R v R, A - [2017] SADC 19

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v R, A
[2017] SADC 19
Judgment of His Honour Judge Tilmouth
2 March 2017
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT - DISEASE OF THE MIND, MENTAL DISEASE OR MENTAL INFIRMITY
Proper disposition and appropriate limiting term on charges of unlawful sexual intercourse and indecent assault with respect to a defendant declared mentally unfit to stand trial, considered and discussed.
Criminal Law Consollidation Act 1935 (SA) s 10, s 20(3), s 49(1), s 49(7), s 57(2), s 85(1), s 269FA(5)(a) & (b), s 269M(A)(5), s 269MB(2), s 269N(5), s 269O, s 269O(2), s 269Q, s 269R, s 269T(1), s 269T(2)(c); Criminal Law (Sentencing) Act 1988 (SA) s 10, s 10(1)(d); Question of Law Reserved (No 1 of 1997) (1997) 70 SASR 251; R v Behari (2011) 110 SASR 147; R v Bober (No 3) (2010) 107 SASR 165; R v T (1999) 75 SASR 235; R v Sumner [2010] SASC 43; R v Bartholomaeus [2006] SASC 13, referred to.
Question of Law Reserved (No 1 of 1997) (1997) 70 SASR 251; R v Draoui (2008) 101 SASR 267; R v Timmins [2015] SASCFC 153; R v C, M (2014) 246 A Crim R 21, applied.
R v D (1997) 69 SASR 413, discussed.

R v R, A
[2017] SADC 19
The charges

R,A is before the court charged on a single Information with two counts of unlawful sexual intercourse with a person under the age of 12 years, and six counts of indecent assault. He pleaded not guilty to each charge on the grounds that he was unfit to stand trial. The prosecution concede this is the case.
This situation is brought about by a traumatic brain injury sustained in a motor vehicle accident when R,A was 17 years of age. He is left with significant cognitive defects in the severe range and he is in cognitive decline. Accordingly, the court recorded a finding that he was mentally unfit to stand trial pursuant to s 269M(A)(5) of the Criminal Law Consolidation Act 1935 (SA) (CLCA), and declared him liable to supervision. The conclusion that the objective elements of all offences are established as required by s 269MB(2) of the CLCA appear below. As a result, the necessary reports pursuant to ss 269Q and 269T of the CLCA were ordered and since received, together with the requisite next-of-kin and victim reports required by s 269R.
Elements of offence
Counts 1 and 2 charge the offence of unlawful sexual intercourse with a person under the age of 12 years contrary to s49(1) of the CLCA. There are two elements of this offence each of which must be proven by the prosecution beyond reasonable doubt.
1That the sexual intercourse between the accused and the complainant took place. Sexual intercourse includes penetration of a finger into the vagina or the labia majora. Any degree of penetration is sufficient, but there must be penetration, even if for the slightest period of time.
2That the complainant was under the age of 12 years at the time sexual intercourse occurred.
Consent affords no defence to this charge as the law merely concerns itself with the act of sexual intercourse, however it came about: s 49(7) CLCA.
Counts 3, 4, 5, 6, 7 and 8 charge the offence of indecent assault contrary to s 56 of the CLCA. An indecent assault is an assault accompanied by, or committed in circumstances of indecency. The offence of indecent assault consists of two essential ingredients, each of which must be proven by the prosecution beyond reasonable doubt.
1That the accused assaulted the complainant. An assault is the intentional, deliberate and unlawful application of force to another person. Such force need not be great or cause any injury.
2The assault must be accompanied by, or occur in circumstances of indecency. In this context, the indecent circumstances must involve a sexual connotation.[1] Indecency occurs when the kind of conduct involved is by any reasonable contemporary standard, indecent. This is a matter determined by reference to those standards.
Once again consent is no defence to this offence: s 57(2) CLCA.
[1] R v C,M (2014) 246 A Crim R 21; [2014] SASCFC 116, [29]-[35].
Underlying facts
The offences were committed against four children, two nieces and two nephews of the defendant, intermittently between October 1997 and June 2003. The defendant turned 50 years of age in early January this year. The complainant SR was born in 1986, JP in 1984, and SRR and MR in 1993. Each was therefore unquestionably under the age of 12 years at all relevant times. The summary of the facts to follow is not disputed by defence counsel or the prosecutor, who both exercised an independent discretion on questions relevant to these proceedings, as they were permitted to by s 269W(1) & (2) of the CLCA.
