R v Muldrock; Muldrock v R

Judgment 1ALLSOP P: Orders were made by this Court on 18 May 2012 resentencing the applicant consistently with the reasons for judgment of the High Court of Australia published on 5 October 2011. These are my reasons for making those orders. 2Mr Derek Muldrock pleaded guilty to a charge of having sexual intercourse with a child under ten years of age contrary to the Crimes Act 1900 (NSW), s 66A. The maximum penalty is 25 years imprisonment; there is a standard non-parole period of 15 years. 3The sentencing judge imposed a head sentence of nine years imprisonment but with a non-parole period of only 96 days. This apparently unusual sentence was influenced by the mental retardation of Mr Muldrock and the availability of a place in a facility called "Selwood Lane", which is a residential facility that provides rehabilitation of sex offenders. 4Mr Muldrock sought leave to appeal against the head sentence. The Crown appealed against the sentence as manifestly inadequate. The Court of Criminal Appeal allowed the Crown appeal and, in Order 1, quashed the sentence imposed by the District Court. Orders 2 and 3 of this Court's orders were as follows: "2.Taking into account the matter on the Form 1 the respondent is sentenced to a non-parole period of 6 years and 8 months commencing on 22 April 2009 and expiring on 21 December 2015 with a balance of term of 2 years and 4 months expiring on 22 April 2018. The respondent will be eligible for release to parole on 21 December 2015. 3. The application by the respondent for leave to appeal is refused." 5The High Court granted special leave to appeal and allowed the appeal. Orders 2 and 3 made by the High Court on 5 October 2011 were as follows: "2.Set aside paras 2 and 3 of the orders of the Court of Criminal Appeal of the Supreme Court of New South Wales made on 14 May 2010 and in their place order that: (a)the applicant, Derek Muldrock, have leave to appeal against the sentence imposed upon him by Judge Black in the District Court of New South Wales on 28 July 2009; and (b) the appeal be treated as instituted and heard instanter and allowed. 3.Remit the matter to the Court of Criminal Appeal for the appellant to be re-sentenced consistently with the reasons for judgment of this Court." 6In order to act consistently with the High Court's reasons it is necessary to recount the facts consistent with those described by the High Court. Those facts are for present purposes fully and adequately set out at [1], [33]-[46], [50]-[53], [55] and [58] of the High Court's reasons, as follows: "[1] The appellant is mentally retarded. As a child he was subject to homosexual sexual abuse. As an adult he has shown a sexual interest in male children. In March 2007, he befriended a nine year old boy and took advantage of an opportunity when the two were alone to suck the boy's penis. ... ... [33] The appellant was aged thirty years at the date of the offence. The victim was living with his mother in a granny flat attached to the house in which the appellant was living. The appellant fixed the boy's bike and offered to go for a test ride with him. The boy's mother agreed. When the appellant and the boy were alone together, the appellant asked the boy if he wanted to go to the lake to see the animals. They cycled a distance of 1 or 2 km to the lake. They decided to go swimming. The boy had no swimming costume or underwear and he went into the lake naked. The appellant joined him, wearing his underpants or Speedos. He repeatedly tried to touch the boy's penis and bottom, but each time the boy pushed him away. Eventually he succeeded in touching the boy's bottom and the area around his penis. This activity was charged as an offence of aggravated indecent assault. Judge Black took this offence into account in sentencing the appellant for the principal offence. [34] The boy got out of the water and the appellant pushed him to the ground, pinning him down by kneeling on his legs. He sucked the boy's penis twice for about ten seconds. The boy kicked him in the shoulder or chest and the appellant fell back. The boy got dressed and rode off. The appellant yelled out, 'Come back, you wussy. You're just too scared to come back'. The boy rode to a nearby house. He was in a very distressed state and he told the occupant, Mr Fuzzard, that a man had touched his private parts. Mr Fuzzard drove him home, by which stage the boy was 'sobbing hysterically and shaking'. A short time later, the mother answered a knock at the door and saw the appellant standing there, holding a bike pump. She closed the door on him and contacted the police. [35] The appellant was interviewed by the police in the presence of a Salvation Army officer, who acted as a support person. He gave an account that he had planned to go swimming by himself and that the boy had invited himself on the excursion. The appellant said that he thought the boy's mother had 'set him up' by allowing the boy to go with him and that the mother would have viewed him as an 'easy target'. He maintained that the boy had falsely accused him of touching him. He denied any wrongdoing. [36] The offence occurred on 19 March 2007. The previous offence took place in 2000, when the appellant was living with his parents in Cairns (the 2000 offence). The victim of the 2000 offence was also a neighbouring male child. As earlier noted, the facts of the 2000 offence were similar to those presently under consideration. [37] The appellant was referred to Dr Muir, a