R v Leach

R v LEACH
[2003] SASC 92
Court of Criminal Appeal: Perry, Nyland and Bleby JJ

PERRY J. The appellant appealed by leave against the sentence imposed upon him in the District Court following his conviction by a jury of one count of indecent assault and four counts of unlawful sexual intercourse with a person under 12.
On 20 March 2003 the Court dismissed the appeal, reserving the right to publish reasons later.
Pursuant to s 18A of the Criminal Law (Sentencing) Act 1988, the sentencing judge imposed a single sentence on all five counts. He sentenced the appellant to imprisonment for 10 years and fixed a non-parole period of 6 years. He directed that the head sentence and non-parole period both run from the date upon which the appellant was taken into custody, that is, from 14 November 2002.
The appellant initially sought to raise three grounds of appeal, but was given leave to pursue one ground only, namely that the “learned judge failed to give adequate weight to the appellant’s mental disorders and his response to medication since offending”.
At the time of the offending the appellant was 24 and 25 years of age. At the time of sentencing, he was aged 30 years.
At the relevant time the victim was a young boy aged just 10 years. The offences occurred on four separate occasions over a period of about two weeks.
At the time the appellant was living on his own in a house in Whyalla. He advertised his services as a baby sitter, and the victim’s mother engaged him in that capacity to mind the victim and his younger sister.
Eventually, the appellant persuaded the victim to join a children’s baseball team which he was promoting. The victim attended training with the team in the company of the appellant.
The incident the subject of the first count occurred after a training session. The victim accompanied the appellant to the appellant’s home, an arrangement having been struck with the victim’s parents that he would stay the night there. The appellant invited the victim into his bedroom, where he read passages from a pornographic book, and then asked the victim to drop his jeans and underpants. He then took hold of the victim’s penis. This constituted the indecent assault.
Shortly afterwards, the appellant committed an act of fellatio on the victim, which was the subject of count 2.
Similar acts of fellatio occurred on other days on the occasions the subject of the remaining counts.
It seems likely that the conduct would have continued had it not been for the fact that the victim told his parents that he did not wish to play baseball any further with the club with which the appellant was associated, and he later joined another baseball team. The victim’s parents no longer used the appellant as a child minder.
It was not until about three years later that the complainant first made a complaint about the matter, which resulted in the laying of charges against the appellant.
The convictions were entered in June 2001. A long period of time elapsed before he was sentenced in December 2002. An explanation for the delay is contained in the reasons for sentence which the sentencing judge published. The main cause of the delay was that, following the conviction, the sentencing judge facilitated the provision of a number of reports from psychologists and psychiatrists.
Initially, it was suggested that the appellant has Asperger’s syndrome. Two psychologists offered the view that the appellant suffered from that condition.
Later, however, two psychiatrists who examined the appellant disagreed with that diagnosis. Although there are differences between the psychiatrists, there seems to be no doubt that he suffers from a psychotic state, which is best described as temporal lobe epilepsy associated with schizophrenia.
After that diagnosis was made, in about August 2002, the appellant applied for leave to appeal to the Court of Criminal Appeal against his convictions on the grounds that he had been mentally unfit to stand trial, or that there was an issue as to his mental competence to commit the offences for which he had been convicted.
His application for leave to appeal was rejected by the Court of Criminal Appeal, following which the sentencing process resumed.
Not surprisingly, the appellant’s mental condition figured largely in the submission for leniency advanced on his behalf.
The matter is dealt with at length in the sentencing judge’s extensive reasons for sentence. In the course of the reasons, he cites the views expressed by Martin J in the Court of Criminal Appeal in R v Wiskich[1] as representing the law on the topic. In that case, Martin J, with whose judgment Prior and Williams JJ agreed, said:
