REGINA v Kevin James SCOTT

LOWER COURT District Court JURISDICTION : LOWER COURT 01/51/0176 FILE NUMBER(S) : LOWER COURT Patten DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60225/02

O'KEEFE J BELL J

28 February 2003 REGINA v Kevin James SCOTT Judgment 1 O'KEEFE J: I agree with Bell J. 2 BELL J: This is an application for leave to appeal against the severity of sentences imposed upon the applicant on 18 April 2002 by his Honour Judge Patten ("the Judge") in the District Court at Lismore. 3 The applicant pleaded guilty to an indictment containing six counts. Counts one to five charged him with having sexual intercourse with CW, a child above the age of ten years and under the age of sixteen years, namely thirteen years. This offence is provided by s 66C(1) of the Crimes Act 1900 ("the Act"). It carries a maximum penalty of eight years imprisonment. Count six charged the applicant with aggravated indecent assault upon CW. This offence is provided by s 61M(1) of the Act. The circumstance of aggravation relied upon was CW's age, namely, thirteen years. This offence carries a maximum penalty of seven years imprisonment. 4 The applicant asked the Judge to take into account a further six offences that were set out in a Form 1 document pursuant to the provisions of s 32 of the Crimes (Sentencing Procedure) Act 1999. These offences included four counts of committing an act of indecency towards a person under the age of sixteen years contrary to s 61M(1) of the Act (each relating to the complainant CW). The fifth count alleged a common assault contrary to s 61 of the Act. This offence involved a second complainant, a schoolgirl friend of CW. The allegation is that the applicant kissed this complainant on an occasion after he had interfered with CW. The sixth count was of aggravated indecent assault and concerned a third complainant, NMD. The circumstance of aggravation was that NMD was a child aged ten years. 5 The Judge sentenced the applicant to imprisonment for five years on count one. A non-parole period of two and a half years was specified. The six Form 1 offences were taken into account in sentencing for this offence. The sentence was expressed to commence on the date of its imposition, 18 April 2002. In respect of each of the remaining counts in the indictment the applicant was sentenced to concurrent terms of two years imprisonment to date from 18 April 2002. No non-parole period was specified with respect to these sentences in the light of the sentence imposed on count 1. 6 The offences involving CW occurred over a period from 1 June 2000 - 5 December 2000. The incident involving NMD occurred on 9 December 2000. As I have noted, all sentences were made concurrent. No point is taken as to the correctness of this approach in the light of the principles enunciated by the High Court in Pearce v The Queen [1998] HCA 57; 194 CLR 610 per McHugh, Hayne and Callinan JJ at [45]. 7 The facts on which the Judge sentenced the applicant are set out in his reasons for sentence as follows: "The agreed facts, which I think it is necessary for me to recite, are that the prisoner frequented Saltwater Park in High Street, Coffs Harbour on a regular basis for the purpose of fishing, and the victim of the charges on the indictment, to whom I will refer as CW, and who was born on 5 May 1987, was accustomed to walk through the park on her way to high school each weekday morning. Apparently she first encountered the prisoner and spoke to him about a month after her thirteenth birthday when at her request, the prisoner gave her a small quantity of money. A similar transaction occurred on a second meeting the following week, but three weeks later, there was a further meeting between CW and the prisoner following which they went to a secluded location where the prisoner told CW to lift up her dress and pull down her pants, which she did. He then put his fingers inside her vagina. She told him that this hurt and he moved his hand away. She proceeded to school. This is the first count on the indictment. A week later there was a further meeting. They went to the same secluded spot. The prisoner asked CW if she wanted to "do it". She agreed. He pulled up her skirt, pulled down her pants and put his finger inside her vagina once more. This is the second count on the indictment. At the same time, the prisoner masturbated himself until he ejaculated. That is the first offence on the form 1, commit act of indecency. This type of activity, according to the agreed facts, continued for a period (although it is not subject to any formal charge) until the mother of CW commenced to drive her to school. After that period, the prisoner was observed on occasions to drive past CW's home and she also saw him driving in the vicinity of her high school, mostly at morning recess time. In the week prior to 27 November 2000, CW was alone in an area at the bottom end of the