R v JP

District Court of NSW|2019-08-09|Before: Mr J, Spigelman CJ

contents The charges The Agreed Facts Determinations re blood and mental health Finding re blood The offender's mental health Dr Furst Dr Furst 23.11.18 Dr Furst 22.5.19 Cross examination Concerns re Dr Furst Conclusion as to mental health considerations The submissions of the parties The offender Special circumstances The Crown Further findings and discussion Objective seriousness Remorse Rehabilitation and risk of reoffending Sentencing considerations Determination Indicative sentences ORDERS

The charges

The offender pleads guilty to two charges: 1. Aggravated indecent assault in breach of section 61M (2), which provides that any person who assaults another person and at the time of or immediately before or after the assault commits an act of indecency on or in the presence of the other person is liable to imprisonment for 10 years if the other person is under the age of 16 years. The maximum penalty is 10 years imprisonment and there is a standard non-parole period of eight years. 2. Sexual intercourse with a child under the age of 10 years in breach of section 66A (1). The maximum penalty is life imprisonment and there is a standard non-parole period of 15 years.
In addition, when sentencing in respect of the s66A offence two further offences are to be taken into account by way of the Form 1 procedure. Those two offences are two further matters of indecent assault on a person under the age of 16 years in breach of section 61M (2). In regards to the Form 1 procedure it is important that the focus remains on the principal offence for which the offender is being sentenced. The procedure allows that in doing this greater weight may be given to the elements of personal deterrence and the community's entitlement to extract retribution for serious offences. Those two elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence; see Attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ. It is also important to recognise that the matters being dealt with this way are not to be effectively disregarded, and that the restriction is that the penalty to be imposed can be no greater than the penalty for the s66A offence.

The Agreed Facts

The agreed facts are contained in the Crown bundle which became Exhibit B, owing to the tender of agreed facts (Exhibit A) on an earlier occasion when the matter was not considered part heard. The following account is taken from those agreed facts in Exhibit B, and I make findings of fact accordingly.
Both offences occurred in August 2017 in the home of the victim, a young girl born in 2011, and therefore aged 6 at the time of the offending. The offender, who was born in 1995 and therefore 22 years old at the time of the offending, was a friend of the victim's parents. At the time the offender's residence had no clothes washing facilities and the victim's parents helped him by letting him use their washing facilities, and further by putting him up for the night when he did this. The offender slept in the lounge room when this occurred. This was why the offender was present in the victim's home on the occasions of the offending. The offending is a breach of the trust attached to the relationship between the offender and the victim.
The first incident, the indecent assault, occurred in early August 2017 before the victim went to school. The offender held the victim down on the lounge in the lounge room with his legs around her legs. The offender "creeped" his hands down the victim's stomach, under her clothes, and touched her on her vagina, but without penetration resulting in the indecent assault offence. The victim hit the offender who then released her. The agreed facts do not state what period of time passed between the indecent assault and the offender releasing the victim, however it would seem likely that the hit occurred in retaliation to the touching, so that I conclude the incident occurred over a very short period of time.
The second offence occurred on 15 August 2017, again in the morning and again on the lounge. The victim, wearing pyjamas, walked into the lounge to wake the offender. The offender pulled the victim under the blanket with him on the three seater lounge. The offender then asked the victim to "please" pull her pants down and she said "No" whereupon the offender put his hand down the front of the victim's pyjama pants and placed his finger in the victim's vagina and moved his finger around. The facts do not disclose any immediate response by the victim nor beyond what was just stated is any indication of duration given. I could not be satisfied adverse to the offender that this offence took place for any significantly long duration but the fact of moving his finger around does show that it was more than transient. It is also an agreed fact that fresh blood was found along the inside lining of the victim's underwear in the area covering her vulva area. I consider below whether this was caused by the sexual assault, and the offence is more serious if such a finding is made.
The two Form 1 matters are Sequence 2 and Sequence 3, which both occurred on the same occasion as the sexual assault. The facts of Sequence 2 are that whilst the victim was on the lounge with the accused the accused kissed her with an open mouth on her mouth and cheeks. Sequence 3 is that the offender grabbed the victim's hand and placed it down the front of his pants causing the victim to touch his penis and held his legs together so she could not get it, her hand, out of his pants.
In respect of these two matters I find that Sequence 2 was a brief event; seemingly as long as it takes to kiss a person twice. Sequence 3 is not so brief; the offender's closing of his legs prolonged the event. For this reason it is a more than transient event, though it is also one that could not be found to be of undue length, on the basis of these facts. I consider it a more serious offence than Sequence 2 given the placing of the child's hand on the offender's penis. Sequence 3 is indicative of the observable dissent of the victim to what was happening, consistent with her stating "No" when asked to pull her pants down.
About 7.30am the victim's mother got out of bed and went to wake the victim and her siblings for school. The mother noticed the victim was not in her bedroom and walked back into the lounge room. As she came back into the lounge room she saw the offender lying on the lounge and saw his hand move really quickly from underneath the blanket. The mother did not at that time see the victim on the lounge.
The mother yelled out to two of the children to get ready for school and called the victim to come to her. The victim got off the lounge, went over to her mother and they both went into the mother's bedroom.
The mother said to the victim, "What was happening with you and [the offender] under the blanket?" The victim replied, "[the offender] was putting his hand down my pants and kissing me." The victim told her mother that he had put his hands down her pants twice.
The mother confronted the offender. The offender initially told the mother that he was taking the victim's socks off. The mother told him that she did not have socks on. The offender then said, "I put my hand down her pants." The mother asked him why he did that, and he replied: "I don't know."
The mother was upset with the offender, and told him the friendship was over and to get out of the house.
The mother then drove the offender and his friend to their home.
The victim was examined by Dr Vo, Consultant Paediatrician, at Lismore Base Hospital on the 15 August 2017. Dr Vo found fresh blood along the inside of the victim's lining of her underwear in the area covering her vulva area, however no areas of obvious bleeding or recent injury was seen on examination of the external genitalia.
In Dr Vo's opinion, the finding of fresh blood on the underwear suggests likely recent trauma to the genital area. However, on examination, there were no areas of obvious bleeding or recent injury to the area. The complainant had a mild redness and thickened skin to the vulva which had the appearance of a chronic dermatitis.
Further urine testing was done on the Victim which excluded an ongoing urinary tract infection or haematuria.
About 3.30pm Tuesday 15 August 2017, the offender was arrested at his home address. The offender was transported to Lismore Police Station where he was entered into custody and read his rights under Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002 in the presence of a support person.
The accused took part in an ERISP with police. During the interview, he admitted that he had the victim on the lounge with him. He told police that he was trying to stay asleep, but, "somehow my hand went down her pants." He later said, "I must've woken up with it down there." When asked if he had kissed the victim, he said, "I don't know. As I've told you, I was asleep." When told about the allegation that he had put the victim's hand on his penis, the offender said," I don't know what happened."