“.... 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. .... 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. ..... 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.” (emphasis added)
[1] (2000) 207 LSJS 431 at 457-458.
I accept that statement of principle.
After citing that dictum, the sentencing judge then turned to what he described as the “... difficult factual issue of what was the mental condition of Leach in September 1997”. He went on to refer to the opinion expressed by one of the psychiatrists, Dr Tompkins, which was to the effect that the appellant had schizophrenia and temporal lobe epilepsy in 1997, but Dr Tompkins could not say how severe it was or how it manifested itself in the appellant’s thought processes and behaviour at the time.
The sentencing judge observed that the issue which it was necessary for him to address was similar to the issue which was before the Court of Criminal Appeal on the application for leave to appeal, as to the rebuttal of the presumption of mental competence for the commission of the offences. The sentencing judge cited the views expressed by Bleby J, with whom Debelle and Williams JJ agreed, in the Court of Criminal Appeal in the following passage from Bleby J’s judgment:[2]
“10..... The burden of proof on the balance of probabilities lies on the applicant: .....
13.... On the evidence of Dr Thompkins, it is possible that the applicant did suffer a mental impairment by way of schizophrenia or temporal lobe epilepsy during the course of 1997. That is not enough. .....
14Dr Thompkins, both in his reports and his oral evidence, attempts to infer from the possibility that he suffered a mental impairment at the time that he may not have known the nature and quality of his conduct, or that it was wrong, and that he may have been unable to control that conduct. However, that again is not enough. He was not able to elevate that possibility to a probability that those conditions were met. Indeed, Dr Thompkins conceded that the applicant appreciated in 1997 that sexually interfering with a child was wrong, and that there was nothing in any condition suffered by the applicant to warrant a finding that he did not in fact know the nature and quality of his conduct. He conceded that any inability of the applicant to control his sexual conduct towards the victim was nothing more than a possibility.”
[2] R v Leach [2002] SASC 321.
The sentencing judge concluded that the appellant had not demonstrated that the mental illness from which he was suffering in September 1997, which is when the offences were committed, “did actually affect his knowledge of what he was doing, his knowledge of the gravity of his criminal conduct”. He further observed that there was nothing to indicate that at the time the appellant did not “fully understand what he was doing and that it was wrong”.
The issue of the appellant’s mental competence was clearly a matter which deserved careful consideration by the sentencing judge. It is apparent from his reasons for sentence that in fact he gave the matter the careful consideration which was due. He concluded that the appellant:
“... certainly presented as an individual who was somewhat unusual and odd, but not as someone who had bizarre delusional thoughts. His high intelligence was displayed in his stratagems to seduce the victim and in seeking to bribe him so as not to tell anyone what had occurred. He may well have been naïve in expecting that he could get away with what he had done, but that is not indicative of mental illness. His statements to the police in September 2000 show that he then appreciated the seriousness of the allegations against him. Accordingly, I find that the psychotic mental illness of Leach should not significantly diminish the substantial general deterrent element in the sentence to be imposed.”
Later in his sentencing remarks the sentencing judge said:
“Because of the nature of the offences it is certain that Leach will have to be held in protective custody while in prison which means that he will be deprived of some benefits available to ordinary prisoners. Insofar as that special hardship flows from the nature of his crimes it is not a mitigating factor of any real significance: R v Liddy.[3]
[3] Court of Criminal Appeal, 19 November 2002, Judgement No [2002] SASC 306 (unreported).
The thrust of the arguments put forward by Mr Tremaine, who appeared for the appellant on the hearing of the appeal, is that although the sentencing judge may have carefully considered the question of the appellant’s mental state, at the end of the day, he failed to give it sufficient weight.
