Tatur v The Queen

[2020] NSWCCA 255

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Tatur v R [2020] NSWCCA 255

Hearing dates:

23 September 2020

Date of orders:

7 October 2020

Decision date:

07 October 2020

Before:

Hoeben CJ at CL at [1]
Rothman J at [2]
Bellew J at [77]

Decision:

(1)   Leave to appeal granted;

(2)   Appeal allowed;

(3) Sentence imposed on the applicant on 22 August 2019 for the offence of aggravated sexual intercourse without consent, contrary to s 61J(1) of the Crimes Act 1900 (NSW) is quashed;

(4) The applicant is sentenced for the offence of aggravated sexual intercourse without consent, contrary to s 61J(1) of the Crimes Act 1900, to a sentence of imprisonment of 4 years, commencing 4 April 2019 and concluding 3 April 2023, with a non-parole period of 2 years’ imprisonment concluding 3 April 2021. The applicant will be first eligible for parole on 3 April 2021.

Catchwords:

CRIME – Sentence Appeal – non-acceptance of uncontested expert evidence re intellectual disability – inappropriate use of statistics and opinion of Crown on sentence range – manifest excess in light of subjective circumstances – appeal upheld.

Legislation Cited:

Crimes Act1900 (NSW), s 61J

Criminal Appeal Act1912 (NSW), s 5(1)(c)

Cases Cited:

Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
DF v R [2012] NSWCCA 171; (2012) 22 A Crim R 178

GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

Category:

Principal judgment

Parties:

Lionel Tatur (Applicant)
Crown (Respondent)

Representation:

Counsel:
N Mikhaiel (Applicant)
K Jeffreys (Respondent)

Solicitors:
Catherine Hunter (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s):

2018/239424

Publication restriction:

Pursuant to s 578A of the Crimes Act 1900 (NSW), publication of any matter which could identify the victim is prohibited.

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Crime

Date of Decision:

22 August 2019

Before:

Acting Judge Armitage

File Number(s):

2018/239424

Judgment

1. HOEBEN CJ at CL: I agree with Rothman J and the orders which he proposes.

2. ROTHMAN J: On 22 August 2019, the applicant, Lionel Tatur, was sentenced by Armitage DCJ (“the sentencing judge”) in the District Court at Sydney. The applicant was sentenced to a term of imprisonment for 5 years, with a non-parole period of 2 years and 6 months. The applicant had pleaded guilty in the Local Court to an offence of aggravated sexual intercourse without consent, contrary to s 61J(1) of the Crimes Act1900 (NSW), which offence attracts a maximum penalty of 20 years’ imprisonment and a standard non-parole period of 10 years.

3. The applicant seeks leave to appeal pursuant to the provisions of s 5(1)(c) of the Criminal Appeal Act1912 (NSW). The application for leave to appeal the sentence is within time, but necessarily requires the leave of the Court.

4. The grounds of appeal are:

Ground 1: The sentencing judge erred in rejecting the opinion of Dr Katie Seidler as to the degree of the applicant’s intellectual disability;

Ground 2: The learned sentencing judge was distracted from undertaking a proper analysis of the objective seriousness of the offence by:

1. placing too much weight on the range of sentences indicated in [the] Judicial Commission’s sentencing statistics;

2. the prosecutor’s submissions as to what an appropriate range of sentence would be; and

3. his apparent personal abhorrence as to the particular sexual act involved.

Ground 3: The learned sentencing judge had failed to give sufficient weight to the applicant’s subjective case in the sentencing process and in particular to the degree of the applicant’s intellectual disability;

Ground 4: The sentence imposed was manifestly excessive in the circumstances.

5. During the course of the oral hearing, the applicant was granted leave to add a ground of appeal, or, more accurately, a particular of Ground 1, to the following effect:

“the learned sentencing judge gave insufficient or no reasons to justify a rejection of the opinion of Dr Seidler as to the degree of the applicant’s intellectual disability”.

Facts and relevant background

6. For the purpose of the sentence proceedings, there were Draft Agreed Facts which were tendered to the sentencing judge. Except in relation to one matter, those Draft Agreed Facts were uncontentious. [1] The Draft Agreed Facts were summarised by his Honour in the remarks on sentence. [2]

   1. The matter that was not agreed was contained in [13] of the Draft Agreed Facts and is discussed below.

   2. Remarks on Sentence, at pp.3-8.

7. The complainant was 25 years old at the time of the offence. She had a mild intellectual disability and a diagnosis of schizophrenia, which required her to have supervision in her daily activities.

