relationship with the complainant, the applicant said “I knew what was happening basically was wrong but I just, I dunno, I just couldn’t stop it because I cared so much for Matthew.” He explained that by “wrong”, he meant that it was against Departmental guidelines. He said that after the complainant moved out of the group home into the flat, he stayed at the applicant’s house “just about every night.” This was not permitted by DOCS policy. 13    As I have indicated the issue of “intellectual disability” was resolved against the applicant and no challenge was made in this Court to that finding. Indeed, there was ample lay and expert evidence before the jury to establish this element of the Crown case. It is, however, important to refer to certain aspects of the lay and expert evidence relating to this issue. 14    The complainant’s father deposed that when the complainant was aged 1½ he was diagnosed by a paediatrician as having some autistic symptoms. The complainant’s parents were referred to the Autistic Association, which commenced a programme of exercises and “behavioural patterns” initially at the centre, and later at their home. Until the age of four or five, the complainant’s behaviour was of concern, including head banging to the point of smashing windows and holes in gyprock walls. From the age of five, the complainant attended the Autistic Association, progressing to five days per week. Extreme behaviour continued throughout his childhood and he remained a person prone to emotional, irrational outbursts. In his sub-teenage years, the complainant received the services of various specialists and therapists. There was evidence of self-mutilation when he was 13. The complainant was taken into a DOCS facility at Lidcombe as a result of continually running away in the latter half of 1990, and he was then transferred to the group home at Smithfield to which reference has already been made. Whilst at Smithfield, the complainant would spend alternate weekends at home. He received a disability pension and worked in a sheltered workshop. 15    At the time of trial the complainant was living in a one bedroom flat at Chatswood and receiving domestic help on two days per week. The complainant’s father characterised the assistance which the complainant received twice per week as “assistance” rather than supervision. 16    Dr Chris Weaver, a medical practitioner specialising in child psychiatry gave evidence that he first saw the complainant in March 1990, when he was 14. Thereafter, he saw the complainant regularly and, indeed, on some occasions he was accompanied by the applicant. Dr Weaver confirmed a longstanding diagnosis of Autistic Disorder. He had not seen the complainant for four to five years prior to the trial. 17    Professor Susan Hayes has a forensic practice as a psychologist dealing with persons with mental abnormalities in the criminal justice system. She administered a battery of psychometric tests to the complainant. She concluded that in terms of the classification of intellectual disability preferred by psychologists (borderline, mild, moderate, severe, profound) the complainant was borderline. She expressed the view that the complainant came within the definition of “intellectual disability” set out in s 66F(1), although that definition did not entirely accord with the psychological definition of that condition. She expressed the view that the complainant was functioning at an age equivalent of around about 10 years in communication skills, around 7 years 11 months in socialisation, and as a teenager around about 13 years and 9 months in terms of his daily living skills. It was this latter aspect which would appear to be particularly relevant to the definition of intellectual disability within the meaning of the statutory definition. 18 Mr Anthony Rochester, a psychologist employed by DOCS, took a history from the complainant on 26 February 1997. He described that during that interview he observed “rote” behaviour which he thought was consistent with an autistic disorder. He did not, however, consider that the complainant had autism. 19    It is convenient now to turn to certain aspects of his Honour’s remarks on sentence. His Honour adverted to the fact that during the whole period of sexual relationship between the complainant and the applicant, the latter was in a position of influence and authority and indeed “power” in relation to the complainant. Having referred to the fact that the acts of intercourse were consensual, his Honour said

“the prisoner in his interview sought to create the impression that it was the complainant who initiated the sexual contact…. The prisoner was in a position of power and in a position to know and understand whether or not that consent was, in fact, understood and genuine. It is not without significance that these were not the complainant’s first sexual encounters. There were apparently encounters when he had run away from home and living in the Kings Cross area and there were other encounters with another person employed at the group home in 1992 that has led to that individual being imprisoned for two years and eight months for a number of offences under s.78K of the Crimes Act . The prisoner was aware of those latter offences as it would appear that he gave the complainant some assistance in the preparation of an application for victims compensation. The prior sexual experience of the complainant was clearly gained in exploitative situations. The fact that he may have initiated sexual contact with this prisoner is therefore, in my view, of little moment.
The prisoner was well aware that his relationship and more importantly the sexual relationship that he developed was wrong. He did nothing to bring it to an end. He did not confide in anyone and he did not seek counselling and indeed he brought his own marriage, as I understand it, to an end because of the relationship he had with the complainant. He clearly had insight in the sense that he knew what he was doing was wrong and he knew it was wrong because he was in a position of trust.”

