Regina v Arthur Fairwell

[2006] NSWDC 18

CITATION:	Regina v Arthur Fairwell [2006] NSWDC 18
HEARING DATE(S):	11/8/06 and 31/8/06
JUDGMENT DATE:	8 September 2006
JUDGMENT OF:	Murrell SC DCJ
DECISION:	Sentence of 10 years imprisonment, with a non-parole period of 6 years.
CATCHWORDS:	Administer Stupefying drug - Sexual Offences against 13 year old girl
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
PARTIES:	Regina Arthur Fairwell
FILE NUMBER(S):	04/11/1068
COUNSEL:	Mr M Barr (Crown) Mr G J L Scragg (Accused)

SENTENCE
Non-Publication Order re Identity of Complainants
The Charges

1 On 30 May 2006, the offender pleaded guilty to the following offences, each of which occurred on

19 May 2004.

1. Cause RD to take a stupefying drug (benzodiazepines) with intent to sexually

assault her daughter, LD (s.38 Crimes Act 1900).

2. Cause LD to take a stupefying drug (benzodiazepines) with intent to sexually

assault her (s.38).

3. Aggravated attempt to have sexual intercourse with LD (place penis into

mouth) without her consent, knowing that she was not consenting – she being

under 16 years old (s61J(2) (d)).

4. Aggravated attempt to have sexual intercourse with LD (rub penis on vagina)

without her consent, knowing that she was not consenting – she being under

16 years old (s.61J(2)(d)).

5. Aggravated indecent assault on LD (licking breast) – she being under 16 years

old (s.61M(3)(b).

6. Aggravated sexual intercourse with LD (licking vagina with some penetration)

without her consent, knowing that she was not consenting – she being under

16 years old (s.61J(2)(d)).

2 For counts 1 and 2, the maximum available penalty is 25 years' imprisonment. No standard non-parole period applies. For counts 3,4 and 6, the maximum available penalty is 20 years' imprisonment. The standard non-parole period is 10 years' imprisonment. For count 5, the maximum available penalty is 10 years' imprisonment. The standard non-parole period is 5 years' imprisonment.

3 The parties agree that the standard non-parole periods do not apply because of the offender's pleas of guilty. Nevertheless, the standard non-parole periods do provide some guidance in sentencing.

4 On count 1, when sentencing the offender I take into account two further offences of aggravated indecent assault on 19 May 2004. Those offences are related to the offences on the indictment and involve the offender feeling the breasts and inner leg of LD, and rubbing his testicles.

5 On count 2, when sentencing the offender I take into account four offences of sending a threatening document. Those offences occurred in 2002. One involved an e-mail threat directed at a detective. The other offences involved sending threatening SMS messages to a woman.

Background to the Sentencing Proceedings

6 From 18 December 2002 to 10 April 2003, the offender was in custody exclusively in relation to the threatening document offences.

7 After he was charged with the offences of 19 May 2004, the offender raised the question of his fitness to plead. At that time, he relied on reports of Dr Bruce Westmore. Dr Westmore reported that the offender was a psychiatrically disturbed person who suffered from persecutory thoughts. He stated that the offender suffered from a schizophrenic illness, "possibly of a paranoid type". In May 2005, a jury found that the offender was fit to plead to an indictment which was more extensive than the current indictment.

8 In May 2006, Dr Lucire, a psychiatrist, contended that the offender suffered from drug-induced akathisia and related mental difficulties. Previously, this condition had been raised neither in the context of medical treatment nor in the context of criminal proceedings. A second fitness to plead hearing proceeded before me, sitting as a judge alone. On 29 May 2006, I found that the offender was fit to plead. I agreed with Doctors Wong, Allnutt and MacKay that the offender then suffered from no significant mental illness and was feigning complaints. I was satisfied that the offender had feigned or, at the very least, grossly exaggerated, an apparent need to constantly masticate and rock, which characterized the two week fitness hearing.