In support of his submissions, Mr Tremaine referred to R v Murphy.[4] That case concerned a petition for mercy referred to the Full Court, which means that it was dealt with as though it was an appeal.[5] The case concerned the fixation of a non-parole period for what the court described as “two premeditated and brutal crimes of murder”.[6] The petitioner sought to rely upon evidence concerning his mental health which came to light after he had been sentenced and after the Court of Criminal Appeal had heard an earlier appeal against sentence.
[4] (2002) 221 LSJS 343.
[5] Criminal Law Consolidation Act 1935, s 369(a).
[6] Per Martin J, para 12.
The court held that it was obliged to take into account the petitioner’s mental illness notwithstanding that it had become manifest subsequent to the imposition of the original sentence, as in the particular circumstances it was obliged to approach the fixation of an appropriate non-parole period afresh.
In the course of his judgment, with which Nyland and Besanko JJ concurred, Martin J cited with apparent approval the observations of the Victorian Court of Appeal in R v Tsiaris:[7]
“.... a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence.”[8]
[7] [1996] 1 VR 398 at 400.
[8] Para 43.
Martin J went on to say:
“Reasonable members of our community would recognise that a person who commits a crime while suffering from a serious psychiatric illness may not be an appropriate vehicle for the imposition of a sentence that fully reflects the requirement of general deterrence ..... Each case must be determined according to its particular circumstances. There is no single formula applicable to all cases. In my opinion, in the particular circumstances under consideration, while general deterrence does not occupy its usual position of prominence, it remains a significant factor in fixing an appropriate non-parole period.”
The observations on this topic in Murphy are consistent with the remarks of King CJ in Mason-Stuart v R:[9]
“A person of seriously diminished responsibility is not an appropriate subject for exemplary punishment with a view to deterring others ....”
[9] (1993) 61 SASR 204 at 205.
In comparing what was said in Murphy with Wiskich, the relevant distinction which should be drawn is between cases where the mental illness does not affect the offender’s knowledge of the nature and gravity of the criminal conduct, and cases, which will generally arise where the mental illness is more serious, where it does affect the offender’s understanding of those matters.
It must be accepted that in imposing the sentence now under review, the sentencing judge could not be taken to have discounted to any great extent the allowance for general deterrence which was otherwise called for. His reason for doing so is plain from the judgment which he gave, namely that, as he saw it:
“..... the accused has not shown that the mental illness which he had in September 1997 did actually affect his knowledge of what he was doing and his knowledge of the gravity of his criminal conduct.”
Given the distinction which I have attempted to draw, and accepting the accuracy of that observation by the sentencing judge, he was entitled to take the view that there was no reason to discount the allowance for general deterrence which the objective circumstances of the case would ordinarily attract.
The objective circumstances of this case were serious.
This was a bad case, aggravated by the breach by the appellant of the trust reposed in him as a child minder, and by his abuse of the opportunity given to him to sexually molest a member of the baseball team whom he had befriended.
Before parting with the matter, I will deal with an issue raised by Mr Muscat who appeared for the DPP on the hearing of the appeal. The issue concerns the treatment by the sentencing judge of the victim impact statements which had been provided by the victim and his mother.
The following passage from the transcript illustrates the response made by the sentencing judge following the tender of the victim impact statements:
“MS KLEINIG:           I formally tender the victim impact statements of [the victim’s mother] and [the victim].
HIS HONOUR:           Is there any objection to those?
MR TREMAINE:        No.
MS KLEINIG:            Those two victims ask those impact statements be read aloud by your associate.
HIS HONOUR:           Are they present?
MS KLEINIG:            No.
HIS HONOUR:           Don’t they think I can read?
MS KLEINIG:            They are interested in having the impact of the offending put before the offender.
HIS HONOUR:           I take grave exception to this where victims simply want it read to the court without being present. It is just a waste of my time.
MS KLEINIG:            If that is your Honour’s view then I don’t press it, but I should say that they live in Whyalla.
