R v Little

[2007] NSWDC 224

Reported Decision: 6 DCLR (NSW) 308

District Court

CITATION:	R v Little [2007] NSWDC 224
HEARING DATE(S):	16/04/07 19/04/07
JUDGMENT DATE:	19 April 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Conlon SC DCJ
DECISION:	Convicted. Sentenced to a non-parole period of 15 months with an additional term of 9 months. Find special circumstances.
CATCHWORDS:	Indecent Assault - ADHD
LEGISLATION CITED:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
CASES CITED:	Regina v SY and Regina v KS (2003) NSWCCA 291
PARTIES:	Crown Adam Little (Accused)
FILE NUMBER(S):	06/41/0154
SOLICITORS:	Mr M Stollery (Crown) Ms N Keays (Accused)

JUDGMENT

1 HIS HONOUR: The offender appears for sentence following his plea to a charge that on 22 February 2006 at Goulburn, the state of New South Wales he did assault Melissa Lee Cartwright and at the time of such assault did commit an act of indecency on Melissa Lee Cartwright. The offence carries a maximum penalty of five years imprisonment.

2 The agreed statement of facts is exhibit A and it reads as follows:

“On 22 February 2006 the complainant Melissa Lee Cartwright (date of birth 14/8/75) was living at unit 25 Bungonia Flats, located at 75 Goldsmith Street, Goulburn. These premises are owned and operated by the New South Wales Housing Commission. Ms Cartwright had been living at the flats since November 2005. The accused was also a resident of the flats and resided in unit 23 on the floor below Ms Cartwright. At about 10.30am on 22 February 2006, the complainant was visited at her unit by a friend Edwina Niewiadomski-Furlong and her de facto Graham Taylor. These persons were also residents of the flats and lived upstairs. Arrangements were then made between Edwina, Graham and the complainant to attend the Empire Hotel on the main street of Goulburn. The complainant left a telephone message with her mental health counsellor cancelling her counselling session that morning. The three then attended the hotel to play the poker machines. The three remained at the hotel for two to three hours. During this time the complainant drank two schooners of VB beer which made her feel ill. Edwina had success on the poker machines and with the winnings purchased a six pack of bourbon and Coke premixed cans at the bottle shop before they all returned to the Bungonia Flats. Edwina and Graham returned to their unit and Ms Cartwright accompanied them. At the unit, Graham packed a cone of marijuana and the three of them smoked the marijuana from the glass bong which they shared. Ms Cartwright was also sipping on one of the cans of bourbon and Coke. Whilst they were sitting and talking there was a knock at the door and in walked the accused Mr Adam Little who Ms Cartwright had seen around the flats, however they had never met. Edwina who was a friend of the accused introduced them. Edwina noticed the accused had three large slash wounds to his left arm. He was drinking a stubby of Tooheys beer. He asked Edwina if he could borrow her bong to which she agreed. He then left he unit and returned a short time later with two stubbies of beer, gave one to the complainant. She took a sip, however it was warm and she poured it down the sink. The accused then left the unit with the bong. After about a half an hour Edwina requested the complainant go down to the accused flat to retrieve the bong. Ms Cartwright subsequently went downstairs and knocked on the door of unit 23. The accused answered the door and invited her inside. In the flat were two friends of the accused, a Daryl White also known as “Smasher” and Rory. They were drinking beer and offered the complainant one which she accepted. She remained there drinking and talking for a good while. Eventually Edwina came to the unit and retrieved the bong and then left. Ms Cartwright and the accused subsequently left his unit together and went to Edwina’s unit. More marijuana was consumed from the bong. Ms Cartwright and the accused then walked together to the Empire Hotel to purchase another six pack of bourbon and Coke. They returned to the Bungonia Flats where the accused obtained some beer from his unit and went to Ms Cartwright’s unit. She put some music on and they sat on the lounge drinking and talking. At this point the accused asked “Do you want to go into the room?” indicating the bedroom. She replied “No, I just want to sit here and listen to music”. He then asked her “Do you want me to stay or go?” and she replied “That is up to you”. The accused then left the unit and invited Ms Cartwright to come down to his flat and wait for his friend “Smasher”. She agreed and they both went to the accused’s flat. A short time later “Smasher” arrived. He remained at the unit for about ten minutes before leaving once again. As he left the accused shut the door to the unit. Ms Cartwright asked him to open the door, however he refused. She then got up to open the door and the accused refused again. She asked “Why can’t I open it?” The accused replied “Because you’re going to get it now”. He then approached Ms Cartwright and placed a hand on the top of her shoulder near her neck, tripped her to the ground. She struggled and managed to get up, however she was pushed to the ground again. The accused removed all his clothing and was naked. As she lay on her back on the floor the accused held her down with one arm and removed her shorts and underpants. She was repeatedly saying “no”. He lay in a position above the complainant with his penis in a semi-erect state in close proximity to her genitals. Ms Cartwright noticed the wounds on the accused’s arms were bleeding. The smell of the dripping blood caused her to feel nauseous and she told the accused she was going to be sick. He got off her and she ran to the bathroom and vomited in the toilet. A short time later “Smasher” knocked at the door. The accused answered it and Ms Cartwright briefly spoke with “Smasher” before returning to her unit. There she took a quantity of prescription Epelon tablets, which is a mood stabilising medication. She then grabbed some cans of bourbon and Coke and went and sat behind the laundry block at the Bungonia Flats. There she saw two neighbours Yvonne Morphett and Robert Costa who noticed she was distressed. She made a complaint of the incident to Yvonne. At about 5.00pm the accused attended a unit of Martin Newby, another resident of the Bungonia Flats. The accused made an admission to the offence and stated that he wanted to apologise to her. Mr Newby then verbally abused the accused. Mr Newby then went to the laundry area and spoke to Ms Cartwright. He noticed she was crying and shaking. He took her to his unit and spoke with her for some hours before she returned alone to her unit. In her unit she passed out from a combination of Epelon medication and alcohol. The following morning Mr Newby attended the Goulburn police station where he advised Constable Beard of the admission made to him the previous day by the accused. Police then attended the Bungonia Flats and woke Ms Cartwright. They noted she was crying. Police then arranged to take her to Goulburn based hospital where a sexual assault investigation examination was conducted by Dr John Egan. She remained at the hospital for treatment regarding the Epelon ingestion. Police seized the clothing the complainant was wearing the previous day. The clothing was later analysed and blood was detected on her shorts and shirt. On 1 March 2006 the complainant made a formal statement at Goulburn police. About 3.00pm on this date police attended caravan 3 at Willows Caravan Park on Old Sydney Road, Goulburn where they arrested the accused. He declined to be interviewed. The accused consented to the taking of a DNA sample. The sample was compared to the blood detected on the complainant’s clothing and it was found to have the same DNA profile as the accused.”

