R v Newson No. DCCRM-00-1052

R v Richard David Newson
[2002] SADC 56
Judge Sulan
Criminal

Richard David Newson (“Newson”) was convicted on the 30^th October 2001, by verdict of a jury of two counts of rape. Particulars of the first count are that he, on the 9^th day of May 2000, at Oaklands Park, had sexual intercourse with SPD without his consent, by performing an act of fellatio upon him. Particulars of the second count are that on the same day at Oaklands Park, he had sexual intercourse with SPD without his consent, by causing SPD to perform an act of fellatio upon him.
SPD was almost 17 years of age at the time. On the 9^th May 2000, he was walking home from the railway station at about 10.20 pm, having escorted his girlfriend to the station. Newson was driving his car. He stopped the car and confronted the victim. Newson suggested to SPD that SPD had thrown something at Newson’s car. SPD denied having done so and denied having seen anyone else throw anything at the car. They were the only two people in the immediate vicinity. It was dark and they were near a park.
Newson confronted SPD and threatened him. He forced the victim to walk across the road into the unlit area of the park. Newson told the victim that he wanted to speak to his parents and would walk him to his home. SPD was very frightened. Newson is physically stronger than SPD. They walked through the park area and stopped. There was some discussion about cigarettes and Newson began to search SPD’s pockets. He then put his hand down the front of the victim’s tracksuit. He said to the victim “Why are you so small? I’ll show you what a real penis looks like”.
Newson then asked SPD to touch him on his penis. SPD did as he was told. Newson then pulled SPD’s tracksuit pants down and hugged him. SPD’s penis became erect during the course of this conduct. He was very frightened and confused. Newson then sucked the victim’s penis. Newson told the jury that he believed that SPD was a willing party to this conduct. The jury did not accept Newson’s evidence.
The two then returned to the car. As they were returning to the car, Newson pushed SPD onto the ground and lay on top of him. They both had their pants down and SPD was crying and sobbing. He said he was very frightened.
The two then walked to the car and Newson again threatened SPD. He then walked him back into the park. They stopped in an area where Newson made the victim masturbate him. During that time, Newson put on a condom and made SPD suck his penis. SPD complained and said he wanted to go home. Newson removed the condom and again made SPD suck his penis during which time he ejaculated. Newson told the jury that SPD was consenting to this act and that he was surprised when SPD sucked his penis after he had removed the condom. The jury, by its verdict, did not accept Newson’s version of what had occurred.
The two returned to the car where there were two police officers. They had stopped to inspect the car which had been parked in an unusual position. Whilst the police were speaking to Newson, SPD left the scene. He told the jury he was frightened and wanted to get away. He went to the nearest public phone booth and rang his mother. When his mother came to the area to pick him up, he was very distressed. A complaint was immediately made to the police. Newson was later charged.
Newson’s conduct caused SPD a great deal of distress. SPD lived with his mother. He has a brother and a sister. I have considered a victim impact statement in which he stated that the events of that evening have resulted in him suffering from nightmares and mood swings. He stated that his relationship with his mother has deteriorated because he has difficulty in communicating with her. He has received a great deal of support from his sister and brother and he has obtained professional counselling. The victim’s mother has also provided a statement in which she described how the conduct has dramatically affected her son’s life. SPD found it difficult to go back to work and has had difficulty in trusting people. His sister, who was living in Sydney, has returned home to assist the family. The brother of SPD had left home to travel around Australia. He came back to South Australia to help his younger brother and to assist his mother. His life has also been severely disrupted. I have had regard to the effect Newson’s conduct has had upon the family unit of the victim.
Newson was 25 years of age at the time of this offending. He has a previous conviction when he was convicted in the Adelaide Magistrates Court on the 27^th October 1994, of four counts of indecent assault. He received a sentence of 12 months imprisonment, suspended upon him entering into a bond in the sum of $300 to be of good behaviour for 18 months. He was to undertake psychiatric or psychological assessments as directed by his probation officer from time to time, and to include the treatment phase of the Sexual Offender’s Treatment and Assessment Programme. The circumstances of his offending on that occasion were that he engaged in indecent acts with two young boys aged seven and nine years. He was a friend of the father and of the seven year old boy. The nine year old boy was a visitor to the house. Acts of fellatio took place on those occasions.
Various reports were prepared and provided to the sentencing Magistrate. Amongst those reports was a report of Doctor Ian Buttfield, a specialist physician, who reported that Newson had suffered chronic fatigue syndrome in about 1988 and that he was suffering insulin dependent diabetes, which resulted in emotional problems. He was described as being, naïve, immature and vulnerable.
