Aslan v R

The facts 4All offences were committed as part of a single and extremely violent event, in the very early hours of 4 June 2011. The complainant, a woman of 35 years, had spent the previous evening with a friend and others in a hotel at Dulwich Hill. The complainant's friend left and the complainant remained at the hotel until about 1.30am, when she left to walk towards another hotel. While she was doing so, the applicant approached the complainant, greeted her, and put his arm around her shoulders, pulling her towards him. The complainant protested, but the applicant persisted, and told her to "shut up" and "be quiet". He steered her towards the entrance of a nearby church. There he continued to tell the complainant to shut up, and threatened to kill her if she did not. He ordered her to remove her clothes. She refused, and he attempted forcibly to remove her skirt. She yielded, and removed her own clothes. The applicant then ordered the complainant to perform fellatio upon him, forcing her head into his groin area. This constituted the first offence of sexual intercourse without consent (count 1 on the indictment). The applicant took hold of and caressed the complainant's breasts, and kissed her, inserting his tongue into her mouth. This constituted the indecent assault, the first of the offences on the Form 1. The applicant told the complainant to lie on her back, and attempted to have penile-vaginal sexual intercourse with her. He was unable to achieve erection. This constituted the attempted sexual intercourse without consent, the second offence on the Form 1. He again ordered the complainant to perform fellatio upon him. This constituted the third offence on the Form 1, of sexual intercourse without consent. The applicant ordered the complainant again to perform fellatio upon him, while he performed cunnilingus on her. This constituted the second count on the indictment of sexual intercourse without consent (count 2) and the fourth offence on the Form 1, of sexual intercourse without consent. The applicant again penetrated the complainant's vagina, either with his finger or a piece of a plant. This constituted the third count on the indictment of sexual intercourse without consent (count 3). The complainant complained that she was feeling faint and was very cold. The applicant handed the complainant her clothing (and, inadvertently, his own underwear) and the complainant dressed. The applicant also dressed and walked the complainant towards his car, his arm around her shoulders. She broke free and attempted to escape. The applicant took hold of her, and struck her on the mouth. The complainant fell to the ground and grazed her knees and hands. This constituted the offence of assault occasioning actual bodily harm (count 4 on the indictment). 5The complainant sought help from a nearby service station and telephoned the emergency number. 6The applicant was identified as the perpetrator by DNA recovered from the underwear he had included in the clothing he returned to the complainant. He was arrested on 9 June 2011 and has remained in custody since that date. He entered a plea of guilty on 27 July 2012. 7The complainant provided a comprehensive and articulate Victim Impact Statement. Hardly surprisingly, she said that, throughout the attack (which she appropriately described as a "horrific ordeal") she was "extremely terrified and constantly afraid of what was going to happen to [her]". She feared that she might be murdered. She said that, at the time of writing (which appears to have been about September 2012) she still suffered from nightmares and flashbacks, with continual reminders of the anger in the eyes of her attacker, and the feeling of powerlessness. She gave considerable detail, not necessary here to repeat, of the continuing impact on her life and her emotional stability. She has been unable to return to her pre-attack work, which was in Family Dispute Resolution.