Count 1 – Unlawful Sexual Intercourse with a Person Under 12 Years
This offence allegedly occurred when SR was four or five years old or between May 1990 and May 1992. The defendant and his parents were living with her family at that time. On this occasion SR was riding her bicycle around the lounge room when only the defendant was present. She stopped in front of him, where he put his hands between her legs, massaged the outside of her vagina and then put a finger inside. These facts clearly constitute the objective elements of unlawful sexual intercourse.
Count 2 – Unlawful Sexual Intercourse with a person under 12 years
This offence is alleged to have occurred between 8 October 1987 and 9 October 1988, when the complainant JP was about three years old. She was in a pool at her grandparents’ house with the defendant, another child and her nanna. JP remembers the defendant putting his fingers ‘inside her vagina’, recalls ‘it hurt her a lot’ and caused her to leave the pool immediately. She reported to her mother and nanna that ‘it hurts’ and ‘[R,A] is hurting me’, but she could not recall what happened afterwards. Her mother took her to a GP Dr Dale around that time, who confirmed that her vagina was penetrated. On the basis of these facts, the objective elements of this offence are satisfied.
Count 3 – Indecent Assault
This offence occurred between 8 October 1990 and 9 October 1991 on a houseboat owned by JP’s grandparents (the defendant’s parents) when JP was six years old. She was sitting on a lounge as the defendant rubbed her feet. He gradually worked his way up her legs until reaching and commenced ‘flicking’ her clitoris. He stopped as soon as his mother entered the lounge. Here the objective elements of indecent assault are made out.
Count 4 – Indecent Assault
This occasion falls between 8 October 1993 and 9 October 1995 and occurred in JP’s family home, when she was nine or 10. Here JP was in her parents’ bedroom on the floor playing Nintendo, with the defendant beside her. He began touching her with his hand, eventually placing them in her knickers before he began flicking her vagina in the area of the clitoris. On the basis of these facts the objective elements of the offence are proven.
Count 5 – Indecent Assault
This offence took place between 21 June 2002 and 22 June 2003 when the complainant SRR was visiting his grandparents’ and home of the defendant. He alleges being touched whenever the opportunity arose over the course of about a year. This ‘touching’ usually involved the defendant placing his hands on SRR’s leg or arm at first and then moving down the front of the pants to his penis and testicles.
On the charged occasion, SRR was sitting on the couch next to the defendant. When they were alone, the defendant put his hands on SRR’s left arm, before moving onto his leg. He proceeded to pat the leg and then reached under the shorts and began fondling his penis on the outside of his underwear. On this understanding of the facts the objective elements of indecent assault are proven.
Count 6 – Indecent Assault
The period of this offending is the same as it is in Count 5 again the grandparents’ home but on a separate occasion. The defendant was touching SRR on the outside of his pants, around the area of his penis. The complainant’s mother walked into the room prompting the defendant to quickly pull away. For identical reasons, the objective elements are made out.
Counts 7 and 8 – Indecent Assault
The period in question is the same as for Counts 5 and 6 but relates to a different complainant. MR was in the lounge room of his grandparents’ house with the defendant, who began to rub his leg and then his penis on two separate and distinct occasions. Clearly these facts complete the objective elements of an indecent assault.
Issues of mental impairment
Following the motor vehicle accident the defendant was left in a coma for approximately two months. He was unable to walk or talk for some time after coming out of it. He is now able to do so, however both faculties are significantly impaired. This condition is permanent as there is no likelihood of any improvement.
The defendant’s parents, the grandparents of the complainants, are his full-time carers and have been since the accident. A part-time carer from Disability SA attends the defendant’s residence for 18 hours a week during which he engages in recreational activity under supervision. He cannot be left unattended. This places an ever increasing strain on his aged and frail parents who are well into their eighties.
Part 8A reports
Dr Branson prepared two reports for the court dated 13 October 2015 and 13 December 2016. The former comprehensively outlines the circumstances of the car accident and consequent injuries to the defendant. Dr Branson confirmed the condition was permanent.
As to the question of whether R,A was mentally competent to commit the offences, Dr Branson’s opinion was:
[R,A] was able to acknowledge that committing such offences would be both legally and morally wrong. … it is likely that he would have been able to understand this at the time of the offending. It is clear that his brain injury might well have rendered him somewhat disinhibited and less able than the average person to control his conduct at the time of the alleged offending, but I am unable to say that he would have been completely unable to control the conduct.
Dr Branson’s assessment of R,A’s ability to plead or stand trial was different:
I believe that [R,A] is quite clearly not fit to plead or fit to stand trial at this time … given the long term nature of your client’s disabilities, there is in my opinion no prospect that he will become fit to stand trial at any time in the foreseeable future.