Doctor C.R. Harrison, his general practitioner, reported that in 1988, after a bout of flu, Newson developed chronic fatigue syndrome and in June 1990 he was diagnosed with insulin dependent diabetes mellitus. In February 1994 he was referred to Doctor Lashchuk, a psychiatrist, for help and family counselling. It appears that he had been sexually molested when he was about seven years of age, whilst he was at school. Doctor Harrison reported that imprisonment, in his opinion, was inappropriate, because he was not sure that Newson fully comprehended what was happening to him.
Doctor Lashchuk provided a report in September 1994 in which he concluded that Newson’s abherrant sexual behaviour had its roots in a severe degree of sexual naiveté and immaturity. He recommended ongoing counselling and review. He also referred to Newson having suffered attention deficit disorder.
Doctor Harry Nash, a consultant paediatrician, also reported on Newson’s health and in particular, the diagnosis of attention deficit disorder made in 1992. He considered that imprisonment could create significant distress and possible deterioration in his clinical state.
The Magistrate was provided with a psychological report from Ms G. Hannell, which concluded that Newson had significant learning difficulties.
Mr Fugler, a psychologist, also reported that Newson has a lengthy history of psychological and physical disorders, that his social skills were limited and that his offending was reflected in a combination of all of his problems. He recommended that Newson be referred to the Sexual Offender’s Treatment and Assessment Programme. He concluded that imprisonment would be likely to do little other than raise his level of anxiety and have no real impact upon modifying his maladaptive sexual arousal patterns.
The Magistrate determined to impose the suspended sentence to which I have earlier referred.
Mr Cuthbertson, for Newson, provided me with a number of reports, including reports from Doctor Anthony Lavender, a psychotherapist, Doctor Colin Harrison, Doctor Craig Raeside, a psychiatrist, Doctor David Bertram, a psychiatrist, Mr Jack White, a psychologist and Doctor I. Buttfield, a specialist physician. I have also had regard to a report from Mr N. Kuiper, of the LeFevre Baptist Church and Mr P.E. Veale.
Doctor Buttfield saw Newson on the 20^th November 2001, and reported that he was unchanged from his previous personality, in that he was still naïve, immature and vulnerable, other than that he was suffering from extreme anxiety, due to his current circumstances. Doctor Buttfield expressed concerns about the consequence of imprisonment.
Doctor Lavender concluded that Newson has insight into the nature of his difficulties and genuinely wishes to address the issues of his homosexuality, primarily because of his religious beliefs. Mr Newson and his family hold a strong religious conviction that homosexuality is an unnatural deviation from the norm. Doctor Lavender was of the view that Newson would be at risk physically and psychologically in a prison environment.
Doctor Harrison confirmed that Newson has had a number of physical and psychological disorders. He suffers from a condition as a result of which his hair falls out to varying degrees. It is related to severe stress or anxiety. He concluded that Newson is not an aggressive, openly rebellious or defiant person and that he has a strong dependence upon his family. He regarded him as a vulnerable person.
I have also had regard to the reports of Doctor Raeside and Doctor Bertram, both who gave evidence.
Doctor Raeside concluded that Newson has a lifelong history of significant physical and mental/emotional problems, relating to chronic illness. These related to the earlier disorders to which I have referred. He is of the opinion that Newson requires ongoing specialist and medical psychiatric review for his various conditions and needs counselling, both in respect of his sexual offending and in an attempt to assist him to change his homosexual orientations.
Doctor Bertram, who is a specialist psychiatrist, and who specialises in child, adolescent and family psychiatry, and has worked with disturbed children and adolescents, concluded that Newson’s personality development has been arrested to a large degree at a pre-adolescent level, and that he is functioning at the level of a twelve to fourteen year old. He regarded his behaviour as early adolescent sexual experimentation.
Both Doctors Raeside and Bertram were of the view that a custodial sentence would be extremely detrimental to the health of Newson and would have a significant negative effect upon his future psychological development. Doctor Raeside, who has extensive experience in the prison system, was of the view that, because of Newson’s unique psychiatric and psychological problems, the prison system would have great difficulty in coping with him and that imprisonment would have an extremely detrimental effect upon him.
Doctor Bertram also referred to the effect of imprisonment. He was of the view that given Newson’s various difficulties, a residential type facility in which his mental situation could be monitored, would possibly be the best and most appropriate way of dealing with his problems. He was asked in cross examination :
"QWhat’s the problem with imprisonment.”
