R v SKILBECK - [2010] SASCFC 35

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SKILBECK
[2010] SASCFC 35
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Gray and The Honourable Justice Kelly)
24 September 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - INTELLECTUALLY HANDICAPPED OFFENDER
CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - REFORMATION AND REHABILITATION
Criminal law - prosecution appeal against sentence - defendant pleaded guilty to unlawful sexual intercourse with a person under 14 years - where defendant suffers intellectual impairment - where defendant previously convicted of indecent assault approximately 20 years earlier - where sentencing Judge imposed head sentence of 18 months imprisonment and set a non-parole period of 12 months and suspended the sentence - where five month delay between sentence and appeal - where defendant re-engaged in rehabilitation program between sentence and appeal - whether sentence manifestly inadequate - whether sentencing Judge erred in suspending sentence.
Held (Gray and Kelly JJ, Duggan J concurring): Appeal allowed - sentence manifestly inadequate - sentence did not reflect the gravity of the offending or the manifest policy of the criminal law in relation to the protection of minors - sentence increased to three years imprisonment with a non-parole period of 18 months - sentence should be suspended - given the defendant’s re-engagement with a rehabilitation program an immediate custodial sentence would impede rehabilitation.
Criminal Law Consolidation Act 1935 (SA) s 49(1), referred to.
Mooney (unreported, Court of Criminal Appeal, Victoria, 21 June 1978); Veen v The Queen (No 2) (1988) 164 CLR 465; Barnes v Police [2006] SASC 295, discussed.
R v Osenkowski (1982) 30 SASR 212; Everett v The Queen (1994) 181 CLR 295; R v Nemer (2003) 87 SASR 168; Mason-Stuart v The Queen (1993) 61 SASR 204; R v Anderson [1981] VR 155; Scognamiglio (1991) 56 A Crim R 81; R v Letteri (unreported, Court of Criminal Appeal, New South Wales, 18 March 1992); Parnis v The Queen (1993) 49 FCR 304; R v Wiskich (2000) 207 LSJS 431; Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575; R v Leach (2003) 85 SASR 139; R v Coleman (2001) 122 A Crim R 230; R v Todd [1982] 2 NSWLR 517; Mill v The Queen (1988) 166 CLR 59; Wright (1989) 45 A Crim R 423; Duncan v The Queen (1983) 47 ALR 746; R v Bell [1982] Qd R 216; R v Van Der Horst [2006] SASC 243, considered.

R v SKILBECK
[2010] SASCFC 35
Court of Criminal Appeal: Duggan, Gray and Kelly JJ

DUGGAN J: I agree with the orders proposed by Gray and Kelly JJ. I also agree with the reasons which they have prepared.
GRAY and KELLY JJ:
This is an application by the Director of Public Prosecutions for permission to appeal against a sentence imposed in the District Court for an offence of sexual intercourse with a person under the age of 14 years, contrary to section 49(1) of the Criminal Law Consolidation Act 1935 (SA).
The defendant pleaded guilty at a committal hearing in the Magistrates Court and was committed to the District Court for sentence. The maximum penalty for this offence is life imprisonment. The sentencing Judge imposed a head sentence of 18 months imprisonment and set a non-parole period of 12 months. The sentence was suspended on the basis that the defendant be of good behaviour for a period of three years, subject to supervision and compliance with directions as to appropriate treatment for a period of two years.
The grounds upon which the Director seeks permission to appeal are that the Judge erred in imposing a manifestly inadequate sentence and in finding that good reason existed to suspend the sentence.
On appeal it was contended that the Judge failed to give effect to the policy underlying section 49(1) of the Criminal Law Consolidation Act, which is to protect adolescents from their own immaturity and to protect them from sexual exploitation or corruption by older persons. The Director contended that there was not good reason to suspend the sentence. It was contended that the Judge made manifest errors in finding that there was good reason to suspend by virtue of the fact that the defendant had been sexually abused by his father, was of low intellectual ability and would therefore be more vulnerable in prison.
It was argued that if the sentence is left to stand it would erode appropriate standards of penalty.
Background
The victim was a 13 year old girl. She had run away from her family home and, with a friend, was staying with a neighbour of the defendant for a number of nights when she was introduced to the defendant.
Some days after they first met, the victim and her friend stayed at the defendant’s home for two days and two nights. During that period the defendant supplied the victim and her friend with food and alcohol and played pornographic movies in their presence. The defendant knew the age of the victim and that she had left home.
