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[2013] NSWCCA 264
Court of Criminal Appeal (NSW)
2013-10-16
Hoeben CJ, Johnson J, Bellew J
Original judgment source is linked above.
The application to extend time 61 In Abdul (supra) this Court said (at [53]) "Accordingly, when considering an application for extension of time based on "Muldrock error", all relevant factors need to be considered - the length of the delay, the reasons for the delay, the interests of the community, the interests of the victim and whether, if an extension of time were refused, substantial injustice would result. This last factor will inevitably require an assessment of the strength of the proposed appeal although as Etchell made clear, that assessment can be carried out in a "more summary fashion" than would be done in an application for leave to appeal that was brought within time". 62The delay in the present case is substantial, although perhaps not as great as that in some cases examined recently by this Court. A Victim Impact Statement which was before the sentencing judge set out the emotional effects upon the victim AG, although given her young age this may be a case in which an extension of time would not have any further adverse effect upon her. An extension of time would, however, offend the principle of finality. To the extent that the application was brought on the basis of a change in sentencing principles arising from the decision in Muldrock it is also relevant that I have found that no Muldrock error has been made out. On balance, these various considerations tend against an extension of time being granted. 63Further, although ground 2 has been made out, an appeal based upon that ground could have been brought at a far earlier time. That said, the failure to do so is largely explained by the advice which was given to the applicant following the sentence proceedings. The tenor of that advice was, to say the least, unhelpful. In light of the conclusions I have reached in respect of ground 2, it was also inaccurate. 64For the reasons explained in Abdul, because a material error has been established it is necessary to assess the prospects of success of the application for leave to appeal. In doing so, the Court must consider whether any other sentence is warranted in law (Criminal Appeal Act 1912 (NSW) s. 6(3)).
Is a lesser sentence warranted in law? Submissions of the parties 65Counsel for the applicant acknowledged the seriousness of the applicant's offending, and the fact that it involved a significant breach of trust. However, it was submitted that the applicant's continuation of his offending in the face of the requests made by his partner to desist was explicable on the basis of his mental retardation, and his lack of insight into his wrongdoing. In this respect, counsel emphasised the degree of the applicant's mental retardation, and submitted that he was basically illiterate. 66Counsel also pointed to the applicant's expressed willingness to undertake treatment, and to the opinion of Dr Westmore that this was a positive aspect of the applicant's presentation. 67Counsel for the applicant acknowledged the importance of the protection of the public. However she pointed out, with some force in my view, that the applicant had not previously displayed any predatory or similar behaviour, and stressed that he had not yet received any treatment in respect of sex offending. The essence of those submissions was that appropriate treatment would assist in his rehabilitation. 68The Crown acknowledged the evidence of the level of the applicant's mental retardation but submitted that properly viewed, the opinion of Dr Westmore fell short of establishing a causal link between that condition and the applicant's offending. The Crown also stressed the seriousness of the offending, the fact that it involved two separate victims, the applicant's persistence in the face of being told to desist and the serious breach of trust.
Consideration and conclusion 69The Crown's submissions as to the seriousness of the offending are obviously well made. However, they must be balanced against a number of other matters, the most significant of which is the applicant's mental state which, for the reasons I have already expressed, is significant. In my view, primarily as a consequence of the failure of the sentencing judge to have proper regard to the applicant's mental state, a lesser sentence is warranted in law. However in determining the appropriate sentence, the sentencing discretion must be re-exercised afresh, taking into account all relevant considerations. 70The existence of a causal connection between the applicant's retardation and the offending is an inescapable conclusion from the report of Dr Westmore. As a consequence, the applicant's moral culpability is significantly reduced and he is not an appropriate vehicle for general deterrence. 71Prior to these matters, the applicant was a person of prior good character with no criminal history. He pleaded guilty at the first available opportunity, he is not a recidivist and he has expressed both a willingness and a keenness to engage in appropriate forms of treatment. 72I have taken into account the contents of the applicant's second affidavit of 18 September 2013 which was admitted without objection on the question of re-sentence. He has undertaken literacy classes since being in custody, is employed full time in a textile shop and is undertaking a course of study in textiles at TAFE. All of those matters provide some positive support to his prospects of rehabilitation. 73In particular, the applicant has expressed (consistent with what he told Dr Westmore) a desire to undertake a sex offenders course. As I have noted, Dr Westmore saw this as a positive aspect of his presentation. 74Dr Westmore also thought that as part of the applicant's rehabilitation, there was a necessity for him to gain a greater understanding of the inappropriateness of his offending, and the danger he posed to his children. In this regard, the applicant has deposed in his affidavit to wanting to "get better", and has expressed some acknowledgement of the seriousness of his offending. That evidence goes some way to supporting a conclusion that with appropriate treatment, the applicant's prospects of rehabilitation are likely to be more positive than not. 75In re-sentencing the applicant in the terms in which I propose, I have had regard to the provisions of s. 54B of the Sentencing Act as amended by Schedule 1[3] of the Crimes (Sentencing Procedure) Amendment (Standard Non-parole Periods) Act NSW 2013 ("the Amendment Act"). In particular: (i)I have taken into account the standard non-parole periods applicable to counts 2 and 3 as required by s. 54B(2) (as amended by the Amendment Act); (ii)I have set out above my reasons for the sentences which I would propose be imposed in lieu of those imposed by his Honour at first instance as required by s. 54B(3); (iii)I have indicated the non-parole periods which I consider appropriate in respect of counts 2 and 3 as required by s. 54B(4); and (iv)I have set out above the reasons why I consider those non-parole periods to be appropriate as required by s. 54B(5).
