RS v R [2013] NSWCCA 227 | Case summary

Ground 5 - Imposing a longer sentence based on protection of the community 50It is convenient to deal with these grounds of appeal together. In summary, I consider that grounds 4 and 5 have not been established, but that ground 3 has, for reasons connected with how the limiting terms were structured. 51The applicant's case on sentencing was not that a custodial sentence was inappropriate. It was submitted that the sentences for the two sets of offences, which had each occurred over a short discrete period, should be concurrent and that any accumulation of the terms imposed for the offences involving the second victim should be partial, because full accumulation would result in a limiting term that exceeded the applicant's overall criminality. It was urged that the limiting terms imposed would not exceed the time the applicant had already spent in custody. 52By reference to Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 it was submitted that the applicant's mental disability was highly relevant to the sentencing process, making him a person who had limited moral culpability for his offence and that accordingly, general deterrence should play no role in the sentencing exercise and that retribution and denunciation did not require significant emphasis. His difficulties in custody were also emphasised, as was his isolation from his family. 53On appeal it was argued that the total limiting terms imposed were unduly harsh, being 'the equivalent of a putative head sentence of approximately 3 years'. That submission cannot be accepted. Nothing in his Honour's remarks suggests that he did not fix the limiting terms imposed by reference to the total sentence which would have been imposed on the applicant, had he been convicted after a normal trial, as s 23 of the Mental Health (Forensic Provisions) Act required. 54The total term imposed was 2 years, 3 months. Had a non-parole period been fixed after a normal criminal trial, it would have been of a lesser period than this, as required by s 44(2) of the Crimes (Sentencing Procedure) Act. Ordinarily, when fixing such a non-parole period a balance of term must not exceed one-third of the non-parole period. Nothing in his Honour's remarks suggest that he wrongly took this exercise into account, when determining the limiting terms which he imposed. 55It was further submitted that the terms imposed did not have proper regard to the objective and subjective circumstances which had to be considered on sentencing, but fell into a range more appropriate to a person not suffering from the applicant's mental disabilities. Further, that his mental abnormality should have rendered the applicant an inappropriate vehicle for general deterrence and that it reduced or eliminated the need for specific deterrence. 56It was also argued that his Honour had wrongly proceeded on the basis that the applicant was motivated by sexual gratification, despite having found that he was not sexually aroused at the time of the offences and that lack of sexual gratification should have been taken into account as a mitigating factor. In Essex v R [2013] NSWCCA 11 it was observed at [49]: "However in the present case the question of whether the conduct of the applicant was motivated by a desire for sexual gratification was necessarily an important one. It has been recognised by this Court that in matters of this nature, the question of whether the offending was so motivated is a significant factor to be taken into account in any assessment of objective seriousness. In R v Dunn (CCA (NSW) 15 April 1992 unreported) Gleeson CJ said: "The act of which the appellant was found guilty was, by definition, an act of sexual intercourse. In my view it is material, indeed most material, to take into account that the conduct in question was not done for any form of sexual gratification and was an act committed by this young offender in a fit of irritability and at a time when her capacity for judgment was impaired by the ingestion of drugs. Those are circumstances which I think were insufficiently taken into account by the learned sentencing judge." 57Contrary to these submissions, it is evident from his Honour's remarks that he paid careful attention to the evidence as to the applicant's intellectual disability and the nature of his sexual interest in his victims. 58This led him to conclude that the applicant's condition was such that less weight had to be given to deterrence, retribution and denunciation, than would otherwise have been the case. There was no error in that conclusion. It accorded with the approach discussed in R v Engert (1995) 84 A Crim R 67. 59Nor did his Honour err in concluding that the applicant was not fully aware of the consequences of his actions. Properly, it seems to me, that was one of the matters which gave rise to his Honour's concerns about the need for protection of the community. Contrary to the submissions advanced for the applicant, that was a matter to which he was obliged to have regard, s 3A of the Crimes (Sentencing Procedure Act) providing: "3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community." 