R v Palmer

Previous Good Character [28]

1. Tendered in the Offender's case was a character reference dated 2 November 2017 from Mr Alan and Mrs Joan Craymer who have provide a bail surety. In their reference they indicate that they have known the Offender in excess of twenty years because of mutual interest in property investments. They describe developing a firm friendship with the Offender spending time in the family home. In the reference they state:- [29] We have always found Mr Palmer to be extremely generous, helpful, courteous and honest in all his dealings with us. …… Notwithstanding the seriousness of the allegations we have no hesitation in providing this letter of support and consider Mr Palmer as a man who has made an extremely positive impact on the lives of our family, We are also aware of many other people who have come into contact with Mr Palmer and had similar experiences.
2. The Crown submitted that there is limited evidence that the Offender is of good character with the only evidence being a reference tendered by Mr and Mrs Craymer which was limited in its scope.
3. During the trial, the Offender's character was not in issue and he had the benefit of a good character direction
4. Bearing this in mind, the absence of previous convictions and the evidence before the court, I am satisfied that the Offender has established prior good character and I take this into account by way of mitigation.

Likelihood of Reoffending and Rehabilitation

1. The Crown submitted that there is no evidence as to prospects of rehabilitation and likelihood of reoffending. It concedes that the offending behaviour occurred in 2015 but added that is not to say he would not offend again. [30] It was further submitted that caution is to be had as to approaching the prospects of reoffending as it would not follow that he would not reoffend and prospects of rehabilitation require a weighing up of various factors including that the offence; in its substance, fell within the middle range of objective seriousness
2. The Defence submitted that the Offender had good prospects of rehabilitation bearing I mind his age and background as recorded in Dr Cock's report [31] and the evidence of Mr and Mrs Craymer. [32]
3. So far as the likelihood of reoffending is concerned, attention was drawn to the unique nature of the relationship with GL which was described as including uncertainty (at least so far as the Offender was concerned) as to the possibility of future cohabitation and two way sexual innuendo. This submission was based on the evidence given at trial by GL.
4. Whilst I am cautious in accepting untested material, I accept the account the Offender gave, as recorded by Dr Cocks that he has a good social support network and that he is sexually conservative in his relationships. Such is consistent with the detail provided in the report by way of background and what I accept is the Offender's prior good character and absence of any prior convictions.
5. There is nothing in the report to suggest sexual deviancy with Dr Cocks recording there was no display of disorder of thought form or thought content that would indicate psychotic illness nor any perceptual disturbances. The Offender did not report any drug and alcohol problems and indicated that he had not abused illicit substances.
6. Dr Cocks did obtain a history that the Offender at age 9 struggled after his parents separated in the context of a volatile relationship. He was then sent to boarding school despite his wishes and alleged that he was sexually abused by the boarding master and relentlessly bullied at school. At age 14, he transferred schools lived with his mother and stepmother and had what was described as a" normal high school experience."
7. Despite this, Dr Cocks records that the Offender has no formal past psychiatric history and has not been diagnosed with mental illness. Notwithstanding, he has a genetic predisposition to mental illness evidenced through family members' experience. He has previously seen a psychologist during early adolescence due to being unhappy in his school environment. He has also had counselling in relation to past relationship breakdowns.
8. Dr Cocks opined that the Offender did not display any disorder of thought or thought content that would point to psychotic illness and did not display any perceptual disturbances. Dr Cocks' report notes the Offender's serious concern for the impact that that this will have on him.
9. Overall, Dr Cocks finds that the Offender shows insight into his mental health related problems and a willingness to engage in treatment
10. Dr Cocks did not assess the likelihood of offending directly. However in the circumstances and despite the absence of remorse, I am satisfied that the circumstances of the offence involving a unique relationship and his otherwise good character; the likelihood of reoffending is low.
11. There is limited evidence of insight into the impact of his conduct on GL, recognising that the Offender continues to deny committing the offence in question.
12. Nevertheless, I would assess his prospects of rehabilitation overall as good.

