William Hladik v The Queen
[2015] VSCA 149
•15 June 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0225
| WILLIAM HLADIK | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | ASHLEY, REDLICH and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 29 May 2015 |
| DATE OF JUDGMENT: | 15 June 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 149 |
| JUDGMENT APPEALED FROM: | DPP v Hladik (Unreported, County Court of Victoria, Judge Harbison, 19 September 2014) |
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CRIMINAL LAW – Sentence – Persistent sexual abuse of a child under 16 (charge 1), production of child pornography (charge 2), possession of child pornography (charge 3) – Sentenced to TES of 6 years and 9 months with NPP of 4 years and 6 months – Whether sentence manifestly excessive – Appellant suffered from autism – Evidence from psychologists that appellant essentially had mental age of a child and limited insight into offending – Facts of case highly unusual – Sentences imposed on charges 1 and 2 manifestly excessive – Re-sentenced to TES of 5 years with NPP of 3 years.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr P J Matthews | Dr Martine Marich & Associates |
| For the Crown | Mr D Trapnell QC | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
ASHLEY JA
REDLICH JA
WEINBERG JA:
On 17 July 2014, the appellant (now aged 32) pleaded guilty in the County Court to one charge of persistent sexual abuse of a child under 16, one charge of production of child pornography, and one charge of possession of child pornography. The first two charges concerned a young girl, aged either 8 or 9 at the time of the relevant offending.
Following a plea on 10 September 2014, the appellant was sentenced on 19 September 2014 as follows:
Charge Offence Maximum Sentence Cumulation 1 Persistent sexual abuse of a child under 16 [s 47A Crimes Act 1958] 25 years 5 years Base 2 Production of child pornography [s 68 Crimes Act 1958] 10 years 2 years 1 year 3 Possession of child pornography [s 70 Crimes Act 1958] 5 years 1 year 9 months Total Effective Sentence: 6 years 9 months Non-Parole Period: 4 years 6 months Pre-sentence Detention Declared: 492 days 6AAA Statement: TES 10 years, NPP 6 years Other orders: Forensic sample, Disposal orders. Sex Offender Registration for life.
In February of this year, Redlich JA granted leave to appeal on the following grounds:
Ground 2: The sentence on charge 1 is manifestly excessive.
Ground 3:The sentence on charge 2 and/or the order for cumulation concerning that sentence is/are manifestly excessive.
Ground 4:The order for cumulation concerning the sentence for charge 3 is manifestly excessive.
His Honour refused leave to appeal in relation to ground 1, which read that the sentencing judge failed to take into account the risk of imprisonment having a significant adverse effect on the appellant’s mental health. The appellant has not elected to review that refusal.
Background facts
The offences which gave rise to charges 1 and 2 were all committed between May 2012 and May 2013. It seems that the appellant had met the victim’s parents online, and through mutual friends. Their friendship developed to the point where he became accustomed to visiting their home every month or so. He often stayed the night in their spare room.
The victim’s parents had adopted a sexually licentious lifestyle, which the judge below characterised as involving ‘an atmosphere of some sexual debauchery’. Despite her tender age, the victim had been exposed to her parents’ sexual practices, and had obviously been affected by them. That meant, as her Honour found, that she was peculiarly vulnerable to sexual exploitation.
The appellant, though clearly an adult in the physical sense, suffered from a major disability. He had at one time been diagnosed as having Asperger’s syndrome. However, after a relatively recent change in DSN classification, the description of his condition was altered to one of ‘autism spectrum’.
The judge found, on the basis of expert evidence that was not challenged, that the appellant’s autism rendered him oblivious to the victim’s vulnerability. For that reason, she considered it inappropriate to treat that vulnerability as an aggravating feature of the appellant’s offending.
Her Honour indicated, in her sentencing remarks, that it was difficult to identify with any precision the specific acts giving rise to each of charges 1 and 2. The exact details of what the appellant had done to the young girl had not been fully ‘itemised’ in the depositions. In part, that was because she had initially been reluctant to admit that the appellant had offended against her at all. She had only been prepared to speak about these matters over a lengthy period of time.