20    His Honour went on to state that the relationship continued until it was brought to the attention of the authorities who intervened. The applicant immediately resigned from DOCS, and at the time of trial was employed as a meter reader for AGL. His Honour noted that the applicant had fully co-operated with the authorities although it would have been very easy for him to deny the acts of intercourse and in view of the complainants level of intellectual functioning and the way in which he presented in the witness box and gave his evidence, it would have been very difficult for the Crown to have proved the acts of intercourse which were the subject of the charges, but for those admissions. 21    His Honour referred to the fact that the complainant and the applicant still, at the time of trial, expressed strong mutual feelings of affection. His Honour expressed some doubt as to the weight one could place on the expressed feelings of affection by the applicant towards the complainant in light of the evidence of the complainant’s autism and his level of intellectual functioning. Nevertheless, in all the circumstances, his Honour did not consider that he could give that feeling, even if he was satisfied that it was genuine and mutual, any considerable weight in the sentencing proceedings. His Honour said,

“It would be appropriate to deal with it in the same way as the relationship between a prisoner facing sentence and members of his family, spouse and other loved ones. In that context, which is the usual way that the Court deals with such matters, it has no mitigating effect unless there are quite exceptional circumstances of hardship. In my view the mere fact that there is an ongoing and warm and loving relationship mutually shared between these two does not fall into that category. There is no evidence of any harm that would be done to the complainant if he no longer had access to the prisoner because the prisoner was serving a custodial sentence.”

22 His Honour did not have the benefit (nor does this Court) of any reported case law dealing with the application and construction of s 66F(2). His Honour did, however, refer to two decisions which should be noted. The first reference was to the decision of this Court in Parsons (unreported 17 December 1990) which dealt with an application for leave to appeal against a sentence imposed in relation to an offence under s 66F(3). It will, of course, immediately be noticed that the elements of the offence under s 66F(3) are quite different to those under s 66F(2). The former offence carries a maximum penalty of eight years. When referring to Parsons, Judge Sides noted that at first instance an overall sentence of 5 years and 4 months was imposed with a minimum of 4 years and an additional term of 1 year and 4 months. His Honour then said

“The appellate Court intervened in that case to the extent that the minimum term was reduced to 3 years, but the overall sentence of 5 years and 4 months remained with the consequence that the additional term was 2 years and 4 months.”