HIS HONOUR:           I understand they live in Whyalla and they can come down if they feel that way about it. There was no request for the previous impact statements. This is becoming an increasingly prevalent practice and, as far as I am concerned, it is just an insult to the sentencing judge.
MS KLEINIG:            Certainly it is not intended in that way.
HIS HONOUR:           I know it is not intended. It certainly appears to the judge in that way. I suggest if there are other victims that may try similar ideas, ask them if they think the judge can read or not.
MS KLEINIG:            Yes. If your Honour denies that request then I don’t take it any further.
HIS HONOUR:           I can’t deny it. If you say that you require them to be read to the court they will be read by me at breakneck speed.
MS KLEINIG:            As your Honour pleases.
HIS HONOUR:           Do you maintain the request that it be read?
MS KLEINIG:            Yes, I am so instructed.
HIS HONOUR:           All right then. I am required to read out in open court so that everyone present hears what they could have seen anyway by searching the file, and if this sentencing exercise is not finished before 10 o’clock the court will be adjourned anyway. Apparently somebody seems to think this judge and other judges cannot read what is put before them in documentary form.” (emphasis added)
Victim impact statements are furnished pursuant to s 7A of the Criminal Law (Sentencing) Act 1988, which is in the following terms:
“7A(1) A person who has suffered injury, loss or damage resulting from an indictable offence committed by another may furnish the trial court with a written personal statement (a victim impact statement) about the impact of that injury, loss or damage on the person and his or her family.
(2)A victim impact statement must comply with and be furnished in accordance with rules of court.
(3)The court, on convicting the defendant of the offence-
(a)will, if the person so requested when furnishing the statement, allow the person an opportunity to read the statement out to the court; and
(b)in any other case, will cause the statement to be read out to the court.
(3A)If the court considers there is good reason to do so, it may exercise any of the powers that it has with regard to a vulnerable witness in order to assist a victim who wishes to read out a victim impact statement to the court.
(4)The validity of a sentence is not affected by non-compliance or insufficient compliance with this section.”
Procedures for the furnishing of the victim impact statement and the reading of it in court are set out in the District Court Rules 1992,[10] more particularly r 19. This provides:
[10] The Supreme Court Criminal Rules, r 19, are in the same terms.
“19.01A person wishing to furnish the Court with a victim impact statement pursuant to s 7A of the Criminal Law (Sentencing) Act 1988 (the Act) shall provide such statement in writing to the Director of Public Prosecutions (the DPP).
19.02A copy of the statement shall be provided to the presiding judge upon the accused pleading guilty to, or being found guilty of, the offence or offences to which the statement relates.
19.03The presiding judge shall appoint the time at which the statement will be read to the Court and may refuse to postpone the reading of the statement if the resulting delay would be unreasonable in the circumstances.
19.04If the person providing the statement is not in the Court when the presiding judge gives directions pursuant to Rule 19.03, the DPP shall advise the person of the time fixed by the Court for the reading of the statement.
19.05Subject to Rule 19.06, the person making the statement may amend it at any time prior to the time at which it is read to the Court.
19.06The presiding judge may direct that irrelevant material in the statement not be read out to the Court.
19.07A person who has furnished a statement in accordance with s 7A(1) of the Act may at any time withdraw the statement as a victim impact statement provided pursuant to that section in which event the statement will not be read out to the Court.
19.08A statement which is withdrawn pursuant to Rule 19.07 may be furnished to the court by the prosecutor pursuant to s 7 of the Act.”
It is clear from s 7A(3) that if the author of the statement wishes to have an opportunity personally to read the statement out to the court, he or she should be given that opportunity, and should be allowed to do so. But if that should not be the case, the court must “cause the statement to be read out to the court”, that is, by someone other than the author. In such circumstances, the presiding judge may read out the statement or have some other suitable person, such as the judge’s associate, read it out.