The applicant's personal circumstances 8The applicant's personal circumstances are complex. Evidence concerning his history came from a variety of sources, including a pre-sentence report prepared for the purpose of sentencing, a psychiatric report by Dr Stephen Allnutt, prepared for the same purpose, and oral evidence given by his sister. In addition, made available were extensive medical records relating to the applicant as well as pre-sentence reports prepared for earlier criminal proceedings against him. The material also included medical records maintained by Justice Health, during previous incarcerations of the applicant. From these sources the following emerges. 9The applicant was born in Australia in August 1975, of Turkish parents, the third of four children. He was not quite 36 years of age at the date of the offence. 10The family was highly dysfunctional. The applicant's father was an alcoholic who was violent towards his wife, the applicant's mother, and to the children. Not infrequently, the applicant's mother took the children from the house to nearby parks to wait until her husband was asleep before returning home. The applicant's father was reported to suffer from a mental illness, the nature of which has not been specified. The applicant's parents separated in 2001; his father died in 2007. The applicant began using drugs and alcohol at the age of 12. 11The applicant has a significant criminal history, which includes convictions for armed robbery with wounding (1993, aged about 18) and robbery (2009), and drug supply (2001). By far the most serious conviction is for manslaughter, committed in 1993 (just before the applicant turned 18) in respect of which he entered a plea of guilty. For that offence he was sentenced to imprisonment for 5 years, with a non-parole period of 2 years. 12In April 2009 the applicant was sentenced to imprisonment for 4 years and 4 months (with a non-parole period of 3 years) for offences of assault with intent to rob, robbery, possession of a prohibited drug and shoplifting. He was released to parole on 9 February 2011. On 30 June 2011, following his arrest for the current offences, parole was revoked and he was returned to custody to serve the balance of that term, which expired on 15 August 2012. The present offences were therefore committed while the parole order was current. 13The applicant has been involved in two motor traffic accidents. The first was in February 2001, when he was riding a motorcycle. He sustained injuries to his leg, shoulder and back. The second, in November 2003, was a high-speed motor vehicle accident in which he was the driver of a car that crashed into parked cars. He suffered head injuries. He underwent extensive neurological assessment. This revealed a degree of brain damage. It is difficult, on the evidence, to assess the nature or degree of the brain damage. 14The material before the sentencing judge included comprehensive medical records and reports on his condition up to May 2004. It also included a report from the psychiatrist, Dr Allnutt, dated 26 June 2012. Dr Allnutt had available to him the applicant's medical record, both with respect to the investigations following the motor vehicle accident and the Justice Health records. 15The author of the Pre-Sentence Report recorded: "It is reported that as a result of the motor vehicle crashes, [the applicant] sustained brain damage which led to his being diagnosed with severe depression, anxiety and obsessive compulsive disorder. He was prescribed medication for these conditions; however after being released to parole, Mr Aslan admitted that he did not adhere to his medication regime and had, in fact, not taken any medication for five days prior to the offence. Instead he chose to self medicate with alcohol and illicit substances as his mental condition deteriorated." 16It was also reported that the applicant began abusing drugs and alcohol at the age of 12, using alcohol to the point of passing out. After the motorcycle accident he began using heroin intravenously, as well as a variety of other drugs, including amphetamines. 17The applicant married in 2005 and is the father of a son, now about eight years of age. He is separated from his wife. His wife left, with their son, as a result of the applicant's continued drug and alcohol use and mental health instability, which led to previous offences and incarceration. 18The history taken by Dr Allnutt recorded the applicant having seen a psychiatrist while in custody in 2008, as a result of which he was treated for anxiety. The anxiety apparently continued after his release and he used cannabis by way of dealing with that condition. The applicant also reported to Dr Allnutt weekly ongoing panic attacks, and some symptoms of paranoia. 