Grounds 4 and 5
56The substantial argument made by the Crown is addressed to ground 5 and, although expressed in more general terms, to ground 4. That argument is that the trial judge erred in finding and taking into account as a relevant factor that the appellant's intellectual disability contributed to the commission of the offence so as to reduce his moral culpability. The Crown submits that by reason of the jury's verdict and the evidence given at the trial by the appellant, it was not open to the trial judge to find that "the offender's intellectual functioning reduce(d) his moral culpability to some extent" (ROS p 16) and that this made him an inappropriate medium for making an example to others (ROS p 15). It also submits that such a finding should not, in any event, have led to any substantial diminution in the assessment of the objective seriousness of the offence or in the ultimate sentence imposed. The former criticism must be rejected in the light of the decision in Muldrock. The latter remains to be addressed, but also in the light of that decision.
57It is not controversial that the fact that an offender is suffering from a mental illness or intellectual disability may be taken into account in various ways in the exercise of the sentencing discretion. The relevant principles are summarised in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 205 A Crim R 1 at [177]. Those principles make clear that an offender's mental illness or intellectual disability may be taken into account notwithstanding that no causal connection has been established between it and the commission of the offence. In Engert v R (1995) 84 A Crim R 67 at 71 Gleeson CJ said:
"... the question of the relationship, if any, between the mental disorder and the commission of the offence, goes to circumstances of the individual case to be taken into account in the application of the relevant principles. The existence of such a causal relationship in a particular case does not automatically produce the result that the offender will receive a lesser sentence, any more than the absence of such a causal connection produces the automatic result that an offender will not receive a lesser sentence in a particular case. For example, the existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence, and increase the importance of particular deterrence or of the need to protect the public. By the same token, there may be a case in which there is an absence of connection between the mental disorder and the commission of the offence for which a person is being sentenced, but the mental disorder may be very important to considerations of rehabilitation, or the need for treatment outside the prison system."
See also the discussion in R v Fahda [1999] NSWCCA 267 at [42]-[47] per Simpson J. However, such a causal relationship must be established if the illness or disability is to be relied on as reducing the offender's moral culpability so as to militate against the need for denunciation by the sentence: R v Letteri (New South Wales Court of Criminal Appeal, 18 March 1992, unreported) per Badgery-Parker J; R v Fahda at [42]-[47]; Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442 at [48]; R v Israil [2002] NSWCCA 255 at [23]-[24]; R v Hemsley [2004] NSWCCA 228 at [33]; DPP v De La Rosa at [177] (and specifically the first principle there summarised); Muldrock at [54], [55].
58The trial judge made the following findings as to the appellant's intellectual disability and its consequences, based upon the evidence: He has an intellectual capacity at the lower 5% of the normal range for the population which places him at a degree of intellectual disability but does not classify him as intellectually disabled (ROS p 3); he is functionally illiterate and as a result of learning difficulties has suffered a degree of social rejection throughout his life so as to have a very low level of social functioning (ROS pp 3, 5); his understanding of consent is limited and his understanding of social situations is poor (ROS p 4); his intellectual disability causes shyness and social isolation (ROS p 15). The Crown does not submit that any of these findings involved any error.
59The trial judge took account of the appellant's intellectual disability in a number of ways. First, she found that his "intellectual and social functions had some but not an overwhelming effect on the commission of the offence" (ROS p 6) so as to reduce his moral culpability and the need for denunciation of the offence (ROS p 15). Secondly, when addressing the need for general deterrence in the sentence, the trial judge found that the appellant's intellectual disability and very low level of social functioning made him an inappropriate medium to be made an example to others (ROS p 15): see Muldrock at [53]. Thirdly, the trial judge found that his intellectual and social functioning were more likely to improve outside the prison system so as to justify a reduced non-parole period (ROS pp 10, 11, 17). Fourthly, she found that the appellant would be vulnerable to bullying behaviour in the prison system, and that his intellectual disability and limited social functioning would make it difficult for him to adjust to that system with the result that a custodial sentence was likely to weigh more heavily on him (ROS pp 10, 11, 12). Finally, the trial judge found that his intellectual disability did not have the consequence that the appellant presented a level of danger to the community giving rise to considerations which might result in an increased sentence (ROS p 15): see Muldrock at [60].
