R v Simpson
[2013] SASCFC 28
•19 April 2013
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SIMPSON
[2013] SASCFC 28
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice White)
19 April 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - EFFECT OF SENTENCE OF IMPRISONMENT ON PRISONER
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - FRESH EVIDENCE AND EVENTS OCCURRING AFTER SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
A District Court Judge imposed a single sentence of imprisonment for eight years and fixed a non-parole period of three years for two offences of indecent assault and one offence of procuring an act of gross indecency - the appellant contends that the sentence is manifestly excessive, particularly having regard to his poor health - the appellant also contends that the Judge sentenced on an incorrect factual basis in considering that appropriate treatment programs had been "set in train" to address his health problems and tenders fresh evidence concerning those problems.
Held (by the Court): the orders of the Judge should be set aside and the appellant resentenced.
(1) (per Kourakis CJ): the Judge did not sentence on an erroneous factual basis, but the head sentence is manifestly excessive;
(2) (per Gray J): it is in the interests of justice for the further evidence to be admitted - further, the Judge failed to pay adequate regard to the problems arising from the defendant's poor health and, in particular, the inability of the prison authorities to provide proper treatment for his ongoing mental illnesses;
(3) (per White J): the sentence was affected by the Judge's erroneous belief that the appellant's psychological health problems would be treated appropriately while in custody;
(4) (per Kourakis CJ and White J): the appellant should be resentenced pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) to a term of imprisonment of six years with a non-parole period of two years - both the head sentence and the non-parole period should be taken to have commenced on 15 December 2011;
(5) (per Gray J, dissenting): the appellant should be resentenced to a term of imprisonment of five years with a non-parole period of 18 months - the head sentence and non-parole period should be taken to have commenced on 15 December 2011.
Correctional Services Act 1982 (SA), s 27; Criminal Law Consolidation Act 1935 (SA), s 56, s 58; Criminal Law (Sentencing) Act 1988 (SA) s 10, s 18A, s 20B; Freedom of Information Act 1991 (SA), referred to.
R v Pickard [2011] SASCFC 134; R v C (2004) 89 SASR 270; R v Smith (1987) 44 SASR 587; R v McIntee (1985) 38 SASR 432; R v C (2004) 89 SASR 270; Brain v The Queen (1999) 74 SASR 92; R v Sladic (2005) 92 SASR 36; R v Dorning (1981) 27 SASR 481; Orchard v Orchard (1972) 3 SASR 89; R v Green (1918) 13 Cr App Rep 200; R v Ferrua (1919) 14 Cr App Rep 39; Bean v Considine [1965] SASR 351; R v Maniadis [1997] 1 Qd R 593; Aplin v Police [1999] SASC 273; Neill v Police [1999] SASC 270; R v Jenkins (2000) 209 LSJS 341; R v Ireland [2010] SASCFC 120; Ryan v The Queen (2001) 206 CLR 267; R v Pahuja (No 2) (1989) 50 SASR 551; R v Levi (Unreported, Supreme Court of New South Wales, Court of Criminal Appeal, Gleeson, Hunt CCJ, and Sperling J, 15 May 1997, Judgment No 60566/1996); R v Kikidis (2012) 112 SASR 148; R v C (2004) 89 SASR 270; R v D (1997) 69 SASR 413, considered.
R v SIMPSON
[2013] SASCFC 28Court of Criminal Appeal: Kourakis CJ, Gray and White JJ
KOURAKIS CJ: I would allow the appeal only on the basis that the head sentence is manifestly excessive. In my view, the Judge did not sentence on an erroneous factual basis with respect to the treatment available in prison for the appellant’s post traumatic stress disorder. For the purposes of these reasons I gratefully adopt the summary of the relevant sentencing information in the judgment of White J.
Both of the reports of Dr Frost informed the Judge in clear terms that counselling was not available for prisoners suffering from post traumatic stress disorder. The governmental decision not to provide that counselling may be the result of limited resources or the operational constraints inherent in the prison environment. Be that as it may, Dr Frost reported that the appellant had been prescribed psychotherapeutic medication for his condition and, when seen by Dr Frost, did not appear to be “profoundly depressed”. In the course of the sentencing hearing the appellant’s counsel accepted that he could put no stronger submission than that the appellant would find his incarceration more difficult than most other prisoners because of his medical conditions.
The Judge’s finding that the Prison Health Service had “set in train relevant treatment programs to address [the appellant’s] health problems” was plainly right. The appellant was receiving medication. I am not persuaded that, in making that observation, the Judge had overlooked the reports of Dr Frost that counselling was unavailable. I do not accept that the Judge proceeded on the premise that the appellant’s conditions would be “addressed” in the same way in prison as they were in the community. Indeed, I would be very surprised if he did so.
I agree with the conclusion of White J in [84]-[92] concerning the treatment of the appellant’s physical health. The early failures to provide the appropriate treatments in a timely way have now been addressed. It was always to be expected that, in the transition from a regime of privately administered medical care in the community to a prison health system, there would be some deficiencies in service standards. The appellant tendered to this Court a report of Dr Hume who examined the appellant in prison on 12 October 2012, after he had been sentenced. The report of Dr Hume does not show that the appellant’s physical conditions had deteriorated in prison or that his treatment was substantially different to that which must have been in the contemplation of the Judge.
The report of Dr Hume also records that the appellant has been seen by a psychiatrist twice since his incarceration. Dr Hume reports that the appellant complained of a worsening of his psychological symptoms, including chest tightness, racing heart, nightmares and depression. The appellant also disclosed some suicidal ideation but said that he had resisted those thoughts because he “wouldn’t do it to [his partner]”. Dr Hume concluded that from the appellant’s “appearance and affect, it would appear that his mental health had deteriorated since being in custody”.
It is important to recall that, before he was sentenced, the appellant had complained of increased anxiety, nightmares and flashbacks to Dr Frost. Dr Frost had reported to the Judge that the symptoms were “a result of separation of usual routines and supports, not disease progression”.