8. The complainant met the applicant in 2013 through the Bondi Junction Mental Health Community Centre. The applicant had been diagnosed with Schizoaffective Disorder in 2011 and was 23 years old at the time of the offence. They began a relationship and had a child who was, at the time of sentence, 3 years old.

9. The complainant lived at an address in Glebe with a family friend, who was also the complainant’s unpaid carer. The complainant complained to her family friend of several incidents where the applicant had sexual intercourse with her, or attempted to do so, while she was sleeping.

10. The complainant ended their relationship a number of times, because of this conduct, but would resume the relationship because of her feelings for the applicant. They last had consensual sexual intercourse 2 to 3 weeks prior to the date of the offence.

11. On the date of the offence, 11 June 2018, the complainant felt mentally and physically unwell. She was experiencing headaches and stabbing pains. The complainant called Camperdown Community Mental Health Service for help, but the phone was not answered and no one responded to her message.

12. At 9 PM on 11 June, the complainant took a clozapine tablet. Clozapine is a medication used for the treatment of schizophrenia and, on some occasions, bipolar disorder. It causes drowsiness.

13. After taking the tablet, the complainant was still feeling unwell and decided to go to the hospital. Her carer stayed with her son, who was sleeping.

14. The complainant did not want to go to the hospital by herself. She rang the applicant at 10 PM and he accompanied her to the hospital in a taxi. They remained at the hospital from about 11 PM until approximately 4:30 AM. The complainant was seen by a psychiatrist and was given Valium at 4:15 AM to help her relax and sleep.

15. Because of the time of day, the complainant agreed to the applicant staying at her house to sleep. They arrived back at Glebe by taxi at about 5 AM. The complainant was very tired due to the combined effect of the Valium and the clozapine and the fact that she had not slept since the previous morning.

16. On arriving home, the complainant immediately went to bed. The applicant was next to her in the bed, as she fell asleep.

17. Before the complainant fell asleep, the applicant asked the complainant to have sex with him. She refused. She told him that she was tired and that she had her period.

18. A short time later, the complainant half awoke and felt the applicant’s penis inside her anus. He moved his penis back and forth inside her anus a few times, then withdrew it. The applicant ejaculated on the complainant’s buttocks and pulled up her pants.

19. The issue of dispute, relating to [13] in the Agreed Facts, was whether the applicant “thrust” or “moved” his penis a few times before withdrawing it. The complainant started crying, but, as she was still feeling groggy, went back to sleep.

20. The complainant woke up again sometime later and found that her pants had been pulled down again. She challenged the applicant about what he had done. He initially denied assaulting her, but when she asserted that she was awake during the assault, he offered to talk about it.

21. The complainant ran to her carer’s room and told her what had happened. At her carer’s behest, the complainant told the applicant to leave.

22. The complainant reported the incident to Camperdown Community Mental Health Service by telephone and later attended Glebe Police Station with her mental health case manager. The complainant was taken to Royal Prince Alfred Hospital, where a sexual assault examination was conducted. A swab was taken from the complainant’s perianal area and the applicant’s semen was identified.

23. That evening, at 8:55 PM, the applicant sent a message on Facebook to the complainant stating, “I’m telling my worker tomorrow everything what I have done over the years and yesterday, see what happens, they are mandatory reporters so I will get what I deserve”. The complainant did not respond or speak to the applicant after the offence, notwithstanding the fact that the applicant had made a number of attempts to contact her.

24. On 14 June 2018, the complainant participated in an interview with Police, supported by her social worker, where she detailed the offence. At 4:17 PM that day, while reviewing the complainant’s phone, the Police accidentally sent a “thumbs up” emoticon to the applicant. Shortly afterwards, the applicant sent the complainant two messages saying, “I told her” and “Going to get psychological help”.

25. On 23 July 2018, a pretext call was lawfully conducted and recorded. The complainant called the applicant and had a conversation, during which the applicant admitted the act of anal intercourse. When she asked him why he did it, the applicant responded that he “just wanted to” and was “just being selfish”. The applicant also said that he had told his mental health case worker about what had happened and she had told him to see a psychologist. He had told his caseworker that he did not need to see a psychologist, because he did not think they could help him. The complainant suggested in the telephone call that he may need to see a psychologist and the applicant responded, “I know”.

