s 61J(1)s 61M(2)
Crimes (Sentencing Procedure) Act 1999s 9s 21A
s 21A(2)s 25AA(3)s 54A(2)Section 54 B(2)
Judgment (2 paragraphs)
[1]
Judgment
Andrew Sales appears in this Court for sentence in relation to an offence committed on 21 March 2016 contrary to s 61M(2) Crimes Act 1900. The offence has a maximum penalty of ten years imprisonment and a standard non-parole period of eight years imprisonment. The offence was one of assaulting a person who I will refer to hereinafter as 'the complainant', then being under the age of 16 years, namely, 15 years and at the time of such assault committing an act of indecency upon the complainant or victim. The prisoner was charged in relation to the current matter on 7 April 2016 and, as I understand it, has spent no time in custody. He was subject at the time to a bond pursuant to s 9 Crimes (Sentencing Procedure) Act 1999, hereinafter to be referred as "the Act", that section of course, now repealed in the form it was when that order was made in 2014.
Mr Sales was born, contrary to the initial information in the Crown sentence summary, in 1983. I just interpose apropos of nothing that I was informed initially that in the sentence summary that his birth date was in 1964, the consequence of which some criminal history of a totally different human being born in 1964 was included within the bundle which is not relevant to this prisoner.
The victim of the offence committed by the prisoner was a friend of the prisoner's niece and she, herself, was a daughter of his uncle's partner. The offence occurred at his uncle's home. The victim was born in November 2000 thus in March 2016 she was 15 years and approximately 3 or 4 months. The victim had come to visit her mother, she normally lived with her father, with her friend, another young woman slightly younger than herself. She stayed the night of 18 March 2016 at the residence in South Grafton where the accused's uncle and occasionally her mother stayed. Ultimately after visiting other people associated with the family, in circumstances where she was supposed to stay somewhere else, she ended up returning to the address in South Grafton where the offence was committed.
On 20 March 2016, the prisoner and his uncle, Trevor Sales, went fishing in Yamba. I now have established from the evidence, that the prisoner had some months before been resident at the Bennelong Haven Drug and Alcohol Rehabilitation Centre near Kempsey. He had, as I understand it, only relatively recently been released and had for some period of time been abstinent from drinking alcohol. When he went fishing with his uncle he drank a quantity of white wine out of a cask and he became quite intoxicated. His uncle determined that the prisoner should stay at his home that night because he was "drunk".
The victim and her friend, another relative of the prisoner, were that evening sleeping on a double mattress in the lounge room. The prisoner, although one of the people in the house thought he should go somewhere else, ultimately was permitted to stay in the premises. The victim last noticed the prisoner standing in the kitchen from where she was in the lounge room before she went to sleep. The victim's mother, in fact, said that she did not want the prisoner in the condition he was in, staying at the residence at South Grafton, but the uncle insisted.
The prisoner came into the lounge room to sleep on the three seater lounge adjacent to the mattress where the victim was sleeping. Whilst the victim slept, the prisoner reached over and placed his hands down the back of the complainant's "shorts" and under her underwear. The complainant woke up and felt the prisoner's hand down the back of her pyjama pants. She then felt him touching her on the vagina. She said, "What the fuck is going on?" She made an immediate complaint which led to speaking to her mother and endeavouring to contact her father. She was in a distressed state. She told her father that she wanted to come home and she told her father, as I understand it, "(My friend) and I were asleep on the mattress on the floor and Andrew had his hands down the back of my pyjama pants."
The matter was ultimately referred to Grafton police. The victim was removed from the house. When she was in the motor vehicle being driven away, as I understand it, by her mother, she said, "I woke up with his hand down the back of my undies." She gave more detailed information in a recorded interview although it is of some significance to my mind the detail of the representations made by the victim immediately after the event in the context of the way she described the touching of her vagina.
The prisoner was ultimately arrested on 7 April. He declined a support person. He is said in the statement of facts to have given a version of events that is "not accepted as being accurate or honest." I will come back to that aspect of the matter as it emerged from the Crown's submissions in the context of some very pertinent observations made by the Court of Criminal Appeal in the rehearing of the appeal of Mr Muldrock concerning the capability of an intellectually disabled person to express contrition, or even give an accurate account or a truthful account of their conduct.
Mr Sales was born in 1983. As I said earlier he was 32 years of age at the time of the offending as I understand it. He now would be on my calculation about to turn 36. There has been extensive delay in the matter which I will comment about shortly. He has a criminal history that goes back to 2001 although it is a relatively minor one, but it is also a criminal history that involves a number of offences of the Local Court.
I point out that this offence that I am sentencing him for is the first offence of its type and it is the first time he has been sentenced in the District Court. He has a finding of guilt at the age 18 in respect of a minor stealing matter for which he was modestly fined. In 2003 at the Local Court, he was convicted of a series of offences of damaging property, possessing implements, to enter or drive a conveyance, larceny and "steal motor vehicle" for which he was either modestly fined or placed on a good behaviour bond for 18 months.
