R v Williams [2000] VSCA 174

2 On 21 September 1999 the appellant was arraigned and pleaded guilty in the County Court to one count of aggravated burglary (count 1), one count of attempted rape (count 2), one count of rape (count 3), one count of damaging property (count 4) and one count of robbery (count 5). The maximum sentences for the crimes were 25 years, 20 years, 25 years, 10 years and 15 years respectively. On 12 November 1999 the appellant was sentenced to be imprisoned for a term of five years on the count of aggravated burglary, to a term of seven years on the count of attempted rape, to a term of ten years on the count of rape, to a term of three months on the count of damaging property and to a term of six months on the count of robbery. The sentencing judge ordered that five years of the sentence on the second

count be served concurrently with the sentence on the first count, that seven years of the sentence on count 3 be served concurrently with the sentences on counts 1 and 2 and that the sentences on counts 4 and 5 be served concurrently with all the other sentences. The total effective term was ten years' imprisonment. A non-parole period of eight years was fixed.

3 The appellant was granted leave to appeal under s.582 of the Crimes Act 1958. The sole ground of appeal was originally that the sentence was manifestly excessive. On 20 July 2000 the grounds of appeal were amended by substituting the following:

1. 2. That the Learned Sentencing Judge erred in that in fixing both the maximum sentence and the minimum period before being eligible for parole, he gave insufficient weight to the Applicant's intellectual deficiencies.
2. 3. That the Learned Sentencing Judge erred in law in applying too much weight to principles of punishment and deterrence.
3. 4. That the learned Sentencing Judge erred in law in fixing a disproportionately high minimum term before the Applicant's eligibility for parole having regard to the Applicant's personal circumstances."

4 The victim of the offences was an 80-year-old widow who lived by herself. At 8.45 p.m. the appellant entered the house of his victim having disguised his face with a pair of underpants he had taken from her clothesline. The victim was watching television in bed. The count of attempted rape was constituted by the appellant attempting to place his penis in the victim's vagina, without success as he could not achieve an erection. The count of rape was constituted by the appellant forcing his penis into the mouth of his victim and asking her to suck it. He ejaculated on to the front of the victim's nightdress. He then forced her into the kitchen and demanded a knife, with which he cut the phone cord to prevent her from calling the police. The appellant demanded $10 from his victim, but she could only supply a $20 note, which he took. In sentencing the appellant the judge said that "apart [from the crimes themselves] you offered no violence towards your victim."

5 When the appellant was arrested and interviewed, he denied all the allegations. He eventually pleaded guilty when confronted with DNA evidence linking him to the crimes. The sentencing judge said that the pleas of guilty saved the community expense and more importantly the victim was spared the ordeal of giving evidence, which she evidently dreaded. His Honour also said that the pleas were some indication of remorse.

6 The appellant admitted 31 prior convictions from ten previous court appearances between 1981 and 1997. The prior convictions included nine charges of theft, six charges of burglary, and charges of assault and wilful damage. The only previous conviction for a sexual offence was a conviction on a charge of wilful and obscene exposure in 1995, in respect of which a fine of $1,500 was imposed.

7 The appellant is now 36 years of age. According to reports of Mr Joblin, a forensic psychologist, and Dr. Vine, a psychiatrist, the appellant is retarded, having an IQ of 63. He is illiterate. He was made a ward of the State at the age of 12 years and advanced through the institutions of Beltara and Turana to the adult prison system. Mr Joblin was of the opinion that the appellant was a person with a grossly inadequate personality, socially inept and able to function only in an extremely child-like way. Mr Joblin said that the appellant "needs close coercive supervision". He added:

"He is ... too disturbed psychologically and anti-socially to exist appropriately in the community."

Mr Joblin was of the opinion that "the criminal justice system is not an institution for warehousing those with serious psychological problems that result in anti-social behaviour", but thought the appellant "should not be left to his own resources." Dr Vine thought "the offence related more to his underlying intellectual disability than to the presence of a psychiatric disorder", and said "his intellectual disability is not of such severity that it would negate the possibility of a term of incarceration."