19Dr Allnutt made extensive reference to the historical material with which he had been provided. On the basis of that material, and the history taken from the applicant, Dr Allnutt expressed the following opinions: "In my opinion [the applicant] was manifesting symptoms of anxiety and depression characterised by poor motivation, poor self esteem but predominantly panic attacks in the form of crawling in his skin, restlessness, rapid breathing, shortness of breath and palpitations lasting for a few minutes; in addition to this he describes perceptual phenomena in the form of voices, hearing people whispering about him; overall while he manifests panic attacks, I would not diagnose him with a chronic psychotic disorder such as schizophrenia, but it is likely that his perceptual disturbances relate to mild persisting drug induced psychotic symptoms related to his long term substance abuse history. ... He has suffered a severe head injury and possibly ongoing cognitive difficulties as a consequence of that; a prior neuropsychological assessment reported short-term memory impairment, concrete thought impulsiveness, poor concentration and attention, disinhibited behaviour and psychomotor agitation, poor judgment, disorganised planning and given the relative static nature of cognitive impairment due to severe brain injury these difficulties likely remain (I did not have available a recent neuropsychological assessment)." 20With specific reference to the applicant's mental state at the time of the offences, Dr Allnutt said: "At the time of the alleged offence [the applicant] would have been experiencing the ongoing cognitive problems derived from his head injury; he also describes at that time experiencing episodes of 'black outs' where he would lose memory for things, however this is in the context of a long history of poly-substance abuse; substance intoxication is known to cause episodes of 'black outs' related to periods of intoxication and this is probably the cause of [the applicant's] 'black outs'. In the time leading up to the index incident he was using substances on a regular basis including cocaine, cannabis, amphetamines, methamphetamines and alcohol; he was experiencing voices where he would hear people whispering about him; he would turn and look and sometimes think that people were there; these symptoms likely were related to his substance abuse and drug induced. He was also experiencing panic attacks. ... I do not believe that he had an underlying mental disorder that caused significant distortion of his perception of events due to a mental condition; while he has memory problems on cognitive testing his account his unlikely to be confabulation; he was intoxicated and likely was experiencing the ongoing effect of head injury and there could have been a compounding of effects and thus he would have been at risk of having poor judgment and being disinhibited; this could have made him vulnerable to misinterpreting the complainant's signals, that is to misinterpreting the interaction he had with her an invitation to consensual sexual activity; however this does not explain the allegation of coercive sexual activity. The nexus between his cognitive deficits, intoxication and the alleged offending is probably best determined once the factual matters are established, that is once there is factual clarity on the nature of the interaction between [the applicant] and the victim; I would also recommend that [the applicant] pursue further neuropsychological assessment." 21The references in the last and second last of these paragraphs to factual matters concerning the offence were references to the account given by the applicant to Dr Allnutt of the events of 3-4 June 2011. That account exculpated the applicant, and asserted that it was the complainant who initiated the sexual activity, following an arrangement between them that he would provide her with "some substances" in return for sexual favours. That account was significantly contradicted by the agreed statement of facts. 22The applicant's medical history, which was contained in the substantial bundle of records provided to Dr Allnutt, included rehabilitation reports written in 2004, in the immediate aftermath of the motor vehicle accident, as well as a report of neuropsychological assessment dated 19 May 2004. 23On 7 May 2004 Dr Stuart Browne, a Rehabilitation Specialist, reported on his investigations of the applicant's head injury. He recorded having seen the applicant on numerous occasions, and said: "His behaviour has been consistent with a traumatic brain injury, with evidence of cognitive impairment and behavioural changes. He has demonstrated significant short term memory impairment, concrete thought, impulsiveness, poor concentration and attention, disinhibited behaviour, and psychomotor agitation. [The applicant's] brain injury manifests as forgetfulness, impulsive decision making, poor judgments, and disorganised planning. He interrupts frequently during conversations, indicating his lack of impulse control ..." 24On 19 May 2004 Dr Charlotte Morgan, a clinical neuropsychologist, after conducting a battery of tests, reported: "The overall pattern of his test results, behaviour and interpersonal interaction suggests ongoing post-concussional disorder evident by continued dysfunction in executive functioning (conceptual shifting, inhibition difficulties, word generativity difficulties, and poor abstraction), slowed cognitive processing, poor visual and verbal memory and verbal reasoning dysfunction. Evidence of behavioural changes also presented severe difficulties with managing depression, anxiety and stress. This is consistent [with] the pattern expected in post-concussional disorder associated with traumatic brain injury."

