R v Trimper - [2006] SASC 304

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v TRIMPER
[2006] SASC 304
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Layton and The Honourable Justice David)
29 September 2006
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - MISCELLANEOUS MATTERS - ABNORMAL MENTAL CONDITION
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CIRCUMSTANCES OF OFFENDER
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE
Appellant pleaded guilty to one count of indecent assault and one count of unlawful sexual intercourse - Sentenced to three years and nine months imprisonment, with non-parole period of 18 months - Appeal against sentence - Whether sentencing Judge failed to appropriately determine the impact of the appellant's low intellectual functioning and childhood abuse on his criminal conduct and to give sufficient weight to those factors in sentencing - Held: No error in sentencing - Judge implicitly had regard to relevant matters - Appeal dismissed.
R v Gommers [2005] SASC 493; R v Engert (1995) 84 A Crim R 67; R v Wiskich (2000) 207 LSJS 431, considered.

R v TRIMPER
[2006] SASC 304
Court of Criminal Appeal: Sulan, Layton and David JJ

SULAN J: I would dismiss the appeal. I agree with the reasons of Layton J.
LAYTON J:
Introduction
This is an appeal against sentence on the grounds that it was manifestly excessive. There are two bases put forward for this appeal; first, that the starting point of the head sentence was too high; and secondly that the sentencing Judge erred in not suspending the sentence.
The appellant pleaded guilty to one count of indecent assault and one count of unlawful sexual intercourse, which occurred in the period between December 1997 and January 1998. The appellant was then a 35-year-old man and his victim was a 10 year old relative.
On the first count the appellant grabbed hold of the victim’s hand, put it on his penis and told her to squeeze his penis, before ejaculating on her. On the second count, the appellant forced the victim onto her stomach and inserted his penis into her anus. The victim found this painful, and she struggled to get free for some minutes until she managed to free herself and runoff.
The sentencing Judge began by fixing a single sentence of five years imprisonment, which was reduced to three years and nine months on account of the early guilty plea. The sentencing Judge refused to suspend the sentence but instead fixed a non-parole of 18 months, which he described as “somewhat lower than is usual”.
Appellant’s argument
Counsel’s argument for the appellant was the same in respect of both the head sentence and the failure to suspend the sentence. Specifically, it was submitted that the sentencing Judge failed to link the appellant’s low intellectual functioning and childhood abuse, to the circumstances and the gravity of the offending by the appellant. It was acknowledged that the sentencing Judge referred to both of these elements in his sentencing process, however it was argued that the Judge failed to give sufficient weight to these combined factors in considering suspension. It was argued that the sentencing Judge appeared to treat these facts as the usual matters required to be taken into account in sentencing, rather than specifically addressing the extent to which these combined factors affected the moral culpability of the appellant. It was argued that this diminished culpability should be reflected in the sentence, and that in this case the sentence should have been suspended.
Psychological evidence and history
Reliance was placed on the report of Allen Fugler, a clinical forensic psychologist. Mr Fugler examined the appellant on two occasions over a period of four hours, and administered a number of psychological tests. The report contained a history of the appellant’s childhood and experiences, an assessment on his intellectual capacity and functioning, and an assessment of the appellant’s understanding and appreciation of his offending. A summary of relevant factors include the following:
The appellant was raised on a rural holding. He was a shy and reclusive child and he was a bullied by his elder brothers. He was also bullied at school and left upon completing year eight. In addition he was sexually abused by his older brothers from the age of 11 years until he reached his thirties. He did not leave home until he was 38 years of age.
After leaving school, he initially worked on the farm and then later worked as a fruit picker and packer. He ceased work after he sustained a head injury when working in a quarry and has been on a disability pension for many years.
The appellant did not have any heterosexual contact until he was 38, which is at about the time when these offences were committed. He was in a relationship with a woman at that time and was experiencing some difficulties in that relationship.
The report of Mr Fugler indicated that the appellant was operating at the bottom end of the Borderline Range, with an IQ of 70-79. He also has limited general knowledge with poor vocabulary and comprehension skills and has poorly developed organisational skills and concrete thinking. It was also said of the appellant that he is not psychologically minded and has limited understanding of the meaning of his behaviour.
At the time of the offences, the appellant was living with the victim’s family. His older brother had already sexually abused the victim over a number of years previously.