Finding re blood

The cause of the blood in the victim's underpants is disputed. The Crown argues it was caused by the sexual assault, the offender argues that should not be found beyond reasonable doubt to be so.
I find that the blood seen in the victim's underpants was caused by the sexual assault. The bases of this conclusion are the following matters taken from the agreed facts and the report of Dr Vo dated 30 August 2017 and forming part of Exhibit B: 1. It is an agreed fact that subsequent urine testing excluded the possibility of the victim suffering a urinary tract infection; 2. The victim described the sexual assault to Dr Vo by saying that it hurt when he put his finger inside her, and she also demonstrated a spiralling motion as what occurred. That is the offender was twisting or rotating his finger inside the victim's vagina; 3. The victim had no other trauma or injury to her groin / vaginal area in the previous few days; 4. The blood was described as fresh and recent because it was bright red and moist; 5. Fresh blood suggests recent trauma to the vulva area; 6. The labia majora had some thickened slightly red areas, consistent with a history of dermatitis, but there were no areas of bleeding, abrasions or ulceration. That is, there was no visible site for the blood to come from; 7. Blood can originate from inside the vagina or urethra, and thus may not be visible; 8. Insertion of fingers between the labia or into the vaginal entrance could cause trauma and bleeding to the vagina or urethra.
There is no suggestion that some other trauma was suffered by the child victim at about this time. There could be no other sensible conclusion other than of blood coming from the victim internally. The victim was six years old and there is no suggestion of menstruation. It is not a case of some remaining earlier bloodstain for the blood is fresh. There is no suggestion of any transference from any other part of the child's body. The only doubt really centres on whether this internal bleeding was caused in some other way yet there is no suggestion of any other trauma. I make this finding adverse to the offender beyond a reasonable doubt.
This finding adds to the objective seriousness of the offence. It suggests a degree of force, or recklessness. Whilst the agreed fact is of fresh blood it does not appear to have been of great quantity and I cannot conclude that the injury was other than of a minor nature. I take each of these considerations into account.

The offender's mental health

As at the date of the offending, the offender was recognised as suffering from Autism Spectrum Disorder and Intellectual disability. Since arrest in August 2017 he has been diagnosed with schizophrenia. The agreed facts say the symptoms of schizophrenia developed after arrest, but the evidence of Dr Furst, if accepted, clearly establishes the symptoms pre date arrest.
There are two ways in which the state of an offender's mental health can impact upon sentencing relevant to this case. The first is if it can be said the mental health was in some way causative of the offending, and if so whether it impacts on the offender's moral culpability. The second is that as recognised in De La Rosa [2010] NSWCCA 194, the courts have developed principles to be applied when sentencing; see at [177] which I note also refers to the issue of moral culpability.
Where the parties were at issue was on the point of whether it could be said that the mental health of the offender was causative of the offending. At the sentencing hearing the offender conceded that it was not the offender's case that the offender was suffering from what may for convenience be termed a schizophrenic "episode", but rather, as it was submitted in the offender's written submissions, that there was a causative link between the offender's schizophrenic illness and the offending.
The point the Crown sought to make by cross examining Dr Furst was to establish that there was no schizophrenic "episode" at the time of the offending.
The Crown did not dispute the existence of pre-existing symptoms, nor that the offender does indeed suffer from schizophrenia in addition to autism and intellectual disability.
Thus, before even considering the expert evidence of Dr Furst, there is significant common ground between the parties, namely: 1. The offender suffers from schizophrenia; 2. The offender did not suffer a schizophrenic "episode" at the time of the offending. By "episode" is meant an event of delusion or some form of psychosis or other "florid" symptom a person suffering schizophrenia may suffer from time to time; that is, it occurs in a person who when it is not occurring still has the underlying condition of schizophrenia; 3. The schizophrenia was diagnosed after the offending, but the symptoms predated the offending.
Dr Furst at page 8 of his second report sets out the characteristics of people suffering from schizophrenia, including a tendency to be impulsive. The real issue is whether these characteristics, more fully discussed below, and including impulsivity, can be said to have contributed to the offending.
The offender's medical case on this point relied on two reports of Dr Furst, the oral evidence of Dr Furst, and reports of a Dr Prado from 2002 and 2003 as well as the offender's health records from Inala, Lismore Base Hospital and Justice Health, and a letter of Dr Ellis, psychiatrist of 13 September 2017 noting a diagnosis of schizophrenia. Dr Furst has in his written and oral evidence made references to the other medical material so that it is not necessary to refer separately to that other material.