psychiatrist, for treatment following the commission of the 2000 offence. Dr Muir initially prescribed Androcur, a testosterone suppressant that reduces the sex drive. Androcur is known to have severe complications. Dr Muir ceased prescribing it for the appellant some time before the sentence hearing in the Queensland District Court because he did not consider that its continued use was warranted. He assessed the appellant as having been significantly traumatised by his arrest and court appearances. Dr Muir thought that it was likely that the experience would 'contain' the appellant's behaviour. It is not known what, if any, treatment the appellant received during the twelve months that he was subject to the treatment order. [38] The appellant had not previously been sentenced to a term of full-time custody at the time he appeared for sentence before Judge Black. The expert evidence [39] The respondent tendered the reports of Dr Muir and Ms Daniels, a clinical psychologist, in the proceedings before Judge Black. These reports had been prepared in connection with the proceedings before the Queensland District Court in 2000. Dr Muir concluded that the appellant was 'undoubtedly mentally retarded'. The likely cause of the condition was cerebral anoxia at birth. The appellant had been placed in special classes throughout his school career. He could barely read or write and was only able to tell the time by the use of a digital watch. [40] The appellant was sexually abused at the age of ten by a young adult male who performed oral sex on him. Dr Muir said that the appellant's retarded development was the cause of his difficulty in managing his impulses and controlling his actions. [41] Ms Daniels assessed the appellant's Performance IQ as within the category of mentally retarded and his Full Scale IQ as within the borderline range. She considered that his 'maladaptive sexual behaviour' appeared to be the manifestation of his own childhood sexual abuse and his mental retardation. In her view, the appellant had little control over his 'acting out behaviour'. [42] The appellant was also assessed by Professor Hayes, a psychologist, in connection with the present offence. Professor Hayes reported that the appellant's IQ Composite Standard Score of 62 was indicative of a mild intellectual disability. The appellant functions at a level lower than 99 per cent of the population. His receptive and expressive language is equivalent to that of a child aged five and a half years. Test results measuring the appellant's ability to communicate, daily living skills and level of socialisation (adaptive behaviour) confirmed the diagnosis of mild intellectual disability. The appellant functions in the lowest 0.1 per cent of the population in terms of his adaptive behaviour. [43] Professor Hayes observed that: 'Mr Muldrock has deficits in empathy, that is, understanding how another individual is thinking and feeling. Although he has been sexually assaulted himself, he says that he cannot recall how he felt at the time, and he cannot understand how his victim would feel. He also holds a number of cognitive distortions regarding the offences, including the view that "I'm not purposely like that".' [44] Professor Hayes considered that the appellant would benefit from a program designed for a sex offender with an intellectual disability. She commented on the lack of availability of programs for intellectually disabled sex offenders in custody. She suggested that the appellant needed to learn practical skills for dealing with situations in which he is in the proximity of children. She commented on his lack of appropriate social and recreational outlets for a man of his age and ability, suggesting that he required a comprehensive program to address the areas of deficit in his adaptive behaviour. [45] Selwood Lane is a six bedroom facility located in a semi-rural setting. There is limited access to the neighbouring premises. Locks are installed on all windows and doors and there is perimeter sensor lighting. Staff are directed to maintain 'line of sight supervision [of residents] at all times'. The staff have experience in working with intellectually handicapped individuals who display 'challenging and highly sexualised behaviours'. [46] At the date of the appeal to the Court of Criminal Appeal, the appellant was being held in an Additional Support Unit, a facility accommodating offenders who require placement outside the mainstream prison environment. He had been moved to this unit because of his 'challenging behaviour' towards staff and inmates. His poor behaviour had culminated in him being held in segregation for two weeks. It was not known how long he would remain in the Additional Support Unit. ... [50] The assessment that the appellant suffers from a 'mild intellectual disability' should not obscure the fact that he is mentally retarded. The condition of mental retardation is classified according to its severity as mild, moderate, severe or profound. Mental retardation is defined by reference to both significantly subaverage general intellectual functioning and significant limitations in adaptive functioning. 