60The Crown's submissions in relation to grounds 4 and 5 are addressed to the first and second of these ways in which the trial judge took account of the appellant's intellectual disability and social functioning in the exercise of the sentencing discretion. As I have noted above, it is only in respect of the first of those ways that there must be some causal relationship between the illness or disability and the commission of the offence. Before addressing those submissions, it is necessary first to consider the evidence before the trial judge on the sentencing hearing and then to consider the relevant findings of the trial judge.
61Two psychiatric reports were tendered at the sentencing hearing. The earlier in time was the report of Dr Nielssen, a qualified psychiatrist, dated 3 February 2011. That report recorded that Dr Nielssen had read the "Police Facts" in relation to the charge. That document set out the complainant's version of events including that she had been asleep at the time the appellant commenced to have intercourse with her. Dr Nielssen's report also restated the appellant's version of events which he maintained notwithstanding that he had been found guilty.
62Dr Nielssen diagnosed the appellant as having an intellectual disability and a substance abuse disorder which was in partial remission. He summarised his opinion in the following terms:
"Mr Badans' overall level of intellectual function was estimated to be around the bottom of the normal range, as he had been able to work consistently since leaving school, he is reported to be reasonably numerate, and to have some aptitude for mechanical work.
...
Mr Badans has been convicted of a sexual assault of a woman who was affected by a combination of alcohol and amphetamine. From the history provided, it seems Mr Badans had fairly limited experience of relationships at that time. He had also consumed a large quantity of alcohol. The combination of emotional immaturity, low intelligence and the effects of alcohol is likely to have affected Mr Badans' perception of the events and also his capacity to recognise that [the complainant] was not consenting, or was not in a fit state to give consent to sexual intercourse.
Mr Badans does not have a history of other forms of disturbed conduct, or any previous criminal convictions. He has a history of consistent employment despite his intellectual difficulties. There is also a history of good a response to counselling for cannabis use. People with intellectual disabilities and brain injuries are often more susceptible to the effects of alcohol, and he should consider further counselling regarding his use of alcohol.
Mr Badans was thought to carry a low risk of re-offending. He would be a vulnerable prisoner if he were given a custodial sentence, and if that were considered necessary, he should be referred to the intellectual disability service within the prison system for appropriate placement." (emphasis added)
63The later report was a Psychological Pre Sentence Assessment of Dr Yusef, a forensic psychologist of Forensic Psychology Services within Corrective Services NSW and dated 9 May 2011. That report refers to the "Police Facts" and to the complainant having "awoken" with the appellant on top of her. It also recites the appellant's version of events as described to the author in an interview conducted on the date of the report. In relation to that interview the author notes:
"6.3 During the interview, he did not demonstrate a firm understanding on the meaning of consent and did not appear to understand that the victim was vulnerable due to her substance use. Mr Badans displayed little insight into the causes of his behaviour and was not able to identify alcohol as a potential contributor." (emphasis added)
64The author's conclusions included the following:
"11.2.1 ... While Mr Badans does not deny having sexual intercourse with the victim, he strongly denied that he had forced the victim to have sex, saying that 'she was consenting, she led me into the room ... she was touching me'. Mr Badans appears to have misconstrued the victim's behaviour as being sexually inviting, and he was unable to recognise that the victim may have been vulnerable given her level of intoxication both from alcohol and amphetamines.
11.2.2 Mr Badans also appeared to be emotionally immature, and this may have been a contributor to his offending behaviour. Mr Badans has had very limited interpersonal relationships and coupled with low self-esteem, any interest shown by the victim in Mr Badans (ie via conversation, etc), may have been misunderstood, on his behalf, as sexual interest.