Dr Furst 23.11.18

The first report of Dr Furst was dated 23 November 2018 and provided an opinion on three matters: firstly fitness to be tried: secondly whether the offender had the mental illness defence available to him: and thirdly the reliability of ERISP admissions.
An assessment had been carried out via Skype on 30 August 2018.
Dr Furst took the following history from the offender. The offender was described as a 23-year-old single aboriginal male with no dependents currently living with a friend of his mother's at Inala Qld. His mother is a disability support worker. He has never met his father. He has an older brother and a younger brother and two younger sisters. He receives the disability support pension and his community care and support is funded through the NDIS.
He was diagnosed with autism and related communication problems at about seven or eight years of age. He completed Year 10. Whilst at school he was trialled on Ritalin and Zoloft, the former being a stimulant the latter an antidepressant. He had some employment after school but has been unemployed for the last six years, receiving the disability support pension since about 2010.
He lived in Lismore between 2012 and 2014, having moved there with his girlfriend Marley, and returned there at the end of 2014 where he engaged disability support services. At this time he had a 12 month relationship with a woman named Sally, which ended in 2015. The offender was admitted to Richmond Clinic in February 2017, an acute mental health unit, after having attempted suicide.
1. There were no indications of an alcohol use disorder and he denied using any other illicit drugs. His mother suffers from depression and his brother and other family members have addiction issues.
1. In the mental state examination no obvious signs of psychosis were exhibited but his manner suggested underlying intellectual disability due to it being quite concrete and simple. In 2003 an autistic spectrum disorder was diagnosed by Dr Prado. The history is of no real friends at school.
In late January 2017 through to 15 February 2017 the offender was admitted to the mental health unit at Lismore Base hospital. The view of the doctor is that although there was a diagnosis at this time of major depression and autism his view was that the presentation was more severe than that, and included an event of catatonia, consistent with the acute stages of schizophrenic illness, symptoms of which became more obvious after his arrest in September 2017.
Another assessment occurred by Dr Ellis of Justice Health in September and October 2017 resulting in a diagnosis of schizophrenia on the background of a pre-existing intellectual disability. Other histories were recounted by Dr Furst such as hearing voices and hitting the television, which were said to be indicative of passivity phenomena and delusional thinking which is often seen in schizophrenia.
Dr Furst in this report makes diagnoses of schizophrenia, autistic spectrum disorder and intellectual disability. Frequent symptoms of schizophrenia include paranoid beliefs, self-referential thinking, grandiose delusions and thought disorder. Autism spectrum disorders affect how the brain processes information. Characteristics include difficulty in forming friendships and communication difficulties and an inability to understand social rules. Intellectual disability is a term used to refer to disabilities affecting daily functioning in three of a range of areas.
I pause here to note that these descriptions of the diagnosed conditions are initially framed by way of generalisations of people with the condition. At the bottom of page 9 and on to page 10 of this first report there is some specific reference to the offender. There it is said the schizophrenic illness manifested symptoms of acute psychosis, depression and catatonia from at least January 2017, and that the offender as at July / August 2017 was suffering from mood disturbance, functional impairment, intermittent auditory hallucinations and delusional thinking.

Dr Furst 22.5.19

This report notes that on 8 April 2019 the offender became catatonic at a court appearance. The report repeats the personal and psychiatric history of the offender as given in the first report. There was a further assessment via this time a FaceTime link on 9 April 2019, so one day after the catatonic episode. It was after that assessment that the plea of guilty was entered.
The doctor notes the fact that the offender does not give him the same history that was reported to Dr Ellis. Just why he concludes that this means he had forgotten his earlier history as opposed to perhaps casting doubts on its reliability is not explored. I should note the history is not meaningfully challenged by the Crown in this regard.
The purpose of the second report was to assist the Court in the sentencing process and at page 8 a section is headed "psychiatric and psychological mitigating factors".
In the first paragraph under that section the doctor states "I remain of the opinion that it is more likely than not [the offender] was suffering from mood disturbance, functional impairment, intermittent auditory hallucinations and delusional thinking around the time of his offending in August 2017". This passage followed the statement that the offender's schizophrenic illness was evident from at least January 2017 due to symptoms of acute psychosis, depression and catatonia at that time. It is not clear, but there seems to be a distinction drawn between "acute symptoms" which are episodic, and the underlying, I infer ongoing, condition, marked by mood disturbance, functional impairment, intermittent auditory hallucinations and delusional thinking save for the matter described as intermittent.
The second paragraph goes on to say that the types of problems suffered by people with schizophrenic illness, autism and intellectual deficits include struggling with cognitive function, problem-solving and consequential thinking and that they tend to be more impulsive. This supports the view I have just expressed.
Without being pedantic it is notable that the doctor expresses this view in terms of "people with such" conditions "generally" struggle with these difficulties. This is a very generalised view and the report only indirectly attributes these characteristics to the offender at this part of the report by stating in the following sentence "those factors" (i.e., the generally stated factors) "likely contributed to his poor decisions", judgment and thinking when the offender chose to offend.
In terms of future treatment the doctor outlines firstly community options and secondly custodial options. Under the heading "Effect of a custodial sentence on [the offender]" the doctor states there is less appropriate treatment services available in custody than there are in the community, which with respect seems likely, and I would add was not challenged, again I think rightly, and also says that custody will be inherently stressful and that for a person with a serious mental illness in the form of schizophrenia the custodial environment is likely to be more onerous for the offender than the hypothetical average inmate.