The Remarks on Sentence 25Haesler DCJ recounted the facts of the offences. Not surprisingly, he found the offences, both the individually and in toto, to be "of very significant objective seriousness"; he referred to the Crown's characterisation of the events as "any woman's worst nightmare", a characterisation with which he expressly agreed. He then referred, in some detail, to the applicant's personal circumstances. When dealing with matters personal to the applicant, his Honour said: "... nothing in the offender's background mitigates the objective seriousness of his crimes. That said, there are matters which cause me to mitigate the sentence which would otherwise be appropriate. His injuries, particularly his acquired brain injury do require a measure of sympathy as noted by Allan J in Engert v R [1995] 85 A Crim R 67. It is also clear that a consequence of his injury it will mean that his custodial sentence will weigh more heavily on him than other prisoners. His time in prison will be more onerous. This does not eliminate the need for specific deterrence. It does moderate to a very small degree the requirements calling for general deterrence, more for the issue of sympathy as spoken of by Allan J than because of his condition ... There is room in this sentencing exercise for moderation of the sentence because of his acquired brain injury and other problems ... While this [the applicant's continuing use of illicit drugs and alcohol] may in turn be explained by his acquired brain injury, his dysfunctional background and the antisocial impact of long periods of incarceration while a child, nothing could operate to excuse what was done to [the complainant]. Specific and general deterrence principles still have a role to play." (italics added) 26With respect to the applicant's acquired brain injury, he said: "I accept that that injury left the offender with less capacity to exercise care and judgment as to the use of and the uptake of drugs and alcohol." He made extensive reference to Dr Allnutt's report which he found was essentially "sound" (the only reservation being his record of the applicant's (later contradicted) exculpatory account of the events in question). He expressed his intention of taking that injury into account in the formulation of the overall sentence, and said: "I am prepared to accept that it made him more susceptible to abusing drugs and alcohol because he had less intellectual capacity to refuse or make a decision whether or not to use such drugs and alcohol. Clearly his acquired brain injury interfered with his capacity to exercise judgment in that respect. I do not accept however that there was any direct impact of the acquired brain injury on his offending this night ... He was clearly still capable, despite his brain injury, of making rational choices. He was warned by his parole officer about resuming the uptake of drugs. He was counselled by his parole officers. He was counselled by his family. He chose to go off his medication. He chose to use alcohol. He chose to use drugs and he committed this offence under the influence of drugs and alcohol, not under the influence of his acquired brain injury. He knew what he was doing and he knew that what he was doing was wrong." (italics added) 27Haesler DCJ accepted that, by reason of the brain injury, the applicant's time in prison would be more difficult than it otherwise would (see [25] above). However, he was also conscious of the need to protect the community, a consideration that is sometimes enhanced in cases where mental impairment is a factor. 28He noted that the four counts on the indictment represented part of a "connected series of events", and considered them to involve "similar levels of seriousness". He considered that each of the offences of sexual intercourse without consent "involved criminality of the highest order". He referred to the Victim Impact Statement, and concluded that the emotional harm suffered by the complainant was substantial. He recognised that the offences were aggravated by the fact that they were committed while the applicant was on conditional liberty. 29In recognition of the applicant's pleas of guilty, Haesler DCJ reduced the sentence he otherwise would have imposed by 25 per cent: see R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383. 30Pursuant to s 44(2) of the Sentencing Procedure Act he varied the ratio between the head sentence and the non-parole period. The reason for this was substantially the applicant's brain injury, and other personal circumstances to which reference has already been made.

The grounds of the application 31The proposed grounds of appeal are eight in number. Grounds 1 to 5 complain of the manner in which the applicant's "acquired brain injury" was treated by the sentencing judge: they assert that insufficient weight was given to the opinion of Dr Allnutt (extracted above); that the sentencing judge erroneously limited the relevance of the applicant's acquired brain injury to his capacity to exercise care and judgment as to the use of drugs and alcohol; that the sentencing judge erroneously held that there was no direct impact of the applicant's acquired brain injury on the offence. Proposed grounds 4 and 5 are pleaded as follows: "4 His Honour erred by failing to find that the offender's acquired brain injury did not contribute to the commission of the offences in a material way. 5 His Honour erred by failing to find the offender's acquired brain injury did not significantly reduce the offender's moral culpability as relevant to general deterrence." (Obviously these grounds do not reflect what the pleader intended to plead.) 32Ground 6 asserts that the aggregate sentence is [manifestly] excessive in all of the circumstances. Grounds 7 and 8 complain that the variation in the ratio between the non-parole period and the head sentence was inadequate and failed to provide adequate time for supervision on parole.