23    Although the matter was not drawn to the attention of Judge Sides, it has been drawn to the attention of this Court that his Honour erred in his statement of the reduced sentence. In fact this Court reduced Parsons’ sentence to an overall sentence of 4 years with a minimum term of 3 years and an additional term of 1 year. His Honour then referred to the unreported decision of this Court in Moore (12 April 1994) which extensively reviewed the appropriate sentences to be imposed for aggravated intercourse without consent where the circumstances of aggravation are constituted by the age of the complainant. His Honour referred to the fact that in Moore a sentence of 12 years with a minimum term of 9 years and an additional term of 3 years was reduced to a 6 year minimum term and a 3 year additional term. Moore’s case was concerned (inter alia) with an offence under s.61J(1) which, as his Honour noted, carries a maximum penalty of 20 years, and the Crown bears the onus of establishing there was an absence of consent by the complainant. 24    Specifically his Honour took into account the relevant subjective matters raised on behalf of the applicant. His Honour referred to his age and the fact that he will find it difficult to obtain employment in the future, further there is a possibility that his custodial sentence may be served in a protective environment as a result of the nature of the offences. His Honour then pointed out, however, that, on the other hand, general deterrence loomed large as offences of this type are difficult to detect because of the reluctance of complainants with intellectual disability to complain. As his Honour said: “they of all people are very easy to exploit.” 25 His Honour also took into account, particularly on the issue of personal deterrence, that the applicant allowed the relationship with the complainant to continue for some eighteen months when, all along, he knew it was wrong. If it had been a couple of isolated incidents over a short period of time the criminality presented would have been entirely different from the criminality that presents in this instance. 26 His Honour felt unable, in the circumstances, to make any positive finding so far as the applicant’s prospects of rehabilitation were concerned. He expressed the view that the applicant was entitled to claim good character, in the absence of prior convictions, but that must be seen, however, in the context of offences committed over a period of time and in breach of trust, not only of the complainant, but indeed of his employer which is, in effect, the community. 27 Not without some hesitation, it might be thought, his Honour concluded that there were special circumstances based upon the fact that this was a breach of trust over a period of time by an offender without prior convictions and this was the applicant’s first experience of custody. 28 The fundamental submission on behalf of the applicant to this Court was structured as follows: it was submitted that there was a failure on the part of the sentencing Judge to take into account properly, the evidence of the nature of the relationship between the applicant and the complainant together with the lack of evidence of psychological or other injury suffered by the complainant and his borderline degree of intellectual disability. Further, there was the alleged failure of his Honour to give weight to the fact that there was no significant age disparity between the two persons. The applicant contended that the sexual contact with the complainant was essentially in the context of a mutual loving relationship. So intense, indeed, that the applicant brought his marriage to an end as a result of the relationship. It was submitted that this feature rendered the applicant less criminally culpable than if he had been motivated by more exploitative motives such as pure sexual gratification. It was argued that the applicant’s motivation for committing these offences, was not sexual exploitation of a vulnerable person but a reflection of the applicant’s deep affection for that person. 29 It was submitted that although unlike s 66F(3) sexual exploitation is not specified as an element under s 66F(2), nevertheless, the intent of the offence is to protect persons with intellectual disabilities from sexual exploitation by persons in authority over them. Such, it was submitted, was the intention of parliament when introducing the regime of offences contained in s.66F. Reference was made here to the Legislative Assembly Hansard for 29 October 1987 at page 15466. Thus it was submitted that a sexual relationship which is caught by s 66F(2) and is characterised purely by sexual gratification, warrants heavier punishment than one characterised by a mutual loving relationship. Further, it was submitted that as a matter of public policy, the sentence imposed for a s 66F(2) offence should take into account the degree of physical or psychological injury which resulted from the sexual relationship. In the present case there was no evidence of such injury. The degree of intellectual disability is also, it was submitted, a relevant matter, the intent of the legislature being to protect persons who are perceived to be easily malleable by virtue of their intellectual disability. Comparison could be made here, it was argued, with patients in an institution with a moderate, severe or profound degree of disability who are less capable of complaining of unwanted advances than someone in the position of the complainant. 30 As I see the position, these submissions call for the following response. Firstly, in his judgment on sentence, his Honour expressed “clear reservation about the complainant’s assertion that he harboured strong feelings of affection towards the applicant, in light of all the evidence that has been given in the course of this trial, particularly the evidence of the complainant’s autism and level of intellectual functioning.” 31 However, even if one were to accept that this was a genuine mutual loving relationship, I am quite unable to conclude that it should serve to reduce the criminality of the applicant as assessed by his Honour. 32 It is important to note that the legislature did not encumber s 66F(2) with qualifications. The elements of the offence are simple and this Court should not read into the offence elements which are not stated therein. Section 66F(2) is clearly intended to prohibit absolutely, persons with authority (as defined) having sexual intercourse with intellectually disabled persons over whom they have authority. The policy behind such a prohibition is too obvious to require comment. 33 The relationship between a person in authority and an intellectually disabled person can be a sensitive one and involves, to use a well-known phrase of George Bernard Shaw, “fatal propinquity”. It is a situation in which strong emotional relationships are quite capable of developing between carer and intellectually disabled person, whether they are of the same gender or not. It is essential, therefore, that persons in authority exercise the utmost care to avoid such situations developing, and immediately there are indications of such a situation arising, the obligation is on the person in authority to remove himself or herself from the relationship or, at the very least, immediately to seek expert counselling. 34 Neither of these courses was adopted in the subject case and, intolerably, the relationship developed into one of a continuing and prolonged violation of the provisions of s 66F(2). The applicant knew not only that he was in breach of his position of trust, but that he was in breach of the criminal law, and he was also aware that the complainant had previously been the victim of sexual exploitation and as a consequence a prior carer was serving a lengthy custodial sentence. The fact that the relationship may have developed, as the applicant contends, into a mutual loving relationship could fairly be described as an aggravating feature of the case rather than a mitigating factor. 35 As to the point made by counsel for the applicant that there was no evidence of any psychological or other harm to the complainant, it is merely necessary to note that no evidence in the trial was directed to such a matter. Such is the usual position in trials of this nature. Indeed, I would imagine this question would be a complex and difficult one to resolve at a psychiatric or psychological level, bearing in mind the history of the complainant and his obviously fragile emotional condition. 36 As to the argument directed to the asserted borderline level of the complainant’s intellectual disability, one need only to refer to the evidence of Professor Hayes that the complainant is functioning at an age equivalent of around 10 years in communication skill and around seven years and 11 months in socialisation skills. He could hardly be considered capable of protecting his own interests in the circumstances which arose in his relationship with the applicant. 37 For sentencing purposes the deterrent element necessarily looms very large with regard to s 66F(2) offences. It is the mark of a civilised society that those who are incapable fully of protecting their own interests, should be protected from exploitation by those in whom society vests the responsibility of caring for them. Carers who breach this trust must expect condign punishment. The instant case was one of a gross and prolonged breach of trust deserving of condign punishment. 38 One final matter needs to be addressed. It involves the reference by his Honour during the course of his remarks on sentence to the decisions of this Court in Parsons and Moore. As has already been pointed out, his Honour incorrectly stated the adjusted sentence in Parsons’ case. Counsel for the appellant submitted that a misunderstanding by his Honour of the additional term and total sentence, distorted the subject sentence adversely to the applicant’s interests and being of such magnitude that appellate intervention is warranted. It was further submitted that neither Parsons nor Moore were cases which could in any realistic sense be used by way of comparison so far as determining an appropriate sentencing range for the subject matter. With that latter submission I agree. However, I am completely unpersuaded that his Honour’s reference to these cases, including in one respect an erroneous reference, could have, in the circumstances, led his Honour into error insofar as the imposition of the sentences is concerned. Having carefully balanced the objective and subjective considerations I am firmly of the view that the sentences imposed by his Honour, both from the point of view of the minimum term and also the additional term, were well within the sentencing discretion available to him. In the circumstances I would, however, propose that leave to appeal be granted but that the appeal be dismissed.

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