Gagan (a pseudonym) v R

Psychiatric Evidence

1. The applicant tendered the report of Dr Sidorov dated 25 October 2018. Dr Sidorov stated that the applicant reported he had been admitted to multiple Mental Health Units, at least 30, over the years commencing at Royal Park Hospital in Melbourne in 1991 when he was 18 years old, when he was experiencing depression and hearing voices. Mr Gagan reported that that he had been diagnosed with both Bipolar Affective Disorder and Schizophrenia, as well as Cluster B Personality Disorder. He reported multiple self-harm episodes including cutting himself, resulting in the need for stitches, overdosing on medications, requiring hospitalisation, and once jumping out of a second-storey window, fracturing his ankle. He reported that the last time he self-harmed had been about two years earlier, and the last time he had tried to kill himself was before his children were born. He said that his last hospital admission was in Cooma, 10 years before, and that subsequently he had been "avoiding hospitals as he was put on a number of involuntary treatment orders in the past and treated against his will". He reported an extensive misuse of alcohol and cannabis (which started when he was 5 or 6 years old).
2. He reported that his father used to beat him on a daily basis, blaming him for his mother's suicide, and that one of his brothers sexually abused him "from the age of 5 to 6 or 7", stopping when he hit him with a piece of wood. He had been in foster homes from the ages of 11 to 17, and had lived on the streets of Melbourne thereafter. He had met the mother of his children in a mental health hospital in Goulburn where she was also a patient.
3. Dr Sidorov gave the following summary and opinion: "Summary and Opinion Mr [Gagan] attracts a diagnosis of Schizoaffective Disorder with the differential diagnosis being Bipolar Affective Disorder, He describes ongoing psychotic symptoms, specifically voices, as well as mood instability, including distinct depressive and hypomanic or manic phases. It is expected that his symptoms were exacerbated by his substance use, but their persistence despite 15 months of abstinence supports the diagnosis Schizoaffective Disorder rather than a substance-induced condition. Mr [Gagan] meets the diagnostic criteria of Substance Use Disorder cannabis, currently abstinent in a controlled environment. This is based on history of daily cannabis use since the age of 11, craving cannabis, withdrawal symptoms related to ceasing cannabis use as well as experiencing other problems in regards to ongoing use of cannabis, including legal and psychiatric including worsening of psychotic symptoms. He also meets the diagnosis of Alcohol Use Disorder currently in remission. This is based on a history of very heavy drinking in the past, withdrawal symptoms after ceasing alcohol use, craving alcohol at times as well as medical problems associated with alcohol use, specifically vomiting blood. Furthermore, Mr [Gagan] meets the diagnostic criteria for Antisocial and Borderline Personality Disorder. This is made based on a long history, dating back to his teenage years of impulsive behaviours, instability of his emotions even when on medication and not experiencing depressive or manic phases of his mental illness, and ongoing acts that violate the rights of others and are antisocial in nature. Even though Mr [Gagan] vehemently denies having sexual attraction to children, a regard to the diagnosis of a Paedophilic Disorder must be given [, given] the prolonged duration and nature of the offences that he is currently being convicted of. It is possible that in the context of a psychotic or a manic episode or in the context of acute substance intoxication, Mr [Gagan] could be more disinhibited and act in an irrational and bizarre way. That said, given the long duration and repeated nature of the offences that he has been convicted of, it is unlikely that they can purely be attributed to his substance use and/or his mental illness or Personality Disorder. Mr [Gagan's] own history of being sexually abused, increases his risk of having a Paedophilic Disorder. Mr [Gagan] has a very heavy genetic loading of severe mental illness in his family, as well as having history of severe neglect, physical and sexual abuse and a history of heavy cannabis use from a very early age, increasing his risk of developing a mental illness. It appears that his symptoms of mental illness and personality problems had been perpetuated by his ongoing itinerancy and homelessness, social isolation, ongoing substance use and non-compliance with medications. Considering the diagnosis of a Paedophilic Disorder, once Mr [Gagan's] mental illness has been adequately managed, his Paedophilic Disorder will need to be appropriately managed. Mr [Gagan's] Paedophilic Disorder, will require treatment with anti-libidinal medications, counselling, as well as ongoing monitoring for re-emergence of any possible offending behaviours. In view of Mr [Gagan's] severe mental illness, severe personality disorder, long and varied criminal history and Paedophilic Disorder, he needs to be managed by a consultant forensic psychiatrist. He requires assertive treatment for his mental illness and his personality problems with a combination of pharmacotherapy and psychotherapy. Due to his limited insight into his mental illness, he is likely to require to be on a legal order such as a Community Treatment Order to ensure treatment compliance."