60It was the applicant who tendered Dr Furst's reports. He was a consultant forensic psychiatrist working at Long Bay Hospital who first interviewed the applicant in April 2012, for some 60 minutes. In his report of 2 May 2012 Dr Furst explained the basis for his opinion that the applicant was not fit to be tried, as well as his diagnosis that the applicant suffered from a development disability of a moderate degree. He also referred to the applicant's report of having a sexual attraction to women, but not children. The applicant then denied the acts the subject of the charges. 61Dr Furst assessed the applicant again in December 2012 for approximately 30 minutes. He also had access to numerous documents; including the applicant's criminal record, reports of another psychiatrist Dr Nielsen, a psychologist report, medical files and a June 2012 determination of the Mental Health Tribunal. In his 14 January 2013 report Dr Furst noted a similar report from the applicant as to his sexual orientation and desires, making the additional observation that the applicant then denied 'sexual desires generally.' He also denied feeling sexually frustrated or having any deviant fantasies. The applicant did not give evidence, so this report was not tested. It does not accord with the evidence on which he was convicted. 62Those sexual acts, the steps he took to entice the victims to his van, his apparent awareness of wrongdoing, telling one victim not to tell what he had done, the acts in which he engaged and what was contained in Dr Furst's reports, provided a proper basis for his Honour's rejection of the notion that there was no sexual gratification involved in his offending. 63Dr Furst expressed the opinion: "The level of his disability would make it much more difficult than the ordinary person to understand concepts and hard for him to learn new information. It would also make it more difficult for him to communicate his understanding to others. [RS] also appears to meet criteria for a paraphilia, which is a disorder of deviant sexual arousal and a pattern of abnormal sexual behaviour dating back to his adolescence. The nature of his deviant behaviour and presence of any deviant sexual fantasies was not clear to me. Further assessment is warranted in the context of any sex offender treatment programs he engages in." 64Dr Furst considered that the applicant would benefit from further assessment and treatment to improve his behaviour and communication skills. In the event of release into the community, he recommended a treatment plan which included appointments with a clinical psychologist to address the applicant's sexual behaviours and to help him establish appropriate personal boundaries; the possible prescription of anti-androgen agents; and the goal of treatment with anti-libidinal agents, to remove deviant sexual arousal. In custody he recommended placement in a special unit for inmates with a developmental disability and a behavioural management plan along similar lines to that recommended, if released to the community. 65In sentencing his Honour thus considered the need for protection of the community. He concluded that: "...because of his intellectual disability, it gave greater weight to rehabilitation and less weight to deterrence, retribution and denunciation. However the need for protection of the community pulls in a different direction from the considerations concerning rehabilitation." 66That conclusion involved no error. As discussed in Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465 at [9]: "It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible." 67Further, as was observed at [10]: "It must be acknowledged, however, that the practical observance of a distinction between extending a sentence merely to protect society and properly looking to society's protection in determining the sentence calls for a judgment of experience and discernment." 68In this case that difficult exercise had to be conducted in circumstances were the offences in relation to the first victim were committed while she was staying with her grandparents, the applicant's parents, with whom he lived, for the first time on her own, for a period of about a month. She was then aged 7 years. At that time the applicant lived and slept in one of two caravans in the rear yard of the house. His sister occupied the other van. 69Counts 1 and 2 related to an occasion on 10 July 2010 when the applicant gave the first victim a signal, by moving his finger, while she was playing with her cousin. Only she entered the van. He put on a movie, 'Alf' and then showed her his penis, by pulling down his pants so that they were around his knees. This gave rise to count 1. He told her not to tell anyone what he had done. He then touched her in the area of her genitals, which he called her 'Minnie', under her clothes, so that his hand came in contact with her skin. This gave rise to count 2. He then told her to leave the van. 70The following Saturday, 17 July, the victim was outside, listening to her iPod, while her grandfather was inside watching television. The applicant came out of the house, walked to the van and again signalled her with his finger, beckoning her into he van. He closed the door and she sat on the bed and the applicant put on a movie. After sitting with her for a while, he got up, pulled his pants down and exposed his penis to the victim. This gave rise to count 3. He then walked towards her, knelt down and touched her private parts by sliding his hand under her pants at the front, bringing the back of his hand into contact with her genital area. This gave rise to count 4. 