R v Adams [2002] VSCA 105

9. The appellant was sentenced to a term of three years and six months' imprisonment on each of six counts of incest (counts 5, 6, 7, 8, 9 and 10), to a term of three years' imprisonment on another count of incest (count 1) and to a term of two years and six months' imprisonment on yet another count of incest (count 2) and to a term of two years and three months' imprisonment on each of the counts of attempted incest (counts 3 and 4). The sentencing judge ordered that six months of the sentence imposed on count 4 and three months of the sentence imposed on counts 5 to 10 were to be served cumulatively upon the term of imprisonment imposed in respect of count 1 and upon each other, thereby creating a total effective sentence of five years' imprisonment. His Honour directed that a minimum term of three years be served before the appellant was to be eligible for parole.

12. The first offence took place on a Saturday night in Traralgon, where the appellant was living with his third wife, his young son and his wife's daughter, the complainant. The appellant's wife was away from home. The complainant and the appellant were in bed watching television. The appellant pressed a glass of rum and Coca Cola upon the complainant and commenced to kiss her, feeling her breasts and then licking her vagina. The appellant rolled onto his back, took off his underpants and pushed the complainant's head down on to his erect penis. The complainant said that she was scared because the appellant had a bad temper. She opened her mouth and put it on the appellant's penis because she knew he wanted her to do that. The complainant did this for about 20 minutes. The appellant then attempted to insert his penis into the complainant's vagina, but withdrew as the complainant said it was hurting her. The appellant inserted one and then two fingers into the complainant's vagina. The appellant masturbated himself and directed the complainant to do the same to him until he ejaculated. The appellant put on a pornographic video and went to sleep. The complainant said that she "was lying there crying".

15. For the next 15 months the appellant continued to pursue the complainant, requiring her to engage in surreptitious sexual intercourse, masturbation and oral intercourse, finally stopping, it seems, only when the complainant told her mother and the police were informed.

18. The appellant completed law and economics degrees at Monash University and was admitted to practice in 1976. The appellant has had difficulties in his relationships with others. He has been married three times, and twice divorced. In 2000 his third wife, the complainant's mother, left the appellant in Albury and went with the children to Queensland, where they have remained. During the 1980s the appellant became interested in horse racing and gambling, to the point where he developed a gambling problem. He also engaged in trading on the stock market and suffered in the 1987 stock market crash. In 1990 the appellant began to steal from the partnership in which he worked. By 1989 the appellant was suffering erratic mood changes which became so severe that he was admitted to Larundel psychiatric hospital where he remained as an in-patient for some four months. The appellant was diagnosed as suffering from bipolar mood disorder, which is also referred to as manic depressive illness. Subsequent to the appellant's discharge from Larundel, he was admitted on other occasions as an in-patient when his mental condition deteriorated. The appellant has been taking the drug lithium, which has a beneficial effect. In 1992 the appellant was convicted of 15 counts of theft and one count of having a deficiency in his trust account. He was given a five-year good behaviour bond and as a consequence his name was struck off the roll of solicitors. In 1996 the appellant was reinstated as a solicitor and with some difficulty obtained a position as an employee solicitor in Traralgon. He continued to gamble heavily and his manic symptoms again became manifest by 1998. In November 1998 the appellant underwent a brain operation in which a lesion was excised from his brain. The appellant was then employed by a firm of solicitors in Wodonga. He stole some $3,500 from his firm and as a result received a six months suspended sentence from the Albury District Court.

21. The original two grounds of appeal were that the sentence was manifestly excessive and the sentencing judge erred in failing to give sufficient weight to the bipolar mental disorder suffered by the appellant. The appellant has sought leave to add the following ground:

"The learned sentencing judge erred: (a) in finding that the appellant's bipolar disorder made 'only a minimal contribution' to his offending; (b) in failing to have any or sufficient regard to the appellant's failure regularly to take his medication at the time of the offending and the likely impact of that failure on his mental state; (c) in imposing excessive weight on the opinion of Dr Lloyd; (d) in failing to place any or sufficient weight upon the opinions of other experts, including the appellant's treating psychiatrists."