On 22 March 2009, 10 days or so after the girls first stayed at the defendant’s home, the defendant and his neighbour met with the victim and another girl who had also run away from home, at a shopping centre. The prosecution alleged that on this occasion the defendant gave the victim’s friend, who was 12 years of age, a box of cigarettes.
The neighbour invited the girls to his house, but later in the evening he called them over to the defendant’s house. There is some dispute about how this occurred. The Director asserted that the neighbour left the girls at his house and went to the defendant’s house where they spoke for some time before the defendant invited the girls over. The defendant said that he did not invite them over; rather, the neighbour came to his house and called out to the girls who were in the neighbour’s unit.
It was conceded that the defendant made a number of explicit sexual advances towards the victim which were rejected. The defendant played a pornographic movie and at some stage left the house to purchase confectionary, cigarettes and alcohol for the girls.
When the defendant returned to his house, he took the victim to his bedroom and had sexual intercourse with her. It was conceded in sentencing submissions that the defendant knew that the victim had been drinking and that one of the girls had been vomiting from the effects of either cigarettes or alcohol. At some stage the defendant had been told by the neighbour that the girls were sexually experienced.
After the act of sexual intercourse occurred, the victim remained at the defendant’s house with her friend and spent the following two or three nights at the neighbour’s house.
The Defendant’s Personal Circumstances
The defendant at the time of the offending was aged 44. He suffers from an intellectual impairment. Dr Jack White, a psychologist who examined the defendant for the purpose of sentencing estimated his IQ to be in the range between 70 to 80. DrWhite described the defendant as an emotionally unstable individual with limited personal skills and low intellectual ability with behavioural problems of impulsivity and paedophilic interests. In Dr White’s assessment the defendant has the problem solving skills equivalent to those of an average five and a half year old child.
The defendant had a troubled and difficult childhood. He suffered severe and prolonged sexual abuse by his father. He left school after primary school and was functionally illiterate. Apart from a brief period of work as a bricklayer and other work experience, the defendant has not been employed and has been on a disability pension since the age of 16. The defendant’s father died in 1995. He was very close to his mother, whose death in 2007 was described in the psychologist’s report as a devastating event for the defendant.
The defendant has had eight previous court appearances in Victoria. In relation to a 1990 conviction for indecent assault, the charge sheet details that while the defendant was boarding in a shed at the rear of a house, he developed a habit of slipping into the house where the resident’s two girls slept, pulling their bedclothes back and looking at their genitals. The antecedent report shows that the defendant was convicted of two further counts of indecent assault in 1992. Other court records show that at least one indecent assault was alleged to have occurred on 15 October 1988.
However, since the offending in Victoria the defendant did not offend again for a period of about 20 years until he committed this offence in March 2009. The defendant commenced but did not complete a sex offender rehabilitation program in Victoria and attended the Sex Offender Treatment and Assessment Program (SOTAP) in South Australia from 2004 to 2007. However, in his report, Dr White refers to the comments of Mr Peter Toman, a psychologist who counselled the defendant at Owenia House, that due to limited intelligence the defendant was unsuited to the type of program then being offered by SOTAP. Mr Toman believed however that the SOTAP program for low-functioning sexual offenders now being offered would be appropriate for a man of the defendant’s intellectual capacity. He indicated that some progress had been made during that time and that the strategy in place for the defendant was to “to stay away from children”.
Currently the defendant is in a platonic relationship. He attends church. He has received some support from his church. He does not drink or take drugs. He is aware that he has a problem and he is willing to undertake further rehabilitation programs. He has in fact in the five months since his sentencing in the District Court re-engaged with SOTAP.
Discussion
The principles which apply to an application by the Director for permission to appeal are well known.[1]
[1] See R v Osenkowski (1982) 30 SASR 212 per King CJ; Everett v The Queen (1994) 181 CLR 295; R v Nemer (2003) 87 SASR 168.