Consideration Grounds 1-5: the effect of the applicant's "acquired brain injury" 33This Court has frequently had to grapple with the effect on sentencing (especially with respect to serious or violent crimes) of mental illness, intellectual handicap or other mental or emotional impairment or disability. The compassion and sympathy that such a condition engenders collide with the need for sentences to reflect the objective gravity of the offence in question, the community's interest in general deterrence, and that criminal conduct must be met with appropriate denunciation and retribution. Over the years, the applicable principles have evolved. They were most recently re-stated by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [177]. They are as follows: "[Principle 1]  Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence ... [Principle 2]  It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed ... [Principle 3]  It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced ... [Principle 4]  It may reduce or eliminate the significance of specific deterrence ... [Principle 5]  Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence ... Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public ..." (internal citations omitted, italics added) 34It will be observed that none of these principles is stated as absolute. What is recognised is the potential effect, in any given case, of a mental disability. It does not follow that, because an offender suffers from some mental impairment or disability, his or her moral culpability is reduced (principle 1); nor that he or she is an inappropriate vehicle for general deterrence (principle 2); nor that a custodial sentence will weigh more heavily upon him or her (principle 3); nor that the significance of specific deterrence is reduced or eliminated (principle 4). Nor, on the other hand, does it follow that a person with mental impairment is a danger to the community, indicating a need for community protection (principle 5). Too often, the mere fact of mental illness is advanced to this Court as necessarily calling for a more lenient sentence. What the principles spelled out by McClellan CJ at CL do is direct attention to considerations that experience has shown commonly arise in such cases. There is, however, no presumption. It remains necessary for the sentencing court to examine the relevant facts in order to determine whether, in the specific case, the mental condition has the consequence contended for. 35A central question (but not the only question) is whether the mental illness or other condition had a causative role to play in the commission of the offence or offences for which the offender is to be sentenced. Counsel who appeared for the applicant accepted that this was the principal issue in this case. If it is concluded that there was a causal connection, then the offender's moral culpability may be reduced (see principle 1). That connection may also warrant lesser attention being paid to the need for the sentence to reflect considerations of general deterrence (principle 2). 36Haesler DCJ gave careful consideration to whether any causal link between the applicant's acquired brain injury and the commission of the offences had been established. He accepted a causal link between the acquired brain injury and the applicant's drug and alcohol consumption; he expressly did not accept such a causal link between the acquired brain injury and the commission of the offences. 37That process of reasoning is the subject of grounds 1-4 of the proposed appeal. The basis for the challenge is to be found in the reports of Dr Morgan and Dr Allnutt. Dr Morgan was the neuropsychologist who conducted a series of tests on the applicant in May 2004, only five months after the motor vehicle accident that caused the injury. She, it will be recalled, found slow cognitive processing, poor visual and verbal memory and verbal reasoning dysfunction. She also found evidence of behavioural changes in managing depression, anxiety and stress. She said that this was consistent with the pattern expected in post-concussional disorder associated with traumatic brain injury. 38She recommended monitoring over the following six months, and repeat neuropsychological assessment after that time. There is no evidence of such repeat assessment. 39It is true that Dr Allnutt considered that, at the time of the offences, the applicant "would have been experiencing the ongoing cognitive problems derived from his head injury". However, he did not make a causal connection between the applicant's cognitive problems and his involvement in these offences. Rather, he went on immediately to deal with the applicant's "black outs", which he explicitly associated with poly-substance abuse. 