Age and Health

1. The Offender is aged 64.
2. Dr Cocks opines that Mr Palmer fulfilled the criteria for adjustment disorder with mixed anxiety and depressed mood. He states that:- [33] "Mr Palmer has developed emotional and behavioural symptoms in response to an identifiable stressor, being the court case and the recent conviction of sexual assault. He is currently experiencing a constellation of biological and psychological symptoms of depression and anxiety that have emerged in the context of his current conviction. He reports marked distress and anxiety. He is catastrophizing about his incarceration. His sleep patterns are disturbed. There are impairments in appetite and eating patterns. His energy states have diminished. He reported irritability of mood. He described being in a disillusioned and overwhelmed state, this has caused significant impairment for Mr Palmer. His social and occupational functioning has diminished. Mr Palmer does not show evidence of any other mental illness.. In the event that Mr Palmer's stressor's and their consequences are resolved I suspect that his symptoms of anxiety and depression will remit.
3. Dr Cocks noted that the Offender described a sense of shock, fear, anger and disillusion. He stated in that report, that the Offender stated that, "I fear that I will now lose everything." [34] He was particularly concerned of the implications that his conviction will have upon his 10 year old son. He is concerned that his ex-wife wife will now take him to Russia. Should this happen, the Offender expressed the view that he would be at a high-risk of suicide. He denied however, any current suicidal thoughts and there was no indication of self-harm behaviours. Concerns were expressed that he would not cope in goal, that he was claustrophobic and that he would be vulnerable to manipulation and abuse from other inmates.
4. Dr Cocks states that the Offender would benefit from psychological therapy with a supportive approach and a cognitive behaviour therapy approach. He states this will be immensely beneficial in helping Mr Palmer rationalise the stressors that he is currently facing. He opines that he should see a clinical psychologist on a fortnightly basis over a minimum period of three months. Further, Dr Cocks opines that in the event the Offender is incarcerated then he has concerns that his mental health will deteriorate and he will be at risk of developing a Major Depressive Disorder and his risk of suicide will increase. To this end, he states that the custodial environment will be immensely challenging for the Offender and he will need close support and supervision.
5. Whilst Dr Cocks states that in a custodial environment, the Offender will not have access to consistent psychological support, he later adds that in the event of incarceration upon the provision of his report to Justice health:- [35] "Justice Health will be in a position to monitor Mr Palmer's mental health and provide appropriate treatment in the event that his mental health deteriorates."
6. Apart from the matters referred to arising from Dr Cocks' assessment, the report also notes that Mr Palmer suffers from type 2 Diabetes, Hypertension, Obesity and Obstructive Sleep-Apnoea, that requires a continuous positive airway pressure machine to optimise his sleep patterns.