He responded :
“The problem with imprisonment is that it is not, as Doctor Raeside quite competently outlined, a place where you access treatment unless perhaps you need medication for an acute psychosis. It is a place where most people regress in functioning, they become dependent. There would be a risk that he would become institutionalised as he did throughout his teenage years where he had chronic fatigue and was in hospital for some period. He may become baby like, childlike in his behaviour which would lead to persecution. He may spend his entire time in the infirmary which would mean when he left custody he would be even further delayed in autonomy which could be like when he left the Flinders Medical Centre with his chronic fatigue, the effect of which would be that notwithstanding the abuse and depression and psychotic bouts in custody, when he leaves custody he would be even more impaired than he is now and the treatment of rehabilitation would have to be done again at a much more intensive level over a longer period of time and in fact it may be that when he emerges from custody that he is in a situation where he is more likely to offend for that reason.”
He concluded that a period of imprisonment would not act as a personal deterrent in the case of Newson.
Doctor Raeside regarded Newson as a person who would be a vulnerable prisoner and he regarded the various types of accommodation within the prison system would be unsuitable to deal with a person with Newson’s various conditions.
Mr Alfred Thompson, who is the organiser of an organisation called “Teen Challenge”, which is a drug rehabilitation organisation and which provides residential accommodation for people who have life controlling problems, gave evidence that his organisation would be prepared to accept Newson and to provide counselling and treatment for him, in a residential situation. He was of the view that this would assist Newson who is highly dependent upon his family, in particular, his mother. It would assist him to develop a sense of independence and provide counselling for him in respect of his offending.
Doctor Raeside was of the opinion that Teen Challenge may assist Newson in his development.
Mr Cuthbertson submitted that the Court should consider imposing a non immediate custodial sentence on the condition that Newson submit himself to programmes as directed, of which Teen Challenge was one option.
I also heard evidence from Mr Nicholas Kuiper, who has known Newson since 1994. Mr Kuiper is a youth worker working with young people. Newson attended a programme dealing with sexual and emotional issues in 1998. Mr Kuiper gave evidence that Newson was very motivated when he attended the programme and he was very unhappy with his sexual urges and emotions and he was trying to work through and change those urges within him. He described Newson as a soft, naïve, gentle character, operating at a level of a teenager. He regarded Newson as extremely vulnerable.
I have also had regard to a report of Doctor Roberts, a consultant endocronologist, who regards Newson as a passive individual.
Mr Steven Johnson, the Manager of Custodial Service Systems of the Department of Correctional Services, gave evidence about the system of assessment of prisoners when they are first taken into custody and the ongoing assessment of prisoners throughout their period in custody. He gave evidence of various programmes which exist within the prison system to assist prisoners who have specific psychological and psychiatric problems. He said that if specific problems in respect of a prisoner were identified, then specific treatment programmes could be put into place for such a prisoner.
I conclude that Newson is a immature person who suffers from a number of medical conditions, including the physical, psychiatric and psychological conditions, to which I have referred. I accept that if I order an immediate custodial sentence, then Newson has very specific problems that will need to be addressed upon his being taken into custody, and that special arrangements will be required to ensure that both his physical and mental problems are adequately addressed. I accept that a prison environment will result in great hardship to Newson. However, I am not satisfied that the authorities within the Correctional Services Department are not able to deal with Newson’s specific problems.
In determining the appropriate penalty, I am faced with the difficult situation that sentencing Judges must confront when faced with an offender who suffers from mental problems on the one hand, even to the extent of diminished responsibility, and the need to protect the public, on the other hand. I am satisfied that Newson, even though he suffers from the problems referred to by the medical practitioners, including naivety and reduced sexual development, knew what he was doing and that he knew right from wrong. He nevertheless committed these serious offences. He did so in circumstances where he had previously committed offences of a sexual nature.
There are times when the Court is faced with the problem that although prison is probably not a satisfactory environment in which to place and treat an offender, there is no other alternative manner of dealing with him. (see : The Queen v Clay (1979) 22 SASR 277 at 282)
I accept that in considering an appropriate sentence, I am entitled to have regard to Newson’s mental and physical impairments. In Broad v R (unreported decision, Court of Criminal Appeal, number S4640), King CJ observed that the appellant was suffering from a serious mental condition which was directly related to the offences which he committed, and connected in a way which significantly reduced his moral responsibility for his actions. His Honour said :
“A person suffering from the condition of the appellant presents great problem to a sentencing court. His moral responsibility is diminished by his condition. On the other hand, he is living in the community and has to function in the community and the community has to be protected from crime; R v Evan, Lloyd, Mason-Stuart (1993) A Crim R 163.
I do not think that consideration of proportionality and general deterrence should play a significant role in sentencing a person whose moral responsibility is substantially diminished by mental illness.
Nevertheless, protection of the community requires that some effort be made to deter the offender personally from continuing in criminal ways. How effective punishment is for that purpose, of course, depends upon the precise condition of the offender.
Many offenders with mental illnesses are far less capable than other people of learning from their mistakes and the consequences of them including the punishment that is imposed and the consequences of them. Nevertheless, that is the only method open to a court to endeavour to protect the community from actions by people with diminished responsibility.”