In order to establish the appellant’s guilt on the first charge, the Crown had to prove that he had committed at least three sexual acts upon her, on separate occasions, during the relevant period.[1] The charge, as particularised, specified four instances of sexual conduct upon which the Crown relied. It was said that the appellant had (1) introduced his penis into the victim’s mouth; (2) licked her vagina, (3) placed his penis against her vagina; and (4) touched her, and had her touch him, whilst both were naked.
[1]See Crimes Act 1958 s 47A(2).
The judge noted that the Crown had not alleged vaginal penetration. The only act of penetration relied upon was the introduction of the appellant’s penis into the girl’s mouth. That particular act was photographed by the appellant. It was the taking of that photograph which formed one aspect of charge 2.
Despite the particulars of charge 1 being limited to four specific acts, the prosecution opening was put on the basis that there had been some eight or so sexual offences involving the appellant and the child. That figure was arrived at from the appellant’s record of interview with the police in which he admitted that he and the girl had ‘done stuff’ to each other for about a year, and that he had engaged in sexual activity with her on 7 or 8 occasions.
As part of the plea, counsel for the appellant tendered a report prepared by a clinical psychologist, Dr Marged Goode. That report had been commissioned by the appellant’s parents in 2010, well before the commission of these offences.
Dr Goode had, as we have said, assessed the appellant as having Asperger’s syndrome. She said that, in order to diagnose an adult with that condition, three conditions had to be satisfied. The first was that there had to be evidence that the person was currently impaired. The second was that he had been impaired throughout his entire life. The third was that he currently demonstrated the characteristics of someone with that particular disorder. Dr Goode noted that the appellant had been home-schooled and had completed year 10. As a result, he had no school reports on which to base any findings. He had never completed any vocational training, and had only ever worked in unskilled positions, none of which he had held for very long.
At the same time, the appellant had a full-scale IQ of 112, and was rated at 130 on verbal comprehension. This was characterised as ‘very superior’. Curiously, his own perception of his capacity for empathy vastly exceeded that of his parents.
When tested on what was described as a ‘Social Responsiveness Scale’, Dr Goode concluded that the appellant would have difficulties interpreting social cues. His total score, in that regard, was said to be typical of mild autism spectrum disorders. It seems that he had been subjected in the past to a great deal of bullying, and had difficulty in making and maintaining friendships. By way of additional comment, Dr Goode observed that the appellant’s protected life, and his cognitive abilities, had enabled him to ‘pass’ to date, but predicted that as he became more dissatisfied with his life, and as the pressure upon him to become more independent increased, his difficulties would become more apparent. She opined that he would need considerable support to develop structure in his life, seek vocational training and/or employment, and develop those abilities required to compensate for social skill deficits.
Counsel also tendered a report dated 26 June 2013 prepared by Dr Aaron Cunningham, a forensic psychologist. Dr Cunningham gave detailed evidence on the plea regarding the appellant’s condition.
Dr Cunningham had seen the appellant initially on 6 June 2013 at the Melbourne Assessment Prison. He had seen him again on 7 May 2014, and subsequently prior to the plea. He had diagnosed the appellant as being on the autism disorder spectrum. He said that the main features of the appellant’s impairment were in the area of socio-communications, as well as a deficit in social insight and reasoning. He added that these difficulties normally went along with ‘a kind of moral impairment’, as well as peculiarities via obsessions with routines. Dr Cunningham also noted that the appellant had reported having experienced symptoms of depression in gaol, as well as ongoing suicidal ideation from the age of 9.
Dr Cunningham said that those with the appellant’s particular condition did not appear to progress very far from the childhood level. They had a limited capacity to engage in abstract reasoning, and were themselves very vulnerable and easily manipulated. They remained throughout adulthood at a childhood level in terms of social interaction and communication, and could seem odd to other people because of the rigid nature in which they presented. Typically, there would be a lack of empathy, as well as a ‘child-like guilelessness’ in their behaviour.
Dr Cunningham went on to say that it was clear, to his mind, that the appellant had developed several distortions in thinking, especially around sexual behaviour. The appellant had told him that he was sexually attracted to animals, and that this had been a source of distress for him since he was a child. Dr Cunningham noted that the appellant’s distortions in thinking had led to an ‘escape into fantasy’, for example, ‘the belief that he’s a cat spirit’, and that he has an ‘animal guide’ in the form of a ‘black jaguar that flies on a spaceship’. Dr Cunningham also referred to the appellant’s belief in how his sexual nature had been repressed in the family home. This created a difficulty in understanding what might be considered wrong in a social context. The appellant might understand, at an intellectual level, that something was against the law, but in his own reasoning, would not see it as a bad thing. In his own case, he would consider it wrong that a child should not be able to express himself or herself sexually.
