Ground 3 - insufficient weight given to intellectual disabilities other than on contrition or remorse
50While in written submissions addressed at the sentencing hearing, the applicant's counsel had suggested an overall range of 5 to 7 years for the non-parole period and 8 to 10 years for the overall sentence, that submission was modified during the oral submissions pressed. A sentence at the lower end of the suggested range was urged.
51His Honour imposed an overall sentence of 9 years and a non-parole period of 6 and a half years, having indicated during oral submissions that he had this figure in mind. It was then that the applicant's counsel urged a sentence closer to the bottom of the submitted range.
52On appeal it was submitted that this had revealed that his Honour had not approached the sentencing exercise as required by Pearce v R [1998] HCA 57; 194 CLR 610 at [45]. His Honour did not rely on s 53A of the Crimes Act 1900, which permits a court sentencing an offender for more than one offence, to impose an aggregate sentence of imprisonment with respect to all or any of those offences, instead of imposing a separate sentence of imprisonment for each. In the result, his Honour was obliged to impose a sentence for each matter before considering questions of accumulation and concurrence. His Honour was not entitled to commence the sentencing exercise with the overall term being fixed first.
53In my view that submission may not be accepted. That his Honour raised with counsel during submissions his view as to a matter expressly addressed in the written submission, the overall sentence, does not reveal that he engaged in the erroneous approach suggested on appeal, namely that he did not give the necessary consideration to the individual sentences to be imposed and how they were arrived at. Given the sentences which were imposed, it is apparent that his Honour did give consideration in the required way to the individual sentences.
54In fixing the individual sentences his Honour had regard to both the maximum penalties for each offence and the standard non-parole periods, as well as the other relevant factors, in the way discussed in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [27]. His Honour concluded that count 5, the penile penetration, was the most serious offence. The maximum penalty was 14 years and the standard non-parole period 7. His Honour explained why he departed from the standard non-parole period, amongst other things finding the offence to have fallen just below the mid-range of seriousness. He imposed a sentence of 7 years, 6 months and a non-parole period of 5 years, with 6 months of that sentence made concurrent with that imposed for count 3.
55The sentence imposed for count 4, the digital penetration committed on the same occasion as count 5, was identical, even though his Honour expressly found that it was a less serious offence, falling below the mid range. That may have been an error, but it has had no practical effect given that sentence was made entirely concurrent with the sentence imposed for count 5.
56His Honour also found that counts 1, 2 and 3 fell below the mid range. The maximum penalty for count 1 was 7 years and the standard non-parole period 5 years. The applicant was sentenced to 3 years imprisonment with a non-parole period of 2 years. Counts 2 and 3 also had maximum penalties of 14 years and standard non-parole periods of 7. In each case his Honour imposed a sentence of 5 years with a non-parole period of 3 years, each sentence being made concurrent by 6 months.
57The applicant also complained in written submissions on appeal that no weight was given in the sentences imposed to his 'significant intellectual disabilities', other than on the issue of contrition and remorse. It was submitted that the evidence of his borderline intellectual functioning and well below executive functioning were such that neither general nor specific deterrence should have had a significant impact on the sentences imposed. This should have also been considered in the context of the impact of his time in custody.
58In oral submissions it was argued that while his Honour had referred to the applicant's intellectual disabilities in his sentencing remarks, he had erred in his approach to deterrence, because the evidence required that deterrence be approached in the way discussed in Muldrock:
"[53] Black DCJ's finding, expressed in lay terms, that the appellant's intellectual disability is "significant", was apt. It was an error for the Court of Criminal Appeal to reject the finding, if that is what it did. Alternatively, it was an error for the Court to find that Black DCJ's determination, that general deterrence had no place in sentencing the appellant, was not justified by the evidence. One purpose of sentencing is to deter others who might be minded to offend as the offender has done. Young CJ, in a passage that has been frequently cited, said this[66]:
"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 the same case, Lush J explained the reason for the principle in this way [R v Mooney unreported, Victorian Court of Criminal Appeal, 21 June 1978 at 8, cited in R v Anderson [1981] VicRp 17; [1981] VR 155 at 160-161]:
"[The] significance [of general deterrence] in a particular case will, however, at least usually be related to the kindred concept of retribution or punishment in which is involved an element of instinctive appreciation of the appropriateness of the sentence to the case. A sentence imposed with deterrence in view will not be acceptable if its retributive effect on the offender is felt to be inappropriate to his situation and to the needs of the community."