Approximately three years later he was before the Coffs Harbour Local Court in relation to offences committed in November 2005 and placed on good behaviour bonds in respect of an offence of assault a police officer in the execution of his duty, damaging property and breaking and enter a building damaging the contents. The good behaviour bonds pursuant to the then s 9 of the Act were for a period of 12 months. He was called up in relation to those good behaviour bonds in September 2006, that is approximately six months after the orders were made but it would appear no further action was taken although I do note the various conditions were made concerning counselling and supervision, particularly seeking to address the issues that are very much relevant in this sentencing exercise, his mental health, his drug and alcohol use and his use of medication or failure to use medication.
Also, in 2006 he was convicted of some minor offences in the Gosford Local Court of possessing a restricted substance, goods in custody and possessing a prohibited weapon for which he was modestly fined. There is then a break in his criminality which I've noted for a period of some eight years or thereabouts. He was convicted at Newcastle Local Court in May 2014 of breaking and entering and again damaging property. He was placed on a good behaviour bond pursuant to s 9 of the Act and subject to "supervision from the New South Wales Probation and Parole Service," as the order is shortly stated in the criminal convictions. There are no details as to the character of that supervision.
One matter I will note later in my remarks is that no request had been made, notwithstanding the fact that this matter has been before the District Court over a period of some eight or nine months, for a Community Corrections report. I believe this was an error not to seek such a report. The history of the matter coming before me, I hasten to say, reflecting upon that aspect is that the offender pleaded guilty in November 2018. The matter was adjourned till February 2019 for sentence.
Walmsley DCJ gave the prisoner a s 11 remand over the opposition of the Crown and the offender moved to a residential rehabilitation centre in Brisbane. That remand was extended when the matter came back before her Honour Judge English in either May or June of this year and ultimately the matter came before me when I came to Grafton in August of this year to conduct the sittings.
The matter was, in fact, listed to proceed on the third week of my sittings but the work evaporated by the end of the second week so I have conducted the proceedings involving this offender via audio visual link. One of the matters I had to bear in mind was the convenience of the legal representatives of the accused. I was informed that the prisoner's counsel was not available until 27 August. It has turned out to be quite manageable to deal with the matter via audio visual link.
The offender was further convicted after his arrest in relation to the current matter of possessing a prohibited drug in December 2016, that offence being committed in June 2016. Furthermore whilst on bail in relation to the current matters he was convicted at the Grafton Local Court in March 2018 of driving with the low range prescribed concentration of alcohol, not giving particulars to another driver, which suggests there might have been a minor accident of some description, and also of driving under the influence of alcohol, in respect of which the record shows no order made. But in relation to the other offences the prisoner was fined for the failure to give particulars and disqualified from holding a motor vehicle driver's licence in relation to drive with low range PCA matter. His criminal history is confusing in that respect. Perhaps the two drink/driving offences are overlapping with one another, but again the criminal histories Judges are provided are completely inadequate. They are usually not in chronological order and far better particulars should be provided to judges as a rule about the character of the offending.
Thus, we have a situation where, as the Crown has pointed out, the prisoner committed the current offence whilst subject to a s 9 bond ordered in May 2014 and this offence thus was committed whilst subject to conditional liberty or in breach of conditional liberty, which is an aggravating factor under s 21A(2) of the Act. Furthermore, the prisoner has committed offences whilst on bail in relation to the current matters, minor matters to be fair but still offences requiring Court intervention.
I have a range of evidence, medical, psychological and also relating to the circumstances of the prisoner's treatment in Brisbane. The prisoner did not give evidence. But I would not expect a person with the prisoner's mental health and intellectual issues to be able to give a good account of himself. I had what I regarded as impressive evidence from the prisoner's grandfather. His evidence, in its own way, confirmed the detail of the prisoner's history provided to Dr Nisbet, the psychologist, who has prepared a very helpful report in relation to the prisoner earlier this year, dated January 2019.
I note in relation to that report that Mr Sales senior, the prisoner's grandfather, was actually present during the course of the interview to confirm details. I regard Mr Sales not only as an impressive witness, but a truthful witness. He did not come here to gild the lily. But he is certainly is here to support his grandson and I have taken that into account favourable to the prisoner.
The prisoner has had a most unfortunate upbringing. He is an Aboriginal man. Not that that is of itself an "unfortunate upbringing". But his father died at the age of 33 of a heroin overdose. The evidence is clear that he was abandoned by his mother, who has children to other relationships. He was abandoned by his mother effectively shortly after birth. Ultimately with Family and Community Services intervention he came into the care of his grandfather and his grandfather's partner when he was about a year and a half, although, from what I understood of the history, the grandfather had been caring for the child off and on since the prisoner was a few months old.
The prisoner was developmentally delayed during his education and had a much interrupted education. The grandfather, as I understand the evidence, moved from the Central Coast, which is his "country", to Lightning Ridge and to Grafton, where he owned property. The prisoner, he told us, was diagnosed with ADHD as early as the age of ten. He displayed a number of behavioural problems which his criminal history reflects to some extent. His grandfather, however, was very concerned about him being on the medication Ritalin, and he tried to look after him in circumstances where he was not obliged to take that medication.