26. The applicant was arrested on 3 August 2018 and taken to the police station. There, the applicant had his caseworker as a support person. He agreed to participate in an Electronically Recorded Interview (ERISP), during which he repeatedly denied the offence and stated that he did not remember the incident occurring or anything of “that nature”.

27. When, during the ERISP, the applicant was asked about the last time he had sexual intercourse with the complainant, he told police, “when she had just got back from the hospital we had consensual sex”. The applicant agreed that he knew it was wrong to have sex with someone who was asleep, because they would not be consenting. The applicant admitted having had penile-anal intercourse with the complainant only once, at the beginning of their relationship, and that the complainant did not like it.

28. After the ERISP concluded, the applicant gave police his mobile phone and the password for entry. The police thereupon gained access to his Facebook account and the applicant was charged.

Sentencing Proceedings

29. For reasons which are currently irrelevant, the sentence proceedings occupied a number of days and were not heard continuously. The proceedings commenced on 19 July 2019; continued on 22 July 2019; and, then, on 22 August 2019, the parties addressed the court and the sentence was imposed immediately thereafter.

30. A significant amount of material was tendered on behalf of the applicant and oral evidence was called from the applicant’s father, Val Tatur. This evidence was adduced on 19 July 2019. The applicant gave evidence on 22 July 2019. The applicant was cross-examined at some length.

31. There was no issue between the parties as to the mental health diagnosis of the applicant. There was a difference as to the relevance of that mental health diagnosis to the sentencing process and the sentence that was to be imposed. There was a minor, but important, issue relating to whether the applicant had, on the night of the offence, taken his medication.

32. Some significant attention was given, during the sentence proceedings, to the issue as to whether the applicant had an intellectual disability, as distinct from a mental health diagnosis. Further, if the applicant did suffer from an intellectual disability, the degree of that disability was in issue as was the relevance to the sentencing process. The Crown did not accept that the applicant suffered any intellectual disability at all. [3]

    3. Tcpt, 19 July 2019, p 15(48) – p 16(1), p 41(3-34); Tcpt, 22 August 2019, p 7(3-5).

33. The other matter that needs some comment in relation to the proceedings on sentence is the exchange between the sentencing judge and the Crown and counsel for the applicant as to the appropriate classification of objective seriousness and the appropriateness or otherwise of a sentence that his Honour had in mind. During the course of that exchange his Honour referred to the statistics available from the Judicial Commission of New South Wales with which he had been provided and, in particular, referred to “the most common” sentence and “the most common non-parole period”.

34. It is unnecessary to discuss whether the nature of this exchange was inconsistent with the principles to which the High Court referred in Barbaro. [4] It is sufficient to comment that the majority in Barbaro made it clear that the prosecution (and counsel for an accused) should not be permitted to make submissions to a sentencing judge about the bounds of the available sentencing range.

    4. Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2.

35. This is based upon the fundamental proposition that it is for the prosecution alone to determine the charge to be preferred; it is for the accused alone to determine the plea to enter; and it is for the sentencing judge, alone, to determine the sentence to be imposed. [5] Whether these comments and this exchange amounted to the prosecution or counsel for the applicant putting submissions on the “bounds” of a sentence is irrelevant to the grounds of appeal raised in these proceedings and is not a matter with which it is necessary to deal further. The ground of appeal [6] relates to the “distraction” of the judge by reference to the expressed opinions of counsel, not to the impermissibility of the expressed opinion. Nevertheless, the terms of the exchange were highly inappropriate.

    5. GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22.

    6. Ground 2B.

Remarks on Sentence

36. The sentencing judge considered the offence should properly be classified approximately halfway between the bottom of the range and the middle of the range of objective seriousness. [7] The sentencing judge observed that the applicant had expressed remorse both when giving evidence on sentence and at earlier times to the complainant and to his treating medical practitioners. The sentencing judge considered these expressions to be genuine and took them into account in mitigation of the sentence. [8]

    7. Remarks on Sentence, at p.24.

    8. Remarks on Sentence, at pp.6, 8, 12, 15-16, 18-19, and 23.

37. The sentencing judge also determined that the applicant’s limited criminal history, which consisted of only one offence as a juvenile, being an offence of break, enter and commit serious indictable offence in company, was a mitigating factor on sentence. [9]

    9. Remarks on Sentence, at p.9.

38. The applicant had been diagnosed with schizoaffective disorder and received ongoing psychological and psychiatric treatment and medication. He had presented with emotional problems from an early age and his diagnosis of schizoaffective disorder, confirmed for the purpose of the sentence proceedings by Dr Furst, was diagnosed as existing as far back as 2011. [10]