'Significantly subaverage intellectual functioning' is defined as an intelligence quotient (IQ or IQ-equivalent) of about 70 or below. The position is well explained in a discussion paper published by the New South Wales Law Reform Commission: 'A person's intellectual disability can be classified as "mild", "moderate", "severe" or "profound", based upon certain IQ (intelligence quotient) ranges. A further category, "borderline", is also used to indicate people just above the mild range in terms of intellectual functioning. A person with a "severe" or "profound" disability may be unable to learn basic social skills such as speech, walking and personal care, and is likely to require supported accommodation. The majority of people with an intellectual disability have a "mild" level of intellectual disability and "can learn skills of reading, writing, numeracy, and daily living sufficient to enable them to live independently in the community." These classifications have limited utility and can sometimes be misleading. For example, such terms may suggest to criminal justice personnel, who do not have a full understanding of the disability involved, that a "mild" intellectual disability is inconsequential.' (Footnotes omitted.) [51] The fact that the appellant had engaged in some paid employment and that he held a driver's licence does not detract from the assessment of his retardation. The evidence was that he had 'enormous difficulty with employment'. He was unemployed at the time Ms Daniels assessed him. She recommended that he would benefit from 'a properly supervised sheltered workshop environment'. He was in receipt of a disability support pension in mid-2008 and had been so for some time when he was assessed by Dr Westmore to determine whether he had sufficient capacity to be fit to be tried. [52] Dr Muir's assessment that the appellant understood the wrongfulness of his conduct respecting the earlier offence was qualified by the observation that this was 'only a superficial awareness'. Dr Muir also said: 'In the interview situation, it is readily apparent that Mr Muldrock is significantly mentally retarded. His speech is very slow and measured and in a monotone.' [53] Judge Black's finding, expressed in lay terms, that the appellant's intellectual disability is 'significant', was apt. It was an error for the Court of Criminal Appeal to reject the finding, if that is what it did. Alternatively, it was an error for the Court to find that Judge Black's determination, that general deterrence had no place in sentencing the appellant, was not justified by the evidence. One purpose of sentencing is to deter others who might be minded to offend as the offender has done. Young CJ, in a passage that has been frequently cited, said this: 'General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others.' In the same case, Lush J explained the reason for the principle in this way: '[The] significance [of general deterrence] in a particular case will, however, at least usually be related to the kindred concept of retribution or punishment in which is involved an element of instinctive appreciation of the appropriateness of the sentence to the case. A sentence imposed with deterrence in view will not be acceptable if its retributive effect on the offender is felt to be inappropriate to his situation and to the needs of the community.' ... [55] In this case, there was unchallenged evidence of the causal relation between the appellant's retardation and his offending in the reports of Dr Muir and Ms Daniels. The fact that the appellant possessed the superficial understanding of a mentally retarded adult that it was wrong to engage in sexual contact with a child and that he told childish lies in the hope of shifting the blame from himself were not reasons to assess his criminality as significant, much less to use him as a medium by which to deter others from offending. ... [58] The desirability of the appellant undergoing suitable rehabilitative treatment was plainly capable of being a special circumstance justifying a departure from the statutory proportion between the non-parole period and the term of the sentence. The Court of Criminal Appeal was wrong to hold that Judge Black had been diverted by the evidence concerning Selwood Lane, and that he failed to carry out the task required of a sentencing judge in focusing on rehabilitation and not on denunciation, punishment and deterrence. As explained, punishment, in the sense of retribution, and denunciation did not require significant emphasis in light of the appellant's limited moral culpability for his offence. And there was no requirement for general deterrence. It was open to Judge Black to view personal deterrence as likely to be advanced by a sentence that required the appellant to undergo appropriately tailored treatment in a secure facility such as Selwood Lane. The Court of Criminal Appeal erred in finding that there were no special circumstances within s 44(2) of the Sentencing Act." (footnotes omitted) 7The reasons of the High Court otherwise dealt with important questions of principle in the approach to Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which was introduced into that Act in 2002. The task required of this Court now does not call for any statement of principle. It is necessary to distil the essential operative considerations in the sentencing process relevant to the particular circumstances of Mr Muldrock. In that task it is to be emphasised that it is impossible to replicate what the sentencing judge should or could have done without error. No facility is presently available to assist Mr Muldrock, though, on the evidence, one may be in August of this year. Further, at the time of sentencing (18 May 2012), Mr Muldrock had been in prison for three years and almost four weeks. 