[54] The principle is well recognised [Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465 at 476-477. See also R v Anderson [1981] VicRp 17; [1981] VR 155; Scognamiglio (1991) 56 A Crim R 81; R v Letteri unreported, New South Wales Court of Criminal Appeal, 18 March 1992; Engert (1995) 84 A Crim R 67; Wright (1997) 93 A Crim R 48. It applies in sentencing offenders suffering from mental illness, and those with an intellectual handicap. A question will often arise as to the causal relation, if any, between an offender's mental illness and the commission of the offence[See Engert (1995) 84 A Crim R 67 at 71.]. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender's moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community."
59This was not a submission advanced at the sentencing hearing. Nor could it have been. In Muldrock there was unchallenged evidence of the causal relationship between the appellant's retardation and his offending in the reports in evidence. Thus it was concluded at [55] that:
"The fact that the appellant possessed the superficial understanding of a mentally retarded adult that it was wrong to engage in sexual contact with a child and that he told childish lies in the hope of shifting the blame from himself were not reasons to assess his criminality as significant [R v Muldrock [2010] NSWCCA 106 at [34]], much less to use him as a medium by which to deter others from offending."
60This was quite a different case. Here there was no opinion expressed in the reports as to any causal relationship between the applicant's intellectual functioning and his offending. Nor do the reports reveal that the applicant had 'significant intellectual disabilities'. That no doubt explains how the case was put below.
61There the parties addressed their written submissions, which for the applicant's part did not develop a case that he had an intellectual disability. For its part, the Crown submitted that both general and specific deterrence had to feature in the sentence imposed. Reference was made to the applicable standard non-parole periods, the objective seriousness of the offences, as well as the requirements of s 21A of the Crimes (Sentencing Procedure) Act and considerations of concurrency and accumulation of sentence. Relevant statistics and authorities were addressed.
62For the applicant the matters addressed in written submissions were the early plea and other evidence of contrition and remorse; the applicant's age and other subjective matters. The objective seriousness of the offences was addressed, as was the applicant's prospects of rehabilitation and comparative cases. Reference was made to Muldrock, but not to that aspect of the judgment now relied on. Rather, the role which standard non-parole periods played in sentencing was addressed and the appropriate range specified.
63In oral submissions a sentence at the bottom of the range proposed in the written submission was urged for the applicant. It was then that it was submitted that he had an impairment of his memory and executive functioning which would be considered in determining the seriousness of the offending, which was submitted to have been reckless, rather than to have been committed in circumstances of true knowledge that the victim was overtly protesting. In the result it was argued that the applicant was in a less culpable position than an offender who had engaged in such conduct with full knowledge that the victim was not consenting.
64It was also accepted that general deterrence had to play a role in this sentencing exercise, but argued that specific deterrence would be ameliorated somewhat, given the applicant's state of functioning, his inability to comprehend and his ability to engage in and learn from sex offender treatment programmes. This and his age meant that he was unlikely to improve, a matter which would be a question down the track for parole.
65His Honour raised his concern that a non-parole period of 6 and half years would provide the applicant with an opportunity to repeat the sex offender programme to reinforce it, prior to release. His Honour observed that that circumstance could be in his interests, given that the Parole Board might not otherwise approve his parole. It was accepted for the applicant that this could pose a problem. It was submitted that this had to be considered in fixing the appropriate non-parole period, consistently with a finding of special circumstances. In the result, it was submitted that there should be an amelioration of the non-parole period.
66The Crown's case on appeal was that there was no evidence that the applicant had an intellectual disability, as that phrase is ordinarily understood. On the reports, his long years of abuse of illicit drugs and alcohol, coupled with the residual effects of a head injury sustained while he was in his twenties, had led to some level of brain injury, affecting parts of his cognitive functioning. That was not an intellectual disability of the kind dealt with in Muldrock.