The prisoner was diagnosed with schizophrenia, as the medical evidence seems to suggest, possibly brought on by drug use at the age of 21. That is, as I understand it, in approximately 2004. He has a history of alcohol and drug use over a period of time pre-dating obviously that diagnosis and continuing up until the present time. He has difficulties with maintaining his medication regime required to treat him long term in respect of his schizophrenia.
So far as his schooling was concerned, he obviously had great difficulties with learning, leaving school at a young age. His grandfather speaks of two very significant events reflected in Dr Nisbet's history. Some years ago the prisoner was apparently riding a motorbike, with his uncle riding on another bike. There was some form of accident. His uncle, the son sadly of the grandfather of whom I have spoken, was killed. The prisoner was seriously injured, suffering not only a head injury, but a significant injury to his leg which has left permanent damage to it.
I should point out in passing the prisoner has appeared before me on each occasion he has come to Court in a wheelchair, and that is a result of the prisoner breaking the heel bones of both feet in June 2019 whilst in the residential care in Brisbane. The grandfather gave details of that. I understand in summary that the prisoner was trying to flee the rehabilitation centre in the mistaken belief that police, who had been called to the centre, had come to speak to him, when in fact they were there for other purposes. The prisoner had had some minor dispute with one of the staff. It is very regrettable that he injured himself in that way, jumping from a fence.
The grandfather gave evidence of the fact that there is support for the prisoner in the community, which I have taken into account. He referred to a mentor from the local Aboriginal community in Grafton, who I take to be an Elder assisting the prisoner, and the prisoner has been receiving outpatient treatment from the Grafton Mental Health Service for some years. The grandfather reflected upon the fact that the thought that the prisoner was "sorry" for what had happened, in the circumstances of having never done anything like this before.
He was cross-examined about this matter in the context of the Crown, I assume, seeking to establish that the prisoner was not truly contrite. When pressed in relation to the matter, the grandfather said that he actually said that he was drinking at the time of the offence. He had little memory of what happened. But he said he was "sorry for her". The truth of the matter is, as was pointed out in Muldrock, dealing with a person of similar circumstances to this prisoner, absent this prisoner's schizophrenia, the capacity of someone with that intellectual capacity to express contrition or even have insight into their offending is limited indeed and certainly could not be seen as a matter of aggravation.
In cross‑examination he reflected upon the fact that the prisoner was never neglected by him, but certainly neglected by his mother, and found it very difficult to establish a relationship with her, which was a very hurtful circumstance in his upbringing.
The accused's criminal history and general personal circumstances as well as the circumstances of the offending, are required to be considered in the context of a considerable amount of evidence in relation to the prisoner's mental conditions that have been present for a lengthy period of time. Some of which I have reflected upon in the chronology I have set out earlier. His mental conditions have received considerable medical and psychological attention without outpatient and inpatient treatment. He has been, "scheduled", to use an old fashioned phrase, under relevant mental health provisions on occasions. This context is relevant to the fact that there has been considerable delay in relation to this matter, which I have taken into account. Noting, of course, in the context of considering the progress of the prisoner's rehabilitation since the charging, the offences that he has committed. It must be fairly said, the prisoner has a problematic relationship with medical treatment.
The delay that has been occasioned, has arisen on occasions from the prisoners admission to a mental health unit at Lismore, called Tallowwood. In one report, it was suggested that the prisoner was not, "fit at that point to advise his solicitor or barrister". My reading of the file which I must confess was in some disarray when it arrived in my lap, bearing in mind none of the previous documents had been marked by the other judges, reveals that there has been no 'fitness to tried' issue raised at any stage of the proceedings, with substance. The prisoner of course, was committed for trial. This has occasioned delay but I also note in that regard, that the prisoner's plea of guilty to the charge of indecent assault, was in discharge of an indictment that pleaded as the principal count, a more serious offence, pursuant to s 61J(1), Crimes Act 1900, to which the prisoner has pleaded not guilty.
Therefore, the delay is relevant in this matter, to assess the prisoner's progress, which has not as I said, been altogether positive. Through no fault of the Crown, many of the delays have occurred in circumstances beyond the control of the prisoner. It could hardly be said that florid manifestations of his mental illness causing him to be hospitalised, involve any deliberate procrastination on his part. He pleaded guilty during the sittings when the matter was listed for trial. But I was informed by his counsel, without demur from the Crown Prosecutor that negotiations towards entering a plea had commenced some weeks before the sittings. Of course, in the background is the ever present issue of his mental illness and his intellectual capacity, reflecting upon his ability to cogently instruct his legal representations.
In the circumstances, I am prepared to accord him a discount of 15%, upon the otherwise appropriate sentence, to recognise the utilitarian benefit of the plea of guilty, notwithstanding the timing of the plea. In this regard, I note by pleading guilty this has meant that the young victim has not been required to give evidence which is an important matter to take into account. I also note from the Crown's very helpful written submissions, if I might quote a particular word, there was recognition of the possible "interplay" between his mental health, over which he has no control, and delays that have been occasioned to the proceedings.