25. The appellant's mental condition was extensively canvassed in the course of the plea. The reports of four psychiatrists, a forensic psychologist and a general practitioner together with hospital records were before the court. The principal reports were those of the psychiatrist Dr Lloyd, who saw the appellant in 1996 and 2000, Dr LeFeuvre, a psychiatrist treating the appellant at the time the offences were committed, and Dr Wild, who became the appellant's treating psychiatrist in May 2000. The thrust of the appellant's case is that the sentencing judge misinterpreted this evidence.

28. The sentencing judge canvassed the experts' reports in some detail. In dealing with the submission of the appellant's counsel that the appellant's mental illness contributed to the commission of the offences, his Honour said:

"The difficulty about that proposition is that there is a dearth of hard evidence as to what was going on in your mind leading up to and during the commission of these offences. The opinions which suggested there was some meaningful contribution are in reality speculative. In the end, and in particular having regard to the opinion of Dr Lloyd, I come to the view that your bipolar mood disorder made a minimal contribution to your offending."

"While it is accepted that with hypomanic and manic episodes, patients may demonstrate promiscuity and inappropriate sexual behaviours, Mr Adams appeared throughout the period of time in question to be aware of the nature of his behaviour, and he was not considered by his treating psychiatrist to be floridly disturbed to the extent that more intensive psychiatric treatment was indicated. His variable compliance of medication might be considered to have contributed in part to his increased sexual drive, but he would still have understood the nature of the behaviour and that it was wrong."

His Honour also relied upon what he referred to as "the objective facts", including the appellant's exploiting opportunities when his wife was absent, and his use of condoms. The sentencing judge concluded that the appellant well knew what he was doing and knew that it was morally wrong. The period of time over which the offending occurred and the fact that it involved premeditation and planning to a certain extent in my view supports the sentencing judge's conclusion.

35. In my opinion it has not been demonstrated that the sentencing judge erred in not being satisfied of the existence of a fact on which the appellant bore the onus of proof. In the course of the plea the sentencing judge said to the appellant's counsel that he needed to be persuaded that the appellant's disorder contributed to the commission of the offences, yet no evidence was led from any witness as to the appellant's behaviour during the period of offending, and the appellant gave no evidence as to why he had ceased to use the prescribed drug lithium which apparently ameliorated his condition. In his record of interview the appellant did not say that he had failed to take his medication. Later he told psychiatrists that he had stopped taking lithium. Although he was treating the appellant at the time of the commission of the offences, Dr LeFeuvre's opinion that the appellant's "reasoning abilities were affected during the time of the alleged offences" was expressly based upon the appellant's account of his conduct rather than upon Dr LeFeuvre's own observations. Dr Wild, who said that the appellant's offending "occurred as a result of uncontrolled mania", and referred to his high libido and poor judgment, saw the appellant for the first time after December 1999 and was thus dependent upon the appellant's account. In my opinion the sentencing judge was entitled to prefer the opinion of Dr Lloyd to those of his colleagues in the light of the objective circumstances of the offences. In this connection it may be noted that Dr Lloyd said that he had been provided with the police brief. Neither of the other psychiatrists mentioned any material that contained a detailed description of the offences. The fact that Dr Lloyd's opinion was directed, in part at least, to the question whether the appellant understood the nature of his conduct and whether it was morally right or wrong does not in my view render his reports irrelevant to the question of the degree to which the appellant's illness contributed to the offences. The complainant's account of the manner in which the appellant behaved throughout the period of his offending disclosed no hint of lack of control or mania. On the contrary, the appellant's careful and deliberate courting of his step-daughter when it was safe to do so, at other times suppressing his urges, in my view supports the opinion expressed by Dr Lloyd.

38. 11 As to manifest excess, the maximum sentence for incest was 25 years' imprisonment and for attempted incest 20 years' imprisonment. The offences were committed over a significant period of time and involved a degree of premeditation and planning, accompanied by props such as alcohol and condoms. The appellant, a man in his forties, preyed upon an adolescent girl entrusted to his care as her stepfather. In my view an overall sentence of five years' imprisonment with a minimum period of three years' imprisonment can be described as moderate, and is to be explained by the plea of guilty, the absence of relevant prior convictions and the mental illness suffered by the appellant.

53. The formal order of the Court is that the appeal is dismissed.