Finally, Dr Cunningham said that when he first interviewed the appellant, he was still very much involved in his own fantasy, hardly surprising given the extreme stress that the appellant was labouring under, with incarceration. Although he showed greater insight when subsequently interviewed, his attitudes remained distorted. He regarded himself as having ‘helped’ his victim, and was deeply distressed not at what he had done to her, but rather that by reason of his actions she had been taken from her family.[2] The appellant had shown real signs of being suicidal.
[2]It seems that the victim had been removed from her family by the relevant State authorities by reason of the matters set out above at [6].
Faced with this body of expert opinion, the judge approached this matter fully cognisant of the difficulties associated with sentencing this appellant. She recognised that his mental state, coupled with some matters in the record of interview, and on the plea, added up to ‘some very troubling behaviour’ on his part.
The judge referred to some of these matters in her sentencing remarks:
Briefly at this stage it appears that your impairments consist of a significant impairment in social communication and interaction, along with restrictive, repetitive patterns of interest. Dr Cunningham told me when he gave evidence before me that those impairments restrict your ability to read social cues, to understand the emotional states of others, and to comply with social mores. He described you as being vulnerable to manipulation and vulnerable to the influence of others.
Given those characteristics of your personality, your meeting with the victim and her family proved absolutely disastrous for your victim. As I have said she had already been exposed to some extent to inappropriate sexual overtures and I accept on this plea that at least to some extent she herself initiated some of the sexual acts with you.
You as an adult had a clear responsibility not to take advantage of her and you failed completely to discharge this responsibility.[3]
[3]DPP v Hladik (Unreported, County Court of Victoria, Judge Harbison, 19 September 2014), [16]–[18] (‘Reasons’).
Her Honour continued:
Your parents have explained in their reference the difficulties which you faced as a result of your autism, and your efforts whilst in prison to understand the wrong that you have done and how to grow and interact as a mature person in society. They appeared in court to support you. They will I am sure do the best within their ability to obtain the appropriate counselling and support for you once you are released from prison to try to reintegrate you into the community and to make sure that you obtain professional help for what is clearly a lifelong condition.
I note also at this point that I accept your counsel’s submissions that your condition of autism will mean that imprisonment will weigh much more heavily on you.[4]
…
I acknowledge that your condition incorporates a certain guilelessness and this is evident in the record of interview where you made substantial admissions against interest. I was told by Mr Cunningham that your condition involves you finding it impossible to filter or manipulate information. I also accept that you did not attempt to sexual [sic] penetrate the child’s vagina and that you did so out of an awareness, albeit warped, that the child was not ready for such a sexual act.[5]
…
Mr Hladik, there are some very unusual aspects to your offending and your understanding of your own offending. As a result of your condition, it appears that you have always felt different and to some extent estranged from society. This strangeness appears to have always had a sexual aspect. You told Dr Cunningham that you have had a different sexual preference to other people, being sexually attracted to animals. You met the victim’s family as part of a strange group of people apparently on the fringes of society who imagine themselves as animal spirits.
The group appear to have engaged in some sexual activity, the details of which are unknown to me relating to this bizarre belief. Your victim unfortunately, because of her parents’ involvement became caught up with this as well. There is a strong theme of a quite bizarre nature to do with you visualising yourself and your victim as cats, during your sexual abuse of her which comes across in the material which was presented on the plea.
Although it appears from psychological tests that you are highly intelligent, you appear as I have said to have some very significant deficits as a result of your autism. You have very little capacity to understand social relationships. When Dr Cunningham saw you in prison, you spoke to him of your imaginary friend, a black jaguar who had visited you in prison. Dr Cunningham’s opinion was that your creation of that imaginary jaguar and your perception that you were an animal spirit is consistent with a childlike escape into fantasy as a result of your autism spectrum disorder.