In reflecting upon the issue of delay, I have had regard to two particular decisions. Mill v The Queen [1988] 166 CLR 59, which cites that earlier decision of the New South Wales Court of Criminal Appeal of R v Todd [1982] 2 NSWLR 517, particularly Street CJ's observations at p 519‑520. Todd, interestingly enough, was a case actually decided in 1979, and such was the way of reporting in those days, it took nearly three years for the decision to find the light of day. Be that as it may, those decisions recognise that delay may be relevant in a range of ways, particularly in charting the progress of a person's rehabilitation or progress through treatment and the like.
With regard to the s 11 remands that I have referred to, they were granted for the prisoner to complete a residential program in Queensland, at the Jessie Budby Healing Centre, in New Farm, a suburb of Brisbane on the Brisbane River. He successfully completed the first 12‑week program and ultimately was a resident for 13 and a half weeks. I understand this centre was a residential drug and alcohol establishment, not a mental health facility. Although the prisoner was not altogether happy there, particularly being distant from his family and having some difficulty with one of the staff, his discharge occurred in very unusual circumstances as I earlier outlined. I do not conclude that he failed to complete the program by any real choice on his part. As I said, fleeing the establishment on a false belief that he was in some form of trouble, which might well be fuelled by his mental conditions, he jumped off a wall and he fractured his two heel bones and consequently has been incapacitated, a matter that will need to be attended to by Justice Health.
I noted from the reports I have available to me, that one of the symptoms of his mental illness can be paranoia. In my view, the circumstances of the residential arrangements are quasi‑custodial. There are a range of authorities that talk about the appropriateness of recognising quasi‑custodial care before sentencing by making some adjustment to the commencement date or the length of relevant custodial sentences. I am prepared to give the prisoner two months' credit in relation to that time spent in that establishment, that considerable distance from his family.
Turning to the detail of his mental state, as I said earlier, in 2004 he was diagnosed with schizophrenia. For a number of years he has been on monthly anti‑psychotic medication injections although his compliance has been chequered. He has obviously had various mental health issues since he was a child, which I have outlined earlier. He has received, I appreciate, a great deal of assistance from his family, particularly his grandfather and his partner, and with assistance from case workers, working in association with the Grafton Mental Health Service. The problem with the maintenance of his treatment has been his continued drug use. One of the matters that emerged from reading the histories was that the prisoner, as I said earlier, had been in Benelong's Haven, trying to address his drug and alcohol usage, and it seems as though his intoxication at the time of the offence may have been to some extent exacerbated by his lengthy abstinence from alcohol beforehand.
I appreciate that alcohol and drug consumption do not provide mitigation for offending but they provide some context for understanding relevant offending. For example, in explaining why a particular conduct may be uncharacteristic, or explaining the absence of pre‑meditation or deliberation. These matters were reflected upon by Wood J in the guideline judgment of Henry, from 1998, particularly at [273] of his judgment, when he spoke in respect of drug addiction and its relevance to sentencing in armed robbery matters.
The offender's condition is chronic and he will suffer from it, I would expect, all of his life. The need for medication is also chronic and he obviously needs considerable professional assistance and guidance to maintain his medication and to receive other risks for. This is a serious medical illness which impacts upon all aspects of his life and is to be considered in the context of, or in conjunction with, his intellectual disability. I note in respect of the various assessments and histories, that the prisoner fortunately does not have prominent or regular bouts of psychotic episodes. But he does have a history of perceptual disturbances, particularly auditory hallucinations, denying any visual, tactile or olfactory hallucinations. Although Dr Nisbet, who assessed him for these proceedings, was unable to successfully conduct a Personality Assessment Inventory, in part because of the prisoner's limited intellectual functioning, the screening instrument reflected the prisoner had been alcohol dependent over the previous 12 months.
A previous psychological report commented upon by Dr Nisbet estimated the prisoner's level of intellectual functioning to be in "extremely low range" and in the first percentile. This equates to a full scale intelligence quotient or IQ of less than 69. The previous psychologist who assessed the prisoner concluded that the prisoner was not a person with "intellectual development or disability." Dr Nisbet disagrees with this, noting that by regard to the IQ assessment he was of the view the prisoner also had other components of an intellectual disability. Those three components being the full scale IQ was less than 69, having functional deficits in one or more daily activities which the prisoner has and having an onset of intellectual and adaptive deficits during the developmental period, that is, during the period of time developing until adulthood.
There was, the psychologist pointed out in previous medical records, recognition of developmental disability and developmental delay and a noted history of lack of self-care. Dr Nisbet was of the view in light of his clinical observations that previous assessments of the prisoner overestimated intellectual functioning in the context of the testing that had been undertaken.