8 The appellant's counsel proposed to the sentencing judge that he be released on bail in order to obtain an assessment from the Secretary of the Department of Human Services under the Intellectually Disabled Persons Service Act 1986, so that a plan could be prepared with respect to the appellant's future treatment. The sentencing judge noted that under the Act the Minister for Corrections was entitled to take steps to have the appellant's eligibility for services under the Act assessed and the appellant could be transferred from prison to a residential institution. His Honour thought that that was a more appropriate course, and said that he intended to bring the matter to the attention of the Minister.

"I accept that given your disabilities, any sentence passed on you cannot really be used as a vehicle for either specific or general deterrence. Notwithstanding that, these crimes have to be marked with appropriate punishment. They amount to a degrading and humiliating attack on an elderly, frail woman, alone in her home. Your victim's ability to enjoy the last years of her life has been all but destroyed.

In recent years Parliament has seen fit to increase sentences for crimes of this type, to mark the community's revulsion at these types of acts. It is therefore up to the Court to pass sentences which reflect condign punishment."

10 In my view, in so far as his Honour's remarks connote that there was no need to impose upon the appellant a punishment of sufficient severity to deter others from committing like crimes or to deter the appellant from repeating his crime, they were unduly generous to the appellant. In R. v. Champion[1] Kirby, P., with whom the other members of the New South Wales Court of Criminal Appeal agreed, said that general deterrence is not eliminated, but still operates, sensibly moderated, in the case of an offender suffering from a mental disorder or severe intellectual handicap.[2] Nevertheless, as the Court said in R. v. Roadley[3], intellectual disablement is to be equated with mental illness[4], and in relation to the questions of rehabilitation and deterrence the applicant's mental condition may be taken into account "by giving little weight to general deterrence". As to specific deterrence, given the appellant's mental state, I doubt that the length of the prison sentence would have a significant bearing on whether the appellant re-offends.

11 In R. v. Tsiaras[5] the Court of Appeal said:

"Serious psychiatric illness not amounting to insanity is relevant to sentencing in at least five ways. First, it may reduce the moral culpability of the offence, as distinct from the prisoner's legal responsibility. Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective. Second, the prisoner's illness may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. Third, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence. The illness may have supervened since that time. Fourth, specific deterrence may be more difficult to achieve and is often not worth pursuing as such. Finally, psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health."

In my view the first, third and fourth of the considerations listed by their Honours are relevant to the appellant in the present case.

12 While acknowledging the limited relevance of general and specific deterrence, the sentence imposed by the sentencing judge upon the appellant does not appear to reflect any amelioration in the sentence that would have been appropriate if general and specific deterrence had been primary sentencing objectives. In my opinion the sentencing judge was mistaken in thinking that he was required to pass sentences which reflected condign punishment in the sense of punishment which was appropriate only to the crimes themselves. While the sentencing judge was required to take into account the circumstances of the crimes, and his Honour correctly characterised the crimes as degrading and humiliating for a victim who was extremely vulnerable and whose remaining years of life were likely to be blighted as a result, nevertheless the sentencing judge was also required to take into account the personal circumstances of the appellant, notably his intellectual impairment. The limited relevance of the aims of general and specific deterrence required that the sentence which was otherwise appropriate, and which could be described as condign, was to be moderated.

13 I do not think that the sentencing judge erred in declining to release the appellant on bail in order that he might be assessed and services administered to him under the Intellectually Disabled Persons' Services Act. The position of the appellant was not that of the applicant in Roadley, who was so mentally retarded that he functioned only as a child of five or six years of age, who was not capable of changing his behaviour, whose offence the Full Court held did not warrant imprisonment and who was not to be imprisoned just because there was no appropriate social service assistance outside the corrections system. The offences committed by the appellant in the present case were more grave, his intellectual disability is not so severe, and imprisonment was not chosen simply to fill a void in the available social services.