The report of Dr Hume does not show that the appellant’s psychological condition is different from that which was within the contemplation of the Judge on the material put before him. Importantly, there is no evidence that the appellant will deteriorate psychologically because of the lack of counselling. Nor does the evidence show that counselling would ameliorate the appellant’s symptoms.
I would not receive the report of Dr Hume because it does not disclose any developments which substantially change the factual premises on which the appellant was sentenced. [1] It does not show the appellant’s psychological state to be materially different from the disorder which the Judge accepted he had for the purposes of sentencing.
[1] R v Kikidis (2012) 112 SASR 148; R v C (2004) 89 SASR 270.
My reasons for holding that the sentence was manifestly excessive are as follows.
The offences of which the appellant was convicted, if viewed in isolation, are not in the most serious category of indecent assaults. They did not involve penetrative conduct and most of the charged contact occurred over clothing.
The head sentence of eight years does not, on its face, sufficiently reflect the difference between the sexual offending of the kind of which the appellant was convicted and offending involving penetrative conduct. In R v D[2]this Court established a starting point of about 10 years for offending of the latter kind against a child who was at the time of the offending is over 12 years of age. The distinction is of some importance even though it is necessary to recognise that sexual offending of any kind can have devastating consequences on the victim’s psycho-social development, as this case shows. Even though some of the appellant’s offending which was not charged extended to digital intercourse, in the absence of a conviction, he is not to be sentenced for that conduct.
[2] (1997) 69 SASR 413.
On the other hand, the appellant returned to repeat his offending after absences that should have been long enough for him to realise the enormity of his wrongdoing. The same lack of remorse which accompanied the appellant’s continued offending over the greater part of V’s teenage years is apparent in his statements to police when he was interviewed. It is also apparent from his denial of the offences.
In addition, the offences are aggravated by the appellant’s flagrant abuse of the trust which gave him access to V. The appellant abused the trust of V’s parents who were his close friends. Just as importantly, he abused the trust inherent in the affectionate relationship he had cultivated with V from an early age. The circumstances of the offences left little room for leniency.
The catastrophic consequences of the appellant’s offending on V’s psyche are laid bare in her victim impact statement. The appellant’s sentence must reflect, at least to some extent, and within the limits allowed by other sentencing considerations, the consequences of his offending. Moreover, V’s suffering is unfortunately all too common. General deterrence must be given substantial weight in sentencing for sexual offences against children.
The appellant is plainly entitled to credit for the voluntary work he has performed over his lifetime and for his exemplary military service. However, the importance of general deterrence in sentencing for offences of this kind, which are not uncommonly committed by persons of good character, limits the relative weight of those considerations.
The Director of Public Prosecutions accepts that the head sentence is high. After some hesitation I have concluded that it is manifestly excessive. In my view, a head sentence of more than seven years does not sufficiently differentiate the appellant’s offending, having regard to the other aggravating and mitigating features to which I have referred, from the more serious category of offending considered in R v D.[3]
[3] (1997) 69 SASR 413.
The defendant has been convicted of serious and persistent sexual offending against a child and has shown neither remorse for, nor insight into, his offending. In those circumstances a non-parole period of less than 40 per cent fails to give effect to the general deterrence which offences of this kind require.
I had proposed to allow the appeal and impose a single head sentence of six years and ten months and a non-parole period of three years. Having regard to the difference in opinions expressed by the members of this Court, I would modify my view so that an order with majority support can be made.
I would therefore allow the appeal and join in the orders proposed by White J substituting a head sentence of six years and fixing a non-parole period of two years.
GRAY J.
This is an appeal against sentence.
The defendant and appellant, Raymond Stanley Simpson, was charged in April 2011 on Information with three counts of indecent assault[4] and one count of procuring an act of gross indecency.[5] He was tried before judge and jury in the District Court. He was convicted by majority verdict on two counts of indecent assault and on the count of procuring an act of gross indecency. He was acquitted on the remaining count of indecent assault.
[4] Contrary to section 56 of the Criminal Law Consolidation Act 1935 (SA).
[5] Contrary to section 58(1)(b) of the Criminal Law Consolidation Act 1935 (SA).
The Judge imposed the one sentence in respect of the three offences of eight years imprisonment. A non-parole period of three years was fixed. The sentence commenced on 15 December 2011.
I adopt White J’s statement of the facts and of the issues arising on the appeal and I only refer to them as necessary for an understanding of my reasons. The three offences of which the defendant was convicted were committed against the same complainant, who was said to be the daughter of a friend of the defendant. The first indecent assault offence was committed between 1 January 1986 and 5 November 1987 at Riverton. At that time, the complainant was aged about 13 years. The offending involved the defendant massaging the neck, shoulders and breasts of the complainant over her clothing.
Count 3 on the Information was committed between 1 January 1987 and 31 October 1989. This offending involved the defendant sitting beside the complainant in her bedroom, putting his hand down her pants and rubbing her vagina over her underwear while kissing her. This offending occurred at a time when the complainant was aged between 13 and 15 years.
The offence of procuring an act of gross indecency occurred between 1 January 1987 and 31 October 1989. This offending occurred on the same occasion as count 3. The defendant placed the complainant’s hand against his groin over his trousers. The complainant pulled away and the defendant then unzipped his trousers and placed the complainant’s hand inside against his underpants.
The complainant gave evidence of uncharged acts of indecency. This conduct extended over a time when the complainant was aged between 13 years and 15 years. The Judge took the view that the defendant was not to be punished for the uncharged conduct, but that conduct did lead the Judge to conclude that the defendant was not entitled to the leniency that might be shown to a person found guilty of an isolated act.