SENTENCE

1. The offence carries a maximum penalty of 14 years imprisonment and a standard non-parole period of 7 years for an offence in the middle range of objective seriousness. I take this into account in the process of instinctive synthesis.
2. Both parties accepted that no penalty other than imprisonment is appropriate. [36]
3. The Crown submitted that fulltime imprisonment was appropriate. The Defence conceded that all offences of sexual assault are plainly of a very serious nature, [37] but nevertheless contended that the term would be less than two years and enable the court to consider suspending the sentence under s 12 of the 1999 Act
4. Before considering how any sentence is to be served, I must be satisfied that the term of imprisonment is one that enables suspension to be considered
5. I have earlier referred to the parties' submissions in respect of the decision cited for comparison, being R v Qin. [38]
6. In R v Qin, [39] the victim attended a Chinese Acupuncture massage clinic pursuant to an appointment. During the course of the massage the sentencing judge found that the Offender moved his hands upwards on the victim's body so that the tips of his finger passed between the vaginal labia and over the clitoris coming to rest on the buttock. There was no penetration of the vaginal canal. The victim asked the Offender to stop which he did and soon after the victim left the clinic. There was another offence arising from the touching of the anus which was separate to the offence under s 61I. The offending was described by the judge as 'almost at the extreme lowest level of seriousness. On appeal, Grove J said that the evidence did not demonstrate that the finding was wrong and it was within the ambit of sound exercise of discretion. In R v Qin, Grove J it was held that a suspended sentence of 10 months for the offence of sexual intercourse without consent pursuant to s 61I of the Crimes Act 1900 (NSW) was not inadequate:- [46] Counsel for the appellant has pointed to the brevity of the incident, the lack of violence or force, the limited degree of penetration and the nature of it, the level of gravity in the breach of trust, the cessation of behaviour when the complainant resisted. These were needed to be balanced against the elemental conduct involved in the offences and the consequences upon the victim together with matters such as specific and general deterrence.
7. Salmond v R [40] concerned an appeal against sentence for one Count of indecent assault and one Count of sexual intercourse without consent against the same victim in the course of providing massage therapy. The case involved the Offender's hand brushing against the clitoris and subsequently the Offender sliding his hand between the victim's legs and inserting his finger in the vagina "a few times." After a finding that the offences fell below the mid-range of offending the Offender was sentenced to a fixed two years imprisonment for the offence of indecent assault and 4 and a half years for the offence of sexual intercourse without consent, with two years non-parole. In dismissing the appeal, Simpson J pointed out that R v Qin [41] involved a Crown appeal asserting manifest inadequacy in sentence. In referring to Qin, Her Honour added:- [97] The sentencing judge expressly found that the seriousness of the conduct was almost at the extreme lowest level of gravity;… this conclusion was… within the ambit of the sound exercise of the sentencing judge's function. The sentencing judge had also spoken of "minimal degree of physical interference involved". [98] McClellan CJ at CL, who agreed with Grove J, said that a more severe penalty could have been appropriate but that which was imposed was not one in which the Court should intervene, having regard to the principles then applicable to a Crown appeal
8. In Jiang v R, [42] the Offender was convicted of one Count of indecent assault contrary to 61L of the 1900 Act and two Counts of sexual assault without consent contrary to s 61 I of the Crimes Act 1900. The Offender having pleaded Guilty and was sentenced to a fixed term of six months for the charge of indecent assault, which was consumed by concurrent sentences for each of the sexual assault Counts of two years with eighteen months non-parole for the two Counts of sexual assault without consent. The circumstances also involved a masseur who in the first instance spread the victim's legs and started with one finger to touch the clitoris whilst sucking on the victim's right nipple. After pushing the Offender away, the Offender continued to massage as if nothing had happened before he again put one finger at the entrance to the vagina. Once again the victim pushed the Offender away.
9. In dismissing the appeal against sentence, R A Hulme J accepted that the facts of the case bore a number of similarities to those in Qin. Nevertheless His Honour stated:- [75] Qin was a Crown appeal. The leading judgment was given by Grove J who held that the sentences imposed were within the judge's sentencing discretion and proposed that the appeal be dismissed. McClellan CJ at CL agreed, adding that:- [49] ... Although a more severe penalty may have been appropriate the sentence which his Honour imposed is not such that I am persuaded, having regard to the principles relevant to a Crown appeal, this Court should intervene. 76 Blanch J agreed with the remarks of Grove J and with the further remarks of McClellan CJ at CL. [77] No other authorities, principles or sentencing statistics were relied upon by the applicant. Reference to a single case does not provide a reason to conclude that the sentence in the present case was manifestly excessive. In R v Li [2010] NSWCCA 125, Barr AJ, with the agreement of Allsop P, Basten JA, McClellan CJ at CL and Simpson J, said:- [40] ... Moreover, unless there are co-Offenders, one may not look at the facts and result of a single case in order to show that the case under consideration is within or outside a proper range of sentencing discretion: R v George [2004] NSWCCA 247 per the Court at [48] - [49]. [78] As to the suggestion that the judge "ought to have" made the same assessment of the objective seriousness of the sexual intercourse offences as that made in Qin, it is appropriate to refer to the judgment of Spigelman CJ in Mulato v R [2006] NSWCCA 282 in which, with the "emphatic" agreement of Simpson J, he said:- [37] Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour. [79] The Judicial Commission sentencing statistics, acknowledging all of the limitations in the utility of having recourse to them, indicate that the vast majority of Offenders sentenced in a 6 year period to June 2009 for an offence against s 61I of the Crimes Act received a full-time custodial sentence and, of those, the vast majority received sentences in excess of 2 years. In short, the statistics do not support a proposition that the sentences imposed upon the applicant were other than in the low range of sentences imposed for such offences. Moreover, the non-parole periods of 18 months represented a substantial departure from the standard non-parole period of 7 years.