4. Dr Sidorov was also briefed with medical records. Whether they were complete is not known. His report states the following: "Mr [Gagan's] medical notes detail multiple previous admissions and contact with various mental health services. It appears that a lot of these contacts were in periods of crisis when he was subject to significant psychosocial stressors and showed significant impulsivity, emotional instability, ongoing substance use and poor medication compliance. Some of the diagnoses listed in these notes are Bipolar Disorder and Personality Disorder of various descriptions including Mixed Personality Disorder. It is also evident through the notes Mr [Gagan] had ongoing thoughts of harming himself at times of distress."
5. No issue was taken with any aspect of Dr Sidorov's report.
6. The applicant's mental illnesses featured prominently in the submissions to the sentencing judge on his moral culpability, and a large part of her Honour's reasons on sentence were directed to Dr Sidorov's report.
7. The sentencing judge addressed the applicant's mental health in two ways. First, her Honour declined to accord any weight to his mental health conditions in terms of moral culpability, saying: "I am not persuaded that his abuse of alcohol or cannabis or his mental health or his personality disorder was behind his offending behaviour. At best it may have been a slightly contributing factor. Those matters do not mitigate against the seriousness of his crimes."
8. The applicant candidly conceded that finding was open to her Honour.
9. Secondly, in accordance with the third consideration mentioned in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177], her Honour had regard to the fact that his mental health would make his experience of custody more onerous, as well as informing the (significant) adjustment to the statutory ratio of the non-parole period incorporated within the sentence.
10. Those two aspects of her Honour's reasons reflected the submissions which had been made orally at the sentencing hearing. But there was also a third point which was common ground. The applicant submitted in writing that "less weight should be given to general deterrence [in] circumstances where the prisoner is not an entirely suitable medium for making an example of others". The Crown's written submissions very fairly stated: "General deterrence should be given less weight in cases where the offender is suffering from a severe intellectual disability or mental disorder because such an offender is not an appropriate medium for making an example to others."
11. Her Honour's reasons do not reflect that common approach. Indeed, the sentencing judge proceeded to give an elevated role to general deterrence, stating: "General deterrence does loom large due to the nature of the offences committed despite his subjective circumstances. As I have said children in family situations are virtually helpless against sexual assaults by family members. Sentences imposed must be severe in nature and the message sent out loud and clear to those who intend to commit these types of crimes that little leniency will be afforded to them. Children have a right to be protected from sexual molestation within the family and that can only be achieved by courts imposing sentences of a salutary nature."
12. The applicant's submission in this Court was that it was necessary for her Honour to undertake further consideration before concluding, as she did, that general deterrence would play a large role in the exercise of discretion. The general proposition is uncontroversial. Mental illness may 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": Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] and see Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [53]-[54]. By way of example, in Manly v The Queen [2014] NSWCCA 59; 240 A Crim R 92 at [120] this Court identified error in the sentencing judge accepting the evidence that one of the offenders was mentally ill and concluding that that did not render him an inappropriate vehicle for general deterrence, without expressing any reasons for reaching that conclusion.
13. Particular attention was given in the applicant's submissions to what had been said by this Court in Ryan v R [2017] NSWCCA 209 at [22]: "It could not be - and was not - contended that this was a case where general deterrence had no role to play. However, if it was shown that the sentencing judge placed particular emphasis, or full weight, on general deterrence, it could be contended that he fell into error."
14. In Ryan, there was once again evidence of significant mental illness, but quite limited reliance upon general deterrence. The passage from the sentencing remarks on which the applicant in Ryan relied was as follows: "The non-parole period to be fixed needs to represent the minimum period that the offender should spend in custody, having regard to all the elements of punishment for purposes of s 3A of the Crimes (Sentencing Procedure) Act, including the objective seriousness of the offence as I have found it, the need for specific deterrence to deter Mr Ryan from further engaging in supply of prohibited drugs, and general deterrence, which is required in this sentencing exercise because of the prevalent nature of this particular offence, which is so gravely destructive to the community."
15. This Court rejected the ground of appeal that the sentencing judge in Ryan failed to take into account the diminished need for general deterrence in light of the applicant's mental disorders.
16. Each such case will turn on its own facts. The present case is quite different from Ryan. On the face of her Honour's reasons, significant weight was attributed to general deterrence, and little or no consideration was accorded to the limited value of general deterrence given the applicant's mental illness.
17. This ground is made out.