ORDERS 76For the foregoing reasons, I propose the following orders: (i)the application for extension of time in which to seek leave to appeal against sentence is granted; (ii)leave to appeal against sentence is granted; (iii)the appeal is allowed; (iv)the sentence imposed in respect of count 1 is quashed, and in lieu thereof a fixed term of imprisonment of 5 years, commencing on 17 October 2008 and expiring on 16 October 2013, is imposed; (v)the sentence imposed in respect of count 2 is quashed, and in lieu thereof a non-parole period of 6 years, commencing on 17 October 2010 and expiring on 16 October 2016, with an additional term of 3 years expiring on 16 October 2019, is imposed; (vi)the sentence imposed in respect of count 3 is quashed, and in lieu thereof a non-parole period of 4 years commencing on 17 October 2009, and expiring on 16 October 2013, with an additional term of 12 months expiring on 16 October 2014, is imposed; (vii)the applicant will be eligible for release on parole on 16 October 2016, and his aggregate sentence will expire on 16 October 2019.
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AG
R
Judgment 1HOEBEN CJ at CL: I agree with Bellew J and the orders which he proposes. 2JOHNSON J: I agree with Bellew J. 3BELLEW J: On 11 June 2009 the applicant pleaded guilty to an indictment containing the following counts: (i)between 20 August 2008 and 15 September 2008 attempted to have sexual intercourse with RG, a child then under the age of 10 years, namely 6 years (Crimes Act 1900 NSW s. 66B) (count 1); (ii)between 15 September 2008 and 17 October 2008 had sexual intercourse with RG, a child then under the age of 10 years namely 6 years (Crimes Act 1900 NSW s. 66A) (count 2); (iii)between 12 October 2008 and 10 October 2008 assaulted AG and immediately at the time of such assault committed an act of indecency on AG, a child under 10 years, namely 4 years (Crimes Act 1900 NSW s. 61M(2) (count 3)). 4The applicable maximum penalties are as follows: (i)as to count 1, 25 years imprisonment; (ii)as to count 2, 25 years imprisonment with a standard non-parole of 15 years; (iii)as to count 3, 10 years imprisonment with a standard non-parole period of 8 years. 5The applicant was sentenced as follows: (i)as to count 1, a fixed term of imprisonment of 6 years commencing 17 October 2008 and expiring on 16 October 2014; (ii)as to count 2, a non-parole period of 6 years and 6 months imprisonment, commencing 17 October 2012 and expiring on 16 April 2019, with an additional term of 3 years; (iii)as to count 3, a non-parole period of 4 years and 6 months commencing on 17 October 2011 and expiring on 16 April 2016, with an additional term of 1 year and 6 months. 6The total sentence was one of 13 years and 6 months imprisonment, comprising a non-parole period of 10 years and 6 months imprisonment and an additional term of 3 years. The applicant will be eligible for release on parole on 16 April 2019. 7The applicant seeks an extension of time in which to seek leave to appeal against the sentences imposed. The background to that application is set out in an affidavit of the applicant of 18 September 2013, along with an affidavit of Lauren Hrouda, solicitor, of 18 September 2013. In summary, the applicant did not lodge an appeal against the sentence imposed upon him because he was advised by his then legal representative that there was no utility in doing so, and that he would "get more time if he appealed". In early 2013 he conferred with a representative of Legal Aid NSW who advised him that there may be merit in an appeal. 8Ms Hrouda has deposed to the fact that she received a copy of the remarks on sentence in early 2013 to consider whether there was merit in an application for leave to appeal against sentence due to a "Muldrock type error" (see Muldrock v R (2011) 244 CLR 120; [2011] HCA 39). In Abdul v R [2013] NSWCCA 247 this Court explained in detail the background to, and the general nature of, so-called "Muldrock errors". 9Ms Hrouda conferred with the applicant, further documentation was obtained, and counsel was briefed. There appears to have been some delay in obtaining (inter alia) a transcript of the sentence proceedings, although that delay was not the fault of Ms Hrouda or the applicant. A Notice of application for leave to appeal was eventually filed on 28 June 2013. 10The Crown has opposed the grant of an extension of time.