The comprehensive report of psychologist Mr Reid dated 29 January 2016, effectively drew the same conclusion. Mr Reid completed additional tests to those conducted by a Dr Nilsson in May 1991. The results appeared if anything to show a degree of deterioration in areas such as immediate attention and working memory span. This situation is likely to exacerbate the defendant’s ongoing seizure disorder. Mr Reid added:
I feel very confident that [R,A] would be unable to follow the proceedings in a legal trial, due not only to his very poor short memory … but also his inability to comprehend even relatively simple information and then be able to retain this in any reasonable fashion.
The report of Ms Curtis outlines the defendant’s difficulty recalling any information relating to the offences. This extends to him not recalling if he had a close relationship with his nieces and nephews, if he played games with them, or if he spent much time with them. His statements to police were equally of little productive value, if any. It was on the basis of this material and the prosecution’s concession, that the defendant was declared liable to supervision pursuant to s 269N(5) of the CLCA.
Limiting term
It therefore now becomes necessary to fix a limiting term, so as to determine for how long he should remain under supervision, pursuant to s 269O of the CLCA. This provides:
(2) If a court makes a supervision order, the court must fix a term (a limiting term) equivalent to the period of imprisonment or supervision (or the aggregate period of imprisonment and supervision) that would, in the court's opinion, have been appropriate if the defendant had been convicted of the offence of which the objective elements have been established1.
Note—
1 The court should fix a limiting term by reference to the sentence that would have been imposed if the defendant had been found guilty of the relevant offence and without taking account of the defendant's mental impairment.
Amongst other things, the court must have regard to the nature of the defendant’s impairment, the danger he poses to the Community if released under supervision, the resources available to him for treatment and support and whether he is likely to comply with the conditions of the supervision: s 269T(1) of the CLCA.
It is established principle that the limiting term is fixed by:
·reference to what is otherwise an appropriate head sentence of imprisonment rather than the non-parole period: Question of Law Reserved (No 1 of 1997).[2]
·ignoring the mental state of the defendant, such that the court can neither reduce a limiting term by reason of diminished responsibility, nor increase it by reason of callous premeditation or disregard for the suffering of the victims: R v Behari.[3]
·considering the factors set out in s 10 of the Criminal Law (Sentencing) Act 1988 (SA), except those arising from the mental impairment of the defendant himself: R v Bober (No 3).[4]
·taking account of general and personal deterrence: R v T.[5]
·giving credit for time spent in custody: R v Sumner,[6] R v Behari.[7]
·not equating an admission of the objective elements with a plea of guilty and without reduction for such admissions as if they were a plea of guilty: R v Draoui.[8]
·considering the use of s 18A of the Criminal Law (Sentencing) Act 1988 (SA) to fix a single limiting term for all the offences: R v Bartholomaeus.[9]
[2] (1997) 70 SASR 251.
[3] (2011) 110 SASR 147.
[4] (2010) 107 SASR 165.
[5] (1999) 75 SASR 235.
[6] [2010] SASC 43.
[7] (2011) 110 SASR 147.
[8] (2008) 101 SASR 267.
[9] [2006] SASC 13.
In this instance there is no time in custody as the defendant continued to reside with his parents, and where for the time being the resources available to him continue to remain adequate and sufficient. Maintaining adequate standards of general deterrence is a significant one in this case given the serious nature of the allegations and the age of the children involved. Personal deterrence however has little part to play in fixing a limiting term, as a limiting term is not regarded as a punishment: R v Timmins.[10]
[10] [2015] SASCFC 153, [24].
So far as the effect on the victims is concerned each was significantly affected by these events.[11] The hurt continues to the present day and the events have fractured the family. It is significant that the above charges are not representative of a wider course of conduct. Rather they define the ‘majority of the offending’, although as recorded earlier there were some associated uncharged incidents.[12] With the present support mechanisms, the imposition of strict licence conditions and with those around him now on their guard, these considerations should serve in combination to render reoffending unlikely.
[11] Section 10(1)(d) Criminal Law (Sentencing) Act.
[12] DPP submission 8/2/17, T23-28.
Prosecuting counsel referred the court to R v D,[13] where a starting point sentence of about 12 years was established in cases of multiple unlawful sexual intercourse with children under 12 over a protracted period. The offence in question was persistent sexual abuse of a child which carried a maximum penalty of life imprisonment. Here the offences and the surrounding circumstances are serious enough, but they are not individually of the same order as was the case in R v D. Nevertheless four very young victims were subjected to abuse for substantial periods. The historical penalties applicable here are life in the case of counts 1 and 2 and 10 years each of the indecent assaults.
[13] (1997) 69 SASR 413.
In the combined circumstances a single limiting term of 11 years and six months is fixed with respect to all eight offences, to commence from today. The court will now proceed to take submissions with a view to settling the terms of Licence conditions.