THE QUEEN v ALAN JAMES LINDSAY

THE COURT: The Crown appealed against a sentence imposed on the respondent, Alan James Lindsay, by Higgins J of the Supreme Court of the Australian Capital Territory. At the conclusion of the hearing on 22 June 1995 we dismissed the appeal and indicated that we would publish our reasons in due course. These are our reasons. Mr Lindsay pleaded guilty to a charge of assault with intent to engage in sexual intercourse. The Statement of Facts tendered to the learned Judge included an account of the assault taken from the statement of its victim, a 64 year old woman. The woman had been shopping at Civic. While waiting for the bus at Civic, to return to her home at Narrabundah, the respondent (whom she did not know) had a short, casual conversation with her. She took no notice of him after the bus arrived. After she alighted from the bus, she commenced walking towards her home. Suddenly, the respondent appeared, put his arm about her neck, forced her to the ground and demanded sex. Despite her screams and pleas for mercy, the respondent removed her skirt and petticoat and pulled her pantyhose and underpants down to her knees. The woman is an asthmatic. She asked the respondent to pass her ventolin pump from her handbag but the respondent replied that she must die, that he wanted to have sex with her. He then penetrated her vagina with two fingers, said that he wanted to have sex from the back and rolled her onto her stomach. At this point, and for no revealed reason, the assault suddenly stopped. The respondent told the woman to get up and assisted her to do so. He picked up her scattered groceries. The woman adjusted her clothing and asked the respondent to come to her home for coffee and brandy. She said she did this so he would not hurt or touch her again. The respondent agreed. They walked the short distance to the woman's home, where she lived alone. On the way the respondent apologised to her, kissed her on the cheek and asked permission to call her "Mum". She agreed and again asked the respondent not to touch her at home. He agreed. When the woman and the respondent arrived at her home she commenced to make coffee. The respondent put the groceries in the kitchen. He then noticed blood on his hands. The woman noticed blood on her hands and clothing. Apparently, the blood came from a cut on the respondent's finger. The respondent noticed the woman's distressed state and told her to ring the ambulance and police. She was reluctant to do so but he insisted. She rang a friend and asked the friend to call the police. After a short time the police arrived and took the respondent into custody. The respondent told the police that he had been drinking heavily all day and that his recollection of the events of the day was unclear. He said he remembered being on the bus, "And the next thing I know is I've got a lady on the ground and I was abusing her or something. And then all of a sudden I'm sitting in her flat, in her house and drinking coffee with her". When asked what he meant by "abusing her", the respondent replied: "I think I called her a German slut. I think. I can't quote on that. Um then, I, I think I pushed her down. I'm not too sure. I think I pushed her down, tripping her". When asked whether he inserted his fingers into the woman's vagina, he said: "No I did not. No. No. No." It is not clear to us whether this denial should be understood as a statement that the respondent had enough recollection to be able to say that he did not penetrate the woman's vagina or whether he was simply recoiling in disbelief and horror. Whatever the position, it is important to note that penetration is not an element of the offence to which the respondent has pleaded guilty. The victim of the attack was medically examined. She was found to have a number of minor scratches as a result of the attack. On the same evening, the respondent was arrested and charged. With the possible exception of the allegation of digital penetration, the respondent adopted the attitude that, although he had no real recollection of the occurrence, he would not dispute the victim's account. He said she had no reason to lie. He has expressed remorse on several occasions. There is no reason to doubt his sincerity. He pleaded guilty, he says, in order to spare the victim the ordeal of giving evidence. Perhaps there were other reasons as well, but whatever the respondent's motive, his plea has had this effect. She has not been required to give evidence at any stage. It is impossible to take other than a serious view of the facts we have recounted. An innocent, defenceless, elderly woman was attacked and humiliated. Fortunately, so far as appears, she suffered no continuing physical injury. But the incident must have been extremely upsetting. Although there is no expert evidence on the subject, we approach the case on the basis that it will probably have a permanent psychological impact upon her. In our view, the facts relating to the attack would ordinarily require the imposition of a custodial sentence. It appears the primary Judge was of the same opinion. He spoke of the facts exciting "outrage and a desire to see condign punishment imposed". However, his Honour pointed out that it was the duty of a sentencing court, not merely to