Other Decisions

1. On 3 November 2017 submissions on sentence were adjourned to 24 November 2017. In the interim, the Defence issued a subpoena on the Office of the Director of Public Prosecutions to obtain agreed facts statements of various cases where suspended sentences for offences were imposed in for offences under s 61I of the 1900 Act in the District Court, which had not been appealed. On the Crown's motion and for reasons given on 14 December 2017, I set aside that subpoena pursuant to s 227 of the Criminal Procedure Act 1986. Nevertheless, I gave the parties access to two of the decisions referred to in the subpoena, to which I was able to obtain access. By agreement, a timetable for supplementary submissions in writing was provided.
2. I have borne in mind the parties' submissions in respect of two cases in this Court.
3. R v Kay, involved two couples sharing an apartment on a social weekend away. Early in the morning, the Offender approached the victim who was his friend's partner whilst she was asleep. The Offender stroked her with his hands around the thigh area and then lowered her underpants and performed cunnilingus on her. Whilst he was performing that act, the victim woke and saw the Offender. Conlon SC DCJ found the act as opportunistic not involving any threat or forceful conduct and of short duration causing the victim to wake up and the Offender immediately discontinued the act. He noted the lack of consent arising from the victim being asleep. His Honour found in those circumstances that the offence was momentary and fell within the lower end of the scale. R v Kay involved a plea of Guilty justifying a discount of 20% and expression of extreme remorse and regret soon after the event. Taking account of what his Honour described as a powerful subjective case, the Offender was sentenced to 15 months imprisonment suspended under s 12.
4. R v Kumar, involved one Count under s 61I and one Count under s 61L, where the jury found the Offender Guilty. In this case, the victim was intoxicated whilst attending a party hosted by the Offender's son and was placed in a bed where the Offender resided in a granny flat at the back of the property. The victim awoke feeling someone suck his penis and realised that the Offender was doing so after kneeling beside the bed. The victim pushed the Offender's head away and the Offender immediately stood up and walked out of the room. Subsequently the Offender sent the victim a text message apologising for his conduct. He also told police that he rubbed the victim's penis both outside clothing and after pulling the victim's pants down. He told police that he believed the victim was consenting. In assessing, the objective gravity the Crown did not argue with the proposition that the offence fell within the low end of objective seriousness for offences of this kind. Marien SC ADCJ found the offence to fall within the very low end, considering that it involved non-penetrative intercourse and the offence was a momentary offence that did not involve force beyond that involved in the commission of the offence.
5. There were also powerful subjective circumstances advanced. In particular, the fact that a fulltime custodial sentence would require the Offender's son to cease work to care for the Offender's ex-wife and stepdaughter. His Honour found the circumstances highly exceptional warranting a suspension, although even if wrong in this regard, in light of the considerations referred to by Kirby J in Dinsdale v R and the need for community-based treatment justified suspending the sentence.
6. For the offence under s 61I, the Offender was sentenced to imprisonment for two years suspended under s 12. For the offence of indecent assault the Offender was sentenced to serve a s 9 bond on otherwise identical terms.
7. Both Kay and Kumar and turned on their facts. Whilst I accept there are similarities to some of the facts in R v Qin, there are limits to which that case can provide guidance. To the extent the Offender sought to compare the Offender's circumstances based on what Dr Cock's report referred to a concern that the Offender had about his son being taken to Russia and his parenting role, the Court was provided with limited untested information. [43]
8. The Offender's submissions acknowledge that comparison with other sentences are but one aspect of the matrix of relevant sentencing considerations and there are limitations in their utility. [44]

Statistics

1. Defence further drew attention to the sentencing statistics on the Judicial Commission database, which it showed that for the offence in question:- 1. 11% of Offenders received suspended sentences; 2. 29% of Offenders aged over 50 years received suspended sentences; 3. One third of Offenders aged over 50 years with no priors received suspended sentences. [45]
2. Leaving aside the relatively small size of the number of sentences, the figures above include cases where there were pleas of Guilty and Not Guilty.
3. Overall, I am satisfied that the statistics are of limited utility; a fact acknowledged by the Offender's counsel in submissions. [46]
4. In this case, the Offender's guilt was determined at trial in circumstances where the Offender is not entitled to an early plea discount.