It is to be accepted that the defendant’s criminal conduct was serious and has caused damage to the complainant. It is also to be accepted that the complainant has suffered and continues to suffer as a result of the defendant’s conduct. However, the jury’s verdict of not guilty in respect of one of the counts of indecent assault would suggest that the complainant’s evidence was not accepted in its totality. This must cast some doubt on the challenged evidence with respect to the uncharged conduct.
The victim impact statement evidences the complainant’s anger that more charges were not laid and that the defendant had been found not guilty on one count of indecent assault. These aspects of the victim impact statement should be disregarded. They should not have been before the Court. The relevant information related to the impact on the complainant of the proven conduct.
The defendant was born in 1943 and completed his apprenticeship as a carpenter and joiner when aged 16 years. His father had died at an early age and, once in employment, the defendant provided support to his family. The defendant married in 1963.
In 1964, the defendant joined the Royal Australian Air Force. In 1968, he was posted to serve in Vietnam. Later, he served in Malaysia. On his return to Australia, the defendant achieved the rank of flight sergeant after 20 years of service both in Australia and overseas. He received many awards and decorations for this service.
While in Vietnam, the defendant assisted in the work of an orphanage. Following his return to Australia in 1970 he undertook volunteer work with Legacy. Since his retirement, the defendant has worked throughout Australia and New Zealand, including work with handicapped people as well as community work with air cadets.
At the time of sentencing, the defendant suffered from cervical spine degeneration, post-shingles neuralgia causing great pain in the left eye, glaucoma and severe dry eyes. He also suffered from a chronic obstructive lung disease and obstructive sleep apnoea. The sentencing Judge referred to the medical reports and outlined his multiple medical conditions and the extensive variety of medications prescribed to address those conditions. The defendant has and continues to suffer from complex medical problems, leading to significant disabilities.
The defendant suffers from a number of mental health issues including post traumatic stress disorder and depression. These conditions have been complicated by a stroke. The defendant’s wife was his full time carer until he was taken into custody.
The Appeal
Of particular relevance on the appeal was the question of the inadequacy of treatment available for the defendant in respect of his mental illnesses while in custody. His other medical conditions appear to be adequately addressed within the prison environment. The defendant sought to adduce further evidence on the appeal to support his contentions.
Further Evidence
I have extracted the following guidelines from the authorities addressing the reception of further evidence:[6]
-The power to receive further evidence on appeal must be exercised with caution[7] and exists to serve the interests of justice.[8]
-The proper purpose of receiving further evidence on appeal is to shed new light on facts which were before the sentencing Judge or to inform the appeal court of facts which were in existence at the time that the sentence was imposed but were unknown to the sentencing Judge.[9] It has been said that an adequate explanation for the failure to bring those facts to the sentencing Judge’s attention should be provided.[10]
-To receive further evidence, the appeal court must be satisfied that “the evidence could not have been obtained with reasonable diligence for use at the trial”,[11] that “the evidence must be such that if given, it would probably have an important influence on the result of the case, although it need not be decisive”[12] and that “the evidence must be apparently credible, but the [appeal court] will not necessarily decide whether the witness from whom the new evidence is sought is telling the truth”.[13]
-The appeal court cannot receive further evidence about events which occurred after the time the sentence was imposed except where such further evidence shows the true significance of facts which were in existence at the time of sentencing.[14]
-Further evidence will be received on appeal if failure to receive that evidence might result in the continued existence of an unjust conviction or an unjust sentence.[15]
[6] R v Pickard [2011] SASCFC 134, [41].
[7] See for example R v C (2004) 89 SASR 270; R v Smith (1987) 44 SASR 587.
[8] R v McIntee (1985) 38 SASR 432, 435.
[9] R v Smith (1987) 44 SASR 587, 588; R v C (2004) 89 SASR 270, [14]-[19]; see also Brain v The Queen (1999) 74 SASR 92, [86]; R v Sladic (2005) 92 SASR 36, [44].
[10] See R v Sladic (2005) 92 SASR 36, [44].
[11] R v Dorning (1981) 27 SASR 481, 485, citing Orchard v Orchard (1972) 3 SASR 89.
[12] R v Dorning (1981) 27 SASR 481, 485, citing Orchard v Orchard (1972) 3 SASR 89.
[13] R v Dorning (1981) 27 SASR 481, 485-486, citing Orchard v Orchard (1972) 3 SASR 89.
[14] R v Smith (1987) 44 SASR 587, 588 approved in R v C (2004) 89 SASR 270; see for example, R v Green (1918) 13 Cr App Rep 200; R v Ferrua (1919) 14 Cr App Rep 39.
[15] R v McIntee (1985) 38 SASR 432, 435.
In sentence appeals, the Court has adopted a flexible view. Further evidence may be admitted to prevent a miscarriage of justice even if the conditions referred to have not been satisfied.[16] There is also the public interest in the finality of the court process. Tension can arise in the operation of these two principles. In seeking to resolve this tension, the courts have developed principles, including those set out above, to facilitate the reception of evidence in appropriate cases. The decisions of McIntee,[17] Smith,[18] C[19] and Brain[20] are examples of means by which this tension may be resolved.[21] In the criminal jurisdiction where liberty may be lost, the overriding principle must be the interests of justice.
[16] Bean v Considine [1965] SASR 351; R v Maniadis [1997] 1 Qd R 593.
[17] R v McIntee (1985) 38 SASR 432.
[18] R v Smith (1987) 44 SASR 587.
[19] R v C (2004) 89 SASR 270.
[20] R v Brain (1999) 74 SASR 92.
[21] See also, Aplin v Police [1999] SASC 273, Neill v Police [1999] SASC 270; R v Jenkins (2000) 209 LSJS 341.
In the present proceeding, on appeal, the defendant sought to adduce further evidence to establish that the treatment programs which the sentencing Judge understood to have been set in train had either not commenced or not been administered in a satisfactory manner. The further evidence comprised a report of Jeff Taylor dated 20 July 2012, a report of Cynthia Jackson dated 8 August 2012, a report of Isabel McLean dated 15 August 2012 and a report of Clive Hume dated 16 October 2012.