Although you appear to have been brought up in a loving and law-abiding family, you have developed the view that you were sexually repressed by your parents as a child and that this has created quite severe emotional problems for you. From that belief, you developed the quite bizarre and dangerous view that it is a good thing for children to be initiated into sexual experiences by adults. This theme comes through in your record of interview where you appear to have attempted to justify your sexual interaction with your victim as being for her benefit and contrasted this to the sexual exploitation of children by other persons, the perpetration of which revolts and disgusts you. You described yourself as feeling as if you are yourself only an infant and interacting with the child on an equal footing during the time that you were sexually abusing her.[6]
[4]Ibid [30]–[31].
[5]Ibid [33].
[6]Ibid [35]–[38].
Her Honour’s reference to the appellant feeling as though he himself were a child plainly reflected the evidence of Dr Cunningham.
As to the relevance of the appellant’s mental condition to his offending, the judge said:
Dr Cunningham’s view was that your condition was relevant to your offending but not the sole contributor. He preferred to describe your behaviour as being a distortion in thinking regarding sexual behaviour, which was allied with your extreme fantasies about sexual repression and your fascination with animals. He told me that you were unable to see that people have different perspectives and have difficulty understanding what is wrong in a moral sense, although you may be able to understand something is against the law. I accept Dr Cunningham’s evidence, and I do propose to use it in order to see your moral culpability in sentencing you today as being somewhat diminished by reason of this condition.
It is also very relevant in assessing your prospects of re-offending. At the time Dr Cunningham first assessed you in prison, he described you as living in fantasy land, but at the second assessment on 7 May 2014, some four months ago, his view was that you had more understanding of the criminality of your actions and therefore the prospects of re-offending were correspondingly lower.
He told me that you were able to understand, by the time of that second meeting that you had damaged your victim, that even though the main concern was that your offending had brought her to the notice of the police and being removed from the family, you also showed some insight into the negative effect that you had had on her because of the offending itself. I am satisfied that the evidence of Dr Cunningham about these meetings established that you have a genuine remorse for your offending against your victim.
Dr Cunningham administered an often used test designed to provide some information as to the likelihood of your re-offending, and he found that your risk of re-offending is moderate. He said that there were in fact few risk factors, but those risk factors were significant. Although he identified the protective factors, such as the support of your family, your acknowledgement that you need help and the lack of other factors such as drugs or social instability, he pointed out the significant problem of your condition of autism and particularly the way in which that condition has led you to form the views that are represented in the quotations which I have read out. His view is that you need ongoing treatment regarding your sexual deviance and ongoing monitoring of the risks that you represent.
The difficulty is, Mr Hladik, that your condition of autism cannot be cured. I accept Dr Cunningham’s evidence, and I particularly accept that although the risk factors in re-offending are not numerically great, the risk factor of your condition of autism is very important in assessing your future risk of offending. Unless the attitudes expressed by you in the record of interview are able to be properly addressed and you develop a proper understanding of the need for adults to protect children from sexuality rather than expose them to it, then you will be an ongoing risk on your release. And in assessing that risk, I note your lack of empathy which is fundamental to your condition contributes significantly to that risk because you find it difficult to determine what is appropriate behaviour and what is sexually inappropriate behaviour to young children.[7]
[7]Ibid [46]–[50].
When it came to characterising the gravity of the appellant’s offending in relation to charge 1, her Honour said.
Whilst affirming my duty in this regard, I also note that in your case the period of time in which the offences occurred and the offences were relatively small in number. I characterise your offending in relation to charge 1 as being towards the lesser end of seriousness because of all the matters to which I have previously referred, although of course I still acknowledge that the charge, of its nature, reflects very serious offending. You have clearly caused immense harm to your victim by in effect treating her as your sexual playmate. I note also in sentencing you for that charge that there is no suggestion of violence or force having been applied to the girl, and this goes to reduce the overall seriousness of what is still a very serious offence.
In your counsel’s submissions it was made clear that you bear the sole responsibility for this offending, I agree that this is so. However, I also regard your moral culpability for the offending as being diminished to some extent by the nature of your disability as I have outlined it in these sentencing remarks. It will be apparent from what I have said so far that I regard the case as being a very unusual one. I have reduced the sentence overall because of this material that has been provided on your behalf.