8The following considerations can be extracted from the High Court's reasons as relevant to the sentencing task at hand: (a)Any assessment of the standard non-parole period here was not of primary or determinative concern. Rather the appellant's intellectual disability is the factor which is most relevant to the appellant's moral culpability. (b)To the extent that s 54A may call for, or makes appropriate, an assessment of the objective seriousness of the offence, this 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": see the High Court reasons at [27]. So analysed, here, the offending was below the middle of the range. This is so in particular because of the short duration of the acts and the lack of threat or intimidation. The standard non-parole period said little about the appropriate sentence to be imposed. (c)The appellant's mental disability was highly relevant to the sentencing process. That disability was significant. It leads to the conclusion that Mr Muldrock had only a superficial understanding of his moral culpability. Thus, to the extent that specific deterrence should play a part in the sentencing process it was a limited factor. The mental disability also meant that he had limited moral culpability for the offence. In this light there was no requirement for general deterrence to play a part in sentencing him and punishment in the sense of retribution and denunciation did not require significant emphasis: see generally the High Court reasons at [58]. 9An important consideration to take into account in the decision is the question of the protection of the public, a matter specifically referred to in the Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A(c). This was not the first offence of the applicant. He had previously been convicted in Queensland seven years before of a similar offence committed in similar circumstances. The Queensland District Court sentenced him to twelve months imprisonment to be served by way of an intensive correctional order. 10As to special circumstances, they are plainly present in my view. The intellectual disability of the applicant and his need for supervision and specific programmes of care mean that the statutory relationship between the non-parole period and the balance of term should be different from that set out in the Crimes (Sentencing Procedure) Act, s 44. 11It is to be recognised that the Court is not sentencing the applicant otherwise than he having now spent somewhat over three years in prison. Rehabilitation can be seen as important. It is plain, and it was a matter to which the original sentencing judge directed considerable attention, that the applicant would benefit from specific courses for sex offenders with his degree of disability. That said, however, we are required to sentence him in circumstances where the evidence reveals that the Community Justice Programme has only an intensive residential support service placement available for the applicant from late August 2012. For Mr Muldrock to take advantage of this while on parole, his head sentence would need to extend past August 2012 for some months for a meaningful programme. On any view, such a sentence would be excessive. 12Looking at all the circumstances and taking into account all the reasons of the High Court of Australia, I am not able to come to the view that the appropriate sentence for the applicant should be any more than a term of imprisonment of twelve months non-parole period with a balance of term of two years. That would have him released immediately. That would mean that there would not be available to him through the Community Justice Programme a future programme that may help him. He has, however, been in prison for three years and the State has had the opportunity of giving to the applicant the benefit of some programme. That is not said by way of criticism if that has not occurred up to this time. It is no part of the function of this Court to make such criticism; nor, however, is it part of the function of this Court to reach a sentence longer than is appropriate to reflect the purpose of s 3A of the Crimes (Sentencing Procedure) Act in order that social services may be made available at a later date. 13For a sentence, now, to be fashioned to extend to a four year head sentence in order that Mr Muldrock have the possibility of participating in the course that can start in August would be unjust. He may well languish in prison until August, the head sentence being of a length that denies the Court the power to order him to be released on parole. 14The matter is an extraordinary one. The public has been protected for over three years. Further imprisonment of a man who is mentally retarded with a limited recognition of moral culpability would be wrong. It would serve no purpose of deterrence. It would be longer than would be a just and appropriate sentence. 15These are my reasons for joining in the order made on 18 May 2012. 16HOEBEN JA: I agree with Allsop P. His reasons reflect in substance my reasons for joining in the orders of the Court on 18 May 2012. 17BEECH-JONES J: Subject to the following observations, I agree with the reasons for judgment of Allsop P. 18From the time of the sentencing hearing before Black DCJ to the rehearing in this Court it appears to have been accepted at every level that some form of period of supervision of Mr Muldrock after his release from custody was desirable, and in fact necessary, to facilitate his rehabilitation. In pronouncing orders on 18 May 2012 Allsop P restated the desirability of that occurring. His Honour did so with the agreement and on behalf of all members of the Court. Yet the orders of this Court, with which I agree and which are most likely to represent the completion of the sentencing process, will not require that any such supervision occur. This result is surprising to say the least but it is an outcome that was mandated by four matters which I will outline. 