Against that background, it is not clear to me why the sentencing judge in this case described the process of having the statement read out to the court in the absence of the author of it in such extreme terms, such as “taking grave exception” and treating it as an “insult to the sentencing judge”. His comment that he would read it at “breakneck speed” was completely uncalled for, as was his further comment “... somebody seems to think this judge and other judges cannot read what is put before them in documentary form”.
There could be no possible ground for a judge to think that the request by a victim that the statement be read is any reflection on the judge’s own ability to read the statement, or that in some way the request amounts to an insult directed at the judge. I am at a loss to understand how the sentencing judge in this case came to make observations to that effect.
In my view, there is nothing which arises either expressly or by implication from the provisions of s 7A or from r 19 which suggest that it is either necessary or desirable that the author of a victim impact statement should be present when it is read. There may be a variety of reasons why the author may not be present at that time. He or she may live at some distance from the court and may not wish to go to the expense of attending, or, as may often be the case, the victim may anticipate that his or her attendance at the court hearing might be a stressful experience which would serve only to add to the adverse impact of the offence on them.
Even if present in court, the victim may not feel adequate to the task of reading the statement aloud, or may not want to do so because of the likely stress this may cause. There have been many instances where victims who do read their statement in court break down or become upset.
Given these considerations, it is in the first place entirely a matter for the victim to indicate whether or not he or she wishes to be present when the victim impact statement is read, and in the second place, to decide whether or not to read it personally, or have someone else do so at the direction of the judge.
I see nothing in the Act or in the rules to suggest that there is any ground to criticise a victim if he or she, for one reason or another, either does not wish to be present or does not wish to read the statement.
The clear intent of the legislation is that, whether or not the victim is present, the statement should be read out in court.
I should deal with another aspect of the comments made by the sentencing judge. He said:
“I am required to read out in open court so that everyone present hears what they could have seen anyway by searching the file ...” (emphasis added)
Access by members of the public to documents forming part of the record of the District Court is governed by s 54 of the District Court Act 1991, which appears to be in the same terms as s 131 of the Supreme Court Act 1935.
Relevantly, s 54 provides:
(1)Subject to this section, the Court must, on application by any member of the public, allow the applicant to inspect or obtain a copy of-
(aa)   any process relating to the proceedings and forming part of the Court’s records;
(a)     a transcript of evidence taken by the Court in any proceedings;
(b)    any documentary material admitted into evidence in any proceedings;
(c)    a transcript of submissions by counsel;
(d)    a transcript of the judge’s summing up or directions to the jury, in a trial by jury;
(e)    a transcript of reasons for judgment (including remarks made by the Court on passing sentence);
(f)     a judgment or order given or made by the Court.
(2)A member of the public may inspect or obtain a copy of the following material only with the permission of the Court:
(a)     material that was not taken or received in open court;
(b)    material that the Court has suppressed from publication;
(c) material placed before the Court during sentencing proceedings (including material furnished under section 7 of the Criminal Law (Sentencing) Act 1988);
(d)    documentary material filed in connection with a preliminary examination;
(e)    a transcript of any oral evidence taken at a preliminary examination;
(f)     a photograph, slide, film, video tape, audio tape or other form of recording from which a visual image or sound can be produced;
(g)    material of a class prescribed by the regulations.
(3).........”
A victim impact statement itself could only be disclosed to a member of the public with the permission of the court under s 54(2), as such a statement would be, within the meaning of s 54(2)(c), “material placed before the Court during sentencing proceedings”.
If the transcript of the reading out of the victim impact statement amounts to a transcript of “evidence taken by the Court in any proceedings”, it would be accessible as of right by any member of the public pursuant to s 54(1). However, I doubt that it answers to that description.
Before it is read out, the sentencing judge will already have read the statement. In reading it out, or causing it to be read out, the judge could hardly be said to be “taking evidence”. The sentencing judge has already been made aware of whatever evidentiary value may be contained in the statement by having read it for himself or herself.
The reading out in open court is not for the purpose of “taking evidence” in the ordinary sense. It is simply the carrying out of a statutory obligation to make public the terms of the victim impact statement.