Cross examination

Dr Furst accepted the ASD and intellectual disability had been picked up when the offender was a child and are lifelong conditions which will affect him for the rest of his life.
As to schizophrenia his evidence was there is no current cure and to paraphrase him it is episodic. At T7.35 Dr Furst said a person with schizophrenia "may have acute episodes of psychosis or in his case catatonia and then come back to a more functional level and then getting sick again".
It was put that the offender reported no signs of schizophrenia until after going into custody in September 2017; see T8.9. The doctor disagreed with this and said he exhibited signs of catatonia in February 2017. Also at that time according to the Lismore Base hospital notes (see at page 6 of his report) the offender was feeling suicidal and was depressed having insomnia and poor appetite and negative thoughts / cognitions including hopelessness and believed he was a bad person. The actual offending first occurred in August 2017.
It was put that the February admission was because the offender threatened to kill himself to which Dr Furst responded that was not really fair. The doctor stated answering this "all I'm saying is that the cluster of these symptoms which were indicative of an acute episode of schizophrenia with catatonia were the reason put all together and the fact he couldn't talk or move was probably a reason for him to be in hospital as well like obviously and therefore he was in hospital. You can't just say just because he threatened to kill himself that's an oversimplification of what happened"
He conceded that on the two occasions that he saw the offender he did not see him have any acute schizophrenic episode but qualified it by saying "just some signs of being somewhat odd and unusual in keeping with someone who has an underlying mental illness not an acute mental illness".
It was put to the doctor that symptoms like hallucinations and delusions and bizarre behaviour are observable to a layperson (T17.8), a proposition which seems fairly obvious but which was responded to by saying "it wasn't even observable to me I asked him about it when he didn't say he had them when he did. So that's not correct your assertions hypothetical and is also incorrect"
That answer misunderstands the question and the following question at T17.13 puts that what is being spoken of is not the offender's reporting about his past but his reporting of his present presentation which was met with another combative answer of: "it's very confusing to me what you're actually asking me and it's misleading in my opinion. I don't understand, I told you that doctors and nurses who followed him, watch this guy he was psychotic, and there is a doctor, Dr Ellis who saw him afterwards, obviously psychotic, the court seen him catatonic and no talking about someone I didn't see the report about an occupational therapist. I don't understand the point you're trying to raise"
Given the doctor's self-confessed confusion and lack of understanding of the question it is difficult to see how he can reach the conclusion that it is misleading. It may not have been the most precise question however in forming a view of the evidence of Dr Furst it is a style of answer that made me form a very unfavourable opinion of him.
If this unfavourable view required any further evidence it came in the answer to the question at T17.32 where the doctor says: Can I ask can I ask can you get to some points like about this that are relevant to me like the issues in question. I hope I'm not being offensive but I'm just wondering why we're taking so long to go through this particular part now where onto the Justice health file like. Why don't you focus on the questions and the opinions that I've raised in my report it's already you know-can I ask what the point is of this going through Justice health so laboriously now?"
The doctor having been told to simply answer the question responds with "please go ahead".
The point the Crown was trying to make was to ascertain whether there had been any reported or documented schizophrenic symptoms, that is, episodes, between February 2017 and September 2017. In the interim of course the offending occurred in August 2017. What was established was that firstly the record of 13 September 2017 of Dr Ellis was a record of matters that had occurred before that date and a second matter that emerged was that in the ERISP itself which was created very shortly after his arrest there are questions and answers which identify these mental health problems.
Another point the Crown sought to make was to suggest some unreliability in the doctor's report because he refers to the offender as having heard voices for years when there was a hospital note saying there had only been three or four occasions of hearing voices in his entire life. The doctor went on to say that in the records he was given of Dr Ellis it stated there had been reports of voices for some years. The doctors evidence was that it does not matter because the offender still has schizophrenia whether it's one voice or four voices or years of voices; see T 24.5.
At T24 it was put that there was no actual evidence of mood disturbance, functional impairment, auditory hallucinations and delusional thinking from July and August 2017. The doctor disagreed and said the evidence of impairment in January and February and the fact the offender had thought disorder, severe depression, paranoid thinking and when arrested exhibited signs of psychosis and that he was not on medication all make it more likely than not that the symptoms were still continuing at the time of the offending.
