CATCHWORDS CRIMINAL LAW - Appeal against alleged inadequacy of sentence - Assault with intent to engage in sexual intercourse - Suspended sentence imposed by sentencing judge - Circumstances of offence - Moral responsibility of offender - Socially dysfunctional young offender affected by alcohol at time of offence - Subsequent contrition and guilty plea - Offender undergoing rehabilitative program at time of sentence - Appeal dismissed. THE QUEEN v ALAN JAMES LINDSAY No. ACT G15 OF 1995 CORAM: GALLOP, WILCOX & HILL JJ PLACE: CANBERRA DATE: 4 SEPTEMBER 1995 IN THE FEDERAL COURT OF AUSTRALIA ) AUSTRALIAN CAPITAL TERRITORY ) DISTRICT REGISTRY ) No. ACT G15 of 1995 GENERAL DIVISION ) ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: THE QUEEN Appellant AND: ALAN JAMES LINDSAY Respondent CORAM: GALLOP, WILCOX, & HILL JJ PLACE: CANBERRA DATE: 22 JUNE 1995 MINUTES OF ORDER THE COURT ORDERS THAT: 1. The appeal be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) AUSTRALIAN CAPITAL TERRITORY ) DISTRICT REGISTRY ) No. ACT G15 of 1995 GENERAL DIVISION ) ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: THE QUEEN Appellant AND: ALAN JAMES LINDSAY Respondent CORAM: GALLOP, WILCOX, & HILL JJ PLACE: CANBERRA DATE: 4 SEPTEMBER 1995 REASONS FOR JUDGMENT 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." We do not think it necessary to summarise the substantial information placed before the sentencing Judge regarding the respondent's home background and history. It is a tale of personal abuse, with consequential loss of self esteem and resort to all manner of drugs. The respondent has been assessed by two consultants, both of whom have expressed the opinion that he requires help rather than punishment. Dr John Saboisky, a psychiatrist, said in a report tendered to the sentencing Judge: "It seems to me that Mr Lindsay has had significant problems dealing with the shame and humiliation of excessive corporal punishment. He has a very ambivalent attitude towards his parents especially his mother and over the years he has used drugs of intoxication to give him some sense of personal peace as well as inhibit the negative emotions attached to his perceived treatment. In the process he has developed an alcohol and drug problem which has led to both disinhibiting behaviour and subjective cognitive impairment. For reasons which are unclear, he chose this lady to express I think a deep seeded sadistic urge to sexual attack and humiliate a defenceless woman. It is clear that alcohol did play a big role in this event and in the amnesia surrounding it. If one accepts that this attack has as it's roots the ambivalent and hostile dependent relationship that he has with his mother then it would be in his long term interest to have some regular psychological counselling to work through his problems associated with frustrated entitlement, lack of personal affirmation by his parents and a chronic sense of being victimised. He however seems to have a limited ability to tolerate for any period of time painful human emotions, preferring to use drugs to obliterate them. He has showed a capacity to abstain from alcohol but not from all drugs long term it seems. I think that the best outcome for him psychologically would be a period of drug rehabilitation and interpersonal counselling looking at his dysfunctional personality." Mr Andre Zagonski, a clinical and forensic psychologist, concluded a lengthy and detailed assessment of Mr Lindsay by saying: "... I would strongly argue, with due respect to the Court, for a non-custodial sentence with provision of a Assessment and Treatment Order for Mr Lindsay in order to enable him to receive his Therapeutic Community treatment at the Odyssey House and also to undergo the treatment described in 11.8. above. I consider that by continuing to abstain from drugs/alcohol and through the development of appropriate personal and social skills, attitudes, norms and values and also through the successful completion of treatments of his personal, interpersonal and sexual problems as described in 11.7., 11.8. above, Mr. Lindsay would decrease significantly a risk of his re-offending in the future. If he were to receive a custodial sentence without access to those forms of therapeutic interventions then I would consider his re-offending to be more likely. To my knowledge there is no sufficient custodial program for sexual offenders in NSW nor Therapeutic Community types of programs for drug-addicts. The program for sex offenders provided by Cooma jail which was regarded as insufficient has deteriorated further. To my knowledge it offers assessment only at this stage." The Director of Public Prosecutions, Mr Buddin, who argued the appeal on behalf of the Crown, listed a number of features of the offence that, in his submission, made it particularly serious. We need not repeat them. It will already be apparent that we regard the offence very seriously indeed. He also reminded us that the offence was regarded seriously by the legislature; it is punishable by a maximum penalty of 12 years' imprisonment. Mr Buddin acknowledged that Higgins J was entitled to take into account a number of matters favourable to Mr Lindsay. First, he desisted from the attack of his own volition. Instead of decamping, with perhaps little chance of identification and apprehension, the respondent assisted the victim back to her house. When he arrived at the house, he noticed blood and insisted that