The view which I have just expressed and the construction of s 54(1) and s 54(2) were not the subject of argument on the hearing of the appeal, and I therefore offer that view as a tentative opinion which ought to be reconsidered in a case where the matter is fully argued.
For present purposes, however, by reason of the considerations to which I have referred, it seems to me that the sentencing judge in this case erred when he observed that everyone present in court could have seen the contents of the victim impact statement by searching the file. As I have explained, members of the public could only have access to the file, or at least the victim impact statement on the file, with the permission of the court to be given under s 54(2).
On the general issue, the legislative provisions as to victim impact statements are predicated upon the view that it is in the interests of justice that the victim of a crime is entitled to have a statement as to the impact of the crime upon him or her aired publicly during the sentencing process. Quite apart from the evident public interest in such a procedure being part of the sentencing process, the public airing of the impact of the offending upon the victim may in some cases assist the victim to come to terms with the effect of the crime upon them.
Judges should administer the procedures laid down in s 7A and in r 19 with due sensitivity to the wishes and feelings of the victim.
With respect to him, the attitude taken by the sentencing judge in this case to this part of the sentencing process was both misconceived and regrettable.
Having made those observations, I think it fair to say that most sentencing judges have regularly approached the matter in the way that I have indicated.
It is for these reasons that I concurred in the dismissal of the appeal.
NYLAND J. I agree with the reasons published by Perry J with respect to the order dismissing the appeal. I also agree with his reasons with respect to the reading of the victim impact statements. I would also like to express my concern at the approach taken by the learned sentencing judge to the reading of the victim impact statements. The ability of a victim to have his/her statement read in open court is now an important part of the sentencing process. As Perry J has commented, there are many reasons why a victim may not wish or may not be able to be present in court. In my opinion, it would be contrary not only to the form, but the spirit of the legislation to make the reading of such statements dependent upon the presence of the victim.
BLEBY J. I agree with the reasons published by Perry J. I also respectfully identify myself with his observations on the sentencing Judge’s apparent attitude to the reading of victim impact statements.
It is an important part of the sentencing process, now enshrined in the Criminal Law (Sentencing) Act 1988, that a victim should be able, either directly or through another, to confront the convict directly with the effect that the crime has had on that person. Among other things, it assists in bringing some closure to the victim. It may, in some cases, have a beneficial impact on the convict. It is the personal confrontation that is important, and which the Act requires. That is not achieved by the sentencing Judge reading in private a document which the convict may never see or may never want to see.
For similar reasons, it is important that the convict be confronted by the sentencing Judge in pronouncing, in open Court, not only the sentence, but the sentencing Judge’s remarks in passing sentence. Those are addressed to the convict.
In my opinion, the practice, apparently adopted in this case, of publishing in written form reasons for sentence, not read in Court, framed in the third person and not directed at the convict, is to be discouraged. If anyone is to hear and understand the remarks it is the convict. Mere announcement of a sentence and the publication of written reasons is no guarantee that the convict will read them, assuming that he or she is able to read. It may mean that the convict never knows the reasons for the sentence imposed. There is therefore a risk of denial of complete justice. The only way that that risk can be avoided is for the Judge to ensure that the convict hears personally and is confronted, in a formal setting, with the reasons which justify the penalty.
The expression of victim impact statements and of a Judge’s sentencing remarks are not matters which can be done effectively in a remote, clinical or impersonal way. They are important messages to a person, and are messages which that person, often not well educated, is required to hear, to understand and to face up to. That must be done in the most effective way possible, without the person being able to avoid the message. The Court will fail in its duty to that person and to those who rely on the Court to carry out its duty if it imposes possible barriers to the effective hearing and understanding of those messages.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1. (2000) 207 LSJS 431 at 457-458.
2.    R v Leach [2002] SASC 321.
3. Court of Criminal Appeal, 19 November 2002, Judgement No [2002] SASC 306 (unreported).
4. (2002) 221 LSJS 343.
5.    Criminal Law Consolidation Act 1935, s 369(a).
6.    Per Martin J, para 12.
7. [1996] 1 VR 398 at 400.
8.    Para 43.
9. (1993) 61 SASR 204 at 205.
10.    The Supreme Court Criminal Rules, r 19, are in the same terms.

[2003] SASC 92

28 March 2003

Key Legal Topics

Areas of Law

Criminal Law

Legal Concepts

Sentencing

Victim Impact Statements

Judicial Review