    10. Remarks on Sentence, at p.18.

39. Schizoaffective disorder is characterised by delusional beliefs, auditory hallucinations, disorder of thought form, difficulty processing information, severe mood instability and bizarre behaviour. [11] In relation to the fact that the applicant was suffering from schizoaffective disorder at the time of the offending, the sentencing judge stated:

“This fact, whether or not it caused the offending (and it would appear to some extent that it did) is a mitigating factor on sentence in the sense referred to in DPP (Cwealth) v De LaRosa [2010] NSWCCA 194 and Muldrock v The Queen [2010] HCA 39, to which reference was made in argument. Firstly, I think the offender’s moral culpability is to some extent reduced on this account. Secondly, I consider that he presents a somewhat less appropriate vehicle for general deterrence, and thirdly I think his evidence as to what occurred to him in custody from the previous period to which I have referred, to the effect that he is on protection, and feared retribution from fellow inmates; means that along with the offender’s undoubted mental illness, his custody will be more onerous than for the average person. After careful consideration of the evidence, I do not think the offender is more dangerous by reason of his mental illness. I hope I am not wrong.” [12]

11. Remarks on Sentence, at p.18.

12. Remarks on Sentence, at pp.19-20.

40. The sentencing judge accepted the assessment of Dr Furst that the applicant was a low to moderate risk of reoffending. [13] Further, the sentencing judge concluded that the applicant had good prospects of rehabilitation. [14]

    13. Remarks on Sentence, at p.19.

    14. Remarks on Sentence, at pp.19 and 25.

41. Most relevantly, the sentencing judge accepted that, at the time of the offending, the applicant had some degree of cognitive impairment that was to be taken into account in mitigation, pursuant to the principles enunciated in Muldrock. [15] In making this finding, the sentencing judge had regard to the following evidence:

    15. Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 referred to in the Remarks on Sentence, at p.23.

1. The applicant’s poor performance in cognitive assessments that were conducted in 2012 and that were not criticised by Dr Furst; [16]

2. An observation of a Community Corrections Officer that the applicant displayed a noticeable delay in his communication, which could impact on his relationships; [17]

3. The sentencing judge’s impression of the applicant in giving evidence; [18]

4. The Report of Dr Katie Seidler, [19] but the sentencing judge declined to find, on the balance of probabilities, that the applicant’s cognitive impairment was as severe as indicated in Dr Seidler’s Report. [20]

   16. Remarks on Sentence at pp.22-23.

   17. The Community Corrections Officer comment is part of Exhibit B in the sentence proceedings and this remark was repeated by the sentencing judge at Remarks on Sentence, p.14.

   18. Remarks on Sentence, at p.22.

   19. Exhibit 4.

   20. Remarks on Sentence, at pp.22-25.

42. The sentencing judge referred to the harm caused to the complainant as a result of the offence and referred, in particular, to matters raised in her Victim Impact Statement. [21] The complainant expressed her shock, in the Victim Impact Statement, that the father of her child could do such a thing to her and her belief that her schizophrenia had been exacerbated as a consequence of the offence. After the offence, the complainant said she experienced a breakdown and was admitted to hospital. The complainant was prescribed medication, including antipsychotics to keep her calm. She also said that she worried about her son having a father who would do such a thing to her and not having a father in his life. The complainant said that the offence “stays in her head all the time”. [22]

    21. Remarks on Sentence, at pp.9-10; the Victim Impact Statement is part of Exhibit A.

    22. Referred to by the sentencing judge at Remarks on Sentence, p.10.

42. The sentencing judge noted that records of the complainant’s mental health treatment [23] supported the complainant’s account of the effect of the offence upon her. [24]

    23. Exhibit B.

    24. Remarks on Sentence, at p.15.

43. The sentencing judge considered sentencing statistics and noted that 95% of cases involved full-time imprisonment and that “the most common term”, where there was a plea of guilty, was 6 years’ imprisonment, followed by 8 and 12 years. [25] The sentencing judge noted that applying filters to take into account the applicant’s age range and prior record produced a small sample size of cases, which diminished their helpfulness. [26]

    25. Remarks on Sentence, at p.17.

    26. Remarks on Sentence, at p.17.

44. The sentencing judge concluded that the plea was at the earliest possible time and that a discount of 25% should be applied to the sentence for the utilitarian value of the plea of guilty. [27] Further, the sentencing judge found special circumstances to accommodate the applicant’s mental health rehabilitation and varied the statutory ratio of the non-parole period to 50% of the head sentence. [28]

    27. Remarks on Sentence, at p.2.

    28. Remarks on Sentence, at p.26.

Consideration

46. I have already commented on the inappropriateness of the exchange relating to the range of sentences available. Further, the sentencing judge’s reference to the statistics, both in discussion with counsel and in the remarks on sentence was an inappropriate and improper use of the statistics provided by the Judicial Commission of New South Wales as part of its Judicial Information Research System (JIRS).