19First, there are the findings of fact that are binding on this Court which result from Black DCJ's sentencing judgment and the High Court's judgment. They are outlined in the passages from the High Court's judgment extracted in the reasons of Allsop P and include that Mr Muldrock is "significantly intellectual disabled" (Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 at [48] to [49] as explained at [42] to [43]) and that he had little or no control over his actions due to his mental retardation (Muldrock at [40] to [41]). The High Court concluded that he had "limited moral culpability for his offence" (Muldrock at [58]) 20Second, there are the findings of the High Court as to the manner in which the various factors relevant to the sentencing process are to be applied and its characterisation of Mr Muldrock's offence. Thus this Court must act on the basis that punishment and denunciation do not require "significant emphasis" and, most importantly, there is "no requirement for general deterrence" (Muldrock at [58]). The High Court did not characterise the circumstances of Mr Muldrock's offence as falling within the "middle of the range of objective seriousness" so as to attract any consideration of the standard non parole period (Muldrock at [32]) and otherwise described it in terms that did not suggest it could be characterised as an especially serious contravention of s 66A of the Crimes Act (" the circumstances of the offence, the nature of the intercourse, its short duration and the absence of accompanying threats or other intimidating behaviour" : Muldrock at [60]). 21Third, there are two conclusions of the High Court specific to Mr Muldrock which must be noted, namely that this Court was previously in error in overturning Black DCJ's finding of special circumstances (Muldrock at [58]) and that an overall term of nine years imprisonment was manifestly excessive (Muldrock at [60]). 22Fourth, there is the circumstance that, notwithstanding the terms of the sentence imposed by Black DCJ, Mr Muldrock remained in custody after he was sentenced and has been in custody ever since. By the time the matter was heard in this Court Mr Muldrock had been in custody for a period in excess of three years, including a period exceeding 7 months from the time the High Court published its judgment and orders to the date the matter was heard in this Court. 23The removal of general deterrence and the greatly diminished role of denunciation and punishment left only a limited range of sentencing considerations in s 3A of the Crimes (Sentencing Procedure) Act to be applied to Mr Muldrock. When those remaining considerations are applied to an offender in his circumstances and to an offence that is characterised in accordance with the High Court's judgment then an overall sentence of three years was appropriate. A finding of special circumstances was required even if, as a practical matter, the time for Mr Muldrock to be released and supervised has already passed. 24Subsection 3A(c) of the Crimes (Sentencing Procedure) Act specifies that one of the purposes of sentencing is to protect the community from the offender and s 3A(d) identifies the related object of promoting their rehabilitation. However, if this Court increased Mr Muldrock's sentence beyond 3 years for the purposes of enabling him to be supervised it would have acted contrary to the principle restated by the High Court in Muldrock at [60] that "a fundamental precept of the criminal law is that a sentence should not be increased beyond that which is proportionate to the crime in order to extend the period of protection of the community" (citing Veen v The Queen [No 2] [1988] HCA 14; 164 CLR 465 at 472 per Mason CJ, Brennan, Dawson and Toohey JJ). During the course of argument the possibility was raised of not backdating Mr Muldrock's sentence to the date he went into custody but fixing it to commence from a later date so that there would now be an unexpired portion of his sentence that would allow him be subject to supervision. To exercise the power conferred by s 47(2) of the Crimes (Sentencing Procedure) Act in that manner would be objectionable for the same reason. 25The combination of the findings and circumstances that has resulted in the sentence imposed by Mr Muldrock are likely to be unique. The sentence imposed in this case is unlikely to offer much guidance to the appropriate sentence in other cases. In considering other cases, the High Court's judgment in Muldrock meant that standard non-parole periods had a reduced significance to what was previously considered by this Court to be the case. However they are not without significance. The High Court observed in Muldrock at [31] (omitting citations): "It may be, as the Court of Criminal Appeal observed in Way, that for some Div 1A offences there will be a move upwards in the length of the non-parole period as a result of the introduction of the standard non-parole period. This is the likely outcome of adding the court's awareness of the standard non-parole period to the various considerations bearing on the determination of the appropriate sentence."