9 On 30 May 2006, the offender pleaded guilty to the current indictment.

10 The Crown conceded that the plea of guilty has significant utilitarian value, avoiding a distressing and "messy" trial. The plea was not entered at the earliest reasonable opportunity, which was in May 2005, when the offender was first found fit to plead. Between May 2005 and May 2006, when the fitness issue resurfaced, the offender had ample opportunity to enter a plea of guilty, but did not do so. On the other hand, the current indictment was not offered until May 2006. The offender felt able to plead to the current indictment because it contains no allegation of penile penetration. In my view, the offender's mental condition contributed to his decision to maintain a plea of not guilty until any suggestion of penile penetration was removed from the indictment. He seemed to be unusually preoccupied with impressing upon the Court that there had been no penile penetration. Although his peculiar conduct might suggest otherwise, I accept that, in pleading guilty, the offender was expressing remorse. In May 2005, the offender wrote letters to the victims, expressing his regret for the offences. In those circumstances, I propose to discount by approximately 20% the sentences which I would otherwise have imposed.

11 On 7 August 2006, I dismissed the offender's appeal against a conviction for an offence of indecent exposure on 26 May 1999. I found that I had no jurisdiction to deal with an appeal against the severity of a three month sentence imposed by the Local Court because the offender had failed to appeal within time. The Crown conceded that the Local Court had imposed a heavy penalty.

12 On 25 May 2004, when he was arrested for the offences of 19 May 2004, the offender commenced to serve the three month sentence for indecent exposure. The offender has been in custody since 25 May 2004.

13 I have decided that the sentences which I impose for the offences on the indictment should commence on 8 June 2004.

19 May 2004 – Agreed Facts

14 RD is the mother of LD. In May 2004, LD was 13 years old. RD has only one kidney. Consequently, her ability to metabolise alcohol and drugs is compromised.

15 On 30 April 2004, the offender and a nurse made contact through a telephone chatline. The offender used an assumed name. The two maintained telephone contact. On 15 May, the offender asked the nurse to give him some Hypnodorm, a strong sedative, saying that he was taking it for a sleeping disorder. When she refused, he became angry and hung up. On 16 May, the offender again asked the nurse to supply him with Hypnodorm and she again refused. He then asked about other drugs that would help him to sleep. She told him that the drugs which he named were paralysing agents.

16 In early April 2004, RD contacted the offender through a telephone chatline. Subsequently, they discussed meeting. The offender said that his name was Peter and that he may be able to arrange weekend work for RD in his shop.

17 The couple agreed to meet at RD’s house on the evening of Wednesday, 19 May. The offender asked RD to obtained a bottle of Southern Comfort and some Coke. At about 6 p.m., the offender arrived. He brought three plastic containers of custard.

18 RD, LD and the offender had a drink. The offender poured Southern Comfort for LD, saying that it was Coke. LD realised that was not. The offender encouraged LD to consume a custard. He encouraged RD to consume alcohol.

19 After examining some family photographs, the offender spoke to LD about computers. All three went upstairs to the spare room, where LD’s computer was located. They stayed there for about 30 minutes. On two occasions, RD left the room briefly. At one stage, the offender left the room to obtain another drink for RD. RD thought that the drink was particularly potent.

20 RD began to feel light-headed. Her next recollection is waking up in hospital.

21 LD began to feel dizzy and tired. The offender asked to accompany her to her bedroom. He asked her to put on her pyjamas, but she refused. He closed the door. He tried to dance with LD, then held her hand and pushed her onto the bed.

22 The offender held LD down by the shoulders, threatened her, felt her breasts on the outside of her clothing, and played with her hair and legs. (First matter on the Form 1.)

23 The offender said that, if LD did not comply with his wishes, he would kill her. She started screaming. He covered her mouth. She had difficulty breathing. He told her to shut up. She kicked and punched in an endeavour to escape, but he held her down. The offender said that he would not hurt her mother as long as she allowed him to do as he wished.