47. There is a fundamental distinction between the range available for a particular offender in relation to a particular offence and the past pattern of sentencing for offences of a similar kind or offenders with a similar age or criminal history. The pattern of past sentencing allows a court to check a sentence that it otherwise has in mind from the sentencing judge’s application of sentencing principles to achieve the purposes of sentencing. The sentencing statistics should not be used as a starting point for the calculation, seemingly mathematically, from that point. [29]

    29. Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25.

48. In my view, the foregoing approach of his Honour discloses error. I would uphold Ground 2(a) and Ground 2(b). It is unnecessary, because of that which follows, to deal with the issues more fully. Otherwise, the appeal focuses on the treatment by the sentencing judge of the aspects of intellectual disability that related to the applicant.

49. It is necessary to deal more fully with the report of Dr Seidler and the evidence in relation to the intellectual disability. Before doing so, I should recite the comments of the sentencing judge in relation to that evidence. The sentencing judge said:

“Exhibit 4 is a psychological report from Dr Katy [sic] Seidler which in summary indicates that the offender has very significant cognitive impairment. I do not think that is the case. The document was only tendered today, and the Crown let it in, although it originally wanted to cross-examine the author. The Crown’s strong submission was that because Dr Seidler had not seen the offender, her assessment was unreliable. Dr Seidler gave a number of reasons in the subsequent email to the offender’s solicitor why this is not so; but I remain unconvinced that Dr Seidler would not have been assisted by a face to face consultation with the offender. It follows that her opinion that there is significant cognitive impairment is not, in my opinion, reliable, to the extent that I should accept it in proof of the offender’s submission that on the balance of probabilities he has proved that he has such an impairment.

Nevertheless the opinion of Dr Scully is to similar effect. I think it is reliable because she saw the offender face to face. Dr Furst refers to the fact that Dr Scully found significant cognitive impairment and does not criticise such an assessment in any way. As I remarked in argument to the parties, one would have thought that if the offender’s presentation seemed inconsistent with such an assessment, he would have said so. On the whole I think the offender has proven on the balance of probabilities that at the time of the offending he suffered from some degree of cognitive impairment, although I do not think it was as severe as Dr Seidler thought it was. That too is a mitigating factor on sentencing pursuant to the principles in Muldrock and I have applied it as such.” [30]

30. Remarks on Sentence, at pp.22-23.

50. Further, later in the remarks on sentence, the sentencing judge said:

“Contrary to the Crown’s submission, I have formed the view, for reasons already expressed, that the offender had at the time of his offending some degree of cognitive impairment although I do not think it was as severe as Ms Seidler was prepared to say, even though I respect her opinions generally as a highly qualified forensic psychiatrist whom one frequently sees giving very helpful evidence in this Court, particularly concerning child pornography offences, in relation to which she runs an offender’s program.

She said in her report that the offender would not benefit from the sort of program she runs for sexual offenders, but that his rehabilitation is best dealt with in the context of local mental health services when in the community. I think that is the fact, and I shall make appropriate parole recommendations.” [31]

31. Remarks on Sentence, at pp.24-25.

51. The report of Dr Seidler [32] recounts a relatively lengthy history and refers to a series of questions asked of the applicant’s father. The applicant was administered the Wechsler Abbreviated Scale of Intelligence (second edition) (“WASI-II”) which is a “fast but reliable measure of general intellectual functioning”. [33] According to the results of that assessment, the applicant was functioning at the level of a Mild Intellectual Disability, such that his skills were below that attained by 99.7% of his aged peers.”[34] Further, there was an assessment session being the Adaptive Behaviour Assessment System (Third Edition) (“ABAS- III”) and related to the applicant’s adaptive functioning. [35]

    32. Exhibit 4.

    33. Exhibit 4, at [18].

    34. Exhibit 4, at [19].

    35. Exhibit 4 at [20].

52. The system of assessment that is utilised, ABAS-III, was said to provide a comprehensive and multifaceted assessment of an individual’s level of adaptive function across several domains. The scores inform diagnostic decisions relating to intervention and services. ABAS-III is designed to evaluate the extent to which an individual can independently fulfil tasks required for functional daily living such as communication, social and academic skills and community activities. On the basis of the assessment performed, the applicant was said to be “functioning in the Extremely Low” (a technical or defined term) range and below 99.9% of his aged peers. Both assessments were administered by Ms Brookman, a provisionally registered psychologist, whilst the results were interpreted by Dr Seidler.