school in a grassed area near a demountable classroom. The prisoner drove past and there was some acknowledgment of him by CW. The prisoner parked his car outside the school. The prisoner and CW then went into a storeroom within the demountable classroom, and the prisoner told the victim to lie down and pull her pants down which she did. He then inserted his fingers into her vagina, that circumstance being count 3 on the indictment. At the same time the prisoner masturbated himself until ejaculation, which is count 2 on the form 1. Between 27 November and 5 December 2000 the prisoner again returned to the school at the morning recess. CW was in the same grassed area and acknowledged the prisoner's presence. She agreed to go into a classroom with him. Again she pulled up her skirt, pulled down her pants and the prisoner put his fingers inside her vagina, that being count 4 on the indictment. The prisoner again masturbated until ejaculation, count 3 on the form 1. On 4 December 2000 again at recess, the prisoner returned to the school. CW was then sitting in the grassed area with a friend who left to go somewhere else. The prisoner and CW went into the classroom and stood at the teacher's desk. The prisoner lifted up the back of CW's skirt and put two fingers through the back of her underwear and into her vagina. That offence is count 5 on the indictment. CW's friend returned and the offence terminated. On 5 December 2000, the prisoner again went to the school at the morning recess. Again CW was at the grassed area and went into a classroom with the prisoner. CW's friend was standing nearby. The prisoner and CW went into a storeroom and shut the door. CW lay on the floor with her skirt up and her pants down. The prisoner remained standing and masturbated until he ejaculated. That is count 4 on the form 1. The prisoner then lay on CW and moved up and down upon her, that being the charge of indecent assault, count 6 on the indictment. As the prisoner came out of the storeroom, following the commission of this offence, he walked up to CW's friend and kissed her on the mouth. She slapped him on the face and he left. This represented the charge of common assault with a second victim, count 5 on the indictment. The final matter upon which the prisoner is before the Court is the sixth charge on the form 1, indecent assault. The agreed facts are that the victim aged ten, a female, was swimming with a friend on the beach near the Coffs Harbour Jetty. The prisoner waved to her from the Jetty, entered the water and spoke to her telling her he would swim under her. She said "No". The prisoner swam under her and his head brushed against her pelvis before he surfaced between her legs. He swam under her again and in doing so his hand came into contact with her genital area and legs. The victim left the water and made an immediate complaint to her mother. The prisoner was apprehended in relation to this matter because of the identification of his motor vehicle." 8 Mr Winch, who appears on behalf of the applicant, challenges the sentences as manifestly excessive. Mr Winch contends that the Judge failed to give sufficient weight to the applicant's subjective case and to his pleas of guilty. Mr Winch also contends that the exercise of his Honour's discretion was vitiated by the failure to take into account a number of relevant considerations and by a factual finding as to the impact of the offence on the victim made in the absence of evidence. 9 The Judge reviewed the subjective case advanced on the applicant's behalf. He noted that the applicant was aged fifty-seven at the date of sentence and that he had been in his mid-fifties when the offences were committed. He took into account the references tendered on the applicant's behalf and the oral evidence of the Reverend Robert Draffan and Mr Brian Varcoe. Both those witnesses attested to the applicant's feelings of shame and remorse arising out of his offending behaviour. The applicant had no relevant criminal antecedents. 10 His Honour drew extensively on the reports of Mr Peter Stoker, a psychologist. He noted that the applicant had frankly and fully conceded his guilt in the course of his interview with Mr Stoker. He adverted to the applicant's difficulties including that his marriage had broken down and that he had suffered injury and trauma as the result of a coal mining accident. His Honour noted the applicant's past history of alcohol abuse and took into account that he had available to him a deal of community support. He also took into account the restrictions that had been placed upon the applicant while he was at liberty on bail awaiting sentence. His Honour found that there were special circumstances justifying a departure from the statutory proportion as between the sentence and the non-parole period. These included the applicant's age and the fact that this would be his first time in custody.