24 The offender appeared to hear something. He put on his pants and ran downstairs. LD followed, screaming for her mother. As she was dizzy, she fell down the stairs. The offender told her to shut up, threatening that, if she did not, he would "cut her "effin" throat". He said that he had a knife, but LD realised that he did not.

25 The offender pulled LD into her mother's room and pushed her onto the bed. He ripped off her clothes and removed his pants. LD screamed and cried. The offender told her to “do it” and to shut up or he would kill her.

26 The offender tried to make LD suck his penis. LD spat, fearing that the offender might ejaculate. (Count 3.)

27 The offender rubbed his penis against LD's vagina and played with it while he tried to insert it. LD kicked and cried. (Count 4.)

28 The offender removed LD’s bra and licked her breast as she tried to push him off. (Count 5)

29 The offender told LD to rub his testicles. When she refused, he grabbed her hand and forced her to do so. This activity continued for a couple of seconds. (Second matter on the Form 1.)

30 The offender spread LD’s legs. She tried to hold his head away, but he licked her once, slightly penetrating her vagina with his tongue. LD was not aware of the penetration. (Count 6)

31 During the assault, LD’s older sister telephoned the household. The offender instructed LD that she was not to answer the telephone, but LD managed to reach the telephone and inform her sister that she was being sexually assaulted. While LD was on the telephone, the offender pulled on his pants and ran outside.

32 LD’s sister rang 000. LD’s brother-in-law went straight to the house, where he found RD and LD in an apparently drug-induced state. When RD and LD were medically examined, each was found to have consumed three forms of benzodiazepine. Benzodiazepines are sedatives. They can cause memory loss, muscle weakness, impaired alertness and difficulty in walking.

33 On 25 May, the offender's computer was seized. A police examiner found references to benzodiazepines, including two of the three benzodiazepines found on the medical examination of LD and RD, and a reference to "Rohypnol Date rape drug of choice”.

34 A forensic examination of the home detected no semen.

35 Any offence of causing a person to take a stupefying drug with intent to commit a sexual assault is objectively serious, and it is more so when the intended victim is a child and where more than a basic level of planning is involved. In this case, the physical acts comprising the attempted sexual intercourse, indecent assault and sexual intercourse were not in the worst category of offences against a child. However, the overall criminality was very substantial because of the number of incidents and the associated force and threats, which created a climate of terror.

36 Telephone and internet dating services are widely used. Their use means that participants are brought together in potentially intimate circumstances with no prior personal knowledge of each other. The courts should send a strong message to participants that the opportunities associated with such dating must not be abused. However, in this case the offender does suffer from a mental condition, which means that I am reluctant to utilise him as a vehicle for conveying that message of general deterrence.

Victim Impact

37 The victims' impact statements confirm what common sense would suggest, ie that the offences have had and will continue to have an horrific - and probably lifelong - impact on both victims. LD is a child who was the victim of a terrifying violation in her own home, a place where she was entitled to feel safe and secure. RD was rendered helpless and was unwittingly placed in a situation where she feels personally responsible for her daughter's suffering. RD should not feel responsible. She could not have contemplated the circumstances which arose. The Court expresses its sympathy for the plight of both victims.

Second Form 1 Offences - Agreed Facts

38 In 2002, the offender was living in Deniliquin. He formed the view that a Deniliquin detective was treating him unfairly. On 24 June 2002, he forwarded an e-mail to the detective. The e-mail was in a false name. It addressed the detective by a variety of obcene terms and stated, inter alia, that the detective would be punished and would die.

39 In an unrelated incident, in early November 2002, the offender forwarded three SMS messages to a woman who had innocently "adopted" his dog, believing it to be homeless. The e-mails were extremely offensive. Inter alia, the offender said that he was "closing in on" the complainant, suggested that the complainant "find (her) kids a new mommy" and threatened to sexually assault the complainant's children.

40 The offences on the second Form 1 were caused by the offender's "paranoia". I infer that they were a product of his chronic paranoid schizophrenic disorder (see below). Having regard to the offender's mental condition, prior criminal record, and the period of almost four months which he has spent in custody in relation to these matters, after taking these matters into account, I will not increase the sentence which I would otherwise have imposed on count 2.