53. Dr Seidler’s report makes it clear that the applicant’s sexual offending is not a function of antisocial behaviour or sexual deviance. Rather, his behaviour “is a reflection of his limited understanding of intimacy, consent, and sexual boundaries, in addition to egocentricity and difficulties perspective taking, as well as impulsivity”. Dr Seidler describes the applicant as “a low functioning individual, who is developmentally disabled, suffering with both an intellectual disability and a significant adaptive functioning deficit”. [36]

    36. Exhibit 4 at [23] and [24].

54. Notwithstanding that Dr Seidler conducts a program for treatment, specifically, of sexual offences, she came to the view that the applicant would not be assisted or require such a sexual offence specific program. First, it is highly unlikely the applicant would be able to cope with the demands of such a program.

55. Secondly the programs would not be responsive to his particular needs. Rather, Dr Seidler’s opinion was that the applicant’s treatment needs would be best met by a disability service provider through the NDIS, who was able to help him better understand relationships, consent, sexual boundaries and other people’s experiences.

56. The foregoing report was provided to the Crown prior to the conclusion of the sentencing proceedings. As a consequence of its provision, the Crown indicated that it would oppose the admission of the report and would require Dr Seidler for cross examination. Dr Seidler was not available.

57. Further, the Crown indicated that its opposition to the admission of the report was because Dr Seidler had not examined, that is physically seen, the applicant. As a consequence of the raising of that objection, the issues raised by the Crown were referred to Dr Seidler and her comment was sought.

58. In response to that request, Dr Seidler communicated with the solicitor for the applicant, which email is in evidence and was tendered as part of Exhibit 4. [37] The email makes clear that a clinical interview is not “a supported way of diagnosing an intellectual disability. In order to diagnose such a condition, psychometric testing is required. Ms Brookman is completing her postgraduate training as a psychologist and before she is allowed to do an external placement, she has to be cleared to do psychometric testing by the University. So she is suitably experienced and trained to administer psychometric tests and to score them. I was the one who then checked this and then interpreted the test scores”. There is a reference to Ms Brookman’s title, an issue also raised by the Crown.

    37. Appeal Book, p 391.

59. As a consequence of that email, the Crown, on the last day of the sentence proceedings, tendered Exhibit C, which includes a bundle of documents from the Australian Health Practitioner Regulation Agency and the Psychology Board of Australia; an entry from the register of practitioners, relating to Ms Ruth Pamela Brookman, to whom Dr Seidler referred in the above extract; and a number of papers. In particular, Exhibit C includes a paper by a number of authors, published in the Archives of Clinical Neuropsychology, entitled, “Symptom validity assessment: practice issues and medical necessity”, dealing with the validity of assessments and a paper published by the British Psychological Society entitled “Guidance on the assessment and diagnosis of intellectual disabilities in adulthood”.

60. It is sufficient to note that the Crown relied on these reports to establish that testing would not be valid, unless it was accompanied by observation of the individual to assess the validity of the score. Nevertheless, the British Psychological Society paper acknowledges the validity of the psychometric testing performed and the particular assessment tool, WASI-II and ABAS-III. The difficulty, as expressed by the Crown, was that Dr Seidler herself did not clinically examine the applicant.

61. Notwithstanding the absence of a clinical examination by Dr Seidler, the applicant was clinically examined by Ms Brookman who was, on the evidence before the Court, more than capable of administering the assessments. No one suggests to the contrary.

62. Further, the test results accord with and are consistent with all other assessments of the applicant. There is no basis, in the evidence, to qualify the opinion of Dr Seidler. Notwithstanding the absence of that evidence, the sentencing judge did qualify that evidence. There was no basis for that qualification.

63. The submission of the Crown as to clinical examination and its reliance on the peer review papers published in the United Kingdom do not qualify the validity of Dr Seidler’s opinion. The papers recommend a requirement for observation and assessment by observation to ensure corroboration of the test results. Such observation is not said to be the same as a “clinical assessment”; it merely observes the patient acting consistently with the obtained or anticipated test results. That observation was performed by Ms Brookman and there is no suggestion that she was unable to perform that task. It also accords with the observations of other clinical psychologists.

