Bell v The Queen

Bell v The Queen - [2010] WASCA 26 - WASCA 2010 case summary — Zoe

[52]

From the psychiatric perspective, both [the appellant's] own history, and my review of the documentation is in keeping with the presence of a severe deterioration in [the appellant's] mental state in the mid-1960's, requiring admission to Heathcote Hospital in early February 1965 for around two months and in early September 1966 for just over two weeks. He required electroconvulsive therapy. The documentation is in keeping with the presence of significant psychotic and mood symptoms. He attracted a diagnosis of 'acute schizophrenic episodes'.

[The appellant] denied experiencing any psychiatric symptoms after his second admission to Heathcote Hospital. On specific enquiry he denied having experienced either any psychotic symptoms or any mood symptoms after this admission. He was able to work and, in fact, demonstrated considerable stability in relation to occupational functioning.

In my view [the appellant] demonstrates significant personality pathology and there are a number of traits falling within the category of schizoid personality disorder. In other words, to some degree, [the appellant] appears to demonstrate a pervasive pattern of detachment from social relationships and a restricted range of expression of emotions in interpersonal settings. There appears to be limited desire to experience or to enjoy close relationships. He frequently chooses solitary activities. There has been little, if any, interest in having sexual experiences with another person following the abuse and he described an indifference to either praise or criticism of others. In my opinion it is likely that this personality structure contributed to the offending behaviour.

In relation to your specific enquiry, it is not my view that there is a 'causative link between his two psychiatric episodes in 1965 and 1966 and his offending behaviour'. It is my understanding that the sexual offences began in the late 1960s, a time when [the appellant] was functioning well at work and he did not give a history of any psychiatric symptoms at the time. I note that my opinion concurs with that of Dr Proud (psychiatrist) as expressed in his reported [sic] dated 19 May 2008.

In summary, and using a DSM-IV diagnostic framework, I was unable to identify the presence of an Axis One (clinical disorders) condition. On Axis Two (personality disorders and mental retardation) I note the presence of significant personality pathology with the presence of schizoid personality traits. On Axis Three (or physical conditions) I was unable to identify the presence of a significant physical illness. On Axis Four (psychosocial and environmental problems) I note the presence of relative isolation. On Axis Five (Global Assessment of Functioning) [the appellant] would currently attract a GAF scale score of 90 with 'absent minimal symptoms'.

In my view, from the psychiatric perspective, there is no indication for specific psychiatric treatment. It is my opinion that [the appellant] should be assessed in relation to participating in a Sex Offender Treatment Program.

[The appellant] denies any current attraction towards children and denies any sexually deviant fantasies. However, his attitude in relation to the offences as described in detail above, together with the significant personality pathology, remain factors for reoffending.

[85]

53 As to comparable sentences, see Regan. In Regan, the offender was convicted after trial of three counts of unlawfully and indecently dealing with a child under the age of 14 years (maximum penalty: 7 years' imprisonment) and five counts of committing acts of gross indecency with a male (maximum penalty: 3 years' imprisonment). The offences were committed between October 1981 and October 1987. The complainant was the son of the offender's cousin. He was aged between 9 and 16 years during the relevant period. At all material times, the complainant lived in Kalgoorlie and the offender in Perth. The offences were committed during three visits by the offender to Kalgoorlie during the relevant period. The offending conduct involved oral and manual stimulation of the complainant's penis. The trial judge sentenced the offender to a total effective head sentence of 6 years' imprisonment. The individual sentences for the three counts involving masturbation were 2 years on one count and 16 months on each of the others. The individual sentences for the five counts involving oral sex were 2 years on one count and 16 months on each of the others. A parole eligibility order was made. This court allowed the offender's appeal on the ground that the sentencing judge had failed properly to apply the totality principle. The offender was aged 73 years at the time of sentencing. The last of the offences for which he was convicted occurred more than 17 years before sentencing. He had no prior record of offending and there was no evidence of any offending after the relevant period. The sentencing judge accepted that, for all practical purposes, he was unlikely to be a risk to the community. Medical evidence indicated that the offender suffered from mild cognitive impairment, anxiety and a bladder complaint, but these matters were not, either individually or cumulatively, significant from a sentencing perspective. This court substituted a net effective head sentence of 4 years, being 6 years less one-third in accordance with the 'truth in sentencing' legislation then in force. The individual sentences were not disturbed. The offender remained eligible for parole.

[101]

Part of the reason you were able to perpetrate these offences was the significant age disparity between you and your victims. You were very much an adult, 27 to 28 at the start, and 36 to 37 years old in the last offences, compared to these boys being nine to 10 and up to 16 for the last offence. Clearly you had considerably more power in the relationship and you were their uncle, so you were also in a close relationship to the adults to whom they might have turned for help.

In relation to each of these boys you were in a position of trust. They were all your young nephews. You were trusted to take them places such as camping trips. Counts 10, 12, 16, 21, 23 and 24 all occurred in circumstances where you were alone with your victim, having driven him somewhere. Count 12 involved you taking [K] on a camping trip and staying overnight with him in an empty farmhouse. Clearly you were trusted by your brother, his father, to keep him safe.

Count 3 occurred when you were in the victim's own home and you asked him to join you later after everyone else had gone to bed. You admitted to the police sneaking into [K] and [J's] house after midnight where you then abused them, though they are not the subject of specific counts.

Count 6 occurred when [A's] parents were sitting in the back seat of the car as you drove along. That offence was brazen and the effect it had on [A] was not surprising. The behaviour was predatory. I do not accept it was merely opportunistic when you took the boys on car trips and snuck into their house at night.

...

These boys were your nephews. The behaviour therefore falls within what is commonly regarded as incestuous behaviour. Again you showed little concern for your nephews' feelings or the likely degree of shame they would experience about that.

...

The state's case was a strong one. Of course that was due in no small part to your own admissions to the police, but the state also had three complainants giving at times strikingly similar evidence and two further witnesses who could give propensity evidence. There was also evidence of a broad admission made to one of your brothers. The prospect of your being outright acquitted had the matter gone to trial was I conclude non-existent.

...

There has been a significant delay between the offences being committed and this prosecution, due partly to the delay in the complainants coming forward and also partly to the attitude the police took to the initial complaint made by [A]. The delay has not impacted on your life over and above the fact that any guilt you felt has been felt over that period without exposure. On the other hand, you have worked and been a member of a sporting club and enjoyed a certain level of appreciation from others who were ignorant of these matters. During that time, your victims have had to struggle with the effects of this abuse.

You have, it seems - purely from your own insight - decided to stop offending back in the late 1970s. There's no suggestion that any offending behaviour has occurred since. There is no evidence however that you have since devoted yourself tirelessly to charitable works or made any serious attempts to make amends to your victims. There is no suggestion that you ever volunteered to their parents what you had done to their sons or that you ever made any kind of apology.

Delay is not generally seen as mitigatory in sexual cases where children are involved. Children very often do not tell. It is so very understandable that boys would keep this sort of offending a secret even after they had matured enough to know it was wrong. It was perfectly natural for them to be afraid and unwilling to disclose, particularly when you were their father's brother and when the behaviour was homosexual in nature and they were just beginning to notice girls.

The fact is you picked your victims and you benefited from their secrecy for years. I do not regard the delay as mitigatory except insofar as it suggests that you are not now likely to reoffend because you have not done so for a long time. You are of course also aged now, which also leads me to conclude you are less likely to reoffend in any event and I assume that your victims have not allowed you free access to their children (ts 65 - 68).

At a glance

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Judgment (107 paragraphs)

RNN -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 26 (16 February 2010)

Parties

Cases Cited (5)