This does bring me back to the Court of Criminal Appeal decision in Muldrock v R after the High Court judgment which I am going to refer to as well. The Court of Criminal Appeal decision handed down on 18 May 2012 [2012] NSWCCA 108 was delivered by the then President of the Court of Appeal Allsop J. It is a very interesting judgment indeed and there are a number of observations in it that are pertinent to the sentencing in this matter. It reflected upon the High Court's assessment of the evidence relating to Mr Muldrock, referring to him to be "mentally retarded." Having developmental disabilities very similar to the prisoner before me. His full scale IQ, that is Mr Muldrock's, was within the "borderline range." In the judgment of the High Court cited by Allsop P it was noted at [50]:
"The assessment that the appellant suffers from a mild intellectual disability should not obscure the fact that he is mentally retarded. The conditional mental retardation is classified according to its severity as mild, moderate, severe or profound. Mental retardation is defined by reference to both significantly sub-average general intellectual functioning and significant limitations in adaptive functioning."
The High Court went on to cite a passage from the New South Wales Law Reform Commission paper which I need not read onto the record, but which appears in the High Court judgment and appears in the judgment of Allsop P. Their Honours concluded that the finding of Black J DCJ QC at the Lismore District Court in relation to Mr Muldrock, that the then prisoner's intellectual disability was "significant", was "apt". His Honour went on to reflect upon what the High Court said about the significance of that matter in the sentencing exercise.
Another part of the history confirmed by the evidence of the grandfather was the sexual assault committed on the prisoner when he was a child. It would seem when temporarily in the care of his mother. He had a history of head injury as I said, arising out of a motorcycle accident some years ago that killed his uncle. He also, it appears in the evidence available to me, to have been the victim of an attack by a half-brother in Newcastle several years ago when he was struck on the head three times with a hammer, fracturing his skull and hospitalising him for a week. This attack in the view of the grandfather who attended, as I said, the conference with the psychologist, had "changed" the prisoner. I am somewhat disappointed that I have not been provided with a neuropsychological examination report in relation to the possibility of damage to the prisoner's functioning by reason of these significant head injuries.
Dr Nisbet noted "significant developmental adversities, including disruptive infant attachment, parental separation and neglect." The psychologist was of the view that despite attentive care from his grandparents he had an inability to form a secure attachment to care givers and this would have made it very difficult for him to negotiate key developmental transition points in his childhood. His early experiences and low cognitive ability would have made it difficult for him to successfully negotiate subsequent transitions dependant very much on this "prior learning." Sexual abuse at a young age would have eroded his sense of self-worth and given him confusing messages about sexuality. Departure from High School at an early age, as well as leaving the care of his grandparents from time to time, living on his own for a number of years in Grafton as his grandfather confirmed, had decreased levels of adult supervision and led fairly directly to drug use. Drug use would become self‑perpetuating leading to the onset of schizophrenia. His mental illnesses eroded his ability to make adaptive behaviour choices which have all affected him during his life.
"His developmental experiences, particularly his own sexual abuse, would have resulted in him not forming a rational template in which he could understand human relationships, rather characterising human relationships by coercion and exploitation rather than co-operation and reciprocity".
said the psychologist. The offence for which he appears before the court, in the opinion of the psychologist,
"reflects a lack of cogent understanding of human sexual relationships in combination with access to the "vulnerable victim" and his moral constraint or restraint impaired by consumption of alcohol. All these matters reflecting upon the causal connection between either his mental illness and/or his intellectual disability and the offence."
The psychologist undertook a risk assessment in relation to future risk, ultimately concluding that he was at "medium" risk of reoffending. He applied the Static 99 R instrument and also undertook the Risk for Sexual Violence Protocol or (RSVP) which provides an index of current live risk and can change from time to time and is amenable to intervention. At p.12 of his report he sets out a number of issues protective against the risk of further offending and a number that can evaluate the risk of further offending which I need not detail. A number of the matters protective of the risk of further offending are identified as the character of the offence, no attitudes on the part of the prisoner that support or condone sexual violence, the absence of psychopathic traits, no evidence of serious sexual deviance. Factors that elevate his risk appear to be matters intimately bound up in his history of sexual abuse and his mental health issues as well as his intellectual disability, such as a lack of suitable stable peer support networks, problems in treatment of his mental illness, past and present problems with supervision. There are measures that could be taken to lower the risk of reoffending, the greater risk the psychologist thought was of reoffending in a general criminal way rather than by acts of sexual deviance. The psychologist was of the view that the prisoner should undertake mental health treatment as part of a condition of any supervision orders. All these matters in my view speak to the appropriateness of a finding of "special circumstances" pursuant to s 44 of the Act, which I am prepared to make. I also feel that the prisoner needs an extended period of community supervision to adjust to community living and receive guidance in relation to treatment options.
Submissions made by the parties in written form and in oral form included the following matters. The issues relating to the assessment of the objective seriousness in the submissions I will deal with discreetly. So far as the Crown's submissions were concerned commenting upon the psychologist's report, which was apparently available at the time of preparation of those matters it was submitted that the prisoner had shown in his reaction to his charging attempts to excuse himself and it was submitted, however, that delays in relation to the matter as I said earlier had some interplay with his mental health.
The Crown said this delay was not attributable to itself but could be fairly seen to be connected to the timing of the prisoner's various hospitalisations.