In his report, Dr Taylor made the following relevant observations:
From the information I have received, I would hold extreme reservations regarding the adequacy of the medical care that this patient has received since he has been under the care of the South Australian Prison Health Service, particularly in relation to his mental health. …
In his correspondence, … Dr Peter Frost has indicated that this patient would be referred to see a psychiatrist if considered necessary. As far as I can ascertain, that has not happened thus far. From the information available to me at the time of writing this letter, I understand that this patient has suffered from an exacerbation of his symptoms of [post traumatic stress disorder] whilst he has been in prison, with increased frequency of nightmares pertaining to his time as a soldier in Vietnam, increased tendency towards feelings of aggression, as well as some worsening of his depressive symptomatology.
…
… It seems to me that his current level of psychiatric care falls well short of that which would normally be available to or recommended for a war veteran with his psychiatric problems.
Dr Hume and Dr Jackson addressed the defendant’s physical and mental illnesses. Dr Hume, inter alia, concluded that “[i]n respect of the [post traumatic stress disorder], in my opinion [the defendant] has not been receiving an adequate level of medical care.” In relation to the defendant’s post traumatic stress disorder and depression, Dr Jackson relevantly observed:
Prior to his imprisonment, [the defendant] was using Lexapro (Escitalopram) 10mg twice daily for his [post traumatic stress disorder] and Depression, and was having regular Psychiatry review. [The defendant] noticed that he was being dispensed a dose of 20mg twice daily (apparently a medication/dispensing error by the Prison Health Service), and I see this is noted in his record on the 14/5/12 by the Medical Officer with the plan to correct the dose to 10mg twice daily. Apparently this correction has not been made and [the defendant] continues to be dispensed an incorrect dose of this medication, which he is evidently biting in half to approximate the correct dose. This is clearly an inadequate standard of care.
… I understand from Dr Frosts [sic] letter that the Prison Service does not have access to Psychology Services, however given his history and his obvious increased stressors whilst in prison, I would expect a more comprehensive mental health assessment and treatment plan to have been instituted for him. Purely assessing his suicide risk without addressing the contributors to it appears to be just waiting for disaster to happen. This level of care clearly falls below what would be provided in the community, and I believe falls below what is a medically accepted level of adequacy.
…
… I would consider that the care currently being provided to [the defendant] is falling short of that stated by Dr Frost.
…
In respect to his mental health, his incorrect dosing of Lexapro is unlikely to give any particular side effects, however remains an indictment on the system overall. More concerning is the apparent lack of overall mental health assessment beyond suicide risk determination. The lack of attention being paid to [the defendant’s] overall mental health is likely to be contributing to a deterioration of his [post traumatic stress disorder] symptoms (he is reporting increased flashbacks and anxiety), and in the long term may result in a suicide risk/attempt.
It is evident from his Honour’s reasons that, when sentencing, the Judge took into account the defendant’s medical conditions and how they were to be addressed in the prison environment. In particular, his Honour observed:
In his more recent report Dr Frost comments on the level of your care, having addressed all of your concerns having spoken with you the previous day. It seems apparent to me that all of your concerns have been taken seriously and that Dr Frost has obtained all relevant information and has set in train relevant treatment programs to address your health problems. Your counsel has indicated in court that you do not challenge Dr Frost’s conclusion that imprisonment has not resulted in a deterioration of your physical health. I will impose sentence on the basis of that acceptance.
In my view, the further evidence demonstrates that not all aspects of the defendant’s care have been adequately addressed in prison. Particular treatment programs identified by Dr Frost have not been implemented satisfactorily or at all. The evidence tendered on the appeal provides considerably more detail about the defendant’s medical infirmities and allows their full significance to be assessed. In these circumstances, I am of the opinion that it is in the interests of justice for the further evidence to be admitted.
Error in Sentencing
As mentioned earlier, on appeal it was emphasised that the ongoing treatment required to address the defendant’s mental illnesses was not available in prison. It is a matter of serious concern that a defendant who has developed mental illnesses as a consequence of military service should be placed in a position where proper treatment is not provided in prison.
The defendant is now aged about 70 years. His general poor health allows the conclusion that his time in custody will be difficult and more difficult than for many others. This situation is compounded by the inability of the prison authorities to provide proper ongoing treatment for his mental illnesses. I consider that these matters are significant.
Apart from the defendant’s conduct towards the complainant, he has otherwise led an exemplary life. He has no criminal antecedents and he has been a supporter of those less fortunate in the community for many decades. He has been a supporter of the education of the young. These are matters to which regard should be had when sentencing.
I am satisfied that the Judge did not pay adequate regard to the problems arising from the defendant’s poor health and, in particular, the inability of the prison authorities to provide proper treatment for his ongoing mental illnesses. The Judge concluded that there were treatment programs available in prison to address all of the defendant’s health problems. This did not accord with the evidence before the Court and, in particular, did not accord with the further evidence placed before this Court. The evidence established that treatment programs were not available to address the defendant’s mental illnesses. It follows that the Judge failed to have regard to a relevant matter when sentencing and that this Court should resentence the defendant.
Resentencing
Regard is to be had to the defendant’s military service, to the fact that his ongoing mental illnesses are due to that service, to his otherwise exemplary character and to his community and public service. On any view, he has and will continue to suffer particular hardship while in prison through the lack of treatment for his mental illnesses. The evidence before this Court suggested that the defendant’s mental health had deteriorated while in custody. I consider that the State has a responsibility to provide the necessary medical treatment reasonably required by the defendant while he is in custody.
The defendant is an ex-serviceman who served overseas and suffered mental illnesses as a result of that service. There is much to be said in these circumstances for the imposition of a suspended sentence. The defendant has, however, now spent approximately 16 months in custody. It is no longer practical to suspend the sentence. I would address the problem by fixing a shorter head sentence and a merciful non-parole period. Eight years as a head sentence was, in my view, manifestly excessive regardless of the issues concerning the defendant’s poor health.