I have said that there is a real danger of re-offending because of your condition. I acknowledge also that there is an argument to be made and to some extent I accept that the offending occurred in the context of a particular environment, that is that you had a tendency to link up with other people who thought themselves to be animal spirits and to some extent it was a coincidence that this young girl also felt herself to be an animal spirit and this provided a precipitating factor for the offending.
I accept that there is some evidence that this attraction may not be present into the future as it is unlikely that you will ever be in that position again with a victim with such particular disabilities mirroring to some extent your own.[8]
[8]Ibid [52]–[55].
Dealing next with the offence of producing child pornography, charge 2, the judge recognised that there was a need to ensure that the appellant was not subjected to double punishment for having photographed a number of the sexual acts that had given rise to the offence under charge 1. The photographs in question showed the appellant’s penis up against the victim’s vagina, his penis in her mouth, and several photographs taken of her naked.
Her Honour said of this conduct:
As to the offence of child pornography, I regard your offending to be a serious example of this offence, although there are relatively few images which are the subject of this offence, they are of a very explicit nature.
The child’s face and genitals are clearly visible in each of those images. On the other hand, there is no suggestion that you produced the images for the purpose of sharing them. I take into account also that you made no attempt to hide your identity in taking the photos. Your penis is not displayed erect. Your action in taking the photos appears to have been consistent with your warped conclusion that you and your victim were both enjoying the activity which was displayed as being infants together.[9]
[9]Ibid [56]–[57].
The judge recognised that the offence of possessing child pornography (charge 3) fell into a somewhat different category. During the course of their investigation into the appellant’s conduct towards the victim, police seized his computer. As part of his record of interview, he admitted to them that he had accessed child pornography on that computer, and showed them the whereabouts of those files.
The appellant had, in all, 44,575 child pornography images, and 244 child pornography movies stored on his computer.
The judge described the nature of these images and movies in the following terms:
The vast majority of those images and movies were in the first category of seriousness, that is the lowest category of seriousness. That relates to predominantly child nudity without any specific sexual activity. There were 25,000 photos in this lowest category of the images, and 33 in the lowest category of movies. There were also in your possession a sprinkling of category 2 images, a sprinkling of category 4 images, being child or adult penetration and a significant number of category 5 images. Category 5 images are images of sadism or bestiality and there were 4,310 of these images and 162 of those movies.
There was a separate collection of over 15,000 category 6 images. Category 6 relates to animated or virtual images. This category is not a more serious category than the other categories. It simply reflects the fact that images are virtual, or animated, rather than real. The virtual images cross over each of the other categories which I have just identified.[10]
…
There has been no victim impact statement filed in relation to this third charge. Of course that is because it is not possible, thankfully, to identify the victims whose images you stored on your computer. However, there are countless of those victims. The fact that they cannot be identified does not detract from the immense damage that has been done to those victims and I take into account that damage as being a consequence of persons like you, providing a market for such images to be circulated in the public domain.[11]
[10]Ibid [24]–[25].
[11]Ibid [27].
In sentencing the appellant, her Honour recognised that there were a number of significant mitigating factors present, apart from his autism disorder. She mentioned specifically his early indication of a willingness to plead guilty, and the utilitarian weight to be accorded to that plea itself. She noted that the appellant had thereby spared the victim from having to undergo an intensely traumatic experience in giving evidence. She also took into account the appellant’s full and complete cooperation with police during the record of interview. She found some limited indication of remorse, albeit that was qualified by reason of the appellant’s inability to accept that, so far as the victim was concerned, what he had done was wrong.
The judge also acknowledged various written references that had been tendered, prepared by each of the appellant’s four sisters, and his parents. In these references, he was described as having a rather ‘child-like nature’, and as always having been caring and protective of the family.
Finally, her Honour acknowledged that the appellant’s condition incorporated a certain ‘guilelessness’, illustrated by his conduct in the record of interview in making substantial, and unsolicited, admissions against interest.[12] She noted that Dr Cunningham had said that the appellant’s condition made it impossible for him to filter or manipulate information.
[12]We have ourselves read the record of interview, and the appellant’s behaviour readily admitted of that characterisation. Moreover, what the appellant said emphasised the correctness of other findings made by the judge, for instance, as to the diminution in his moral culpability particularly with respect to the offences comprehended by charges 1 and 2.