The Crown pointed to the offences committed over this period of time whilst on bail, the character of his criminal history, previous opportunities provided before for supervision in the community and a breach of conditional liberty as well as prior breaches of conditional liberty before this offence. The Crown as I said earlier opposed the s 11 remand. The Crown in its oral submissions reflecting upon both the objective seriousness and other matters, submitted that full time custody was appropriate noting the prisoner's failure to comply with previous supervision and treatment regimes.
The defence submissions in writing and orally reflected upon the background of the prisoner, the significance of past traumatic events citing Simpson J's judgment in Millwood [2012] NSWCCA 2 particularly at [69]. She noted in that particular case:
"Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions."
This aspect of the submissions reflects upon matters arising from the High Court judgment of Bugmy v The Queen from October 2013 [2013] HCA 37, particularly the majority judgment at [43] and [44]. It was noted by the High Court, admittedly in a somewhat different context:
"A background of dysfunction may compromise a person's capacity to mature and learn from experience. It is a feature of a person's make up and remains relevant to the determination of the appropriate sentence notwithstanding that the person has a long history of offending."
I pause for a moment to point out, of course, this matter is not to be determined or reflected upon just in the context of the prisoner's background, his Aboriginality and any dysfunction in his upbringing, but his intellectual capacity and his mental health as well.
Their Honours went on to say:
"Because the effects of profound childhood deprivation did not diminish with the passage of time in repeated offending, it is right to speak of giving full weight to the offender's deprived background in every sentencing decision. However, this is not to suggest as the appellant's submissions were apt to do that an offender's deprived background has the same mitigatory relevance for all of the purposes of sentencing. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure, for example, to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced."
The observations in Bugmy have been improved in a range of decisions. Particularly I note Kentwell v The Queen (No 2) [2015] NSWCCA 96. In that case Rothman J gave the leading judgment for the Court. Rothman J's judgment, accepted by the learned Chief Justice and the other Judge who sat, reflected upon the decision of Fernando [1992] 72 A Crim R 58, particularly Wood J's judgment at pp 62-63 and the decision of Kennedy from 2010 in the Court of Criminal Appeal and the significance of both Bugmy principles and other factors to the assessment of sentencing Aboriginal offenders.
In respect of the submissions of counsel for the accused, the assessment of Dr Nisbet was submitted as one that should be accepted by the Court and proper weight should be given to the prisoner's mental health and mental disabilities noting the absence of any prior offending of the type I'm concerned with in the prisoner's criminal history. The aggravating features identified by the parties in their submissions were the same; an offence committed whilst on conditional liberty, an offence committed in the home of a person and of course the victim being "vulnerable" in a sense that she was asleep.
So far as the oral submissions were concerned, particular attention was taken to the decision of Muldrock of the High Court and the decision of the Court of Criminal Appeal in De La Rosa [2010] NSWCCA 194, particularly at [177] and [178]. In the High Court judgment of Muldrock [2011] HCA 39, the majority of the High Court at [54] reflecting upon observations in a decision of Young of the Victorian Court of Appeal, and particularly the observations of Lush J in that judgment where he said:
"The principle is well recognised. It applies in sentencing offenders suffering from mental illness and those with intellectual handicap. A question will often arise as to the causal relation, if any, between an offender's mental illness and the commission of the offence. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason as an ordinary person might as to the wrongfulness of the conduct will in most cases substantially lessen the offender's moral culpability to the offence. The retributive effect and denunciatory aspect of the sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender into the needs of the community."
Reflecting back on, as I earlier observed, what the High Court said at [50].
In De La Rosa, McClennan J, after reflecting a number of prior authorities of the Court of Criminal Appeal, concluded that:
"Where an offender was suffering from mental illness, intellectual handicap or other mental problems, the state of the person's mental health if it contributes to the commission of the offence in a material way will reduce the offender's moral culpability."
In my view, that applies here. Consequently, the need to denounce the crime may be reduced with a reduction in the sentence:
"The person may be an inappropriate vehicle for the full weight of general deterrence resulting in a reduction of the sentence that would otherwise have been imposed."
Such is the case here in my view. This is not a case, however in the circumstances, where I could conclude as was observed by Gleeson CJ in Engert that:
"The character or the condition may be such that there should be increased weight given to specific deterrence."
This prisoner is not a danger to the community. Also, the circumstances of custody may weigh more heavily on a person with such conditions. Although the prisoner has never been in prison before serving a term of imprisonment, I view his conditions as being of such significance that such will be the case here.
There is one other aspect of the matter in terms of the intellectual disability of the prisoner in the circumstances of his upbringing that is of some general relevance. That is the relationship of these conditions to the use of drugs and the abuse of alcohol and the literature that reflects upon the relationship of these matters to the consideration of the context of drug and alcohol abuse.
The primary submissions of the parties however were directed at the objective seriousness of the offending. The Crown in its oral and written submissions pointed to the "skin on skin" touching of the child's vagina as well as her bottom, claiming that the offending was within the upper end of objective seriousness. It cited two authorities to support this contention, the decision of Ivimey [2008] NSWCCA 25 at [42], and EJDG [2012] NSWCCA 251 at [27].