Having regard to all relevant matters, I would impose a head sentence of five years imprisonment. I would fix a non-parole period of 18 months.[22]
[22] This would allow the defendant to engage in the usual pre-release programs.
Conclusion
I would allow the appeal, set aside the orders of the Judge and resentence the defendant to a term of imprisonment of five years with a non-parole period of 18 months. The head sentence and non-parole period should be taken to have commenced on 15 December 2011.
WHITE J. A jury found the appellant guilty of two offences of indecent assault[23] and one offence of procuring an act of gross indecency.[24] The victim of the three offences is the daughter of a good friend of the appellant.
[23] Criminal Law Consolidation Act 1935 (SA), s 56 – maximum penalty 8 years imprisonment.
[24] Criminal Law Consolidation Act 1935 (SA), s 58(1)(b) – maximum penalty 3 years imprisonment.
The jury acquitted the appellant on a further account of indecent assault on the same victim.
A District Court Judge imposed a single sentence of imprisonment for eight years and, having regard to the appellant’s age and health, fixed a non-parole period of three years.
The appellant appeals against that sentence, contending that it is manifestly excessive having regard to the nature of his offending and his personal circumstances, in particular, his poor health. In addition, the appellant contends that the Judge sentenced him on an incorrect factual basis as the Judge had considered that the Department for Correctional Services and the Prison Health Service had “set in train” appropriate treatment programs to address his health problems. He contends that his experience in custody, both before and after being sentenced, has shown that the Judge’s belief in that respect was mistaken. To support that submission, the appellant asked the Court to receive on appeal evidence concerning the adequacy of the treatment afforded him while in custody and its effects on his health.
In my opinion, the appellant has established an error in the sentencing decision with the effect that this Court should re-sentence. That makes it unnecessary to determine the application to adduce fresh evidence. Account can be taken of that evidence in the new sentencing decision.
The appellant’s offending and its consequences
The appellant was born in 1943. Between 1964 and 1984 he served in the Royal Australian Air Force (RAAF). The victim’s father also served in the RAAF and they became good friends. The appellant and his wife were accustomed to visiting the victim’s family periodically. It was common for them to park their caravan on the property and to stay, sometimes for several weeks.
The victim was born in 1973 and there was accordingly a 30 year age difference between her and the appellant. From an early age, the appellant took an interest in the victim and they developed an affectionate adult-child relationship.
The first offence of indecent assault occurred in the victim’s family lounge room when the victim was about 13 years old. The appellant sat behind the victim, massaged her neck and shoulders and then her breasts. Over the next few minutes he cupped her breasts in his hands and rubbed them.
The second indecent assault occurred a year or so later. The appellant sat beside the victim in her bedroom, put his hand down her pants and rubbed her vagina over the top of her underwear. While doing this he kissed the victim on her mouth.
The offence of procuring an act of gross indecency occurred on the same occasion as the second indecent assault. The appellant placed the victim’s hand against his groin so that, over his trousers, she could feel his erection. He then unzipped his trousers and placed her hand inside so that she felt his underpants and pubic hair. The incident stopped when the victim pulled her hand away.
The victim also gave evidence of numerous other indecent assaults by the appellant when she was between the ages of 13 and 15. On many of these occasions the appellant came into her bedroom, put his hand under the bedclothes and touched her vagina, rubbed her clitoris and inserted his fingers into her vagina. During a trip to Tasmania when the victim was 16 years old, she stayed with the appellant and his wife. On one occasion the appellant cupped the victim’s breasts in his hands; on another he touched her vagina; and on a third, he inserted his fingers into her vagina.
About 12 months later when the victim was 17 years old, further incidents occurred at Arkaroola. These involved the appellant cupping the victim’s breasts, touching her vagina or touching her breasts. The appellant ceased this behaviour after the victim threatened to tell his wife and her father.
The appellant did not give evidence at the trial but the jury had evidence of his police interview in which he denied any sexual activity with the victim other than on a single occasion in Tasmania. In relation to that occasion, the appellant made the following admissions:
A. I touched her on the vagina … She didn’t object or whatever. It didn’t go any further than that ... [It was a] rubbing touch.
…
Q. [D]id you insert your fingers in her vagina?
A. Yeah possibly, yeah.
The appellant has not been charged in Tasmania in relation to this incident.
The jury’s verdicts indicate that it must have been satisfied that the uncharged conduct had occurred. The Judge’s sentencing remarks also indicate that he took the same view. The appellant was not of course to be sentenced for the uncharged conduct but it meant that he could not be granted any leniency on the basis that the charged conduct had been of an isolated kind.
The appellant’s conduct has to be viewed seriously. It involved a gross abuse of trust as well as an abuse of his friend’s hospitality. For the purposes of his own selfish gratification, the appellant took advantage of the affectionate relationship he had developed with the victim and of her vulnerability. He had the opportunity to reflect on the wrongfulness of his conduct in the period between the first offence and the occasion on which the next two offences occurred. The fact that he chose to persist with the conduct despite that opportunity adds to its culpability.
The offences have had dreadful effects on the victim. Her victim impact statement indicates with insight and clarity how deeply she has been affected.
It is pertinent that even since the jury verdicts and hearing the victim impact statement, the appellant has not shown any remorse, regret or contrition for his conduct and its effects.
I emphasise these matters because the focus of the submissions on the appeal was on the appellant’s personal circumstances and the effects which incarceration is having on his health. It is important in that context not to lose sight of the objective seriousness of the appellant’s offending and of its impact on a trusting child at a vulnerable stage of her life.
The Judge’s sentencing decision
The Judge referred to the above matters. He noted that the appellant had undertaken valuable volunteer work while on a tour of duty in Vietnam, and later in Australia through the Legacy organisation. He also noted that the appellant had been a valuable member of the armed forces, having received many awards and decorations during his service.