Sentence

1. Whilst I have assessed the offence to be in the lower range of objective seriousness, the conduct needs to be denounced and the Offender made accountable, in the context of a proportionate sentence. I am satisfied that there is a low likelihood of reoffending and good prospects of rehabilitation.
2. In light of his previous good character, absence of prior convictions and based on Dr Cock' report I am satisfied that the Offender has been specifically deterred although general deterrence remains an important consideration as does the recognition of harm to the victim.
3. In considering the question of general deterrence, I bear in mind the comments of Hamill J In MC v R:- [47] [57] ... There are some circumstances in which it has been held that a particular kind of Offender may be an "inappropriate vehicle" for sentences containing a large component of general deterrence. That includes children and young Offenders and Offenders who suffer from an intellectual disability or mental illness of some kind. Such a principle might also be invoked, albeit rarely these days, when offences are committed "on the spur of the moment, either in hot blood or in drink or both". However the fact that an Offender is elderly and infirm, along with the other subjective and mitigating circumstances that were established on the applicant's behalf, are not matters that generally lead to a diminution of the role of general deterrence.
4. The Crown nevertheless conceded that the Offender's health was a relevant matter going to any finding of special circumstances. [48]
5. In all the circumstances, I am satisfied that the purposes of sentencing require custodial penalty and the circumstances for suspension do not arise.
6. By reasons of the fact that this is the Offender's first time in custody, his health my finding as to low likelihood of reoffending and good prospects of rehabilitation, I am satisfied that it is appropriate to find special circumstances in accordance with s 44(2) of the 1999 Act.

ORDERS

1. On Count 2 on the indictment to which the Offender was found Guilty, the Offender is convicted and sentenced to a term of 3 years imprisonment to date from today's date, expiring on 12 February 2021.
2. Pursuant to section 44 of the 1999 Act, I set a non-parole period of eighteen months to commence from today, expiring on 12 August 2019, and a balance of term of eighteen months thereafter to expire on 12 February 2021.
3. Pursuant to s 50(1) of the 1999 Act, I direct the release of the Offender at the expiration of the non-parole period to serve the remainder of his sentence on parole.
4. The earliest release date is 12 August 2019.

Endnotes

1. (1981) 147 CLR 383
2. [2017] NSWCCA 259
3. [2017] NSWCCA 259
4. T 54.05-.36
5. Exhibit D
6. T 162.16
7. T162.16
8. T 162.32-.163.05
9. Exhibit D, p 8
10. Exhibit G
11. T 59.35-60.04
12. T 60.22-.33
13. T 10.26
14. T 11.01-.07
15. T 11.05 and 15.08-.19
16. T 16.01-.48
17. [2008] NSWCCA 189
18. [2008] NSWCCA 189
19. T 15.01-.18
20. T 20.30
21. [2010] NSWCCA 277 at [78]; [2008] NSWCCA 189
22. Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(3)(e) (hereinafter referred to as the "1999 Act")
23. [2009] NSWCCA 20 at [56] (Price J, with whom James J agreed)
24. [2016] NSWCCA 132
25. Baines v R [2016] NSWCCA 132 at [5]-[7] (with whom, Rothman J at [57] and Fagan J at [127] agreed)
26. Exhibit 2
27. Exhibit A
28. s 21A(3)(f) of the 1999 Act
29. Exhibit 1
30. T 5.01-.04
31. Exhibit 2
32. Exhibit 1
33. Exhibit 2, p 6
34. Exhibit 2, p 2
35. Exhibit 2, p 7
36. s 5(1) of the 1999 Act
37. T 9.34 See R v Hartikainen (unreported, NSWCCA, 8 June 1993, 60095 of 1993) Gleeson CJ at [3] (Meagher JA and Newman J agreeing)
38. [2008] NSWCCA 189 (McClellan CJ at CL and Blanch J agreeing)
39. Ibid
40. [2010] NSWCCA 141 at [95] -[98] (with whom McClellan CJ at CL and Fullerton J agreed)
41. [2008] NSWCCA 189
42. [2010] NSWCCA 277 at [75] - [80] (with whom Simpson J and Hoeben J agreed)
43. Brief supplementary submission for the Offender dated 22 December 2017 at [10]
44. Brief supplementary submission for the Offender dated 22 December 2017 at [2]
45. T 17.48-18.16. The latest statistics show figures of 25 % in respect of (2) above in a sample of 12 and 38% in respect of (3) a sample of 5.
46. T 2.12-.17 and 18.18-.32
47. [2017] NSWCCA 316 at [57] (with whom Simpson JA and Rothman J agreed)
48. T 5.38-.40 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: 16 March 2018