The submissions of the parties 23It was submitted on behalf of the applicant that the sentencing judge had adopted a two stage approach to sentencing contrary to the decision in Muldrock. In particular, it was submitted that his Honour had given primary, or perhaps even determinative, significance to the standard non-parole period, as opposed to adopting a process of instinctive synthesis (as to which see Markarian v R [2005] HCA 25; (2005) 228 CLR 357 per McHugh J at [51]). This, it was submitted, was evident from his Honour's reference to being required to give reasons for departing from the standard non-parole period. 24Counsel for the applicant acknowledged that in determining whether his Honour had erred, it was necessary to consider the entirety of the sentencing remarks and that to proceed on the basis of considering isolated passages was not the correct approach. However counsel submitted that viewed as a whole, his Honour's observations pointed to the adoption of a two stage approach to sentencing. 25The Crown submitted that there had been no error, and stressed that it was the substance, rather than the form, of the reasons of the sentencing judge which were required to be assessed. 26To the extent that the applicant relied on the sentencing judge's reference to "departing from" the standard non-parole period as being indicative of the adoption of a two-stage process of sentencing, the Crown submitted that his Honour was simply adopting that phrase to convey his reasons for imposing a sentence different from the standard non-parole period. It was further submitted that on a fair and complete reading of his Honour's reasons, it was apparent that a process of instinctive synthesis had been followed, and that his Honour had taken into account all relevant factors before recording the reasons for imposing a sentence different to the standard non-parole period in each case. 27The Crown also placed reliance upon the sentencing judge's reference to the standard non-parole period remaining as a "general guide along with the maximum penalty". It was submitted that the adoption of such a description was at odds with a conclusion that the standard non-parole period had been given primary or determinative significance.
Consideration and conclusion 28Taken in isolation, his Honour's reference to the fact that counts 2 and 3 attracted a standard non-parole period, immediately followed by his Honour's reference to the necessity to give reasons for departing from the standard non-parole period, might be indicative of the application of a two stage process of sentencing. Such a process is clearly impermissible in light of the decision in Muldrock. However, confining the examination of his Honour's reasons to an isolated passage is not the correct approach. Both parties acknowledged that in determining this ground, it is necessary to read the reasons of the sentencing judge as a whole (see Essex v R [2013] NSWCCA 11 at [30] citing Aldous v R [2012] NSWCCA 153 at [2] and Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [43]). 29When the reasons are read as a whole, I am not satisfied that his Honour's approach was erroneous. Prior to the passage set out at [21] above, his Honour had considered the various mitigating and aggravating factors. In doing so, he made express reference to the circumstances of the offending, the applicant's personal circumstances, the applicant's subjective features and the matters of aggravation. A reading of those passages of his Honour's reasons tends against a conclusion that his Honour adopted a two stage process of sentencing, in which he regarded the standard non-parole period as a fixed and rigid starting point. In my view, it points to a process of instinctive synthesis having been adopted, in which all relevant matters were identified and taken into account, and a judgment reached as to the appropriate sentence. 30I am fortified in that view by his Honour's reference to the standard non-parole period being (along with the maximum penalty) a "general guide", and by his reference to the need not to "oscillate around" the standard non-parole period. Such references, when read as part of the sentencing remarks as a whole, run contrary to the proposition that the standard non-parole period was used in some fixed, rigid or otherwise impermissible way (see Aslett v R [2012] NSWCCA 235 at [35]). 31For these reasons, this ground is not made out.