The Crown noted the age of the child was at the higher end of this offending, to use its expression, meaning of course that the child was of an age closer to the statutory limit. But, it noted also the disparity in ages between the offender and the child. I note in relation to the matter of Muldrock that the child in that matter was nine years of age and the offender was 30 years of age, albeit that he committed a much more serious offence than this prisoner.
The Crown noted the child was vulnerable, as I have pointed out, and that the offence was committed in a person's home, although it was pointed out by the defence that this was not the "complainant's home". It was at premises in which the prisoner was lawfully present, and the prisoner was present not as a person who ordinarily would have had responsibility for the child. In fact there is no evidence whatsoever the prisoner had any responsibility for the child.
There is no suggestion in this matter, unlike the cases cited by the Crown, of any breach of trust, or that the child was in any way under the prisoner's authority. It is to be pointed out of course that in relation to circumstances of aggravation that they have various degrees of seriousness or intensity. If the offence had occurred in the home of the victim in circumstances where the prisoner's presence was attached to a need, or responsibility to care for her, then that particular circumstance of aggravation would be a far more serious matter than in the circumstances of this case.
The Crown submitted that the relationship between the prisoner and the victim was one of "akin to family". That submission I cannot accept. Whilst the Crown submits that the Court is required to consider the impact upon the victim pursuant to s 25AA(3), even in the absence of evidence I would accept that that was so, I could not conclude however that the effect upon the victim constitutes an aggravating factor in this matter, I have no victim impact statement.
The Crown points as a relevant matter to the assessment of the objective seriousness that the prisoner was in breach of conditional liberty. This is an aggravating factor, and it may be relevant to the objective seriousness of the offending in particular circumstances, but not necessarily, and not here. It would depend upon the relationship of the conditional liberty to the circumstances of the offending, or the character of the offence, for which the person was subject to conditional liberty. This is not a matter where the prisoner would not otherwise have been at liberty but for the opportunity provided by conditional liberty. Whilst I note it of course as an aggravating factor, as I said, it is not particularly relevant to the assessment of objective seriousness.
The defence in its submissions to me reflected upon the need to weigh up all the competing considerations. In my view there are however mitigating factors that arise under s 21A relevant to the assessment of the objective seriousness of the offending. Firstly this offence was not part of "planned" criminal activity. It was at very best "opportunistic" even if it can be characterised as that. It is also submitted by the prisoner's legal representatives that the prisoner, by reason of his mental disability, was not fully aware "of the consequences of his actions" and I accept on balance that that is so, although again this is a matter of degree.
Particularly stressed in the defence submissions was the age of the complainant, being 15 years and four months, and bearing in mind that the section contemplates a range of conduct towards a child from the age of nought through to the age of 16 years. There is no doubt that the relevant ages are a particularly important matter, although not decisive, in reflecting the objective seriousness of the offending. But I bear in mind of course that the child was also asleep and was thus a "vulnerable" victim at the time.
I could not conclude that the act of the prisoner was an act of sexual gratification. So far as the character of the touching I regard that touching, in the context of the facts available to me, and the representations made by the victim immediately after the event, as being "fleeting", commencing with his hand moving down the back of her underpants not the front of her underpants.
So far as the authorities were cited by the Crown I note in relation to the decision of Ivimey that the touching of the victim's vagina in the circumstances of that matter was said to place the applicant's criminality "close to the worst class case". But that was a case where the touching of the vagina clearly involved considerably more deliberation by the offender in the course of conduct by the offender on separate occasions indecently assaulting the victim, the first time when she was eight years of age, the second time when she was 15 years of age. Both assaults occurred while the victim was having a shower, obviously in clear light not in darkness, and where the prisoner on the second occasion rubbed the outside of the vagina while rubbing her breast with his other hand.
I also note in that matter that the offender was in a position of trust in relation to the victim. He was her step-father, and, as I said, the relevant assaults occurring in the course of conduct over a number of years. The first assault occurring when the victim being eight years of age and the prisoner being 50 years of age. Although I have noted the difference in ages between the prisoner and the victim in this particular matter.
One can see by comparison of just two of the twelve counts for which that person was found guilty and was appealing the sentences, various distinctions could lead one to the conclusion that that case was at the upper end of objective seriousness.
In relation to the other case, EJDG, the victim in that matter was ten years of age. There were two separate acts of indecent assault committed whilst the victim was under the prisoner's authority. The offences were committed in the home of the victim, set up by the mother, to which the prisoner had been invited. The prisoner, firstly in relation to the matters, touched the victim on the outside of her underwear and then put his hand inside her underwear touching her on the outside of the vagina, having touched her on the thigh beforehand for at least a couple of minutes, clearly a very deliberate act. This assault occurred only over a matter of "seconds" although the victim said it "felt to her like a really long time".