11 I will deal firstly with the matters that it is said that the Judge failed to take into account. The first relates to the evidence contained in Mr Stoker's reports. Mr Stoker interviewed the applicant on 12 May 2001. He administered a number of tests to him designed to assess both his level of intelligence and features of his personality. He reported that the applicant possessed: "Bright Verbal Intelligence (top 16% of the population) and Borderline Mentally Retarded Performance Intelligence (bottom 6% of the population). This man's intellectual profile denotes organic brain damage, possibly due to alcoholism and/or head injury as a result of an underground mining accident."

He went on to express the following opinion: "Due to alcohol abuse and possible trauma as a result of a mining accident, this man is suffering Substance-Induced Persisting Dementia (Diagnostic Statistical Manual - American Psychiatric Society [DSM-IV]). Dementia is a psychological condition that results in considerable disturbance in executive functioning (that is, planning, organising, sequencing, abstracting and being aware of the consequences of one's action). … It is my opinion that, a combination of organic brain damage due to alcoholism, depression and post-traumatic stress disorder, resulted in a reduced ability to comprehend the consequences of his actions when he became sexually involved with a thirteen year old adolescent. It is my opinion this man does not have paedophiliac tendencies." 12 Mr Winch acknowledges that the Judge set out extracts from Mr Stoker's principal report in the course of his remarks on sentence, but complains that his Honour made no other comment in relation to the opinions expressed in it.

13 In Mr Winch's submission the Judge must be taken to have failed to give sufficient weight to the well known principles relating to the sentencing of persons with mental disorders found in cases such as; Letteri (unreported) NSWCCA, 18 March 1992. 14 His Honour did not refer to Letteri. His reasons were given ex tempore. I am not persuaded that he is to be taken to have erred in the way Mr Winch identifies. It is appropriate to set out that portion of his remarks on sentence in which he dealt with Mr Stoker's reports: "I have had the benefit of two reports from Mr Peter Stoker, psychologist. One report is dated 24 May 2001 and as appears from it, the prisoner then frankly and fully conceded his guilt. Mr Stoker recites the prisoner's history including the breakdown of his marriage and a coal mining accident. It also appears that for a time he had a problem with alcohol abuse. The report contains these sentences: 'He now feels remorseful for his actions' (a statement which I accept.) 'He feels very upset it happened' (a statement which I also accept.) 'He became obsessed with contact with the girl, he felt close to the girl, he cared for her as a person, he felt sorry for her because he alleges she reported her father was incarcerated.' It may be that he did care for the principal victim as a person, but that of course can in no way excuse his totally appalling behaviour towards her. Mr Stoker concluded: 'This man's intellectual profile denotes organic brain damage possibly due to alcoholism and/or head injury as a result of an underground mining accident.' Later he said, 'It is my opinion that a combination of organic brain damage due to alcoholism, depression and post traumatic stress disorder resulted in a reduced ability to comprehend the consequences of his actions when he became sexually involved with a thirteen year old adolescent.' He continues, 'It is my opinion that he acted in a sexually abusive manner because of the factors outlined above. Once he commenced this behaviour it became addictive and he found it difficult to refrain from same. This man is highly remorseful and is open to psychological counselling in regard to these matters. He had indicated a willingness to commence counselling with me as soon as the present legal matters have been concluded.'" 15 The Judge appears to have proceeded upon an acceptance that the applicant was suffering from a degree of organic brain damage. He did not refer to the extent to which, if at all, he proposed reflecting general deterrence in the sentences to be imposed. I consider that there is merit to the Crown's submission that it cannot be concluded in these circumstances that the Judge gave more weight to deterrence than was appropriate having regard to the evidence as to the applicant's mental condition. 16 Mr Winch submitted that his Honour erred in failing to take into account Mr Stoker's opinion that the applicant does not have paedophiliac tendencies. 17 As I have noted, the Judge referred to evidence given on the applicant's behalf by the Reverend Robert Draffan and Mr Brian Varcoe. He observed that both had testified as to the applicant's remorse and, "to their belief that with proper counselling and treatment, he is unlikely to offend again" (ROS 6). Given that there is nothing to suggest that the Judge approached the matter upon the basis that the applicant possessed paedophilic tendencies (and, accordingly, that considerations of specific deterrence and the protection of the community were to be given prominence) I can see no error in his failure to refer to this aspect of Mr Stoker's opinion. 18 The next matter that Mr Winch relies upon arises out of the following passage in the statement of his Honour's reasons: "Although there is no evidence before me as to the impact upon the victim, it is not difficult to imagine that it had a very significant impact indeed. One would surmise that it effectively destroyed her opportunity to have a normal adolescence." (ROS5-6). 19 Mr Winch acknowledges that it is open to a sentencing judge to advert to the likely psychological consequences suffered by a victim of sexual assault without the need for evidence on the topic. In this respect he drew our attention to the observations of the Court in Regina v Allpass (1993) 72 A Crim R 561 at 565: "However, when one is talking about the long-term consequences of a sexual assault upon a child of tender years, psychological consequences are likely to be at least as important as physical consequences. There was no evidence one way or the other concerning any psychological harm suffered by the complainant, and it may well be that, at this stage, no-one knows what harm of that kind there will be. It is true that the Crown did not set out to demonstrate to Judge O'Reilly that the complainant would suffer adverse long-term consequences of a psychological nature, but it is in the nature of an offence of this kind that it is apt to produce such consequences even though they may not manifest themselves until some time in the future. That is an important aspect of the objective gravity of such offences."