The Offender’s Mental Condition

41 The Crown conceded that the offender suffers from a mental condition, although the diagnosis was unclear.

42 Undeterred by my rejection of Dr Lucire’s evidence at the fitness hearing, the offender continues to rely on her diagnosis of “neuroleptic and serotonergic toxicity” which, inter alia, manifests itself in akathisia. I have not altered my opinion that Dr Lucire's diagnosis is wrong and that the opinions of the other psychiatrists who gave evidence at the fitness hearing - which opinions are loosely consistent with each other - are correct. My observations of the offender have reinforced that view.

43 I agree with Dr Allnutt that the offender is "a complex diagnostic challenge". There is no doubt that the offender is inclined to "paranoia". In addition, he exhibits obsessive/compulsive traits and sometimes describes symptoms of depression. The offender has a long history of treatment for mental illness. There have been episodes of hospitalisation. I accept the opinion of Dr Foster, a psychiatrist who treated the offender intermittently from 1995, that the offender suffers from a chronic paranoid schizophrenic disorder and antisocial personality traits. Dr Foster's opinion is consistent with that of Dr Mackay, the psychiatrist responsible for the offender's recent psychiatric management in prison. I do not accept Dr Wong's opinion that the offender's problem is overwhelmingly one of antisocial personality traits. The weight of recent psychiatric opinion and my conclusion is that the offender's condition is partly due to a chronic paranoid schizophrenic disorder (which is well controlled on medication in prison) and partly due to antisocial personality traits.

44 The agreed facts concerning the offences of 19 May 2004 lend no support to the submission that the offender was then delusional and psychotic. During the significant period of time before she was drugged on 19 May, RD observed nothing unusual about the offender's behaviour. Over the preceding days, when speaking to the nurse, the offender sought information about strong drugs. Prior to or at about the time of the offences, he made internet inquiries about benzodiazepines and other drugs. The evidence of conversations with the nurse and internet inquiries does not establish that the offender planned these specific offences days ahead of 19 May, but it does show a preoccupation with the properties of benzodiazepines and other sleep-inducing or paralysing drugs. It suggests that these offences were not planned at the last minute. I infer that, before going to RD's home, the offender had determined to bring benzodiazepines, was aware of the likely effects of those drugs on the victims, and had considered how he would administer the drugs surreptitiously to the victims.

45 It is true that, when arrested by police six days later, at first the offender appeared to be extremely fearful. He was apparently concerned that he might be stabbed . He asked the arresting detective whether the detective was "the pink lady". If it is accepted that this behaviour was a genuine reaction to the arrest, it simply illustrates the offender's inclination to paranoia when placed under pressure. It does not suggest that he was delusional or psychotic on 19 May.

46 Although I do not accept that the offender was delusional and psychotic at the time of the offences, his chronic paranoid schizophrenic disorder is a matter to be taken into account in sentencing. The offender does not inspire sympathy. However, I do accept that he is a tormented individual, whose life has been influenced by mental illness of varying severity.

Other Personal Circumstances

47 The offender is 40 years old. He was born in Tehran, Iran. He has a younger brother. When the offender was a child, the family moved to the United States.

48 Later, the family moved to Australia. The offender's parents separated. The offender's mother has always supported him, although she has found that to be a daunting task.

49 The offender was educated to Year 10 standard. Although undoubtedly intelligent, the offender was unable to cope with school, probably because of the mental health/behavioural problems which are now so apparent.

50 During much of his adult life, the offender has been unemployed. He has held many jobs of short duration. Often, his employment has been terminated because of a conflict with his employer. The offender has attempted a number of courses, which he has not completed. The offender has moved frequently, and has lived in every state of Australia.

51 The offender has had several relationships, generally of short duration. Relatively recently, he was in relationship with a woman who suffered from schizophrenia.