The second event involved the offender cupping his hand over the vagina of the victim for a period of ten minutes. There are obviously substantial differences between those acts as they are described in the judgments and this offending. In my view, having regard to all the issues to be considered, bearing in mind the conclusion of the Court of Criminal Appeal of the other acts being "deliberate and premeditated" and the like, although I note in relation to the matter of EJDG that the offending was found to be within the "middle-range of objective seriousness", that the offending in this particular circumstance, bearing in mind the aggravating and mitigating factors that are relevant, bearing in mind the opportunistic character of it, was just below the middle-range of objective seriousness.
In this regard of course I am referring to what is required of me by s 54A(2) of the Act. The consideration of the relevance of the standard non-parole period is to be had in the context of the legislation following upon the Muldrock decision, by regard only to the objective seriousness of the offending, and by reflecting upon the standard non-parole period as a guide to an offence held to be within the middle-range of objective seriousness.
Section 54 B(2) requires the Court in fixing the appropriate non-parole period to have regard to all the circumstances of the matter which will include, of course, the finding of special circumstances and other relevant mitigating matters.
With regard to the assessment of mitigating factors, of course, there is the plea of guilty, there is the finding I have made in relation to not having full appreciation of the consequences of his conduct. There is the fact that the offending was "unplanned". Of course, his prospects of rehabilitation and his likelihood of reoffending are problematic areas. I appreciate that in the context of the evidence available from the psychologist.
But, of course, in addition to considering the mitigating factors, as I have pointed out there is regard to be had in fixing the appropriate sentence to what conclusions may be reached from the matters discussed in De La Rosa, that is the diminution of moral culpability, lesser weight being given to general deterrence, the circumstances of the prisoner's custody and the like.
His counsel submitted to me that I should fix a Community Correction Order. It is not appropriate that I should do that in my view, in the circumstances of what is left of the seriousness of the offending, the absence of assistance from the Community Corrections Service in assessing the prisoner, the fact that the prisoner has committed offences subsequent to being charged in relation to the current matter and the history of non-compliance with orders for supervision. But that is not to say that the prisoner should be denied a finding of special circumstances. The requirements of parole supervision will be far more stringent I would expect than those arising out of any community supervision that might have been provided by the current legislative provisions.
It is obvious from all that I have said that I have had full regard to the purposes of sentencing pursuant to s 3A including the need to protect the community to the extent that that arises. Of course, I am required to promote the rehabilitation of the prisoner. I was of the view ultimately that the s 5 threshold as it has been described, had been passed having regard to all the circumstances of the matter.
Thus I have concluded that I should impose a term of imprisonment upon the prisoner notwithstanding his current physical disabilities and the long-standing and chronic mental health and intellectual disability issues that I have identified. I am concerned about his vulnerability in custody. Of course I am. I would trust that appropriate steps would be taken for the protection of the prisoner in the context of the period of time that he will be required to be in custody.
Mr Sales in relation to the offence to which you pleaded guilty you are convicted. You are sentenced to a term of imprisonment by way of non-parole period of six months to commence on 27 June 2019 expiring on 26 December 2019. The balance of sentence I calculate as one year five months expiring on 26 May 2021. The starting point of the sentence I should point out was two years three months, I have given you a discount of 15%. I request the prisoner be immediately assessed on reception by Justice Health to address his mental health and physical health needs. It will be self-evident his physical health needs by the fact that the prisoner is currently in a wheelchair.
HIS HONOUR: Right, thank you. Have we got an Corrective Services officers there?
HIS HONOUR: Gentlemen, can I see you please if I may? Good morning, sir. I've sentenced Mr Sales to one year, 11 months' imprisonment with a non‑parole period of six months. It's backdated to June to take into account some other - some matters I have already referred to. I've asked the solicitor to provide an envelope addressed to Justice Health to be given to the reception when Mr Sales goes into custody because he has significant mental health issues and physical issues. He's in a wheelchair, he's broken the bones in his two heels, he has difficulty walking. He can walk to some extent but obviously he'll have to be conveyed in his wheelchair back to Grafton gaol, you understand that?
SPEAKER: Yes, your Honour.
HIS HONOUR: Would you kindly ensure that that envelope that Mr Hunter is going to give you is provided at the reception so that he can be properly assessed on reception by at least a Justice Health nurse and then suitably referred to wherever he needs to go? He might have to be taken to the Long Bay Hospital for all I know, given all the issues that effecting he requires monthly injections of a particular type of drug and he needs other medication too.
SPEAKER: Your Honour, you're pretty much on the money there, that's pretty much what will happen. He'll be assessed at Grafton gaol and he'll go to the certain wings in the gaol and then probably end up in Sydney - well, probably at Long Bay Hospital yes.
HIS HONOUR: Right, thank you. I just wanted - through all the forest of words that I've marked in the half an hour or two hour while you've been present I just wanted to encapsulate the particular matters I'd like you to pay attention to when you take him into reception, right?
SPEAKER: Yes, correct.
HIS HONOUR: Right thank you. Thank you very much Mr Crown for your presence. Thank you, Mr Hunter. Mr Sales, you'll have to go with the officers and thank you to Mr Sales Senior for coming along to support his grandson. Thank you very much.
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Decision last updated: 06 November 2019