The Director submits that a proper exercise of the sentencing discretion in this case required the Court to fix a starting point significantly higher than two years imprisonment. The Director submits that there was nothing unusual in the circumstances of this case which could have given rise to the exercise of the discretion to suspend in respect of an offence which would usually attract an immediate custodial sentence. The Director pointed to the disparity in age between the victim and the defendant. The complainant was 13 years old at the time of the offending. The defendant was 44. Furthermore the defendant knew of the complainant’s age. The complainant was vulnerable not just because of her age but in this case due to her personal circumstances, she having run away from home shortly prior to meeting the defendant. The aggravating features about the offending itself included the fact that the defendant plied the victim and her friend with alcohol and cigarettes and showed them pornographic material. It was submitted, contrary to the Judge’s findings, that the offending had a significant effect on the complainant. Finally it was submitted that the defendant’s prior convictions, albeit that they occurred about 20 years ago, was an aggravating feature.
The Director submitted that the sentencing Judge made a number of errors in the course of his sentencing remarks. It was said that the Judge’s characterisation of the offending, when he said it occurred as a consequence of the extraordinary way in which the girls came into the defendant’s home, was not correct. In this respect attention was drawn the fact that the complainant had previously stayed at the defendant’s house for two nights not long before the commission of the offences, and on that occasion the defendant had slept with the victim and her friend on a sofa bed. It was said that the defendant was well aware of the vulnerable position of both the victim and her young friend in that they required accommodation and a bed because they had run away from home. It was submitted that the Judge seems to have been more impressed by the fact that the psychologist assessed the defendant as having the problem solving skills of an average five and a half year old child than with the fact that the defendant was some 30 years older than the victim.
There can be no doubt that the defendant’s offending was very serious. The offence of unlawful sexual intercourse with a child under 14 years of age attracts a maximum penalty of life imprisonment for very good reason. The policy of the law is to protect young people, particularly adolescent females in effect from themselves. This young girl was in great need of protection given the personal circumstances which led her to the defendant’s home in the first place. It appears that she was already known to welfare authorities in this State and was a troubled young person.
Nevertheless, the circumstances of the defendant are not without their own complications. He too might be described as a vulnerable member of the community. There is no question that he has a borderline intellectual disability. Since adolescence he has been in receipt of a disability pension and is currently in housing which has been organised under the auspice of Bedford Industries.
Despite the defendant’s previous convictions, he has been able to stay out of trouble for a period of almost 20 years. The difficulty is however that despite the court’s earlier intervention and the fact that the defendant received treatment apparently between 2004 and 2007, for reasons which remain unclear, he offended again in March 2009. In light of these circumstances considerations of personal deterrence were particularly important in sentencing the defendant.
The offending came to light when the police went to visit the housemate of the defendant. The defendant answered the door and in somewhat childish fashion revealed to the police that he had been expecting them to come and speak to him about this matter. He thereafter cooperated with the police and admitted his guilt at the earliest opportunity.
In cases like the present where a defendant has a mental impairment caused by low intelligence, the importance of general deterrence may be somewhat diminished.[2] In the context of mental illness, in the Victorian Court of Criminal Appeal in Anderson,[3] Young CJ referred to an earlier decision of that Court, Mooney,[4] in which it was stated:
In sentencing generally, it is necessary to balance personal and general deterrence on the one hand with rehabilitation on the other. But in the case of an offender suffering from a mental disorder or abnormality general deterrence is a factor which should often be given very little weight … general deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others.
This passage has been cited with approval on many occasions.[5]
[2]    See eg Mason-Stuart v The Queen (1993) 61 SASR 204.
[3]    R v Anderson [1981] VR 155 at 160.
[4]    Mooney (unreported, Court of Criminal Appeal, Victoria, 21 June 1978).
[5]    See Grove J, with whom Clarke and Newman JJ agreed in the Victorian Court of Criminal Appeal in Scognamiglio (1991) 56 A Crim R 81 at 86, by Badgery-Parker J, with whom Gleeson CJ and Sheller JA agreed in R v Letteri (unreported, Court of Criminal Appeal, New South Wales, 18 March 1992), by the Full Court of the Federal Court of Australia in Parnis v The Queen (1993) 49 FCR 304 at 305 D-E and by Martin J, with whom Prior and Williams JJ agreed in this Court in R v Wiskich (2000) 207 LSJS 431 at 440. The principle in Scognamiglio was noted with apparent approval in the High Court by Kirby J in Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575 at [168].
The critical matter is whether the defendant acts with knowledge of what is being done and with knowledge of the gravity of the criminal conduct.[6] In the present case, having a borderline intellectual disability and the problem solving skills equivalent to a five and a half year old child, the defendant did not fully understand the gravity of his conduct.