Ground 2 - Substantial harm for the purposes of s 21A(2)(g)

1. The older sister made a victim impact statement which spoke powerfully to her experiences following the offending. Anyone reading that statement would be moved by it. Indeed, it should be noted that Mr Brock, who appeared in this Court although not at first instance for the applicant, made it perfectly clear that in no way was he seeking to diminish its impact or cast doubt upon any aspect of it.
2. The sentencing judge fairly summarised the statement as follows: "A victim impact statement has been prepared and tendered by the [older sister]. In that statement she refers not only to the impact of the offending upon her, but the impact of her upbringing during the time she lived with the offender also. She says that it was not until she was 16 that she finally understood the severity of what had happened to her at the hands of her father. She described the impact of that realisation upon her. An inability to function on a daily basis, requiring her foster parents to care for her extensively, an inability to attend school and an inability to live a normal life without assistance of a helper or minder. She did eventually manage to complete her education and to attend university however when it became apparent that this matter was to proceed to trial the state of her mental health deteriorated. She could not concentrate, her ability to attend university impacted upon her financial resources. She has had ongoing counselling for many, many years. She sets out eloquently the impact of the offending upon her, not only emotionally, but physically also. The possibility of giving evidence at trial and reliving the trauma caused her to feel weak, powerless and vulnerable, as though she had no control. She felt as though she was being abused all over again. She described herself as broken and damaged, someone who did not have a childhood, something that was taken away from her, by someone who was supposed to nurture her and love her."
3. Before the sentencing judge, the Crown contended, and the applicant opposed, a finding that the older sister had experienced substantial harm, so as to establish the aggravating factor in s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The Crown's written submissions asserted as much, without giving reasons, and were elaborated orally, briefly, by reference to the victim impact statement. Counsel then appearing for the applicant submitted that there was no evidence of the nature and extent of the harm that was occasioned by the acts of the prisoner and that the sentencing judge "would proceed with great caution in forming a view or making a finding in relation to the infliction of substantial harm".
4. The sentencing judge made such finding, and it is convenient to reproduce that finding and the preceding paragraph: "It is not known whether [the younger sister] was subjected to the same threats as the details of her complaint contained in the facts are scant. No victim impact statement has been tendered from her. It is of course notorious in relation to matters such as this that young victims are badly scarred and they carry those scars for significant periods of time, if not for the remainder of their lives as I have said. Those scars affect their general enjoyment of life and create problems for them in being able to relate to others, even as adults, and even after significant treatment and/or counselling as in the case of [the older sister]. Whilst no victim impact statement has been tendered by [the younger sister], I am entitled to take those matters into account in respect of the offending against her also. I do find as I am urged to do on behalf of [the older sister] that she has suffered over and above what a victim of childhood sexual abuse would be expected to suffer and that it amounts to an additional factor of aggravation. I find in respect of both girls that the offending falls at the midrange of objective seriousness."
5. In this Court, the applicant submitted that there were two flaws with that conclusion. The first was that it was not open to find that the generalised statements of hardship and harm had been caused by the offending conduct, as opposed to other aspects of the older sister's disadvantaged family background. The second was that it was necessary to take care to ensure that the aggravating feature was not engaged by harm which is implicit in the elements of the offence. Particular reliance was placed on the reasoning directed to the offences against the sister who had not provided a victim impact statement, summarised in the paragraph immediately preceding the finding.
6. It was common ground that the aggravating factor had to be established beyond reasonable doubt, as Simpson J noted in R v Tuala [2015] NSWCCA 8; 248 A Crim R 502 at [77]. Her Honour later observed that there can be difficulties in the use of victim impact statements where their content is the only evidence of harm. Her Honour cautioned that in such a case "considerable caution must be exercised before the victim impact statement can be used to establish an aggravating factor to the requisite standard": at [80]-[81].
7. True it is that there are cases where victim impact statements have been used to ground a finding of substantial harm: see for example Muggleton v R [2015] NSWCCA 62; 250 A Crim R 180 at [40] and Marrow v R [2015] NSWCCA 282 at [52]. Each case turns on its own facts and, in particular, on the nature of the harm disclosed in the statement.
8. The Crown accepted, realistically, that very little could be said against the force of the second ground of the appeal. It is established. Even if the victim impact statement is read as directed to harm based solely upon the offending conduct, as opposed to other circumstances of deprivation, it does not establish substantial additional harm over and above that which is inherent in the offence of sexual assault upon a child under the age of 10. That conclusion is confirmed by the reasoning of the sentencing judge as to the harm suffered by the younger sister, in the immediately preceding paragraph of her reasons.
9. It will be clear from the above that nothing in these reasons is intended to diminish the harm suffered by either sister from the conduct of their father.