As regards the record of interview, her Honour said:
So some of the matters which you indicated to the police were the source of your offending were put in these terms. At one point you said in relation to your offending; ‘I guess most of them have some sort of, you know, sexual penetration of a minor, but yeah I pretty much don’t like anything that’s, you know, of a harmful nature to a child.’ You later said, ‘It’s what I consider my peer group so for me, it’s — you know, I enjoy it, you know, wishing I was a little kid.’
You also said in relation to the child pornography materials which you accessed online; ‘I guess I discovered that, you know, there were other kids or other adults that you know, gave that respect to children. You know, the respect of, like, you know, equality or maturity that, like, the child dictates for themselves, and I thought that was a beautiful thing. And someone who, like, you know missed out, on, like, that — you know, participation in adult activities as a child, you know, I saw that as like a means of self-expression.’
In describing your victim to the police in a record of interview, you said this: ‘She expresses herself in a sensual manner with me, but no I’ve never taken advantage of her. Never had sexual penetration. It’s just like healthy sexual exploration’.
Further on in the interview you said that you had ‘let her explore [her] sexuality using me’. You said to the police when talking about the fact that you had not sexually penetrated her, ‘Like, no sexual penetration, you know, like she’s not ready for it you know, she’s not interested in going that far.’ You also spoke to the police about being happy to be an outlet for her sexual curiosity. You described the relationship in these terms. ‘We love each other and have mutual respect and we’re not like being naughty and dirty and ugly about it, you know, we’re having beautiful sexual self-expression.’ And lastly, you described her again in these terms. ‘Well, she’s sexual because she knows her own sexuality and she went and needed someone to express it with and that was me.’[13]
[13]Reasons [40]–[43].
Her Honour said in relation to charge 3:
The third charge attracts different considerations. I accept that none of the images which are the subject of the third charge was shown by you to the victim of the first and second charge. But once again, general deterrence is a very significant aspect in sentencing you for this third charge. It is very easy for images of child pornography to be shared on the internet. As I said before, each of those images represents the sexual abuse of a nameless child.
As well as the actual abuse of each child pictured, each unfortunate victim faces a lifetime of not being able to erase these debasing and disgusting images from the public domain. The courts have an important responsibility to signal to the community that the collection of such images is a heinous crime and should attract condign punishment.[14]
[14]Ibid [58]–[59].
The judge recognised that, in sentencing the appellant on charge 3, she had to apply the serious sexual offender provisions in the Sentencing Act 1991.[15] That was because she had by that stage already sentenced him to a term of imprisonment in respect of each of the first two charges. She also recognised the need to balance the presumption in favour of cumulation against totality, and the need to avoid a crushing sentence. She stated that, as reflected in charge 2, the appellant’s action in taking photographs of his sexual abuse of the victim involved different criminal conduct from the act of committing those sexual acts and warranted a measure of cumulation. So too did the separate offending embodied within charge 3.
[15]Sentencing Act 1991 pt 2A.
The parties’ submissions
Counsel for the appellant accepted, before this Court, that the sentencing judge had referred, in her sentencing remarks, to all of the mitigating factors upon which the appellant had relied during the course of the plea. Counsel also accepted that he could point to no specific error in her Honour’s sentencing remarks. Nonetheless, he submitted that the sentence of five years on charge 1 and the sentence of 2 years on charge 2 were both manifestly excessive. So too, he submitted, was the order for cumulation of 9 months, on a 12 month sentence, imposed on charge 3.
Counsel’s submissions focussed primarily upon the appellant’s autism, and the effect that it must inevitably have had upon his moral culpability. He relied upon the observations of Dr Cunningham regarding the extent to which the appellant’s autism reduced his capacity to understand ‘the emotional states of others’, and what was wrong in a moral (as opposed to legal) sense. He also relied upon Verdins[16] principles 5 and 6 – namely, that imprisonment would weigh more heavily upon the appellant than a person of normal awareness and reasoning capacity, and that imprisonment would be likely to exacerbate his existing psychological problems. Some emphasis was placed, in that regard, on statements that the appellant had made to Dr Cunningham to the effect that his experience of imprisonment had been ‘torture’.
[16]R v Verdins (2007) 16 VR 269.
Counsel submitted that when one combined these factors with the various other mitigating circumstances upon which the appellant was entitled to rely, it was plain that the sentence of five years imposed in respect of charge 1 was excessive.