40In respect of the applicant's head injury, Dr Allnutt relied significantly upon the medical history and the reports of other professionals. They include Dr Morgan's report and others, none later than May 2004. 41It was submitted that there is established no rational basis for the judge's finding that the effect of the acquired brain injury was limited to drug and alcohol abuse. I would reject that proposition. There is no evidentiary basis for any other finding. 42In any event, notwithstanding that he was not satisfied that a causal connection existed between the acquired brain injury and the commission of the offences, Haesler DCJ expressly took into account the effects of the acquired brain injury. He accepted that prison would weigh more heavily on him. I have set out above the many passages in the Remarks on Sentence in which he referred to the brain injury and I do not repeat them. 43The actual effect of the applicant's acquired brain injury on him was not the subject of any clear evidence. Apart from Dr Allnutt, who, in this respect, relied on the reports of those who treated and examined the applicant following the motor vehicle accident, the most recent reports were dated 2004. 44In considering this issue, it is of some value also to compare the applicant's record pre-injury and that post injury. Prior to injury he was convicted of offences of assault, robbery with wounding, manslaughter, and supply of prohibited drug. Post injury, he had significant periods with no, or relatively minor, convictions, until the series of offences, including robbery, in 2009. That is not suggestive of a causal connection between the acquired brain injury and the offences the subject of the present application. 45I am satisfied that Haesler DCJ appropriately took into account the applicant's medical condition. I would reject these proposed grounds of appeal. Ground 6: manifest excess? 46The submissions directed to ground 6 repeated what had been said in relation to grounds 1-5. It was further argued that the sentence was, in any event, manifestly excessive. It was pointed out that, since a 25 per cent reduction in what otherwise would have been the sentence was allowed in recognition of the pleas of guilty, the starting point was a sentence (head sentence) of 12 years. This, it was submitted, was manifestly excessive "in all the circumstances". 47It is only necessary to reflect on the nature of the offences to reject this contention. The complainant was, over a short space of time, subjected to five separate instances of sexual intercourse without consent, of the most invasive and degrading kind - forced fellatio (on three occasions), unwanted cunnilingus, penetration with a finger or a plant part, together with an attempted sixth instance that failed only because the applicant failed to achieve erection. She was threatened. After the sexual assaults she was physically assaulted with sufficient force to cause her to fall to the ground. Her Victim Impact Statement tells of the impact of the offences on her. 48I reject the suggestion that a starting point of 12 years for this series of offences was anything other than well within the range available. I would reject ground 6. Grounds 7-8: special circumstances 49These grounds complain that, although the applicant was given the benefit of a finding of special circumstances and the consequent reduction in the statutory proportion between the head sentence and the non-parole period, that reduction was insufficient because he will need a longer period on supervised parole. 50A sentence of 9 years, on the statutory proportions, would result in a non-parole period of 6 years and 9 months. The variation allowed was therefore of 9 months. This is far from insignificant. Consideration of this ground involves appreciation of what supervision will be available to the applicant. He will have the benefit (should he choose to avail himself of it) of pre-release sex offender programmes. From his release (if his conduct is such that he is granted parole on the expiration of the non-parole period) he will have 3 years to take advantage of the supervision that will be made available to him. I am satisfied that this is an adequate period of supervision. 51The second aspect to which attention must be directed is the ultimate length of the non-parole period. In my opinion, for this series of offences, anything below 6 years by way of non-parole period would be, at the very least, open to question. 52I would reject grounds 7 and 8. 53Although I would grant leave to appeal, it follows that I would dismiss the appeal. 54The orders I propose are: (1)Leave to appeal granted; (2)Appeal dismissed. 55ADAMS J: I agree with Simpson J. 56McCALLUM J: I agree with Simpson J, for the reasons her Honour has stated.

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