At T25.31 the doctor says it is hard to draw conclusions and link the symptoms and said "I can't say he was driven-what I mean is I can't say he was driven by voices telling him to touch a child for example or paranoia about this somehow being a religious thing that would be good for a child. Like there was nothing there that was like bizarre or psychotic in that respect and that's why he didn't meet the threshold (not transcribed) offence"
Not surprisingly the follow-up question was to put that there is no evidence at all of these acute psychotic symptoms at around the time of offending, which drew an indignant reply of "How am I saying that? I didn't say that" and a further answer that it was the contrary of what the doctor said in his second report at page 8. The next question was that there is no evidence of the offender actually exhibiting acute psychotic symptoms at or around the time of the offending to which there was the rather glib answer "I wasn't there. Neither were you."
The result is the doctor on the one hand is maintaining the offender had signs of acute psychosis most likely at the time of offending because there was evidence of it six months earlier in February and shortly after the offence. The doctor went so far as to say at T26.33 "if someone is psychotic before and after they're probably psychotic in the middle. I'm not going to say differently no matter how many times you asked the question"
I find this evidence difficult to follow. That a person may be experiencing a psychotic episode and acting out at that time or suffering from a delusion at that time or hearing a voice at that time and then six months later has another such episode surely cannot mean that therefore at every point in between he is suffering such florid symptoms. I cannot accept that the doctor was saying this. Perhaps if the doctor had thought about it or stopped long enough to allow his apparent irritation to subside at what he appeared to consider as the indignity of being asked questions by the Crown he may have been able to offer the court some assistance. Doing the best I can from my non-medical state what I extract from this evidence is that the offender was a person who was suffering from a condition namely schizophrenia which has the characteristic that from time to time such symptoms become evident.
This view is enhanced by the evidence cited earlier about the doctor glibly saying that he was not present. That plainly allows for the possibility that it may have been that such florid symptoms were not observable.
At T27.30 the doctor accepted there were risk factors of such offending occurring in the future which is obviously a well-made point going to the issue of likelihood of reoffending. The doctor would not accede to the suggestion that this would affect the low to moderate risk of reoffending conclusion he reached by reason of the static 99R test. Notably, in Dr Furst's report at page 10, he revises his assessment of risk to average. This is another indication of his inappropriate advocacy role in this case.
In terms of reoffending the doctor gave some evidence about the benefits of various treatments whilst also acknowledging that schizophrenia was not curable. In the course of this he was asked "and in most of the schizophrenia that is because the antipsychotic medication reduces the risk of acute psychotic schizophrenic beside doesn't it?", to which he answered "It helps to stabilise the overall illness course as well and reduces the risk of relapse".
I found this a very telling answer because it put into plain terminology what I have tried to set out above. That is what the Crown had been trying to establish was that there was no evidence of the accused suffering from an acute psychotic schizophrenic episode at the time of the offending which as noted above is not being contended for by the offender, without the Crown challenging the diagnosis that this person suffers from schizophrenia. What the doctor is saying is that with appropriate treatment the risk of reoffending can be reduced because the illness can be stabilised.
The doctor was of the view that treatment in custody was appropriate extending to the making of the forensic community treatment order, an application to the Mental Health Review Tribunal. It was put to the doctor that that was something he would definitely do if he was treating him to which he replied "well unless he develops insight, unless he starts taking medication and shows good insight which I don't think is likely": T 30.14. What I take from this is that at the moment this offender is lacking in insight.
In re-examination it was established that there have been in fact three occasions of catatonia. As I understand the evidence the first one is this episode in February 2017, the second is shortly after the offending itself and the third was on 8 April 2018 in the precincts of the court itself.
Returning to the topic of the existence of schizophrenia at the time of offending the doctor was asked whether at the time of the offending the schizophrenic illness was operative; T31.10 and answered "Yes". That I think is consistent with what I have been trying to say above; the word "operative" I take to be suggesting that the person suffers from schizophrenia not that he was suffering a schizophrenic episode at that time.