3 The offenders Children’s Court record extends from 2003 to 2004. In the Local Court in May 2005 he received concurrent sentences of six months for common assault for contravening an apprehended domestic violence order (call-up) and larceny and malicious damage.

4 I now turn to the subjective matters in respect of the offender. He is now twenty years of age. Mr Paul Maggs, probation and parole officer (report dated 9 February 2007, exhibit B) indicated that the offender:

“Described an unstable upbringing with a significant history of childhood trauma. He is the youngest of seven children. According to his mother, his parents separated prior to his birth. The older children stayed with the father and he was reared by his mother. He only saw his father occasionally. He is close to his mother. He has little contact with his siblings, however one of his older brothers has been in gaol and according to a juvenile justice report has had a negative influence on him”.

5 Mr Maggs also states:

“Mr Little’s mother had her own problems with alcohol. Mr Little ran away from home at fourteen years of age, began to associate with an adverse peer group. He stated that more recently he has been trying to relate better with his father who is in poor health. Mr Little entered a relationship and has a two and a half year old daughter who is cared for by the paternal grandmother. The grandmother stated that she encourages Mr Little to have contact with his daughter, but she will not bring the child in to gaol to visit him.
Mr Little stated that he has a fiancee and they have known each other for about one and a half years. His fiancee stated that she has been trying to keep Mr Little away from alcohol. She also stated that Mr Little tends to isolate himself and has developed a certain “dependence” on her. She also attended alcohol and other drug and mental health services with him.”

6 Under the heading “education/training/employment”, it was noted that Mr Little left school in Year 8. He claimed that he suffered ADHD and found it difficult to concentrate. He stated that he was expelled from the school. He has difficulty with literacy. He has been mainly unemployed since leaving school, except for a few months prior to incarceration in 2006 when he was working and helping to install air conditioning. It would appear that his alcohol and drug problems and mental health issues have been the main reasons for his unemployment.

7 Under the heading “Health/Mental Health Issues”, this was reported:

“ Mr Little has a history of psychiatric treatment including a previous diagnosis of ADHD to which he was medicated as a juvenile. He reports a history of psychosis and diagnosis of schizophrenia. He is currently on Quetiapine morning and night for schizophrenia and Mirtazipane at night as a sedative and for depression. He is also on the methadone program which apparently helps with his mental health”.

8 A psychological report prepared in March 2004 by the Juvenile Justice Department refers to a visiting psychiatric opinion as follows:

“Supports opinion that Adam suffers from borderline personality disorder, substance abuse disorder and does not appear to be suffering any formal thought disorder”.

9 However, on a psychological note entered on 30 December 2006 at the MRRC, Mr Little is reported as saying that:

“He continues to have feelings of paranoia and is experiencing some auditory hallucinations.”

10 Also included in the pre-sentence report is the statement that Mr Little apparently has been receiving counselling whilst in gaol at Parklea. He was assessed as unsuitable for a community service order and also unsuitable for a periodic detention order.