20 Mr Winch's submission is that the Judge's finding set out at [17] above went beyond that which was open to him. That seems to me to be reading too much into the remarks that his Honour made. In assessing the objective gravity of these sexual assaults upon a thirteen year-old child it was appropriate for the Judge to take into account the likelihood that she would suffer long-term psychological difficulties. 21 Mr Winch next complained that the Judge failed to take into consideration the likelihood that the applicant's sentence will be served on protection. 22 There was no evidence before the Judge concerning the likely conditions of the applicant's custody. It is not apparent that any submission was addressed to him inviting him to have regard to the probability that some or the entire sentence would be served in conditions of protection.

23 The Crown submitted that the Judge is an experienced Judge of the District Court and that it was not to be lightly inferred that his Honour was unmindful of the prospect that the applicant would serve his sentence in protective custody because of his status as a child sex offender. 24 In written submissions the Crown went on to contend: "There are different levels and circumstances of protection. Some involve considerable deprivation and hardship whilst others do not. Generally, see Barnes L. A. "Protective Custody and Hardship in Prison", Sentencing Trends, No 21, Judicial Commission of NSW. The applicant has spent most of his time in custody in the Malabar Special Programs Centre where all inmates have a protective custody status (see Table 2 in the above article). In Regina v Gorman , [2002] NSWCCA 516, a distinction was drawn between incarceration at this Centre against the prospect of transfer to another correctional centre which would involve a return to "strict protection". 25 Any question of the conditions in which the applicant has served any or all of his sentence to-date could only be relevant in the event that error was established and the Court was required to consider re-sentencing. The first mentioned matter, namely, that there are different levels and circumstances of protection highlights the absence of any evidence before the Judge as to the probable conditions of custody to which this applicant would be subject. 26 This Court has held that the circumstance that a sentence of imprisonment is likely to be served in conditions of protection is a matter that is relevant both to a consideration of the length of the term and to the question of whether special circumstances exist to justify a departure from the statutory proportion between the sentence and the non-parole period; R v Burchell (19870 34 A Crim R 148 at 151; R v Boon (unreported), NSWCCA 17 November 1983; AB v The Queen (1999) 198 CLR 111; R v Wahabzadah [2001] NSWCCA 253. In Burchell Hunt J described as a well-known fact that child molesters are subjected to physical assaults by the inmates of regular gaols and that they are usually obliged to serve their sentences under heavy protective guard and often in isolation.