Concerns re Dr Furst

I have identified above some parts of Dr Furst's evidence which showed him to be an advocate for the offender, rather than an independent expert impartially assisting the Court, as required by the Expert Witness Code of Conduct, a code Dr Furst acknowledged on page 2 of his second report.
This approach was demonstrated in other answers also, for example: 1. It was put that the reason the offender was first taken to hospital was because he threatened to kill himself. If I might make an observation here; the question is a very simple one and can be answered simply. Instead the doctor launches into explaining that the hospital had got the diagnosis wrong which had been of mood depression and autism whereas the doctor says it was schizophrenia, because he had the chance to see him over longer, and had a chance to watch what happened seven months later when he went to jail, and now where it is obvious he has got schizophrenia. Almost from the beginning of his cross examination he is advocating the case of the offender. 2. Dr Furst was then taken to a passage of a document talking of the discharge of the offender and the doctor volunteers "would it be relevant to talk about the fact that he didn't talk for two days in the first paragraph?": T12.20. 3. At T 21.10 there is another inappropriate response by the doctor informing the Court that he had answered the question and stating to the questioner "please move on".

Conclusion as to mental health considerations

The Crown's approach to this issue mistook a lack of evidence of a schizophrenic episode as equating to non-operative schizophrenia. My finding is that the schizophrenia can be causative even when non episodic. This misconception on the part of the Crown resulted in the cross examiner and Dr Furst being at cross purposes. It is the kind of misconception that an expert could be expected, within the limits of what they were asked, to shed light on.
Despite my misgivings about the impartiality of the evidence of Dr Furst, there was no challenge to his expertise, and it is possible to utilise his evidence overall to reach some conclusions, in addition to noting those matters already noted above that are common ground.
As noted above the case for the offender is not that there were florid symptoms active at the time of the offending or that the offender was suffering some "episode" at that time.
Rather what the offender argues is that at the time of offending he suffered from schizophrenia. It was significant for the offender's case that this be established, because at the time of the offending the offender was not diagnosed with that condition. I find, and it is not disputed, that was the position. Where the difficulty arises is in unmuddying the rather opaque picture of whether a person suffering schizophrenia, but who is not episodic, has behavioural features that render them less culpable for their actions. For whatever reason, though I would not discount the positional advocacy of Dr Furst as being a contributing cause, this issue was never expressly clarified.
The view I come to is that the offender has cognitive and communicative deficits; he has a history of depression, autism, and intellectual disability, and he suffers from schizophrenia. Whilst I do not find that he was "florid", or episodic at the time of the offending, I do consider that his condition rendered him more likely to offend, so that it was a contributing factor to the offending.
Whilst this may result in a lessening of moral culpability, that lessening may or may not be significant; in cases where the moral culpability is reduced for some reason, the degree of lessening must vary in each case depending on the facts of the particular case.
In this case it is a matter I take into account, and one result of it is that I do consider that general deterrence should be a lesser consideration; however that may be cancelled out by the need to protect the community.
The evidence of Dr Furst more straight forwardly assists by setting out the personal characteristics of the offender to be taken into account in the sentencing process. This includes the requirements to achieve rehabilitation, the treatment needs of the offender, and the effect of a custodial sentence upon him. This is dealt with below.

The offender

The offender accepts the offences are objectively serious and that s5 threshold is crossed. A submission is made for a finding of special circumstances.
Reliance is placed on Muldrock [2011] HCA 39, not without good reason, for there are some similarities. There are however differences. The degree of mental impairment appears more severe in Muldrock, who was described as "mentally retarded" and as a person who "functions in the lowest 0.1% of the population in terms of his adaptive behaviour". The offender in Muldrock had himself been sexually abused. On the other hand, in a broad sense the facts of the offending would seem certainly of a similar seriousness. I consider the usefulness of Muldrock to be for the principles it establishes, particularly as to the effect of the standard non-parole period provisions of the Crimes (Sentencing Procedure) Act 1999, rather than as a useful case comparison.
I do however accept that the condition of the offender lessens the moral culpability of the offender, but not significantly. I form this view due to the lack of any explanation as to just why the offender acted impulsively in the way that he did, specifically, by way of sexual abuse of a six year old; the case is notable for the lack of information in this regard. There is no evidence of the offender's life being affected by some earlier physical sexual abuse, nor of any particularly undeveloped sexuality or sexual experience; indeed the evidence is of him having two adult relationships with females. I am not satisfied that establishing a behavioural make up that can be impulsive equates to exculpation.
The offender sought a 15 % discount for the guilty plea. I deal with this below. Suffice to say the offender says the delay in the plea was due to the mental health issues complicating the case, and notes that early admissions were made, albeit after initial denials.
The offender submitted that incarceration would be more difficult for the offender due to his mental state, and that he would be better treated for his condition in the community, both points being supported by Dr Furst's report.
The offender noted the Occupation Therapy report of 20 July 2017 for two reasons; one to further support the offender's condition and two; for its contemporaneity to the offending.

Special circumstances

The offender sought a finding of special circumstances, based on the above matters. My view is that this submission must succeed due to the following factors: 1. The difficulties of incarceration this offender will likely experience, which I consider to be apparent as a matter of common sense, and I note this is supported by Dr Furst; 2. The better treatment options available to the offender in the community; I accept Dr Furst in this regard; 3. That it will be the first time in custody for the offender; 4. I consider a longer period of supervision by parole will benefit not only the offender but also the community. It will make it more likely that treatment is undertaken, and the fact that supervision will extend for a longer period gives an added degree of protection to the community; 5. I note the concession of the Crown that a finding of special circumstances is warranted on the basis of it being the offender's first time in custody and due to the need for treatment.
I accept the submissions for the offender as to the lack of a criminal record and good character. I do not accept the submissions of the offender being unlikely to reoffend or that the prospects of rehabilitation are good. I discuss this below.

