JUDGE1
KING CJ This is an appeal against a sentence imposed in the District Court
for the crime of rape, a sentence of imprisonment for
4 years with a
non-parole period of 2 years.
2. The facts of the crime, to which the appellant pleaded guilty, are
serious. A 12
year old girl was playing with her friends in a public reserve.
The appellant, who was known to her, spoke to her. The friends broke
up and
went their respective ways. The girl victim began to make her way towards her
home. The appellant followed. He dragged
her into a toilet and there raped
her by penetrating her anus with his penis.
3. The sexual act perpetrated upon the victim was
itself grave. In addition
there is the aggravating feature of having accosted a young girl in a public
place and dragged her away
for the purpose of committing the offence. There
is no doubt that, were it not for matters to which I shall shortly refer, the
sentence
which the court would have imposed for that crime would have been
very much more severe than that which was imposed upon the appellant.
4. There are, however, special features associated with this matter. The
appellant is 20 years of age. He sustained brain damage
before birth and the
damage which he then sustained has had a severe stunting effect upon his
physical growth and upon his mental
capacity. He is of low average
intelligence. He is able to function in the community and, indeed, has held
down a job but his capacity
to appreciate the nature of inter-personal
relationships and sexual relationships and to appreciate the consequences of
his actions,
appears to be impaired. His stunted growth and impaired
intellect combine to make him a rather pathetic individual.
5. It can fairly
be said, therefore, that there is a substantial degree of
diminished responsibility.
6. He has only one prior conviction and the
facts surrounding that matter
appear also to be related to the inadequacy of his personality arising from
the cerebral damage.
7.
The task confronting a court in devising a proper sentence for a person of
diminished responsibility who has committed what is objectively
a grave crime
is always difficult and the learned sentencing judge, in this case, faced a
difficult task. He endeavoured to solve
his problem by passing a sentence
which was considerably less than would have been passed on a person of full
responsibility, and
by fixing a non-parole period which was a substantially
lower proportion of the head sentence than might otherwise have been expected.
8. Nevertheless, it would mean that this appellant, in the unfortunate
situation in which he exists, would have to spend a substantial
period of time
in prison.
9. It seems to me that the degree of the appellant's subjective
responsibility is so diminished by the
damage to the brain which he has
suffered, that a court must try to find some way of protecting the public
which does not impose
the heavy burden of a long period of imprisonment upon a
person whose subjective responsibility has been so diminished.
10. It is
a problem of reconciling the mercy which ought to be shown to a
person whose subjective moral responsibility is low, with the need to protect
the public from this
sort of act of which the appellant was guilty. The
importance of fixing a sentence which is proportionate to the gravity of the
crime and which operates as a deterrent to other members of the public, is
considerably less when the court is dealing with a person
of diminished
responsibility than it otherwise would be.
11. A person of seriously diminished responsibility is not an appropriate
subject for exemplary punishment with a view to deterring others and the ends
of justice are not served by insisting that the punishment
be proportionate to
the gravity of the crime viewed objectively, as distinct from the subjective
gravity of the particular offender's
offending. The problem is to find a
solution which will enable the public to be protected, without imposing a
harsh punishment upon
a person whose subjective moral responsibility is
seriously diminished.
12. I can see no basis upon which this court should reduce
the head sentence.
It is the lowest sentence which could reasonably have been imposed for a crime
of this sort. Mr Kourakis, who
appeared for the appellant before us, however,
urged that the sentencing discretion had miscarried in that the circumstances
indicated
that this sentence ought to have been suspended.
13. I do not think that the judge was wrong in refusing to suspend the
sentence.
It was a grave crime. I think it called for some punishment, and I
think that whilst elements of proportionality and general deterrence
may not
be important in this matter, the need to deter the appellant, personally, is
important. It is important that he should understand
that the sort of conduct
in which he engaged on this occasion cannot be tolerated and must lead to
punishment.
14. Nevertheless,
I think that it is open to this court to interfere to
mitigate the severity of the punishment and endeavour to open the door to
measures
which might operate, perhaps more effectively, for the protection of
the public other than a long period in custody.
15. I think
that the ends of justice would be served if the non-parole period
were reduced to a period of nine months. Assuming that the appellant
has
earned good conduct remissions that should enable his release, on parole, at a
reasonably early date.
16. The conditions upon
which parole is offered to the appellant are, of
course, a matter for the Parole Board, but I would wish to indicate to the
Parole
Board that the court considers that it should impose conditions which
would ensure that the appellant is psychologically examined
and assessed, and
which ensure that he receives an appropriate degree of supervision, and, if
appropriate, treatment and psychological
counselling. I would expect that
that can be done in consultation with the Sexual Offenders Treatment and
Assessment Programme.
I would hope that before release an assessment of the
appellant can be carried out and that the Parole Board can devise conditions
which will promote the protection of the public by means of appropriate
psychological counselling, treatment and the proper degree
of supervision.
17. In my opinion, therefore, this appeal should be allowed. The head
sentence should be affirmed, but the non-parole
period should be reduced to a
period of nine months commencing on the date on which the sentence commenced,
namely, 20 August 1993.
The order of the court will be, appeal allowed. Head
sentence affirmed. Non-parole period reduced to nine months commencing on
20
August 1993.
18. The remarks of the court will be forwarded to the appropriate quarters in
the expectation that effect will be
given to them by the Parole Board.