appease those who were outraged by the assault, but also to consider the moral responsibility of the offender for the assault and his personal circumstances. He went on: "There has to be a balance struck between the interests of the community and seeing offenders appropriately punished and ensuring that offenders are dealt with justly where responsibility is diminished. And further, that the community is protected from further offending behaviour by rehabilitative measures, if the latter are practicable in the overall context. At the time of the offence, the offender had consumed large quantities of dymadon - a paracetamol product - and alcohol. He has no real recollection of his attack on the victim. There is a history of drug abuse since the age of 9 - the offender is now 25 years of age - of extremely serious proportions. Dr Saboisky has set forth his history in a most helpful detail. His family history can only be described as violent to an appalling degree. He suffered many bashings at home. His drug use was his way of escaping from, and coping with those circumstances. In turn, of course, that led to increasingly rebellious and disturbed, even self-destructive behaviour. His alcohol and drug abuse is but a symptom of deeper psychological disturbances. In Dr Saboisky's opinion, whilst intoxicated, the offender somehow came to express a deep-seated urge to sexual attack upon a defenceless woman, probably the result of his ambivalent and hostile relationship with his mother. Alcohol and drug consumption is not necessarily a mitigating factor for criminal behaviour ... However, that depends on the role played by alcohol or drugs and the offenders relevant history. If an offender has a history of criminal behaviour when intoxicated, to voluntarily become intoxicated again, is to invite repetition of that behaviour. If the alcohol or drugs are taken for so-called 'Dutch courage', resulting in increase(d) violence, for instance, it would even be an aggravating factor. However, notwithstanding an appalling history of drug and alcohol abuse, apart from the drink driving offence, this offender has no history of any tendency to violence or to sexual or other abuse of others. Indeed, the attack on the victim, serious as it was, can be characterised more as a symptom of his illness than a sign of criminal behaviour. His immediate withdrawal and remorse tends to support that view. In my opinion, his moral responsibility was severely diminished at the time of the attack, not merely by drugs and alcohol but, more fundamentally, by the dysfunctional personality disorder apparently induced by his family history. His personal circumstances would otherwise have attracted some leniency, particularly, those relating to his plea, remorse, lack of prior criminal history. He has - notwithstanding his problems - displayed care and compassion to others in need and rendered voluntary assistance to them. He has exhibited the desire to improve himself and gain educational qualifications. None of that will be achieved, however, unless his serious personal problems are, effectively, addressed." The Judge then sentenced the respondent to three years imprisonment, suspended upon his entering into a recognisance in the sum of $2,000 to be of good behaviour for three years. The suspension was made conditional on the respondent submitting to supervision during that time by the Director of Adult Corrective Services or his nominee and obeying all reasonable directions of that person including attendance at, and submission to, counselling and therapeutic services. The Judge noted that the respondent was residing at the Mancare Community Rehabilitation Services Centre and undergoing its Bridge program. He directed that the respondent continue that program until completion, which we understand will be late this year. The judge commented that compliance with this requirement would itself involve a substantial deprivation of personal liberty. The situation in relation to Mancare was brought up to date at the hearing by an affidavit of Kevin Graham, program supervisor of the Centre. Mr Graham deposed that the respondent was admitted to Mancare on 16 December 1994 and has remained a resident since that time. He said: "3. Mr Lindsay has satisfactorily observed the rules and conditions of the residence since his arrival and has made satisfactory progress. 4. He has shown commitment to completing the program, even when the possibility of imprisonment arose on the basis of an appeal by the Crown. While the possibility was a distraction, he struggled to maintain his focus on the program and has continued to make significant changes to himself and his behaviour patterns. He has grown in his honesty, and has developed openness to others and commitment to a sober lifestyle. He has also been able to recognise several important issues relating to his family or origin and the influence of that family on his behaviour and personality. This insight has enabled him to make more realistic decisions about his behaviour. 5. I believe that Mr Lindsay would benefit greatly from continuing his program at Mancare, and that every effort should be made to enable him to do so. The management and staff of Mancare will be very pleased to see him remain here after his appeal is heard."