In relation to charge 2, counsel submitted that both the sentence of 2 years’ imprisonment, and the 12 months cumulated upon charge 1, constituted a violation of the rule against double punishment.
Finally, counsel submitted that, although there was nothing wrong with the sentence of 12 months’ imprisonment imposed in respect of charge 3, there had been excessive cumulation by requiring 9 months of that sentence to be added to the sentences imposed on charges 1 and 2.
The Crown’s submissions may be summarised briefly. It was said that her Honour had given careful consideration to each of the mitigating factors upon which the appellant had relied. Her sentencing remarks revealed that she was fully cognisant of the nature, and extent, of the appellant’s mental impairment, and had correctly identified each of the ways in which that issue was relevant for the purposes of sentencing. Moreover, the individual sentences ultimately imposed, and the total effective sentence, did not suggest that her Honour had failed to accord sufficient weight to any of those factors.
In that regard, the Crown submitted that, in respect of each of the charges, the appellant’s offending fell into either the serious or very serious category. In respect of charge 1, the gravity of the offending was heightened by the particular vulnerabilities of the victim (in light of her unusual upbringing), and her very young age. In relation to charge 2, the offending was aggravated by the ‘very explicit nature’ of the particular photographs that were taken. Finally, in relation to charge 3, the offending was very serious given the large number of category 5 images and videos that were downloaded onto the appellant’s computer.
It followed, on the Crown’s submission, that but for the significant moderation in sentence that was allowed on account of the appellant’s autism, a much sterner total effective sentence may have been warranted.
Conclusion
It will be evident from what we have said that the circumstances of this case had a number of unusual features. Plainly, the appellant suffers from a serious disorder which contributed significantly to his offending. That factor, coupled with the bizarre and troubling aspects of the offending itself, made the job of sentencing in this case a particularly difficult one. We recognise the care, and thoroughness, with which her Honour approached the sentencing task.
Nonetheless, after giving this matter anxious consideration, we have concluded that the sentences imposed on each of charges 1 and 2 were excessive. In our view, the very length of the sentences fixed indicates that the judge failed to give sufficient weight to Verdins principles 1 and 5 — namely, the extent to which the appellant’s mental disorder reduced his moral culpability, and will cause the burden of imprisonment to fall more heavily upon him. It may be that her Honour also failed to give sufficient weight to Verdins principle 6, the likelihood that the appellant’s condition will be detrimentally affected by a lengthy term of imprisonment.
In summary, the evidence establishes that the appellant has the mental age of a child. To that extent, he cannot be regarded as a suitable vehicle for general deterrence. That of itself warrants a careful re-examination of the individual sentences imposed, and the orders for cumulation.
We would order that the sentence imposed on charge 1 be set aside. In lieu thereof, we would sentence the appellant to 3 years and 9 months’ imprisonment. We would also set aside the sentence imposed on charge 2 and, in lieu of that sentence, impose a sentence of 12 months’ imprisonment. We would order that 6 months of the sentence imposed on charge 2 be served cumulatively upon the sentence imposed on charge 1. We would affirm both the sentence of 12 months’ imprisonment and the order for cumulation of 9 months imposed in respect of charge 3. This results in a total effective sentence of 5 years’ imprisonment. We would fix a non-parole period of 3 years.
Finally, we wish to add the following observation. Ideally, in light of the appellant’s significant mental disorder, he would not be released from prison without appropriate supervision. He plainly requires relevant sex offenders treatment which may be problematic, for him, within the prison system.
Had it been open to us to do so, we may have been inclined to combine a sentence of imprisonment of an appropriate length with a community correction order that would have ensured supervision and treatment. Of course, that option would only have been available had we imposed a prison sentence of two years or less.[17] Clearly, a sentence of that order would have fallen short of what is required for offending of this nature, and particularly the need to denounce conduct of this type and ensure an appropriate measure of punishment.
[17]Sentencing Act 1991 s 44.
Given the unusual circumstances of this case, and the particular nature of this offender, we would respectfully suggest that the community might be best served by the parole board, in due course, giving favourable consideration to whether the appellant should be granted parole, under strict conditions. That would assist in his rehabilitation, but would also provide a measure of assurance that he will not reoffend in this way.
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