14 The appellant's life so far has been a cycle of committing offences and serving terms of imprisonment. Supervision and treatment pursuant to the Act may break that cycle. It is not necessary, however, for the appellant to be released from custody to obtain the benefits of the Act. As the sentencing judge noted, the Minister for Corrections has the ability to determine whether the appellant is intellectually disabled within the meaning of s.8 of the Act and to transfer the appellant to an appropriate residential institution as a security resident under s.21 of the Act notwithstanding that he is serving a term of imprisonment.

15 While in my view a custodial sentence was appropriate, I consider that the significant intellectual disability of the appellant and the effect of that disability upon the proper objectives of sentencing were not taken into account by the

sentencing judge. In my view the sentencing discretion miscarried.

16 I would propose re-sentencing the appellant to a term of three years' imprisonment on the count of aggravated burglary, three years' imprisonment on the count of attempted rape, six years' imprisonment on the count of rape and three months' imprisonment on each of the counts of damaging property and robbery. I would propose that one year of each of the sentences on counts 1 and 2 be served cumulatively upon each other and upon the sentence on count 3, and that the sentences on counts 4 and 5 be made wholly concurrent with the other sentences, making a total effective sentence of eight years' imprisonment. I would fix a non-parole period of six years.

17 I have had the considerable advantage of reading the draft judgment of Buchanan J.A. in this matter. My initial, although tentative, view was that the sentence was not manifestly excessive. A concern that I had was that, in addition to the aggravating factors mentioned by his Honour, the appellant's offending conduct demonstrated it was perpetrated with a considerable degree of cunning and premeditation on his part. For instance, some time prior to the commission of the offence, the appellant reconnoitred his potential victim and her home by engaging her in a conversation about a fictitious address. This gave him the opportunity of assessing her vulnerability and, at least to some extent, her home which he later burgled. It is also apparent from the evidence that he spent a considerable period of time in the lane adjacent to the victim's home before he crept into the victim's backyard, took her underwear from her clothesline for the deliberate, albeit naïve and ineffective, purpose of disguising himself, and then proceeded to commit the offences with which he was charged. At least some of the time spent by him in the lane must have been taken up planning for the criminal venture. Moreover, he showed very little remorse for his behaviour and its consequences. When first confronted by the police about the offence, he denied his involvement. It was not until he was told of the results of the DNA tests which virtually established that he

was the offender, that the appellant accepted the inevitable and made the relevant admissions. These and the other aggravating factors, I thought, when balanced against mitigating and other relevant considerations, arguably left the sentence within the relevant range.

18 Having considered the matter again in light of his Honour's draft judgment, I agree that the sentence is manifestly excessive, notwithstanding that the sentencing judge was generous to the appellant in considering that, because of his intellectual disability, any sentence passed on him could not be used as a vehicle for either specific or general deterrence. For the reasons given by Buchanan J.A., the appellant's intellectual disability did not remove the principle of general deterrence from sentencing considerations; it remained relevant, albeit "sensibly moderated" having regard to the appellant's condition. In the circumstances, my view is that the sentence of 10 years' imprisonment does not sufficiently reflect the appellant's lower level of moral culpability and the amelioration in the notional sentence which must follow if special deterrence has little relevance and the principle of general deterrence must be moderated in the particular circumstances of this case.

19 I agree with his Honour that, for the reasons given by him, the sentencing judge did not err in declining to release the appellant on bail for the purpose of being assessed and otherwise dealt with under the Intellectually Disabled Persons' Act. I therefore agree with his Honour that a custodial sentence is the only appropriate sentencing disposition in this case and that the appellant should be re-sentenced as proposed by him.

[1] (1992) 64 A.Crim.R. 244 at 254-5.

[2] See also R. v. Richards and Gregory [1998] 2 V.R. 1; R. v. Yaldiz [1998] 2 V.R. 376 at 381.

[3] (1990) 51 A.Crim.R. 336 at 343.

[4] R. v. Anderson [1981] VicRp 17; [1981] V.R. 155.

[5] [1996] VicRp 26; [1996] 1 V.R. 398 at 400.