[6] R v Leach (2003) 85 SASR 139 at [33] (Perry J, with whom Nyland and Bleby JJ agreed. See also R v Murphy (2002) 83 SASR 547 and R v Wiskich (2000) 207 LSJS 431 at 457- 458.
However, the danger posed by the defendant to society is also relevant. In Veen,[7] Mason CJ, Brennan, Dawson and Toohey JJ observed:
… However, sentencing is not purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions. And so a mental abnormality which makes an offender a danger to society when he is at large but which diminishes his moral culpability for a particular crime is a factor which has two countervailing effects: one which tends towards a longer custodial sentence, the other towards a shorter …
[7] Veen v The Queen (No 2) (1988) 164 CLR 465 at 476-477.
Where a defendant of diminished responsibility is a danger to society due to repeated offending in spite of previous sentences, a substantial custodial sentence will be justified.[8]
[8] R v Coleman (2001) 122 A Crim R 230 at [16]-[24], citing Veen v The Queen (No 2) (1988) 164 CLR 465 and Ryan v The Queen (2001) 206 CLR 267.
Having reviewed the sentencing remarks we consider that the Judge did have regard to all relevant facts and circumstances. Nevertheless, even taking into account that the defendant’s criminal culpability is to be viewed against the background of his vulnerability and borderline intellectual disability, we are persuaded that the starting point for the sentence of imprisonment of two years was manifestly inadequate for an offence of this nature. It does not reflect the gravity of the offending or the manifest policy of the criminal law in relation to the protection of minors.
For this reason we would grant permission to the Director to appeal, set aside the sentence of imprisonment and impose a head sentence of three years. We would fix a non-parole period of 18 months.
However, we are not persuaded that in all of the circumstances an immediate custodial sentence should be imposed. It appears from the court record that the Director promptly filed a notice of appeal, however the appeal notice itself was not served on the defendant until 10 July 2010 resulting in the appeal being heard some five months after sentence. That five month period has been significant in the life of the defendant. He has re-engaged with the Sexual Offender Treatment and Assessment Program at Owenia House. This program offers a comprehensive treatment, intervention and relapse prevention program using contemporary psychological approaches. The duration of the program can be up to two years. The program was introduced specifically for low functioning individuals. This is a program which is likely to be more effective for the defendant given his evident disabilities.

The delay between sentencing and the hearing of this appeal was no fault of either party, nevertheless, we regard the intervening events as decisive on the question as to whether this Court should now exercise the discretion to suspend. The defendant is well down the track in terms of his current attendance at SOTAP. The programs he attended in the past were evidently not especially helpful for a man of his intellectual capacity. The program now has the capacity to specifically target such a person as the defendant.
Cases dealing with the situation where there has been rehabilitation in a period of delay prior to sentencing indicate that fairness to a defendant requires weight to be given to the progress of his or her rehabilitation.[9] As observed in Barnes:[10]
Given the appellant’s progress made toward rehabilitation in recent times and, in particular, his positive response to the conditions imposed upon him pursuant to the good behaviour bond with respect to the July 2004 offending, I do not consider that immediate imprisonment is appropriate. Immediate imprisonment at this stage in the appellant’s life is likely only to frustrate the rehabilitative progress made to date. This consideration weighs particularly heavily in light of the fact that the appellant committed the subject offence some two years ago, prior to the progress just outlined, and that the appellant has not offended in any way since August 2004.
[footnote omitted]
[9] See eg Street CJ in R v Todd [1982] 2 NSWLR 517 at 519-520, where rehabilitation occurred during the serving of an earlier sentence, approved of by the High Court in Mill v The Queen (1988) 166 CLR 59. See also Wright (1989) 45 A Crim R 423.
[10] Barnes v Police [2006] SASC 295 at [26].
The court should be wary not to impede rehabilitation which has been shown to have taken place by imposing an immediate custodial sentence.[11] This is a compelling reason in our view to exercise the discretion suspend the sentence.
[11] See Duncan v R (1983) 47 ALR 746 at 749; R v Bell [1982] Qd R 216 at 220-221; R v Van Der Horst [2006] SASC 243 at [35].
Conclusion
For these reasons we would grant permission to the Director to appeal. We would allow the appeal and fix a head sentence of three years. We would fix a non-parole period of 18 months. However, we consider that in the circumstances there is good reason to suspend the term of imprisonment on the same conditions as allowed by the District Court Judge.