67The Crown also submitted that his Honour's sentencing remarks showed that he had given careful consideration to the evidence, quoting extensively from the reports and accepting that the applicant's apparent lack of remorse may have been attributable at least in part to his cognitive defects, as may have been his evasive conduct with the author of the pre-sentence report. It followed that the favourable consideration which his Honour gave this evidence, was not limited to issues of contrition and remorse, but also to accepting his reduced moral culpability for the offences charged.
68His Honour was obliged to consider all of the evidence, including the applicant's subjective circumstances, which included a positive employment and business history. The evidence did not point to a man incapable of understanding the import of his actions, or their magnitude. Nor was the evidence indicative of an individual with a complete absence of self-control, or overwhelming cognitive limitations.
69The result of the sentencing exercise had been a favourable one to the applicant, particularly given his Honour's finding of special circumstances and the approach adopted to questions of accumulation and concurrence. To further reduce the sentence would result in a sentence which would not adequately reflect the criminality of his offending.
70I am satisfied that this ground was not made out.
71At the sentencing hearing it was accepted for the applicant that general deterrence had a role to play in the sentence imposed. On the evidence that concession was properly made. While his Honour did not accept that specific deterrence had no role to play in the sentencing exercise, it is apparent from both the individual sentences which his Honour imposed and the overall sentence of 9 years, that he took quite a generous view of what the reports and the other evidence revealed as to the applicant's mental capacity and functioning, when considering remorse, determining his moral culpability for his objectively serious offences and in reaching the conclusion that special circumstances had been established.
72His Honour concluded that remorse had been shown, notwithstanding evidence of the applicant's view that the victim's silence had showed acquiescence and that the offences had been a harmless joke. Consent was not an issue on the first count. The agreed facts were that the applicant had not consented; that she had been silent because of fear; and that she had struggled to physically throw the applicant off, during the last offence. His Honour's conclusion that the applicant's views could have been the result of his impaired brain functioning was an extremely favourable one, given what the reports and other evidence revealed as to his level of past functioning.
73That is consistent with affidavit evidence received on appeal, which revealed, as was accepted for the applicant, that apart from his back injury, the applicant is doing very well in prison in terms of his intellectual functioning, successfully completely a number of TAFE programs and assisting other prisoners who have literacy problems. He has not been able as yet to participate in a sex offender's programme, because he is not yet close enough to release on parole to be eligible to participate in the programme. That picture is contrary to the view which his Honour came to, that incarceration might be more difficult for the applicant than for other offenders, but is consistent with the view which his Honour took of the evidence of his level of functioning, which required that specific deterrence play a role in the sentencing exercise.
74His Honour also took a favourable view of the most serious offence, count 5, because there had been no ejaculation. It is difficult to see how that was a matter which could have been considered to reduce the objective seriousness of this offence in any real way. It was a matter which rested on the victim's belief, not on any evidence given by the applicant. His Honour also considered that the absence of ejaculation had not put the victim at risk of pregnancy or disease. The latter conclusion plainly had no foundation, as was conceded for the applicant, it being contrary to how diseases can be transmitted. The former conclusion is also entirely questionable. It was certainly not the subject of any evidence.
75His Honour also made the sentence for count 4 entirely concurrent with that imposed for count 5. Notwithstanding the apparent error in the length of that sentence, that, too, was a generous approach, when the agreed facts are considered. While count 4 involved digital, rather than penile penetration, to order no accumulation at all for the sentence imposed for that offence, was quite lenient.
76In the result while I accept that in resentencing, the overall non-parole period should be reduced by 6 months, as the Crown conceded, in my view no error warranting the imposition of a lesser overall sentence has been established.
77To give effect to that conclusion, the non-parole period for counts 4 and 5 should be decreased from 5 years to 4 years, 6 months, so that the earliest date from which the applicant will be eligible for release will be 5 September 2017, rather than 5 March 2018.