...
11.2.3 Therefore, in concurrence with Dr Nielssen's psychiatric report, it appears that Mr Badans' intellectual ability is linked to his offending behaviour in that he appears to have deficits in interacting with others and a lack of understanding regarding consent. His misinterpretation of the victim's behaviour as being sexually inviting may have been amplified by a series of factors including his own interest in the victim, his cognitive ability and his alcohol consumption which inhibited his self regulation and self control. These factors, amalgamated, appear to have been a catalyst for Mr Badans' offending behaviour." (emphasis added)
65In the proceedings on sentence, the Crown cross-examined Dr Nielssen with particular reference to the fact that the jury's verdict involved an acceptance that the complainant was asleep and to the appellant's evidence that, before he entered the bedroom, he had no reason to believe that the complainant was sexually interested in him.
66That cross-examination of Dr Nielssen included the following exchanges:
"Q. Assuming that the victim's version is the correct version, and that's what the jury found, are you suggesting in your report that Mr Badans' emotional immaturity or low intelligence may have affected his capacity for him to recognise that she was asleep?
A. No I'm not suggesting that.
Q. So given you're not suggesting that how it is that you can say that his 'emotional immaturity, low intelligence and the effects of alcohol' affected his capacity to recognise whether or not she was consenting?
A. Well it seems at some stage she must have been roused from sleep and then the issue would have been a live one.
...
Q. The facts of the case, based on the version accepted by the jury, the victim's version was that she was asleep, she woke up, she was in shock, she froze and that he continued to have sexual intercourse with her until he finished and then told her to stay there and shut up and then left the room. Assuming those are the facts of the case how can it be said that there's any nexus at all between his low intelligence and emotional immaturity and his ability to understand whether or not she was in a fit state to consent?
A. Well I think it's kind of obvious you know that, whether or not he was able to - you know that he could realise that she may not have wished to proceed with sexual intercourse -
Her Honour: Doctor is it a matter of his perception that you're talking about rather than what somebody else or a jury might have thought?
A. Well that was the point of making the opinion, that his capacity to understand those issues is less than other persons.
Q. And perhaps a capacity to understand that somebody who's asleep might not be in a position to consent?
A. That was also part of the end of the paragraph.
...
Counsel: Q. Did you, during the interview, ask Mr Badans whether or not he knew that a sleeping woman is a person who is not able or who is unlikely to be willing to consent to sexual intercourse?
A. I can't remember if I asked that specifically.
...
Q. Dr Nielssen, Mr Badans in his evidence in the trial, said that he agreed with the proposition I put to him that he had no reason to believe that [the complainant] was sexually interested in him before he went into the room and did what he did. Assuming he was telling the truth about that, does it change your opinion?
A. No, not in terms of what I think is wrong with him.
Q. Doesn't that suggest that he knew full well that she wasn't a person who was ...
Her Honour: Mr Cristofi, you keep on doing this, you've asked the doctor a question, he has given you an answer and you are becoming argumentative, it's unseemly." (emphasis added)
67Although the Crown says that the trial judge, by this last exchange effectively put an end to the cross-examination of Dr Nielssen, it does not submit that there was any denial of procedural fairness or other error involved in that exchange. It rightly points out if there are disputes as to fact or opinion evidence relied upon before the sentencing court, those disputes should be resolved by the accusatorial process and upon the evidence before the court which, if necessary, will include cross-examination: R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174 at [21]; O'Neil-Shaw v R [2010] NSWCCA 42 at [26]; Reberger v R [2011] NSWCCA 132 at [48]. If counsel considers that cross-examination or further cross-examination is necessary to test properly evidence which is disputed, he or she should seek to do so and not be put off doing so by statements such as those made by the trial judge in this case. If counsel is stopped by the trial judge from doing so, a question may later arise as to whether there was a denial of procedural fairness in what occurred. However, that is not this case.