52 The offender says that, upon release, he wants to receive treatment for his mental condition. He wants to complete his Higher School Certificate and undertake voluntary work "so God will forgive him for all his sins".

Section 21A Crimes (Sentencing Procedure) Act 1999

53 In sentencing the offender, the Court is required to take into account the aggravating and mitigating features referred to in section 21A of the Crimes (Sentencing Procedure) Act 1999.

54 The offender's prior criminal record is of little relevance, except to the matters involving a threatening communication. In 1989, there was an offence of making an harassing telephone communication, for which the offender was fined $1,000. In 1995, there was an offence of offensive behaviour, which resulted in a $70 fine. In 1997 there was an offence of intimidation/stalking and an offence of contravening an apprehended violence order, each of which resulted in a fine of $250. In 1999, the offender committed the offence of indecent exposure which is referred to above. In 2001, there was an offence of common assault, which resulted in a $200 fine. Otherwise, the offender's record relates to driving matters and other minor matters. Except for the 1999 indecent exposure matter, which led to a three-month sentence, all matters were dealt with by way of fine, indicating that they were not serious matters. Prior to committing these offences at 37 years of age, the offender had committed minor offences involving the threat of violence and/or inappropriate sexual behaviour, but had committed no serious offence.

55 The other relevant s21A matters to which I have not already referred are the offender's prospects of reoffending and the prospects of rehabilitation. Regrettably, I am not confident on either score. The offender's attitude to the offences remains difficult to divine, although he has written to the victims expressing regret. In part, the prospects of reoffending/achieving rehabilitation depend upon the successful diagnosis and treatment of the offender's mental condition. To date, diagnosis and treatment have proved problematic when the offender has been in the community. To the extent that the offender's conduct is a reflection of antisocial personality traits, it may not respond to treatment, although it may respond to very strict supervision.

Special Circumstances

56 The Crown, conceded that there are special circumstances for varying the usual relationship between the non-parole period and the balance of term. I agree with the Crown's view that the offender will need a long period of intensive treatment and supervision when he is released from custody.

57 Because of past difficulties in treating the offender and his history of attempting to manipulate medical staff within the prison, I recommend that, upon release, he is closely supervised by an experienced officer for the whole of the parole period.

Count 1 - Non-parole period of 4 years and 10 months' imprisonment, from 8 August 2005 to 7 June 2010. Balance of term of 4 years' imprisonment, from 8 June 2010 to 7 June 2014. (11 years’ imprisonment less 20% is 8 years and 10 months’ imprisonment.)

Count 2 - Non-parole period of 4 years’ imprisonment, from 8 August 2005 to 7 August 2009. Balance of term of 4 years’ imprisonment, from 8 August 2009 to 7 August 2013. (10 years’ imprisonment less 20% is 8 years’ imprisonment.)

Count 3 - Non-parole period of 4 years’ imprisonment, from 8 June 2004 to 7 June 2008. Balance of term of 2 years and 5 months’ imprisonment, from 8 June 2008 to 7 November 2010. (8 years’ imprisonment less 20% is 6 years and 5 months’ imprisonment.)

Count 4 - Non-parole period of 4 years’ imprisonment, from 8 June 2004 to 7 June 2008. Balance of term of 2 years’ and 5 months’ imprisonment, from 8 June 2008 to 7 November 2010. (8 years’ imprisonment less 20% is 6 years and 5 months’ imprisonment.)

Count 5 - Fixed term of 2 years' imprisonment, from 8 June 2004 to 7 June 2006. (2 years and 6 months’ imprisonment less 20% is 2 years’ imprisonment.)

Count 6 - Fixed term of 2 years and 5 months' imprisonment, from 8 June 2004 to 7 November 2006. (3 years’ imprisonment less 20% is 2 years and 5 months’ imprisonment.)

58 The sentences imposed on counts 1 and 2 are concurrent with each other, but are partly accumulated on the sentences imposed on counts 3 to 6, giving an effective sentence of 10 years’ imprisonment, with a non- parole period of 6 years.