64. As a consequence, while his Honour took into account the report of Dr Seidler and took into account intellectual disability, he did so in a most qualified way and in circumstances where the qualification was unwarranted and inconsistent with the evidence before him. Error has been shown. I would uphold Ground 1 and Ground 3 of the appeal. It is therefore unnecessary to deal with Ground 4.

Sentence

65. As a consequence of the foregoing conclusion, the appeal should be upheld and it is necessary for the Court to resentence. The offence committed carries a maximum penalty of imprisonment for 20 years and a standard non-parole period of 10 years. It is a contravention of the provisions of section 61J(1) of the Crimes Act, as already indicated.

66. The maximum penalty and the standard non-parole period are guideposts, to which the Court, in sentencing, must have regard, but the process undertaken is not a mathematical process, it is one of instinctive synthesis.

67. There is no complaint about the findings of the trial judge as to objective seriousness; remorse; the harm caused to the complainant; and the applicant’s low to moderate risk of reoffending. Each of those findings is evidenced by psychological reports and arises from the diagnosis of the applicant; his motivation for the sexual offending; and the other evidence.

68. Nevertheless, the offence is a serious one and involves non-consensual penetration of a person who was asleep. The victim is entitled to sleep, in her own home, without her former partner taking advantage of her medically induced sleep. That the offence occurred in the complainant’s own home is an aggravating factor.

69. Nevertheless, as the sentencing judge pointed out, the schizoaffective disorder renders the applicant an inappropriate vehicle for general deterrence. Further, the psychiatric and psychological testing showing the lack of sexual motivation and the intellectual disability render specific deterrence not as significant as might otherwise be the case. There is a degree to which, because of the applicant’s intellectual disability, there is a need for the inculcation of learned behavioural boundaries.

70. Nevertheless, his psychiatric illness and his intellectual disability do not render him more dangerous and the need for specific deterrence, beyond that which would amount to a learned behaviour, can be achieved without a sentence of the duration imposed by the sentencing judge.

71. The reasons for judgment thus far have concentrated on the treatment of the opinion as to the degree of the applicant’s intellectual disability. I have, in the comments already made, remarked as to the manner in which the JIRS statistics were utilised in fixing a sentence, seemingly as a starting point, rather than a check on the sentence that otherwise might be imposed. I do not consider, as earlier stated, that it is necessary to deal with whether the prosecutor’s submissions were impermissible as suggesting the “bounds” of a sentence that his Honour could impose.

72. Lastly, in relation to Ground 2, his Honour’s comment about the particular sexual act related to the disagreement between the parties as to whether the applicant’s motion was “thrusting” or “moving”. I do not consider the difference particularly significant in the sentencing process.

73. His Honour’s comment was that, whether or not it was a “thrust” or a “movement”, the offence was abhorrent. This was a reference to the offence, being penile penetration in the absence of consent of the other party. It does not, in my view, necessitate a view that it was some particular abhorrence to the sexual act if consent were to have been forthcoming. I would not uphold Ground 2(c) of the appeal.

74. I confirm that I would reduce the sentence to be imposed by 25% to account for the utilitarian value of the plea of guilty at the earliest opportunity. I also conclude that, given the psychiatric difficulties and intellectual disability and the fact that the incarceration of the applicant will be significantly more onerous, special circumstances are warranted. Nevertheless, the seriousness of the offence require a significant term of imprisonment, which is the only suitable sentence to impose.

75. Further, I take the view that, given the need, as indicated in the psychological reports, for an individualised treatment plan, an extended period of parole would be beneficial both to the applicant and to the community. I also take into account the applicant’s lack of recent serious offending in mitigating the sentence to be imposed.

76. The sentence I would impose is a sentence of imprisonment that would have a starting point of 5 years and 4 months, which I would reduce for the 25% discount. For the foregoing reasons, I propose that the Court make the following orders:

1. Leave to appeal granted;

2. Appeal allowed;

3. Sentence imposed on the applicant on 22 August 2019 for the offence of aggravated sexual intercourse without consent, contrary to s 61J(1) of the Crimes Act1900 (NSW) be quashed;

4. The applicant be sentenced for the offence of aggravated sexual intercourse without consent, contrary to s 61J(1) of the Crimes Act 1900, to a sentence of imprisonment of 4 years, commencing 4 April 2019 and concluding 3 April 2023, with a non-parole period of 2 years’ imprisonment concluding 3 April 2021. The applicant will be first eligible for parole on 3 April 2021.