71The final incident occurred the next day. The victim was then outside after lunch with her cousin, teaching two dogs tricks. The accused again signalled her to the caravan and her cousin went inside. Again, he put on a movie and the victim sat on the bed to watch. Again, he pulled down his shorts and exposed his penis. This gave rise to count 5. He was looking into the victim's eyes as he did so. He then pulled up his shorts and walked to the victim, knelt down and put his left hand down her jeans and touched her on the genital area with the back of his hand, giving rise to count 6. 72The victim did not tell her mother about these offences until April 2011, when her mother spoke to her. Her explanation was that she was too scared to tell her mother, but she could not articulate why. 73As to the second victim, the circumstances of count 8 have earlier been referred to. Count 9 occurred shortly afterwards, while the victim was still in the van. The applicant then separated the opening of her vagina, using his fingers and looked in, without actually penetrating her. The same day the applicant was sitting in the house while playing cards, while the victim was standing up. He touched her genitals on the outside or the inside of her clothes. That gave rise to count 10. That day while they were at the kitchen table, he took hold of the victim's arm and forced her hand to come into contact with his penis. That gave rise to count 11. 74The applicant's circumstances were found to be that he suffered from significant intellectual disability, placing him in the bottom 0.3 per cent of the population. His language skills are particularly compromised and he is illiterate and innumerate. He has some general living skills, but cannot live independently in the community. He has always lived in relatively remote regional areas and apart from helping his father run a farm, has not worked. He is socially isolated. He had been assaulted in custody and on sentencing was in protection. His Honour found that as a result, custody would be more burdensome for him than for other inmates. 75His Honour considered the age of the victims and the fact that the offences were committed while they were houseguests in his parents' home. He found it probable that the offences were opportunistic. Each offence involved brief acts, which his Honour considered was as the result of a desire to avoid detection. He took into account that no physical harm resulted, that no threats were used and that the victim's silence had not been bought by gifts. He also observed that such offences could have a significant and long term impact on children, as the victim impact statements received had illustrated. 76His Honour concluded that because of his intellectual disability, the applicant's moral culpability had been significantly reduced. There was no evidence of sexual arousal at the time of the offences, which all fell within the low range. He considered that the assault involving simulated intercourse and separating the vagina of the second victim and looking in, were more serious than the other acts of touching. His Honour found that count 10 was the least serious of those offences, because he was not satisfied beyond reasonable doubt that this touching was under the victim's clothing. 77His Honour found that as a result of his disability, the applicant had no insight into his offending and that it was unlikely that he would ever learn what is appropriate and inappropriate behaviour towards children. He noted his mother's evidence that he always denied an allegation, when confronted with it. He also noted Dr Furst's opinion, that he met the criteria for paraphilia disorder of deviant sexual arousal and a pattern of abnormal sexual behaviour, back to adolescence. 78His Honour observed that the attitude of his mother and sister towards the victims indicated that at least two of his three primary carers lacked an appreciation of the seriousness of his conduct and breach of bail. Dr Furst's recommendation for 24-hour supervision was also noted. 79His Honour concluded that the applicant's prospects of rehabilitation and not re-offending were poor and that there was a need to protect the community. He noted that his prospects would improve, if he received the treatment Dr Furst recommend, but concluded that he then posed a danger to the community. He also considered that with appropriate treatment, including pharmacological intervention and compliance and supervision by responsible individuals, not including his mother and sister, this concern could be overcome, or ameliorated. 80His Honour concluded that while a custodial sentence was a sentence of last resort, in this case there would have been a custodial sentence imposed after a normal trial and that accordingly, limiting terms should be set under s 23. 81While I can see no error in any of those conclusions, it was argued on appeal that his Honour was not addressed on the basis that the applicant was a danger to the community and that he had poor prospects of rehabilitation. Those conclusions were said not to have been justified on the evidence and not supported by any expert evidence, particularly given the lack of any criminal record between March 1998, for offences committed in 1994. 