27 In dealing with the failure of a sentencing judge to advert to the fact that an offender had pleaded guilty to a charge Spigelman CJ in R v Thomson [2000] NSWCCA 309 at [52] said: "The absence of any reference to actual consideration of the guilty plea in the course of sentencing should, as a general rule, in the light of the obligation of sentencing judges to give reasons for their decision, lead to an inference that the plea was not given weight. This conclusion is significantly influenced by the express statutory obligations. The position may be not the same with respect to other matters which are required to be taken into account, either at common law or by reason of a general scheme listing relevant considerations, such as that found in s 16A of the Crimes Act 1914 (Cth)." 28 I am persuaded that in the circumstances of this case the omission of any reference to a consideration of the applicant's likely conditions of custody does amount to error. This is not to say that this Court would necessarily proceed to re-sentence the applicant. The question, having regard to the terms of s 6(3) of the Criminal Appeal Act 1912, is whether the Court is of the opinion that some other sentence (relevantly a less severe sentence) is warranted in law. 29 I turn to the evidence that was provisionally admitted on the hearing of the appeal. The applicant affirmed an affidavit on 15 November 2002. He stated that after he was sentenced he was held in the Malabar Special Programs Centre, Long Bay Complex ("the MSPC") where he has remained. Within a week of arriving at the MSPC he was given a job in the sewing shop. He has worked there five days a week, including doing overtime when that has been available. He has completed a personal development course and is about to commence a stress management course. He has had ongoing contact with a psychologist who has recommended that he undertake a relaxation course because of his high levels of stress. 30 The applicant also deposed to his role conducting a small group session in his wing. He runs this group along the lines developed by Alcoholics Anonymous. He derives some sense of satisfaction out of being able to help fellow inmates in this way. 31 The applicant has been offered the opportunity of participating in a therapeutic program for offenders assessed as being at a low level of risk of sexual re-offending. This program is run over a five-month period. The applicant states his willingness to undertake any course that will assist in ensuring that he does not re-offend. He expresses his firm conviction that he would not re-offend in any event. 32 The applicant continues his involvement with Kairos, a religious group. He is the area representative in 4 Wing of that group. 33 In August 2002 the applicant was admitted to the Prince of Wales Hospital as the result of an eye condition. This was brought on in association with his diabetic condition. His diabetes is said to be relatively under control, but the prison diet is not tailored to the needs of diabetic inmates. 34 It is appropriate for a sentencing court to take into account the circumstance that a sexual offender may spend his custody in conditions subject to some form of "protection" status. Evidence as to the likely conditions of custody is important if the Court is to make an informed assessment of the extent to which the offender's custody will be more onerous than that of prisoners housed in the general prison population. The concerns of which Hunt J spoke in Burchell would seem to be significantly lessened for sexual offenders who are placed in special facilities such as the MSPC. On the evidence in this appeal I am not persuaded that the sentence imposed on the applicant should be reduced by reason of the conditions of his custody.

35 In this case, taking into account the applicant's favourable progress while in custody, his psychological and medical difficulties to which I have referred, together with the other subjective circumstances found by the Judge, I have nonetheless concluded that no lesser sentence is warranted in law than one of five years with a non-parole period of two years and six months in respect of the offence charged in count 1. In coming to this view I take into account that with respect to this count there are the six offences set out in the Form 1. These offences took place over a period of some six months. They include offences involving two further complainants, most significantly the aggravated indecent assault on NMD. It is necessary for the sentence imposed on count one to take into account the criminality evidenced these matters; R v Morgan (1993) 70 A Crim R 368 at 372; R v Bavadra (2000) 115 A Crim R 152 at 158 and R v Barton [2001] NSWCCA. Equally I am not persuaded that any sentence less than one of two years is warranted in law with respect to the offences the subject of counts 2 - 6. 36 For these reasons the orders that I propose are:

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