77. BELLEW J: I have had the advantage of reading, in draft, the judgment of Rothman J. I agree with the orders that his Honour proposes, but wish to add the following observations.

78. In terms of ground 1, there was a failure on the part of the sentencing judge to provide adequate reasons for the rejection of the opinion of Dr Seidler. In the email correspondence to which Rothman J referred[38] Dr Seidler explained why it was that she was able to form the relevant opinion in the absence of a face-to-face consultation with the applicant. Against that background, the sentencing judge reached the following conclusion: [39]

Exhibit 4 is a psychological report from Dr Katy [sic] Seidler which in summary indicates that the offender has very significant cognitive impairment. I do not think that is the case. The document was only tendered today, and the Crown let it in, although it originally wanted to cross-examine the author. The Crown's strong submission was that because Dr Seidler had not seen the offender, her assessment was unreliable. Dr Seidler gave a number of reasons in the subsequent email to the offender's solicitor why this is not so; but I remain unconvinced that Dr Seidler would not have been assisted by a face to face consultation with the offender. It follows that her opinion that there is significant cognitive impairment is not, in my opinion, reliable, to the extent that I should accept it in proof of the offender's submission that on the balance of probabilities he has proved that he has such an impairment. (emphasis added).

38. At [57].

39. ROS 22-23.

79. In my view, it was necessary for the sentencing judge to give reasons why he rejected Dr Seidler's opinion that she remained able to form an opinion in the absence of a face-to-face consultation. Simply saying that he was “unconvinced" that Dr Seidler would not have been assisted by such a consultation with the applicant did not, in my view, discharge the sentencing judge’s obligation to provide reasons why that was so.

80. Ground 3 asserts that the sentencing judge “failed to give sufficient weight” to the applicant’s subjective case. This Court has observed on many occasions that a ground of appeal expressed in those terms tacitly accepts that some weight has been placed by the sentencing judge on the particular consideration in question and that in such circumstances there is likely to be some difficulty in establishing that the overall sentencing discretion has miscarried. The circumstances in which matters of weight will justify intervention by this Court are narrowly confined. [40]

    40. DF v R [2012] NSWCCA 171; (2012) 22 A Crim R 178 at [177].

79. However in the present case, ground 3 is made out. There was a failure on the part of the sentencing judge to give sufficient weight to the applicant’s subjective case. That failure arose from his Honour’s erroneous rejection of the opinion of Dr Seidler in the circumstances which give rise to ground 1.

80. For the reasons given by Rothman J[41] a finding of special circumstances is clearly warranted in this case. Whilst the sentence proposed by his Honour obviously incorporates a substantial adjustment of the ratio between the head sentence and the non-parole period, that adjustment is warranted in light of the significant mental health issues facing the applicant which will necessarily require a longer period on parole to allow him to re-integrate into the community.

    41. At [74].

81. Finally, in Barbaro the High Court concluded that the practice of the Crown making a submission to a sentencing judge about the bounds of the available range of sentences was wrong in principle and should not be followed. [42] I agree with the observations of Rothman J [43] that it is not strictly necessary, in order to dispose of this appeal, to discuss whether exchanges between the sentencing judge and the Crown in the Court below were inconsistent with what was said in Barbaro. Notwithstanding that, I find myself compelled to make the following observations concerning two particular submissions which were put by the Crown in the course of one such exchange.

    42. At [23].

    43. At [33]-[34].

82. In reference to a proposed non-parole period, the Crown in the Court below (who was not Counsel who appeared for the Crown before this Court) said the following: [44]

If it was two and a half years, it would certainly be right at the very bottom of the range, your Honour, the Crown submits.

44. T31.10-T31.11, 22 August 2019.

85. In my view, that submission was at odds with what was said in Barbaro. It should not have been made.

86. However, of even greater concern is that a short time later, in the course of the same exchange, the Crown said the following: [45]

…. [S]o the Crown's submission is a stiff sentence of full-time -- (Emphasis added).

45. T32.5, 22 August 2019.

87. What was said on that occasion was both meaningless and unhelpful. It was also an entirely inappropriate submission for a Crown Prosecutor to make to a sentencing judge. Submissions of that nature should be firmly discouraged.

88. I agree with the orders proposed by Rothman J.

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Endnotes

Decision last updated: 07 October 2020