82Nor were they justified by the opinions expressed by Dr Furst, which were submitted to have involved only a 'tentative' opinion that the applicant suffered from paraphilia. There was no supporting evidence for Dr Furst's opinion; that the diagnosis was incomplete and that even Dr Furst had suggested that it required further assessment. Further, his opinion did not exclude treatment in the community and that it was manifestly unfair that the applicant's mother and sister had been excluded as responsible persons for his supervision. 83It was also argued that on the evidence, no imprisonment was likely to have had any effect on the applicant's behaviour and in the circumstances, any perceived difficulty in the applicant remaining in the community, ought to have been canvassed with his legal advisers. 84These submissions cannot be accepted. They overlook the circumstances in which the applicant had been refused bail in December 2012 and what occurred at the sentencing hearing. 85His Honour had a concern about the attitudes of the applicant's mother and sister, which had been revealed on the earlier evidence. No further evidence about the applicant's supervision was called. During submissions on sentencing, his Honour raised with the parties the question of the danger which the applicant posed to the community, the suitability of his mother and sister to supervise the applicant, the earlier breach of his bail, their attitude to the danger which he posed to children and his record. 86The applicant's case was that his Honour should conclude that the limiting terms imposed should reflect the time he had already spent in custody. It was submitted to be relevant that the applicant's offences were opportunistic, rather than predatory; that he had limited moral culpability, given his significant disability and that objectively, his offences were not serious, being more consistent with childlike curiosity, than to obtain sexual gratification. His mental condition was also submitted to significantly reduce the objective gravity of his offending and that his record should be disregarded entirely. It was also urged that it would be concluded that the offences fell at the bottom of the range and that any accumulation should be partial. 87The Crown submitted that the limiting terms had to be fixed under s 23 on the basis of what an appropriate term of imprisonment would be, at a normal trial, without regard to any question of non-parole periods. That involved the normal approach necessary to be taken to offenders suffering from mental illness, making them less appropriate vehicles for general and specific deterrence. It was also submitted that regard had to be paid to Dr Furst's opinions, as to the applicant's lack of insight, his record and the attitude of his family members, when assessing the likelihood of his re-offending. 88It was also submitted that the lack of insight and limited understanding of the criminality involved in his conduct, was two-edged, raising as it did the risk of re-offending which existed. That there had been no sexual gratification obtained by the applicant, was argued not to diminish the impact of the offence on his victims. 89A limiting term backdated to expire on the day of sentencing, would not adequate reflect the criminality of the offending and the risk of further offending, particularly given the unsatisfactory arrangements for supervision available in the environment to which he would return. 90As to accumulation, it was accepted that there should be some slight accumulation for each discrete set of offences, but that a total limiting term of only about 16 months would not be adequate. It was submitted that assessment of when the community would no longer be endangered by the applicant's release was a matter to be determined by the Mental Health Tribunal under s 43. 91It follows that the submission on appeal that his Honour was not addressed as to concerns about the danger which the applicant posed to the community and the problems he perceived with the supervision arrangements, was not correct. His Honour's approach to these matters has not been shown to have involved any error. Nor has error been demonstrated in the individual sentences imposed. As discussed by Gleeson CJ in R v Engert (at 68): "A moment's consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other considerations. For example, in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance. ... It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise." 92As I have explained, however, the overall structure of the limiting terms which his Honour imposed was unusual, in that there was a hiatus between the day that the limiting term for count 6 expired on 4 April 2012 and the day that the limiting term for count 10 commenced on 28 October. That was a period of some 6 months and 5 days. 93The result of his Honour's approach was that the total of the terms imposed on 8 February 2013 was some 2 years, 3 months. The total period that the applicant had spent to that day in custody bail refused, was 1 year, 3 months and 21 days. The total period he was to serve in custody after 8 February, was thus 11 months, 9 days. 94Had his Honour adopted the more usual approach of commencing the term imposed for counts 1, 3 and 5, some 1 year, 3 months and 21 days before 8 February 2013, that being the total time that the applicant had spent in custody, as s 23(4) permitted, those terms would have commenced on 18 October 2011. On that approach, the total term of 2 years and 3 months imposed would have expired on 17 January 2014, rather than 27 January 2014. 