The Crown

For the Crown it was submitted that the sexual assault caused the injury evidenced by the blood. For the reasons set out above I accept this.
The Crown sought to limit the discount for the plea of guilty to 5-10%. The Crown set out its version of the history of the proceedings. The Crown relied on the fact that from sometime after the date of the November report of Dr Furst the offender was aware of being fit to plead. I note this was not stated in the report of Dr Furst, but it was also not challenged. Dr Furst's report states the offender was not fit for trial. Dr Furst was asked to express a view on whether there was a mental illness defence available and as to the reliability of ERISP admissions, and was unable to give a view that supported the offender's position.
The matter was listed for trial in July 2018 and then November 2018, and then April 2019. The fitness issue arose on the first occasion; the matter was not reached on the second occasion, and on the third occasion the offender fell into a catatonic state resulting in a consultation with Dr Furst the next day to determine fitness to plead.
I accept the submission of the offender that the matter has been delayed in the entering of a plea due to the mental health issues of the offender. The earliest a plea may have been entered was arguably in November 2018, when the matter was not reached.
As the Crown conceded, the victim had not been interviewed in preparation for the hearing on any of the three occasions the matter was listed for trial. The result of the plea was that never happened. The plea also resulted in the utilitarian benefits of not requiring a trial, nor the inconvenience to witnesses other than the victim, and it of course meant court time could be used for a different trial. For these reasons I accept the submission of the offender to apply a discount of 15%.
On the mental health issue, the Crown argued for a finding of no causative link.
The Crown helpfully cited a case of OO [2002] NSWCCA 416, which relevantly referred to Veen (No. 2) (1988) 164 CLR 465. "24. It seems to me that the correct starting point for consideration of those submissions is the following extract from the decision of the High Court of Australia in Veen v The Queen (No 2)[1988] HCA 14; (1988) 164 CLR 465 at 476,477 as follows: "The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions. And so a mental abnormality which makes an offender a danger to society when he is at large but which diminishes his moral culpability for a particular crime is the factor which has two countervailing effects: one which tends towards a longer custodial sentence, the other towards a shorter. These effects may balance out, but consideration of the danger to society cannot lead to the imposition of a more severe penalty than would have been imposed if the offender had not been suffering from a mental abnormality." 25. I take that statement of principle to require that in a case of the present kind a balance has to be struck in a prudent and discerning kind of way between two legitimate interests not always easy to accommodate. The position of the individual prisoner is, of course, one; but the legitimate interests of society to be protected against crime of the kind with which this application is concerned is another. 26. It seems to me that the facts of this case provide an example in which those countervailing considerations of which the High Court spoke in Veen (No 2) do, indeed, and as their Honours recognised might well be the case in a particular matter, cancel out. 27. For my part, I would say simply this: The offences in question were on any reasonable reckoning serious offences. They involved the abuse of young children who were then in the practical care and control of the applicant. On any view, they were deserving of serious censure and an appropriately severe penalty."
The Crown argument was that there was no acute episode that was causative of the offending, so that there is no reduction in moral culpability. Failing that, the Crown would argue that any reduced culpability would be negated by the need to protect the community.
The Crown assessed the objective seriousness at or around mid-range given the age of the child, the fact the offence occurred in the victim's home and due to the assault involving penetration. I accept the first two points as going to objective seriousness, but not the third as penetration on the facts of this case is an element of the offence.

Objective seriousness

Relevantly to both offences, the victim is 6 years old. She is significantly under both the age of 16 or 10, and whilst being of a young age is an element of an offence, the degree below the upper age of the offence is a matter relevant to consider. The offender was 22 at the date of the offending, and according to Dr Furst's history, has had at least two adult relationships; the offender has not been shown to be a person who, due to his disabilities or otherwise, is somehow so sexually unaware as to lessen the seriousness of what he has done.
I have noted the offence occurring in the home of the victim; I also noted the breach of trust. This is not a case of a teacher or cleric, but the breach of trust, whilst perhaps is not to that same extent, is significant. That these offences occurred due to circumstances that arose by reason of the victim's family bestowing charity and concern upon the offender cannot be ignored and are relevant to the basis of the trust the victim placed in the offender.
1. I note the entirety of the offending occurred in a period of less than 15 days, and perhaps within one week.
My view is that the indecent assault is in the low range of objective seriousness, for despite the adverse features discussed above, and although it is a case of skin on skin, the duration is little more than fleeting, and the offender stopped when the victim hit him, when clearly had he wished he could over power her and persist. That said, the offence required the restraining of the child. Whilst I categorise it as in the low range, it is not by any means in the lowest category.
I consider the sexual assault to be a more serious offence. It caused injury. It occurred after the 6 year old victim said "No". Again however, the brevity of this offence restrains me from finding it to be in the mid-range. I find it to be just below the mid-range.

Remorse

When interviewed the offender said "somehow my my hand went down her pants" and that he "must've woken up with it down there" and said he "didn't know what happened". That would appear to be fairly disingenuous and extremely unlikely and clearly contrary to the agreed facts. Dr Furst records that the offender lacks insight into his mental illness and the reasons for his offending. There is little if any evidence, beyond the plea, of remorse.

Rehabilitation and risk of reoffending

Dr Furst assessed the risk of reoffending as "low-moderate", but revised that to be "average risk compared to the typical offender". The main factors resulting in this assessment were the offender's poor insight and mental health conditions. Dr Furst's prognosis was the offender will remain functionally impaired by reason of his schizophrenia, autism and intellectual disability for the foreseeable future. The treatments he recommends include long term psychiatric follow up. It will also of course require adherence to the treatment. I consider the offenders prospect of rehabilitation to be dependent on his adherence to treatment, and even then it will not occur in the near future. For that reason the risk of reoffending, assessed as average, will not lessen in the near future.

