ne! Key Criminal law - dross indecency - appeal against sentence - appellant sentenced to term of imprisonment - whether non-parole period excessive - appellant intellectually disabled and requiring psychiatric treatment - whether conditional release appropriate Criminal Code s.129 ON APPEAL FROM THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA SC No. 52-3 of 1985 RODNEY RICHARD DOREY v. THE QUEEN No. NT G23 of 1985 TOOHEY, MORLING & BEAUMONT JJ. DARWIN 16 APRIL 1986 IN) THE FEDERAL COURT i OF AUSTRALIA ' NORTHERN TERRITORY ) OF AUSTRALIA ) DISTRICT REGISTRY ) GENERAL DIVISION ) No. NT G23 of 1985 ON APPEAL FROM THE SUPREME COURT OF THE NOFTHERN TERRITORY OF AUSTRALIA SC No. 52-3 of 1985 BETWEEN: RODNEY RICHARD DOREY Appellant and THE QUEEN Respondent MINUTE OF ORDER JUDGES MAKING ORDER: Toohey, Morling & Beaumont JJ. DATE OF ORDER: 10 April 1986 WHERE MADE: Darwin THE COURT ORDERS THAT: The appeal be allowed bv reducing the non-parole to 138 months, otherwise the appeal be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. period IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY OF AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION No. G23 of 1985 wer rwer wv ON APPEAL FROM THE SUPREME COURT OF _ THE NORTHERN TERRITORY OF AUSTRALTA SC No. 52-3 of 1985 BETWEEN: RODNEY RICHARD DOREY Appellant and THE QUEEN Respondent CORAM: Toohey, Morling & Beaumount JJ. 10 April 1986 REASONS FOR JUDGMENT THE COURT This i5s an appeal against sentence. On 12 August 1985 in the Supreme Court of the Northern Territory, following the appellant's plea of guilty to a charge of gross indecency upon a female under the age of sixteen years, he was sentenced toa term of five years imprisonment with hard labour, with a non-parole period of two years. NS Section 129 of the Criminal Code imposes a maximum penalty of umprisonment for fourteen vears in the case of gross indecency by an adult on a female under the age of fourteen. The female in question was a child of four. The offence took place on 16 December 1984 in Darwin. At that time the appellant was staving with relatives, havind come up from Adelaide a few weeks earlier. On 15 December friends of the appellant's relatives arrived in Darwin from Jabiru to stay for the weekend. On Sunday. 16 December the two families decided to go to a barbecue that night and the appellant volunteered to stay home to babvsit the friends' young daughters, one aged four (the child in respect of whom the offence was committed) and one aged two. The children were ready for bed and at about 8 op.m., some one and a half hours after the families had left for the barbecue, the offence took place. It involved the appellant placing his finger in the child's vagina, causing her some injuries. The next morning the child's mother noticed blood stains on the child's pants and the police were notified. At first the appellant'denied having interfered with the child but, at the second police interview on 17 December 1984, he made admissions. i The opinion of Dr. Anderson, a specialist obstetrician gynaecologist at Royal Darwin Hospital, was that the child "suffered a sexual assault by the introduction of probably a finger repeatedly into the vagina, which resulted in the bruising of the left labia and tearing of the hymen". The appellant was seen by Dr. Ferris, a visiting psychiatrist. Dr. Ferris found no signs or svmptoms of any psychotic disorder but concluded that the appellant's manner of speaking and answering questions and his general demeanour were consistent with a mild to moderate degree of intellectual retardation. Dr. Ferris considered that the appellant also showed evidence of a persistent and significant degree of emotional immaturity. "Despite extensive efforts he seems unable to maintain any long term, stable, intimate sexual relationships with people of his own age and peer group. There is no evidence that he is currently, or has been, suffering from any specific psychiatric disorder such as requires or would respond to treatment." De. Ferris thought that there was some risk of the commission of similar offences in the future. The appellant has previous offences. One related to house-breaking and larceny in Adelaide in 1978. Another related to two counts of carnal knowledge with a young girl whom the appellant later married. In 1973 he was convicted of indecent assault and sentenced to imprisonment for nine months though the sentence was suspended on him entering into a bond. Apparently that offence related toa child of similar ageas the child concerned in this appeal. The primary judge referred to the "very obvious intellectual disadvantages" from which the appellant suffered. But he considered that the seriousness of the offence demanded a custodial sentence. His Honour thought it inappropriate to order the appellant''s conditional release. leaving it to the parole board to consider the appellant's situation at the. end of two years. The appellant contends that the sentence was in all the circumstances manifestly excessive and, in particular, that the sentencing judge failed to give due regard to the appellant's personal circumstances and his intellectual disability. The appellant was placed ina position of trust by the parents of two young children. He abused that trust in circumstances where he caused physical injury to one of those children. It is apparent from Dr. Ferris' report and from other material before the Court that the appellant has a need for continued long term support, help, guidance and training, whether he is imprisoned or not. wa The only mitigarina factors would seem to be those mentioned by Dr. Ferris viz. that the offence occurred "in a setting of intellectual retardation. persisting emotional immaturity, and continuing frustration at his lack of success 1n finding more appropriate outlets for his sexual drives by forming stable relationships with women of his own age". It is apparent that his Honour was alive to these considerations but that he felt thev were outweighed by the need to impose a sentence marking the seriousness of the offence and paying regard to the deterrent aspects of a sentence of imprisonment. He concluded that a custodial sentence was appropriate. The appellant appeared in person but. at the instance of the Bar. counsel appeared as amicus curiae and made submissions on behalf of the appellant. Counsel said that the appellant did not attack the head sentence of five vears. Having regard to other decisions of the Supreme Court of the Northern Territory to which we were referred, the sentence was on the high side. But it was a serious offence and we are not persuaded that the sentence was excessive. The real question for consideration by this Court 1s whether the non-parole period was excessive in all the circumstances. A non-parole term of two years in a head sentence of five vears would not ordinarily be held excessive. There are however special considerations operating in the present case, considerations to which the primary judge adverted but to which in our respectful opinion his Honour gave insufficient weight. The appellant FA tht emotionally immature and is intellectually retarded. Dr. Ferris was of the opinion that the appellant would experience more than the usual difficulty in coping with prison environment. That prognosis has been borne out by what we were told of the appellant's situation since he has been in prison, resulting in his asking to be placed in separate confinement. Since 20 March this year he has been in medium security but has asked to be put back in separate confinement. The prospects for successful psychiatric treatment are greater outside prison than inside. It is cleariv in the appellant's interests that he receive such treatment. Through counsel the appellant asked the Court to permit his release under the provisions of the Criminal Law (Conditional Release of Offenders) Act. This was a course his Honour declined to adopt. The appellant has now been in custody nearly sixteen months. Nevertheless conditional release is a course we decline to adopt. However we are of the view that in all the circumstances and having particular regard to the matters mentioned earlier, the appellant should be given the opportunity of earlier parole than LS possible under the existing sentence. We propose to vary the existing sentence by reducing the non-parole period to eighteen months. Whether the appellant will be paroled at the end of that time will of course be a decision for the Parole Board. The Board will be in a position to assess the various matters to which we have referred and any other matters it regards as relevant. To that extent then. the appeal will be allowed. I certify that this and the preceding six pages are a true copy of the joint reasons for judgment herein of their Honours Toohey, Morling and Beaumont JJ. Aa ——— Associate Dated: /0O Mink (7E6