95Had his Honour so approached the sentencing exercise, there would have been no necessity for any hiatus period. Further, application of the principle of totality would then have required consideration to be given to the question of the accumulation of the limiting terms imposed in respect of the offences involving the two victims. As discussed in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at [45]: "To an offender, the only relevant question may be "how long", and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality [Mill v The Queen (1988) 166 CLR 59.]." 96This was a matter which his Honour was obliged to consider under s 23(1), which required that he make 'the best estimate of the sentence the Court would have considered appropriate if the special hearing had been a normal trial of criminal proceedings'. That his Honour did give consideration to this question is apparent from his consideration of the principle of totality. 97In relation to the first victim his Honour took into account that the offences were committed over a short time and that they involved separate acts on separate days, with the result that his Honour considered that 'some modest accumulation is called for'. He also said that: "There should also be some accumulation as between those offences and the offences involving the other victim. It seems to the Court that they arose out of three separate events. The events involving the simulated intercourse and looking in the vagina are temporally quite proximate. What period of time separated them from the other two acts in the house is unclear. What period of time separated the two acts in the house is also unclear." 98While the terms imposed for the various offences committed in respect of the two victims provided for some modest accumulation, as his Honour intended, as the result of the hiatus in the terms imposed, there was complete accumulation as between the offences involving the two victims. That does not appear to be what his Honour intended, or what would have resulted, had the applicant been sentenced for these offences after a normal trial. 99Questions of concurrency and accumulation are discretionary, as explained in Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27]: "... there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both." 100In this case it seems to me that after a normal trial, proper application of these principles would have resulted in some measure of concurrency as between the terms imposed in respect of both the individual offences and those involving the two victims, as his Honour intended, rather than the total accumulation which resulted from the imposition of the hiatus period. 101It seems to me that the overall limiting terms imposed were too severe, being longer than the period for which the applicant would have been sentenced, after a normal trial. Otherwise, however, I do not consider that the limiting terms which his Honour imposed were unduly harsh. 102In the result, in my view the applicant must be re-sentenced. 103On re-sentencing the applicant relied on a 2 May 2013 report to the Court from the Mental Health Review Tribunal, which advised that it had made a determination under s 24(2) Mental Health (Forensic Provisions) Act, finding that the applicant was still not fit to be tried. He was, however, not found to be suffering from any mental illness or mental condition and was found not to require any ongoing treatment. 104Having regard to the evidence as to the overall criminality of the applicant's offending and applying the principle of totality, I would impose individual limiting terms under s 23(1) of the Mental Health (Forensic Provisions) Act totalling 2 years, commencing from 17 October 2011 and expiring on 16 October 2013 as follows: Victim 1 Count 1 (10 July 2010); count 3 (17 July 2010); and count 5 (18 July 2010): Section 61O(2) - an act of indecency towards a person under the age of 10 years - maximum penalty 7 years - exposure of penis: Limiting terms of 1 month to commence on 18 October 2011 expiring 17 November 2011 Count 2 (10 July 2010) Section 61M(2) - aggravated indecent assault of a person under the age of 16 year - maximum penalty 10 years - touched victim on her genitals (bare): Limiting term of 8 months to commence on 18 October 2011 expiring 17 June 2012 Count 4 (17 July 2010) Section 61M(2) - touched victim on her genitals: Limiting term of 8 months to commence on 18 December 2011 expiring 17 August 2012 Count 6 (18 July 2010) Section 61M(2) - touched victim on her genitals: Limiting term of 8 months to commence on 18 February 2012 expiring 17 October 2012 Victim 2 Count 10 (13 February 2011) Section 61M(2) - touched victim on her genitals: Limiting term of 5 months to commence on 18 June 2012 expiring 17 November 2012 Count 11 (13 February 2011) Section 61M(2) - forcing victim's hand onto his penis: Limiting term of 8 months to commence on 18 July 2012 expiring 17 March 2013 Count 8 and count 9 (13 February 2011) Section 61M(2) - 'simulated intercourse' and opening the victim's vagina with fingers and looking in, without actual penetration: Limiting terms of 14 months to commence on 18 August 2012 expiring 17 October 2013

RS v R

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