In R v Santamaria (judgment number [2001] SASC 391), the Court of Criminal Appeal considered the question of the appellant’s ill health. The appellant had been sentenced to eight years imprisonment with a non parole period of four years. The appellant was of advanced age and suffered from a heart condition. He had suffered an acute episode of congestive cardiac failure and had been admitted to the Royal Adelaide Hospital for treatment. It was expected that further episodes would occur in the future. His treating practitioner reported to the court that the prison system was not equipped to deal with the appellant’s complex medical condition. She was of the opinion that prison was deleterious to the appellant’s health and to his life expectancy and she believed that his chances of surviving four years imprisonment was very low.
The Court reduced the sentence by reducing the non parole period to three years. The Court recognised that a person’s health is a factor to which the Court will have regard when determining the appropriate sentence, however, the Court reiterated the comments of King CJ in R v Smith (1987) 44 SASR 487, a case in which the appellant had been diagnosed with the acquired immunity deficiency syndrome virus. Smith had been sentenced to a total of four years imprisonment with a non parole period of three years. The Court heard evidence that there was a substantial risk that the stress associated with a further period of imprisonment would cause deterioration in the condition, and that his condition had deteriorated whilst he had been in prison. It was also established that when he was released from prison, his condition improved. As in the present case, a strong plea was made for suspension of the sentence. King CJ said :
“Counsel for the appellant made a strong plea for suspension of the sentence. I have found the gravity of the crime an insurmountable obstacle to exceeding to that submission. I am conscious, however, that the stress and worry about his potentially fatal condition may well cause imprisonment to bear more heavily upon the appellant than upon a healthy person. In the interests of the appellant’s future, moreover, I am strongly moved to attempt to minimise the risk of deterioration in his health. He had no relevant convictions prior to the subject offending and ought to be a good candidate for parole.”
Earlier, His Honour had said :
“Ill health cannot be allowed to become a license to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender’s health.”

The court declined to suspend the sentence but imposed a low non parole period of nine months imprisonment.
Mr Pearce, for the DPP, submitted that the offending in this instance is so serious that it would be inappropriate to suspend the sentence. Further, given Newson’s previous conviction for offences of a sexual nature, it was inappropriate to suspend the sentence. He submitted that having regard to Newson’s health, this was a case where the appropriate penalty was imprisonment with a significant lesser non parole period.
Mr Cuthbertson submitted that in all the circumstances and in the light of the evidence that prison was an entirely unsatisfactory environment and given Newson’s health problems, I should suspend the sentence.
I also have had regard to a letter received from Newson in which he has expressed some contrition for what occurred that evening. Newson continues to deny that any crime has been committed, but has expressed contrition for what occurred that evening and the problems that have been caused to his family and to the victim’s family.
The offending is serious offending and must call for a substantial sentence of imprisonment. This is a case where a young person walking home at night was accosted by Newson, threatened and the various acts described were performed in circumstances in which the victim was placed in fear. Offending of this nature must result in a substantial sentence of imprisonment. Further, Newson comes before the Court with a previous conviction for abherrant sexual offending.
I consider that a global sentence, pursuant to section 18A of the Criminal Law Sentencing Act is appropriate. The sentence that I impose is 4 years imprisonment.
I have given anxious consideration to whether I can suspend the sentence. I accept that imprisonment will cause excessive hardship to Newson over and above the hardship that would normally be caused to any person who is imprisoned. I am also aware that the prison system will have difficulty in dealing with Newson because of his various medical and psychiatric conditions, but I am not satisfied that appropriate arrangements can not be made in his case, to ensure his protection and to ensure that adequate consideration is had to his various medical conditions. I have given consideration to all that has been put to me. I am not satisfied that this is a case where it is appropriate to suspend the sentence, and I therefore decline to do so.
In setting a non parole period, I am satisfied that this is an exceptional case and that I should set a very low non parole period. I consider the appropriate non parole period is 8 months imprisonment.
I refer my sentencing remarks to the authorities who deal with the admission of prisoners and to the social workers who assess those prisoners. I direct that these reasons, together with the various reports and the evidence which has been given before me, be made available and be considered by the prison authorities and medical and psychiatric practitioners, so that appropriate arrangements can be made forthwith to deal with Newson’s personal circumstances. I am also aware that it may be possible for Newson to serve part of his sentence on home detention and I request that the Correctional Services Authority give consideration to whether it may be appropriate for Newson to serve a major proportion of his sentence on home detention.
The sentence of the court is that Newson be imprisoned for a period of 4 years, with a non parole period of 8 months imprisonment.

[2002] SADC 56

10 May 2002