11 This is a sad background indeed. One only has to look at the offender standing in the dock to gain some appreciation of his disadvantaged upbringing. It is etched into his face. I am starting to lose count of offenders coming before the courts who were diagnosed at a very young age with ADHD for which they were “medicated”. Medicated for ADHD is a nice little phrase is it not? My own research indicates that ADHD is perhaps the most over-diagnosed condition in today’s society. If that is correct, do we really know what the long term effects of those drugs/chemicals are on the mental health of those young persons so diagnosed?

12 Recently, one offender appearing before me indicated that he felt suicidal on ADHD medication and those feelings only subsided when he made the decision to stop taking it. Another said that “the fog” finally lifted when he quit the medication. I know that there are those with the appropriate medical qualifications who are concerned about the effects of these drugs on the mental health of young persons. However, I fear they are not nearly vocal enough.

13 Why is it that I raise this subject in the course of this judgment? Well I have had tendered before me a report of Dr Yolande Lucire, Consultant Psychiatrist. That report is dated 27 March 2007 and is exhibit 1 in these proceedings. Dr Lucire stated by way of history that the offender was always in trouble in primary school. She said:

“From the age of six or so he had Ritalin medically prescribed”.

14 She then commented:

“We now know this causes brain injury and permanent personality change. At 16 or so, someone from juvenile justice took him off Ritalin. During that period Adam exhibited a number of characteristics of borderline personality disorder. We now know that the organic personality disorder can be induced by psychotropic drugs especially serotenergic ones like Ritalin”.

15 Well if “we now know” these things, is there appropriate information out there in the community about the dangers? I fear there is not. As a starting point, I would recommend to any parent the reading of the book “Ritalin Nation” by Richard Du Grandpre as essential reading on the subject as a starting point to at least warn people out there in society of the manner in which this condition may be over diagnosed.

16 Back to this offender. Dr Lucire’s opinion is that he appears to have a borderline personality disorder. She says:

“This is manifested as recurrent suicidality, impulsivity, difficulty in feeling good, alcohol and amphetamine abuse, suicide attempts”. She says he will require a long period of rehabilitation.

17 His fiancée Lisa Chan was unable to attend court during the sentence proceedings owing to work commitments. However her letter was tendered and it is exhibit 3. In the body of that letter she comments as follows:

“Before the offence was committed Adam had started to turn his life around. He was working as an air conditioning specialist and when I first met him he told me how much he enjoyed working and living a normal life. During the time the offence was committed I was recovering from a miscarriage with my mother in Benora Point on the Gold Coast of New South Wales. I believe that Adam felt that this was his fault due to some things he had said and this may have contributed to the events that followed. I am his fiancee and I know him to be honest. He is remorseful and wishes to pursue a working, law-abiding lifestyle free of the drugs and alcohol his past represented. He and I have plans to move from Goulburn and try for a fresh start. Adam looks forward to trying new things and working as a responsible member of society”.

18 She also comments she will do anything to support him through his transition back into society.

19 In the course of submissions on sentence Ms Moody indicated to me that the offender felt that working in the air conditioning field had given him a purpose in life and occupied him during the day, something which he had never experienced before.

20 The offender is entitled to have his plea of guilty reflected in mitigation of penalty. This is done on two bases: To reflect the utilitarian benefit to the criminal justice system and to reflect contrition. This was a plea to a lesser offence following his committal for trial. The plea was entered after negotiations with the Crown.

21 In Regina v SY and Regina v KS (2003) NSWCCA 291 it was stated:

“It does not always follow that a plea is entered at the first reasonable opportunity simply because the plea occurs after negotiations with the Crown once the offender has been committed for trial. Clearly there will be occasions where the nature of the bargain struck does indicate that the offender could not reasonably have been expected to plead guilty before the opportunity was presented to plea to some less serious charge. But that is not always so and it behoves a sentencing judge to look at the situation realistically in determining the value on the utilitarian basis”.

22 The fact that the plea to a lesser offence or offences is offered at the first reasonable opportunity does not automatically mean that a full discount for a plea should be given. However, the Crown here has indicated that there were certain difficulties with the prosecution case and in the circumstances has conceded the plea should be regarded as being made at the earliest opportunity. Despite the concession of the Crown, the timing of this plea necessarily meant that the advantages to the administration of justice were slightly less. However, there certainly remains a utilitarian benefit and I propose to reflect this by a discount of about 20%.

23 I have taken into account the purposes of sentencing as set out in s 3A of the Crimes (Sentencing Procedure) Act, I also have had regard to s 5 of the Act and having considered all possible alternatives I am satisfied that in view of the objective seriousness no penalty other than imprisonment is appropriate.

24 I find special circumstances being that his disadvantaged background has provided him few opportunities in life and my assessment of him as having good prospects for rehabilitation. Dr Lucire’s opinion is that he will require a long period of rehabilitation. For these reasons it is appropriate that I vary the statutory ratio.

25 Mr Little will you stand. Mr Little you are convicted. I sentence you to a non-parole period of fifteen months to date from 1 March 2006 and to expire on 31 May 2007. I sentence you to an additional term of nine months to expire on 28 February 2008. I order that you be released to parole on 31 May 2007.

**********