The Judge accepted that the appellant suffers from numerous ailments affecting his health. I will identify these shortly. The appellant’s treating doctors had provided reports regarding his various conditions in which they expressed concerns about the adequacy of the care which he may receive in custody.
The Judge had revoked the appellant’s bail on 15 December 2011 with the effect that by the time sentence was imposed he had served just over three months in custody. This had provided an opportunity for the effects of incarceration on the appellant’s health to be assessed.
The Judge was satisfied that the appellant’s health problems could be treated appropriately while he is in custody, saying:
In his more recent report Dr Frost [the Clinical Director of the Prison Health Service] comments on the level of your care, having addressed all of your concerns having spoken with you the previous day. It seems apparent to me that all of your concerns have been taken seriously and that Dr Frost has obtained all relevant information and has set in train relevant treatment programs to address your health problems. Your counsel has indicated in Court that you do not challenge Dr Frost’s conclusion that imprisonment has not resulted in a deterioration of your physical health. I will impose sentence on the basis of that acceptance.
Having said that, however, I do accept that having regard to your age and your physical and mental infirmities a term of imprisonment will impact more heavily upon you than it would upon most of the prison population.
(Emphasis added)
The Judge then referred to s 10(4) of the Criminal Law (Sentencing) Act 1988 (SA) (CLSA) which provides that the primary policy of the criminal law is to protect children from sexual predators. He considered that in the light of that statutory policy the factors personal to the appellant, in particular his health, had to be subordinate to the paramount consideration of deterrence. It is evident however that the Judge did take the appellant’s age and health into account in setting a lower than usual non-parole period of three years.
The appellant’s ill health
The appellant’s ill health was the primary focus of the sentencing submissions. As already noted, the Judge received several medical reports and was clearly concerned to take into account the effects which incarceration may have on the appellant’s health and treatment. He adjourned the sentencing submissions on some three occasions in order to give the appellant’s counsel the opportunity to provide further material on this topic. The Judge told counsel that he was not willing to sentence the appellant while the issues concerning his health and treatment remained unresolved and raised with counsel the possibility that oral evidence from Dr Frost or from the Chief Executive of the Department for Correctional Services may be required. Counsel for the appellant did not ask for that to occur.
The evidence before the Judge indicated that the appellant suffers from the following principal health problems.
Chronic obstructive pulmonary disease
A report from the appellant’s respiratory physician indicated that this condition is treated appropriately with antibiotics and bronchodilators and that the appellant is capable of independent living. The physician did not think that imprisonment would have an adverse effect on the condition. However, other evidence indicated that the appellant is frequently exposed to passive smoking while in prison and that this exacerbates his respiratory condition.
Eye conditions
The eye conditions include glaucoma, inflammation and severe dry eyes. These are treated with antibiotics and serum tear drops. The appellant also requires periodic optical review.
Post traumatic stress disorder and depression
The PTSD is said to come from some of the appellant’s experiences in Vietnam while with the RAAF, including the experience of seeing children die in an orphanage and of seeing dead bodies. The symptoms are said to include chronic anxiety, flashbacks and some nightmares.
The appellant had been prescribed anti-depressant medication for many years as well as undergoing psychotherapy from time to time.
Post shingles neuralgia
This is a painful condition for which the appellant is prescribed strong analgesia.
Stroke effects
The appellant has suffered two strokes which have left him with some residual weakness in his right arm. He takes post-stroke medication.
Low testosterone
At the time of sentencing, this condition was being investigated by an endocrinologist. Its symptoms are unclear.
Obstructive sleep apnoea
The appellant uses a continuous positive airway pressure (CPAP) machine for this condition.
The appellant’s treatment in custody
It is appropriate to address first the material which the Judge had regarding the treatment of the appellant’s health problems while in custody. The appellant’s general practitioner, Dr Jackson, and his psychiatrist, Dr Taylor, expressed concerns about the effect which incarceration would have on his health and his ability to receive appropriate treatment for the above conditions in a timely way. Accordingly, the Judge received evidence concerning the ability of Correctional Services to manage the appellant’s health problems.
In a letter of 21 December 2011, Mr Severin, the then Chief Executive of the Department for Correctional Services, said:
In regards to the mental health needs/issues of Mr Simpson, I can advise that on admission to prison all prisoners are assessed by the Department for Correctional Services and SAPHS staff to identify issues such as drug and alcohol, mental health, medical conditions and risk of self-harm. They are then assessed by a Medical Officer at the earliest opportunity and, if required, can be placed for an appointment with a visiting consultant psychiatrist through James Nash House during regular clinics.
As such, I have been advised that your client’s health care needs may be facilitated within the corrections environment. Appropriate aids to assist in mobility and continence are provided, where required, and ongoing consultation occurs with SAPHS to ensure that health care needs, including specialist appointments, continue to be taken into consideration when determining placements.
Dr Frost provided a report dated 19 December 2011 indicating that, other than in a limited number of instances, the appellant would have access to the same, or substitute, medications as those prescribed by his treating practitioners and that his treatment needs would be provided by the public health system. He said that the appellant’s mental state would be checked regularly and that he would be referred to a psychiatrist if his mental health deteriorated. However, in relation to the PTSD, Dr Frost acknowledged:
SA Prison Health Service does not have access to psychological services which are the optimal treatment for post-traumatic stress disorder.
Dr Jackson, the general practitioner, provided a critique of the appellant’s care after he had been in custody for one month. She considered that the appellant’s complex medical needs and the necessary medication regime were not being addressed adequately by the Prison Health Service. Dr Jackson identified the following areas of inadequacy: lack of correctly-timed dosing; errors in dose administration; poor availability of specialist services; poor provision for his impairment due to the previous strokes and lack of facilities to store refrigerated medications which the appellant was to administer himself.