Sentencing considerations

The personal history of this offender is summarised in the report of Dr Furst as set out above. The case presented for the offender focused on the mental health issues and I have considered and determined that above. There was other material beyond the medical evidence relied on by the offender. There was a letter of support from a Reverend Leet of the Rainbow Missions, and a testimonial from a NDIS service provider, both showing support for the offender in the community.
Against this the victim impact statement of the now 8 year old victim must be noted; it is plain the event has had a significant negative impact on the victim, who asserts she remains scared both because the offender may get out of gaol and because she may meet other people like him.
As to the consideration of the main plank of the offender's case, it assists to set out in full the passage from De La Rosa referred to above: "177. Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing: see, eg, R v Engert (1995) 84 A Crim R 67; R v Tsiarias [1996] VicRp 26; [1996] 1 VR 398 at 400; R v Fahda [1999] NSWCCA 267 at [40] - [48]; Lauritsen v R [2000] WASCA 203; (2000) 114 A Crim R 333 at [43] - [51]; R v Harb [2001] NSWCCA 249 at [35] - [45]; R v Israil [2002] NSWCCA 255; R v Hemsley [2004] NSWCCA 228 at [33] - [36]; R v Verdins [2007] VSCA 102 at [32]; Courtney v R [2007] NSWCCA 195 at [14]- [18]; and R v Henry [2007] NSWCCA 90 at [28]. They can be summarised in the following manner: • Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] NSWCCA 90 at [28]. • It may also 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: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50 - 51; Israil at [22]; Pearson at [42]; Henry at [28]. • It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: Tsiaris at 400; Jiminez at [25]; Israil at [26]; Henry at [28]. • It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192]. • Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23] - [24]. 178 I should stress that the mental health problems of an offender need not amount to a serious psychiatric illness before they will be relevant to the sentencing process. The circumstances may indicate that when an offender has a mental disorder of modest severity it may nevertheless be appropriate to moderate the need for general or specific deterrence: R v Skura [2004] VSCA 53; R v Verdins [2007] VSCA 102; (2007) 16 VR 269 at [5]."
The offender has no prior criminal history. The offender is therefore a person of good character prior to this offending. Given his difficulties, his lengthy period of unemployment, and the need that he has had to be reliant on services, this is much to his credit.
I have noted the maximum sentences and the standard non-parole period above. It is relevant to recall the discussion of such matters in Muldrock, which included the following: "Section 54B applies whenever a court imposes a sentence of imprisonment for a Div 1A offence[48]. The provision must be read as a whole. It is a mistake to give primary, let alone determinative, significance to so much of s 54B(2) as appears before the word "unless". Section 54B(2), read with ss 54B(3) and 21A, requires an approach to sentencing for Div 1A offences that is consistent with the approach to sentencing described by McHugh J in Markarian v The Queen[49]: "[T]he judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case." (emphasis added) Section 54B(2) and s 54B(3) oblige the court to take into account the full range of factors in determining the appropriate sentence for the offence. In so doing, the court is mindful of two legislative guideposts: the maximum sentence and the standard non-parole period. The latter requires that content be given to its specification as "the non-parole period for an offence in the middle of the range of objective seriousness"[50]. Meaningful content cannot be given to the concept by taking into account characteristics of the offender. The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending."
I have adopted this approach in reaching the following determination.

Determination

I have reached the following conclusions: 1. I note my assessment of objective seriousness above. 2. The offender's mental health state makes him a less suitable person for a sentence reflecting general deterrence. 3. Further, due to his lack of insight, a point repeatedly made by Dr Furst, and overall mental health condition, there must be a prospect that punishment aimed at specific deterrence will not be properly comprehended. For this reason I consider it less appropriate to punish him to affect specific deterrence than would otherwise be the case, though to a lesser degree than applies to the issue of general deterrence. 4. There is a strong need to protect the community. 5. The offender benefits from his lack of criminal history. 6. The discount for plea of guilty shall be 15%. 7. There shall be a finding of special circumstances as discussed above, and given the need for rehabilitation, the fact that this will be the first time in custody for this offender, and that his mental health issues make him a person who will find custody even more difficult than it would otherwise be. 8. I propose imposing an aggregate sentence, and will backdate it by 176 days, being the time the offender has spent in custody, a figure agreed on by the parties.

Indicative sentences

It is necessary to impose indicative sentences. As to the indecent assault charge, the indicative sentence shall be 18 months.
As to the sexual assault, and taking into account the two indecent assaults on the form 1 as described above, there will be a sentence of 4 ½ years.
Allowing for the plea of guilty discount of 15% the total of these two sentences is 5 years and one month, which I will round down to 5 years.
I allow some degree of concurrency due to the short period of time in which the offending occurred and recognising the principles of totality and proportionality, and the aggregate sentence shall be 4 ½ years imprisonment.
Having found special circumstances I set a non-parole period of 2½ years. I consider the offender's case for special circumstances to be particularly strong, and it is for this reason I have varied the statutory ratio to the extent that I have, and which I note in terms of actual time results in the non-parole period being 10 months less than the statutory ratio would determine.
I note the requirement of s54B to state my reasons for arriving at a lesser non-parole period than the standard non-parole period and for that purpose repeat the matters summarised above in finding special circumstances (in which regard I note s44(2B)) and repeat also the reasoning of the various findings made above.

ORDERS

The offender is convicted.
The offender is sentenced to imprisonment for a term of 4 ½ years, commencing 28 March 2019 and expiring on 27 September 2023.
I set a non parole period of 2 ½ years, commencing on 28 March 2019 and expiring on 27 September 2021.
The earliest day the offender is eligible for release is 27 September 2021.

Amendments 06 September 2021 - Amended order dates to accord with court record. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 September 2021

At a glance

Court

Decision date

Before

Source

Judgment (21 paragraphs)

Parties

Cases Cited (20)