The conclusions of Mr Fugler were summarised as follows:
[he] has a low level of intellectual functioning and has a limited understanding into the meaning of his behaviour. He has a history of sexual dysfunction, that having been apparent at the time of the instant offences when he had been involved in an adult heterosexual relationship. By his report he had been heavily criticised by his partner and had been feeling inadequate with respect to his inability to attain a good level of sexual performance. Sexually frustrated, he spontaneously became involved in deviant sexual behaviour with the victim, an 11-year-old child. It is relatively common for individuals who have had sexual acts perpetrated upon them as children to commit similar offences with victims of the same age. It is here that the long–term affects (sic) of the relationship with his brothers become relevant. Mr Trimper reported having enjoyed many of the ongoing aspects of the ongoing sexual interactions with his relatives, that being at least one way in which he could feel accepted. His sexual education was limited and his knowledge base restricted. It could well be your client re-enacted the sexual acts with the victim he himself had been involved in at the age of 11, in which had elements of pleasure, when frustrated and despondent.
Importantly, Mr Fugler also addressed the appellant’s awareness of the culpability of his offending, which is an important element of culpability.
Given his low level of intellectual functioning and general knowledge it is not beyond the bounds of possibility he may well not have been aware of the age of consent, although it is unlikely a similar proposition could be sustained with respect to the question of the wrong fullness of sexual activity with children.
With regard to prospects for rehabilitation, Mr Fugler said:
Mr Trimper does not report having a primary interest in sexual activity with children, or have been aroused previous to the offences before the court. He has not been involved in fantasies or other behaviour in which children have been arousing stimuli since. Your client is in need of sexual education and social skills training. He now understands his behaviour was wrongful, although is not entirely clear as to why that was the case. He would benefit from a referral to the Sexual Offenders Treatment and Assessment Programme.
Mental disorder and sentencing
The approach to be taken when sentencing a person suffering from a mental disorder has been considered recently in R v Gommers [2005] SASC 493. A useful starting point is R v Engert (1995) 84 A Crim R 67, where Gleeson CJ as Chief Justice of New South Wales, said (at 68):
Persons suffering from mental disorders frequently come into collision with the criminal justice system. Sentencing such persons commonly confronts judicial officers with the need to make a sensitive discretionary decision. Sentencing is essentially a discretionary exercise requiring consideration of the extremely variable facts and circumstances of individual cases and the application of those facts and circumstances to the principles laid down by statute or established by the common law. The principles to be applied in sentencing are in turn developed by reference to the purposes of criminal punishment. Those purposes were set by the High Court in Veen (No 2) (1988) 164 CLR 465 at 476; 33 A Crim R 230 at 237-238 as follows:
“...protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform.”
A moment’s consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration. For example, in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance. That was the particular problem being examined by the court in the case of Veen (No 2). Again, in a particular case, a feature which lessens what might otherwise be the importance of general deterrence, might, at the same time increase the importance of deterrence of the offender.
It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise. (emphasis added)
His Honour continued at 71:
In truth however, for the reasons given at the commencement of this judgment, the question of the relationship, if any, between the mental disorder and the commission of the offence, goes to circumstances of the individual case to be taken into account in the application of the relevant principles. The existence of such a causal relationship in a particular case does not automatically produce the result that the offender will receive a lesser sentence, any more than the absence of such a causal connection produces the automatic result that an offender will not receive a lesser sentence in a particular case. For example, the existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence, and increase the importance of particular deterrence or of the need to protect the public. By the same token, there may be a case in which there is an absence of connection between the mental disorder and the commission of the offence for which a person is being sentenced, but the mental disorder may be very important to considerations of rehabilitation, or the need for treatment outside the prison system. (emphasis added)
In South Australia the significance of an offender’s mental disorder to the sentencing process was considered by this Court in R v Wiskich (2000) 207 LSJS 431. Martin J (with whom Prior and Williams JJ agreed) carried out a detailed analysis of the relevant authorities both here and interstate and expressed his conclusions as follows (at 457-458):
In sentencing persons suffering from mental disorders it is important to bear in mind the general observations of Gleeson CJ in Engert to which I have already referred. The existence of a mental disorder is always a relevant factor in the sentencing process, but its impact upon that process and the various issues that arise in sentencing will vary considerably according to the circumstances of the individual case. An assessment of the severity of the disorder is required. A sentencing court must determine the impact of the disorder upon both the offender’s thought processes and the capacity of the offender to appreciate the gravity and significance of the criminal conduct. In this respect I agree with the approach taken in the Victorian and New South Wales authorities that, as a general proposition, if an offender acts with knowledge of what is being done and with knowledge of the gravity of the criminal conduct, the importance of the element of general deterrence otherwise appropriate in the particular circumstances is not greatly affected. The gravity of the criminal conduct is also an important consideration. It is not difficult to understand that the element of general deterrence can readily be given considerably less weight in the case of an offender suffering from a significant mental disorder who commits a minor crime, particularly if a causal relationship exists between the mental disorder and the commission of such an offence. In some circumstances, however, the mental disorder may not be serious or causally related to the commission of the crime, and the circumstances of the crime so grave, that very little weight in mitigation can be given to the existence of the mental disorder and full weight must be afforded to the element of general deterrence. In between those extremes, an infinite variety of circumstances will arise in which competing considerations must be balanced. (emphasis added)
Therefore the cases of Engert and Wiskich are authority for the proposition that a sentencing court is required to determine the impact of the disorder upon both the offender’s thought processes and the capacity of the offender to appreciate the gravity and significance of the criminal conduct. Further, it is necessary in the sentencing process to then balance what weight is given to the mental disorder in considering general and special deterrence, which in turn would include matters of rehabilitation.