Much of Dr Jackson’s critique in January 2012 was based on correspondence from the appellant as she had not seen him since he had been taken into custody. The accuracy and reliability of the appellant’s account to Dr Jackson was not established independently.
Dr Frost conducted an examination of the appellant on 5 March 2012 and his report following that examination was provided to the Judge. Dr Frost addressed separately each of the plaintiff’s health problems and the treatment provided since he had come into custody. He also noted that the appellant’s two main concerns were his lack of immediate access to his usual medical specialists and to his “as needed” medication. Dr Frost concluded:
In summary; Mr Simpson does not have the same access to health support as he does at home: he does not have immediate access to private health carers or four-hourly access to prison health services. He has chronic pain and a dry eye; both conditions are chronic and refractory to treatment. I have not met Mr Simpson previously and cannot provide a first hand opinion on whether they have changed while in custody; what he reported yesterday is identical to what is documented in specialists’ reports suggesting they have not. Options are available to improve pain control but previous failures suggest future attempts may not be any more successful. He will be seen in the Royal Adelaide Hospital about these problems; being a public hospital the dates could be problematic. The two potentially life-threatening conditions of emphysema and strokes appear to be stable with no deterioration in prison. Separation from usual routines and supports at home has increased anxiety and contributed to more nightmares and flashbacks. He did not appear to be profoundly depressed yesterday. He will remain on anti-depressant medication and if indicated referred to a visiting psychiatrist. SAPHS does not have access to the psychological services that may benefit him.
In my opinion imprisonment has not resulted in a deterioration in his physical health. Increased anxiety and “suffering” are a result of separation from usual routines and supports, not disease progression.
(Emphasis added)
In the light of Dr Frost’s report, the appellant’s counsel made the following submission to the Judge:
Mr Simpson has some quite complex medical problems and … his time in custody will be somewhat more difficult than most of the prison population. I can’t put it any higher than that.
Later, counsel confirmed that he did not wish to cross-examine Dr Frost on his report and, in particular, did not challenge Dr Frost’s opinion that imprisonment has not resulted in a deterioration of the appellant’s physical health.
As previously noted, the Judge sentenced on the basis that the appellant’s health problems would be treated appropriately while in custody. Even so, the Judge accepted that the appellant’s ailments meant that imprisonment would have a greater impact on him.
Error in the sentencing decision
Counsel for the Director did not concede that the head sentence of eight years imprisonment in this case was excessive. He did however accept that it was “substantial”.
It is not necessary to determine that question as, in my opinion, the Judge’s sentencing decision is affected by another error. That is the Judge’s belief that the appellant’s health problems would be treated appropriately while in custody. That conclusion was justified in relation to the appellant’s physical ailments but not in relation to his psychological needs.
It appears to be accepted that the appropriate treatment for the appellant’s PTSD is a combination of medication and psychotherapy. The reports from the appellant’s treating psychiatrist, Dr Taylor, indicate that from about 2005, the appellant has been receiving psychotherapy. This had occurred frequently, although not always on a continuous or regular basis.
The medication needs for the PTSD can be met while the appellant is in custody but his need for psychological services cannot. I have already referred to Dr Frost’s acknowledgment on 19 December 2011 that the Prison Health Service does not have access to the psychological services which are the optimal treatment for PTSD. In his report of 6 March 2012 Dr Frost confirmed that that limitation remained in place, saying:
SAPHS does not have access to the psychological services that may benefit him.
In his report of 13 November 2012, prepared in connection with this appeal, Dr Frost acknowledged again that:
SAPHS does not have access to psychological or counselling service.
The Judge appears to have overlooked this limitation on the available treatment services when he recorded that Dr Frost had “set in train” relevant treatment programs to address the appellant’s problems. Even if the Judge’s statement is correct in the strict sense, the treatment programs in custody are not, in this respect, complete.
The absence of psychological counselling services is, in my opinion, a very material matter. That is because the appellant had been receiving such services prior to going into custody, because it is acknowledged to be part of the optimal treatment for PTSD, and because the appellant’s PTSD appears to arise from his service in the armed forces.
This error means, in my opinion, that the exercise of the sentencing discretion has miscarried and that this Court should re-sentence. That makes it unnecessary to consider the application for this Court to receive fresh evidence on the appeal. That evidence can be received in any event in relation to the re-exercise of the sentencing discretion.
Re-sentencing
It is generally appropriate for Courts to be circumspect about allowing a defendant’s ill health to have significant influence on the sentencing decision. As King CJ observed in R v Smith:[25]
Ill health cannot be allowed to become a licence 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.[26]
[25] (1987) 44 SASR 587.
[26] Ibid at 589.
King CJ went on to identify the circumstances in which ill health will be mitigatory:
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.[27]
[27] Ibid.
Like the Judge, I consider that this is a case in which imprisonment is having a greater burden on the appellant by reason of his health than would otherwise be the case and that account should be taken of this in the sentencing decision. That arises in particular from his PTSD and his chronic obstructive pulmonary disease. The appellant is periodically exposed to passive smoking in the prison environment. Having regard to the high incidence of cigarette smoking among prisoners, it seems that to some extent this is unavoidable despite the attempts of the prison authorities to meet the appellant’s concerns. It is accepted that the appellant’s exposure to passive smoking has an adverse effect on his lung functioning, resulting in respiratory distress.
Further, as already seen, he is not receiving optimal treatment for his PTSD. It is a matter of surprise that psychological counselling and psychotherapy is not available at all to prisoners. As I understand it, psychological support is a conventional form of therapy for some conditions. It is not clear why this particular form of therapy is not available to those prisoners who have a reasonable need for it. It would be unfortunate if the courts in this State were inhibited from imposing the sentences which would otherwise be appropriate because Correctional Services cannot provide appropriate care and treatment of this type.
There will no doubt be exceptional cases from time to time in which it will not be possible for the prison authorities to meet the unusual treatment needs of a prisoner. R v Ireland[28] provides a recent example. However, that should not be so in relation to treatment of a conventional kind which ordinarily one would expect to be readily available.