Consideration and conclusion 49In Muldrock the High Court observed (at [50]): "The condition of mental retardation is classified according to its severity as mild, moderate, severe or profound. Mental retardation is defined by reference to both significantly subaverage general intellectual functioning and significant limitations in adaptive functioning. Significantly subaverage intellectual functioning is defined as an intelligence quotient (IQ or IQ equivalent) of about 70 or below". 50The Court proceeded to observe (at [51]) that the fact that the appellant in that case had engaged in some paid employment, and the fact that he held a driver's licence, did not detract from an assessment of his level of retardation. The Court also observed that the appellant, like the applicant in the present case, had been in receipt of a disability support pension. 51By reference to the judgments of Young CJ and Lush J in R v Mooney (CA (Vic) 21 June 1978 unreported) the High Court cited (at [53]) the principle that general deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality, because such an offender is not an appropriate medium for making an example to others. In Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194, McClellan CJ at CL (at [177] - [178]) considered the principles to be applied when sentencing a mentally ill offender. Although the decision in De La Rosa was delivered after the present applicant was sentenced, his Honour's judgment reviewed a number of earlier authorities and consolidated the well established principles for which those authorities stood, and which were applicable to the sentencing of the applicant. Included in those principles was that cited by the High Court in relation to the consideration of general deterrence in the case of a mentally ill offender. 52In the present case, the unchallenged opinions of Dr Westmore included that the applicant had: (i)a compromised level of insight into the inappropriateness of his behaviour; (ii)an inability to read and write, other than being able to write his name and date of birth; and (iii)an employment history which, in recent times at least, had been limited to working in services supportive of those who are intellectually disadvantaged. 53These, and the various other matters to which Dr Westmore referred, all supported his ultimate opinion that the applicant was at least mildly, if not moderately, mentally retarded. Counsel for the applicant submitted that the applicant's mental retardation was at least the same, if not greater than, that of the applicant in Muldrock. However such a comparative exercise may not be to the point. The more important consideration is that the degree of the applicant's retardation was, on any view, significant, and its relevance to sentence obvious. 54His Honour expressly stated that he had paid "careful attention" to the report of Dr Westmore before observing that in his view, it did not "answer all the unanswered questions". He then set out a number of aspects of the report as detailed in [38] above, before considering the pre-sentence report and then reaching the conclusions set out in [40]. He found that the applicant's level of intellectual functioning diminished the objective gravity of the offending "at least to some extent" and that it moderated the requirement for general deterrence "to some extent" before immediately turning to what he considered to be countervailing considerations, including the fact that the applicant posed a danger to the community. 55Although his Honour made lengthy references to the report of Dr Westmore, and although he stated that he had paid careful attention to its contents, he made only a brief reference to Dr Westmore's opinion as to the applicant's mental retardation. Although that factor was of obvious importance in determining an appropriate sentence, his Honour's reference to it passed without any further comment or evaluation. 56The significance of the applicant's mental retardation became even greater in light of Dr Westmore's unchallenged opinion that it had resulted in the likelihood of the applicant having a compromised level of insight into the wrongness of his behaviour. Clearly, Dr Westmore found some causal connection between the applicant's mental state and his offending. In these circumstances, the applicant's mental state not only meant that he was an inappropriate vehicle for general deterrence, it also operated to reduce his moral culpability. 57These matters were, on any view, important considerations in determining the sentence to be imposed. Apart from his Honour's passing reference in the terms which I have noted, there was no further assessment made of them. Moreover, to the extent that his Honour gave those matters consideration at all, he did so in somewhat qualified terms, finding that they were relevant "to some extent". Such a finding significantly understated their significance, and was indicative of insufficient weight having been given to them in the sentencing process. The evidence established that as a mentally retarded adult it was likely that the applicant had a compromised understanding of the wrongdoing of engaging in sexual acts with children. His Honour was required to assess the applicant's criminality in that context. In my view, the relevance, on the question of sentence, of the applicant's mental retardation was substantially greater than that for which his Honour made allowance. 58His Honour also described the applicant's offending (at ROS 5) as being "persistent and deliberate ... notwithstanding the interruption by (his) partner". Whilst on an objective view of the offending that description might be prima facie accurate, it failed to take into account the unchallenged evidence of Dr Westmore as to the applicant's compromised level of insight into his offending. 59For these reasons, his Honour erred in failing to properly apply the principles relevant to the sentencing of an offender who suffers from a mental illness. In particular, his Honour failed to give sufficient weight to the applicant's mental retardation in the particular respects to which I have referred. Those errors were material (see Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284 at [83] per Latham J). 60This ground is therefore made out.
(2010) 79 NSWLR 1
(2005) 228 CLR 357
(2011) 244 CLR 120