Approach of sentencing Judge
The sentencing Judge, using his own words, summarised the above aspects of the appellant’s intellectual functioning and the sexual abuse suffered by the appellant, as described in Mr Fugler’s report. The Judge also referred to the immediate and frank acknowledgement which the appellant made to the police, as well as his plea of guilty at the earliest possible time. Reference was also made to the shame and remorse, which he said were “evident from your early acknowledgement and pleas”. It was also noted that the appellant had not taken issue with any aspect of the victim’s account of his misconduct.
The Judge then referred to the fact that the offending was serious, because of the age of the victim and the position of trust that he occupied. The Judge said that, but for the appellant’s plea of guilty, a sentence of five years would have been imposed. Instead, the Judge imposed a sentence of 3 years and 9 months.
The Judge did not specifically advert to the effect of the combination of early and long term sexual abuse with low level intellectual functioning, in order to consider whether there was a causal connection with the offence, and if so what weight this was to be given. Nor did the Judge specifically consider such factors in relation to balancing general and specific deterrence, which would also include rehabilitation.
However, without going through this process overtly, the Judge did conclude: “In consequence, you seem to have had limited insight into it’s wrongfulness, although you now accept that it is wrong”. This conclusion appears to be his assessment of the causal effect of the appellant’s history and mental impairment, on his offending in this case. Whilst, it would have been preferable for the Judge to have made his consideration of this important requirement more explicit, his Honour appears to have given appropriate consideration to the causal connection.
His Honour does not then go on to specifically address the weight which should be given to this conclusion on causality, by balancing issues of general and specific deterrence. Again, many factors are canvassed in his remarks which refer to matters relevant to either general or specific deterrence. Whilst there is no overt reference to the balancing of general and personal deterrence which is required when dealing with cases of mental disorder, all the relevant factors relating to general or specific deterrence were adverted to by the Judge. The outcome of this process is then reflected in fixing the sentence of imprisonment.
The head sentence
In this case two very serious crimes have been committed. The first is indecent assault for which the maximum sentence was 10 years. The second is unlawful sexual intercourse, for which the maximum penalty is imprisonment for life. The head sentence of five years is within the appropriate range of penalty for the isolated incidents as occurred in this case.
Suspension of sentence
Turning now to the consideration of the suspension of sentence. The Judge gave very specific consideration of this issue over a number of paragraphs. The primary issue with regard to suspension is whether “good reason” existed to suspend what would otherwise be an appropriate sentence of imprisonment, by reason of personal circumstances of the appellant. It also requires the court to again consider the factors relevant to setting the sentence of imprisonment and in turn requires consideration of the appellant’s mental capacity and history of abuse. At this stage it is also relevant to specifically address matters of rehabilitation and treatment.
The Judge clearly refers to a number of the appellant’s personal circumstances, including his:
§Lowered intellectual functioning;
§History of being sexually abused;
§Limited education;
§Limited coping skills;
§Openness and frankness to police;
§Abnormal insensitivity to the wrongfulness and seriousness of his offending; and
§The likely harshness upon him of serving any period of actual imprisonment.
These are all personal matters relevant to the issue of suspension of sentence. The sentencing remarks do not specifically refer to their effect on causality or culpability for the offence, nor indeed to treatment, rehabilitation, or the limited risk of the appellant re-offending. Having said that, the latter are alluded to when the Judge decides that the non-parole period should be significantly lowered. The learned Judge has clearly had regard to these features in deciding on a merciful non-parole period and it would be most unlikely that these features were ignored in his conclusion regarding suspension.
The Judge concluded that suspension was not appropriate, bearing in mind:
[t]he nature of your offending, the relative ages of you and your victim, and the abuse of your trust as an adult, are all very serious matters and overwhelm the request for suspension.
No sentencing error is revealed in his conclusion.

In this case the Judge appears implicitly to have had regard to the relevant matters and there is no error.
For the above reasons the appeal should be dismissed.
DAVID J: In my view the sentence was not manifestly excessive and the sentencing Judge did not err in the exercise of his discretion not to suspend the sentence he imposed. I agree with the reasons of Layton J. I would dismiss the appeal