68When finding facts relevant to sentencing, the trial judge was entitled to form her own view as to the facts provided that her view was consistent with the jury's verdict: R v Isaacs (1997) 41 NSWLR 374 at 378; Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 at [14], [169]. That is so even if the view of the facts which the trial judge was obliged to take by the jury's verdict is different from that which she would have taken unconstrained by the verdict. The Crown submits that the verdict is only consistent with the jury having found that the complainant was asleep when the appellant commenced to have sexual intercourse with her and that by their verdict the jury must be taken to have rejected the appellant's evidence that the complainant was awake when he entered the room and thereafter engaged in conversation with him whilst she was awake. Whilst all of that may be accepted, the jury's verdict is consistent with the appellant having laid on the bed with the complainant and having had close physical contact with her before they commenced to have intercourse and she was roused from her sleep. At some stage in that process and before she became conscious of where she was and with whom, the complainant thought she was in the back of Mr Lane's car with him. That evidence carries with it the likelihood that she said or did something in her sleep which from the appellant's perspective with his limited intellectual and social functioning led him to think that she was interested in having sex with him.
69The relevant finding of the trial judge was that the appellant's "intellectual and social functions had some but not an overwhelming effect on the commission of the offence" (ROS p 6). She rejected the suggestion that such a finding would be inconsistent with the jury's verdict (ROS p 5). She did so on the basis of her earlier finding that the appellant's "understanding of consent is so limited and his understanding of social situations is so poor that, looking at it from his point of view, there was a cognitive difficulty that he had in understanding the nature and degree of consent required" (ROS pp 4-5). That finding was directed to circumstances which included that the complainant was asleep when the appellant entered the bedroom and remained so when he first joined her on the bed. It was a finding open to the trial judge on the evidence of Dr Nielssen. He agreed that his observation as to the appellant's capacity to recognise whether someone was giving consent extended to someone who was apparently asleep: see [62] and [66] above. The other psychiatric evidence, which was not tested, was consistent with that evidence. It referred to the appellant being "emotionally immature", as having "deficits in interacting with others" and as having a lack of "understanding regarding consent": see [64] above.
70The trial judge referred to the appellant's conduct after the event as indicating a "very low level of social functioning" (ROS p 5) and described the appellant's "lack of cognitive understanding as to why [the complainant] was upset and as to what he should do about it" as also indicative of this lack of understanding. The trial judge's finding takes account of the probable sequence of events from when the appellant entered the bedroom whilst the complainant was asleep until she was roused from her sleep by the appellant. It concludes that in that sequence of events the appellant's intellectual and social functioning had "some but not an overwhelming effect" on what he did. In my view that finding was available on the evidence and not inconsistent with the jury's verdict. For those reasons ground 4 is rejected.
71In support of ground 5, the Crown also argues that the trial judge's findings as to the appellant's intellectual disability reducing his moral culpability should not have resulted in the ultimate sentence imposed. This argument does not take account of the other factors which the trial judge took into account. In addition to those relating to his intellectual and social functioning, they included the appellant's prior good character and that he had no record of previous convictions (ROS p 9); the low risk of the appellant re-offending as assessed by the psychiatric evidence (ROS pp 9-10); and the appellant's lack of remorse explained by his intellectual disability and emotional immaturity (ROS p 9).
72The Crown argues that the trial judge was wrong to conclude that the lack of remorse was of "less significance" in this case. I do not agree. Whilst remorse may be a major factor in determining whether an offender is unlikely to re-offend and has good prospects of rehabilitation, the circumstances of each case must be considered on their merits. Here, the appellant's intellectual disability and social immaturity provided an explanation for his lack of remorse and the uncontested psychiatric evidence was that the risk of his re-offending was low and that his prospects of rehabilitation were good. For these and the earlier reasons given in relation to ground 4, ground 5 is also rejected.