Orders and resentence

1. It follows that there should be a grant of leave, the appeal should be allowed, the sentence imposed on 28 March 2019 quashed, and the applicant resentenced.
2. No submissions were made in relation to the following matters found by the sentencing judge, and which I accept, namely: 1. the offences are in the mid-range of objective seriousness, and aggravated by the abuse of his position of trust; 2. the applicant's upbringing was "particularly dysfunctional"; 3. he has abused alcohol and cannabis for many years, he was physically beaten by his father who blamed him for his mother's suicide, sexually abused by an older brother, and physically abused while in foster care; 4. he suffers from a variety of psychiatric disorders, including schizoaffective disorder, substance use disorder, antisocial and borderline personality disorder and paedophilic disorder, although his offending is not to be attributed to his mental illnesses; 5. there has not been a full acceptance of responsibility or contrition, save as is demonstrated by his guilty pleas; 6. his time in custody will be more onerous as a result of his mental health and the nature of his offending; 7. there should be a finding of special circumstances, being a person who is "in need of a far greater than normal period of supervision on parole to enhance his prospects for rehabilitation".
3. This Court's resentencing must take place in accordance with s 25AA of the Crimes (Sentencing Procedure) Act 1999 which relevantly provides: "(1) A court must sentence an offender for a child sexual offence in accordance with the sentencing patterns and practices at the time of sentencing, not at the time of the offence. (2) However, the standard non-parole period for a child sexual offence is the standard non-parole period (if any) that applied at the time of the offence, not at the time of sentencing. (3) When sentencing an offender for a child sexual offence, a court must have regard to the trauma of sexual abuse on children as understood at the time of sentencing (which may include recent psychological research or the common experience of courts)."
4. The sentencing judge also had regard to those provisions, referring to them in terms (in accordance with what was said in R v Cattell [2019] NSWCCA 297 at [125]) while noting that the maximum penalty for the same offences today would be life imprisonment, although the standard non-parole period of 15 years remained unchanged.
5. I would adopt the same structure as the sentencing judge, namely, two wholly concurrent sentences for the two counts concerning the older sister, and two wholly concurrent sentences for the two counts concerning the younger sister, with a substantial measure of concurrency between the two pairs of sentences. No submission was made to the contrary. Bearing in mind all of the above, but noting further the more limited role of general deterrence given the applicant's mental illnesses, and that the aggravating factor in s 21A(2)(g) is not made out, I would impose a sentence of 9 years imprisonment, with a non-parole period of 5 years, for each offence. I have concluded that the same sentence is warranted for the offending upon each sister, on the basis that the threat which accompanied the assault upon the older sister is counterbalanced by the additional youth of the younger sister.
6. I would backdate the sentences for counts 1 and 2 to 19 October 2017, which coincided with the expiry of the 3 month unrelated sentence, with the sentences for counts 3 and 4 to commence on 19 October 2018. There was a muted submission that there be a measure of concurrency with the earlier sentence, but in the absence of any information about that offending, other than that it was unrelated, I do not accept that should be so.
7. Accordingly, I propose the following orders: 1. Grant leave to appeal. 2. Appeal allowed. 3. Quash the sentence imposed by the District Court on 28 March 2019, and in lieu thereof: 1. for counts 1 and 2, sentence the offender to concurrent terms of imprisonment of 9 years, with non-parole periods of 5 years, such sentences to commence on 19 October 2017 and to expire on 18 October 2026, with the non-parole periods to expire on 18 October 2022, and 2. for counts 4 and 5, sentence the offender to concurrent terms of imprisonment of 9 years, with non-parole periods of 5 years, such sentences to commence on 19 October 2018 and to expire on 18 October 2027, with the non-parole periods to expire on 18 October 2023. The total effective sentence is of 10 years imprisonment, with a non-parole period of 6 years. The earliest the offender is eligible to apply for release on parole is 19 October 2023.
8. HARRISON J: I agree with Leeming JA.
9. HAMILL J: I agree with the orders proposed by Leeming JA and with his Honour's reasons.

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