she call the ambulance and police. Second, he gave himself up to the police and made admissions. Although his admissions did not extend to everything that the victim claimed, because he said he could not remember any more, he accepted all her allegations, with the possible exception of her statement that he put his fingers in her vagina. Third, Mr Lindsay immediately indicated that he would plead guilty and has throughout maintained that attitude. This was an indication of remorse. Moreover, it resulted, not only in saving the Crown work and expense but, more importantly, in sparing the victim from attendance at court; a particular ordeal in a case like this. Fourth, Mr Lindsay has no relevant prior convictions. Fifth, as his Honour observed, Mr Lindsay's "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". The authorities state that an appeal by the Crown against the alleged leniency of a sentence ought to be a relatively rare event. There is an element of double jeopardy involved. The point was made succinctly in this Court as long ago as 1979. In Tait v Bartley (1979) 24 ALR 473 at 476 the Full Court said: "Although an error affecting the sentence must appear before the appellate court will intervene in an appeal either by the Crown or by a defendant, a Crown appeal raises considerations which are not present in an appeal by a defendant seeking a reduction in his sentence. Crown appeals have been described as cutting across 'time-honoured concepts of criminal administration' ... A Crown appeal puts in jeopardy 'the vested interest that a man has to the freedom which is his, subject to the sentence of the primary tribunal' ... The freedom beyond the sentence imposed is, for the second time, in jeopardy on a Crown appeal against sentence. It was first in jeopardy before the sentencing court." In that same judgment, the Full Court pointed out that an appellate court does not interfere with a sentence "merely because it is of the view that (it) is insufficient or excessive. It interferes only if it be shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error." These principles have been reiterated time and again since 1979, both in this Court and in others. Several decisions have quoted with approval observations of King CJ of the South Australian Supreme Court in The Queen v Osenkowski [1982] 30 SASR 212 at 212-213. We do the same: "It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular state of the offender's life might lead to reform. The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience." The Chief Justice's comment about the relationship between timely leniency and reform seems particularly pertinent to this appeal. The program that Mr Lindsay is following at Mancare is of great potential importance to him. Dr Saboisky and Mr Zagowski both say that a rehabilitative program is critical to his achieving the ability to function socially in a satisfactory way. The Mancare program is a program of the type they have in mind. It would have been unfortunate, indeed, to take him from that program to serve a gaol sentence; not only from his point of view but also from that of the community. Mr Zagowski thinks that such a program "would decrease significantly a risk of his re-offending in the future", whereas "a custodial sentence without access to those forms of therapeutic interventions" would make his re-offending more likely. Of course, there is a limit to the weight that can be given to the favourable factors we have listed. If the nature and circumstances of the offence clearly call for a custodial sentence, in the interests of protecting the public against repetition of the offence, to mark the community's disapproval of the relevant conduct or to deter others, personal factors must yield to the public interest. Some people might think this is such a case. But we thought Higgins J was entitled to take the opposite view. A custodial sentence would have appropriately marked the community's disapproval of Mr Lindsay's conduct and it may have had some deterrent effect. But if Mr Zagowski is correct, it would not have assisted to protect the public against a repetition of his conduct. Indeed, on his evidence, the contrary would have been the case. In sentencing a young person, particularly, it seems to us that a judge is entitled to place great weight on the desirability of taking the course most conducive to the offender's rehabilitation. As the English Court of Criminal Appeal said in Smith [1964] Crim LR 70: "in the case of a young offender there can rarely be any conflict between his interest and the public's. The public have no greater interest than that he should become a good citizen." Mr Lindsay is still only 24 years old. It was not necessary for us to determine whether or not we would have imposed the sentence that was imposed by Higgins J. The decision he made was well within the discretion available to him. Consistently with the authorities referred to above, it was not appropriate for us to interfere. That is why we dismissed the appeal. I certify that this and the preceding thirteen (13) pages are a true copy of the Reasons for Judgment of the Court. Associate: Dated: 4 September 1995 APPEARANCES Counsel for the Applicant: T Buddin Solicitor for the Applicant: Director of Public Prosecutions for the Australian Capital Territory Counsel for the Respondent: T J O'Donnell Solicitor for the Respondent: Legal Aid Office (ACT) Date of hearing: 22 June 1995