[28] [2012] SASCFC 120.
In my opinion, it is not necessary to address the appellant’s other complaints individually. I consider that the evidence concerning them shows that the appellant is receiving adequate treatment for those conditions, although in some instances the provision of that treatment may not have been as prompt as the appellant wished.
I consider that some weight should be given to the appellant’s 20 years service in the RAAF, including his involvement in the Vietnam War. This was also a matter which the appellant’s counsel had emphasised in the sentencing submissions. The Judge did not overlook the appellant’s military service as he referred to it specifically and it is included in the matters which the Judge said he took into account.
As McHugh J observed in Ryan v The Queen,[29] some commentators suggest that a defendant’s previous good works or contribution to the community should be irrelevant in the sentencing process. For example, in Sentencing: Theory, Law and Practice,[30] the authors Walker and Padfield describe as remarkable the cases in which courts have been influenced by meritorious conduct which has nothing to do with the offence:
Men have had prison terms shortened because they have fought well in a war, given a kidney to a sister, saved a child from drowning or started a youth club. Such cases are interesting because they seem to result from two assumptions: (i) that offenders are being sentenced not for the offence but for their moral worth; and (ii) that moral worth can be calculated by a sort of moral book-keeping, in which spectacular actions count for more than does unobtrusive decency.[31]
(Citations omitted)
[29] [2001] HCA 21; (2001) 206 CLR 267.
[30] Walker and Padfield (2nd ed, 1996).
[31] Walker and Padfield, Sentencing: Theory, Law and Practice (2nd ed, 1996) at 53-4. See also Criminal Law (Sentencing) Act 1988 (SA), s 10(1)(l).
However, the generally accepted view is that a defendant’s positive contributions to the community are mitigatory. In Ryan v The Queen,[32] Kirby J held:
The evidence of good conduct, or of matters which reveal redeeming features of the offender’s character, tendered as relevant to sentencing will rarely, if ever, be discarded as immaterial to the sentencing function. The evidence may sometimes be disbelieved. It may sometimes be overridden by the objective seriousness of the offences or by countervailing evidence or by other considerations. But it is a mistake in sentencing to treat such evidence as irrelevant to the task at hand.[33]
[32] [2001] HCA 21; (2001) 206 CLR 267.
[33] Ibid at [102]; 297-8. See also [31]; 277 (McHugh J), [68]; 288 (Gummow J).
And in R v Pahuja (No 2)[34] White J said:
It is trite but true to say that the good that men do cannot be set at nought on occasions like this. Positive good character and a useful life must be placed in the scales, as it were, on the credit side when fixing penalty.[35]
[34] (1989) 50 SASR 551.
[35] Ibid at 562.
In R v Levi,[36] Gleeson CJ accepted that good character can include “a history of previous good works and contribution to the community”.[37] I also note that in Ryan v The Queen,[38] Callinan J observed:
[T]o acknowledge that some occupations, such as, perhaps, nursing, teaching, the clergy and the armed services, may attract well-motivated men and women and give them special opportunities to perform public service is not to disparage or demean others. [39]
[36] (Unreported, Supreme Court of New South Wales, Court of Criminal Appeal, Gleeson, Hunt CCJ and Sperling J, 15 May 1997, Judgment No 60566/1996).
[37] Ibid at 5.
[38] [2001] HCA 21; (2001) 206 CLR 267.
[39] Ibid at [177]; 319.
Accordingly, I consider that the appellant’s service in the armed forces, including his service in the Vietnam War, is a very relevant consideration in the sentencing, and that specific account should be taken of it.
In the circumstances, I consider that a single sentence under s 18A of the CLSA of six years imprisonment would be appropriate. This is less than that imposed by the Judge but takes account of the greater burden which imprisonment will have on the appellant because of his health, as well as his record of service to his country. In fixing that head sentence, I indicate that if imposing separate sentences for each offence, I would have ordered substantial concurrency for the second and third offences, given that they formed part of the one incident.
Having regard to the appellant’s health I would fix a relatively low non-parole period of two years. This takes account of the punitive and deterrent elements which are appropriate in the sentencing and of the impact of incarceration on the appellant’s health. It allows a longer than usual period on parole during which the appellant can consult his own treating doctors.
Delay in the hearing of the application for permission to appeal
It is appropriate to remark upon the delay which occurred in the determination of the appellant’s application for permission to appeal. The application was filed on 13 April 2012, but the grant of permission did not occur until 17 September 2012. In the meantime, there were four separate attendances before a single Judge, all of which resulted in adjournments. Those adjournments were granted at the appellant’s request in order that he could marshall the further evidence which he wished to present to the Court on appeal. The appellant’s solicitor had to make a request under the Freedom of Information Act 1991 (SA) in order to obtain his client’s prison health records.
Further, the Department for Correctional Services did not make a prompt decision on the application of the appellant’s solicitor, first made on 30 July 2012, for permission to have a doctor to attend upon the appellant in custody to make an assessment of his condition. The various responses by the Department to that application, as disclosed in an affidavit of the solicitor, are suggestive of delay and obfuscation. It is difficult to understand why the Department could not have made a decision, whether favourable or unfavourable, on the solicitor’s request quite promptly and thereby have avoided some of the delay and some of the Court attendances which it necessitated.
Given these matters, and the evidence that psychological services are not available to prisoners, I recommend that a copy of these reasons, together with copies of the affidavits of the appellant’s solicitor explaining the delays, should be provided to the relevant Minister and to the Chief Executive of the Department for Correctional Services.
Conclusion
For the reasons given above, I would allow the appeal. I would set aside the sentence imposed by the Judge. In its place I would impose a single sentence under s 18A of the CLSA of imprisonment for six years and fix a non-parole period of two years. Both the head sentence and the non-parole period should be taken to have commenced on 15 December 2011.
19
1