New South Wales Court of Criminal Appeal CITATION : Regina v O.O [2002] NSWCCA 416 FILE NUMBER(S) : CCA 60367/01 HEARING DATE(S) : 8 October 2002 JUDGMENT DATE : 8 October 2002 PARTIES : Regina O.O JUDGMENT OF : Sully J at 1; Howie J at 30 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/11/0290 LOWER COURT JUDICIAL Christie DCJ OFFICER : COUNSEL : D. Woodburne - Crown C. Craigie SC/C. Loukas - Appellant SOLICITORS : S. E. O'Connor - Crown Joanne Harris - Appellant LEGISLATION CITED : Crimes Act 1900 (NSW) CASES CITED: Veen v The Queen (No. 2) (1988) 164 CLR 465 DECISION : Leave to appeal granted; Appeal dismissed IN THE COURT OF CRIMINAL APPEAL 60637/01 SULLY J HOWIE J Tuesday 8 October 2002 REGINA v O.O Judgment 1 SULLY J: This is an application for leave to appeal against sentence. There were two victims: one a girl aged about 9 and the other a boy aged about 11. Because of the ages of the victims, and because of the nature of the particular matters with which the Court is presently to deal, the Court has ordered that the victims will be known: as to the female, only by the initial K; and as to the male, only by the initial H. In order to preserve the integrity of that order, the applicant himself will be identified only by the initial O. 2 The applicant appears to have first come to the District Court in connection with the matters now in issue on 12 April 2001. He appeared on that occasion before the Chief Judge of the District Court, and appeared in person, in circumstances which are not entirely clear from the material before this Court. 3 The matter was adjourned to 19 April 2001. On that date the Chief Judge adjourned the matter until 10 May, and directed the preparation of a psychiatric report. Such a report was prepared; and in due course it will be necessary to say something about it. 4 On 10 May the applicant was formerly arraigned upon an indictment containing three counts. 5 The first count charged that between particular dates and at a particular place he had sexual intercourse with K, she being at that time under the age of 10 years, namely, the age of nine years. The second count charged that between stated dates and at the same place he had assaulted H, thereby occasioning to him actual bodily harm. The third count charged that between particular dates and at the same place he had assaulted H. 6 To each of those counts the applicant pleaded guilty. In due course, he stood for sentence on 7 June 2001 before his Honour Judge Christie. His Honour passed three concurrent sentences. 7 In respect of the first count his Honour sentenced the applicant to imprisonment for six years and fixed a non parole period of three years six months. In respect of the second count his Honour imposed a fixed term of imprisonment for 12 months to be served, as I have said, concurrently with the sentence passed in respect of the first count. On the third count his honour passed a fixed term of 14 days' imprisonment making that sentence, also, concurrent with the other two sentences. 8 The offence of sexual intercourse, which was the subject of count 1, contravenes s60A of the Crimes Act 1900 (NSW) and attracts upon conviction, and relevantly, a maximum penalty of imprisonment for 20 years. 9 The offence of assault occasioning actual bodily harm contravenes s59 of the Crimes Act and attracts upon conviction, and relevantly, a statutory maximum penalty of imprisonment of five years. 10 The type of assault charged in count 3 contravenes s61 of the Crimes Act and attracts upon conviction a maximum penalty of imprisonment of, relevantly, two years. 11 The relevant facts need not be stated in any particular detail. It is sufficient to say of the sexual assault matter that it involved deliberate penile intercourse in circumstances of great abuse of the victim in that she and her slightly older brother were at all material times in the effective care, and under the effective control, of the applicant. 12 The assault occasioning actual bodily harm involved, put simply, beating the young boy very severely with a length of hose. 13 The common assault was a simple matter involving a blow with a hand, as it would seem, to the side of the boy's face on one particular occasion. 14 The learned sentencing Judge had before him, as I have earlier noted, a psychiatric report. It was dated 9 May 2001 and was prepared by Dr Jeremy O'Dea, senior visiting forensic psychiatrist. 15 The conclusions and recommendations to which Dr O'Dea came are set out in paragraphs 24 through 30 of his report as follows: "24. Mr (O) is suffering from a major psychiatric illness. This appears to be a schizophrenic illness that has been characterised by persistent ("voices"), visual hallucinations, paranoia (including delusions regarding the media and God), a grandiose and irritable mood, and disorganised behaviour that has allegedly involved aggressive and violent behaviour. 25. This illness appears to have commenced at least several months prior to his admission to St Vincent's Hospital in 1998. It seems reasonable to assume that at the time of the alleged offences he was still suffering from this schizophrenic illness. 26. Since recommencing on antipsychotic medication his mental state has improved but he requires a further period of acute care of his illness prior to long-term community management being instigated when appropriate. 27. As such he is currently fit, from a psychiatric perspective, to appear in court and participate in his trial process. 28. I am not able to draw a direct relationship between his psychiatric illness and the allegations of sexual assault against his niece. 29. However his mental state at the time of the alleged offences against his half-brother may have significantly complicated his ability to understand the impact of his behaviour on his half brother and his ability to control his anger and aggression. 30. Regardless of the outcome of the court case, Mr (O) will require ongoing psychiatric care and supervision in the long-term in order to optimise his response to treatment and minimise the risk of relapse of his psychiatric illness and further offending behaviour." 16 His Honour took the view that the state of affairs disclosed by the evidence before him and, in particular, by the psychiatric evidence, clearly indicated that it was plain that the applicant was: "In need of some not insignificant future psychiatric treatment within the custodial system. That he will remain in the custodial system, I would have thought, is a matter, completely beyond dispute. It is not only necessary to deter(O)from committing crimes of this nature but it is necessary to deter other citizens like minded to offend in this atrocious and unforgivable manner against young women in this community." 17 His Honour found special circumstances. His Honour took account in that regard of the need for appropriate psychiatric treatment with the hope that it would result, eventually, in the rehabilitation of the applicant. 18 His Honour noted as would, of course, have been obvious to anybody coming to the case, that it was necessary that the applicant continue to undertake psychiatric counselling, and that his progress upon release to parole be closely monitored, having regard to the nature of the crimes, and the circumstances in which they were committed, and the proper interest of the community to be protected against offending behaviour of that kind. 19 In support of the present application, some additional material has been put on affidavit and placed before the Court. It comprises a short affidavit from the applicant himself. Put very simply, that affidavit expresses remorse for the offences that I have described; and it puts forward a brief but clear explanation of how the applicant came to give Dr O'Dea something less than the complete story on the occasion of the doctor's first examination of him. 20 A second affidavit annexes a further report from Dr O'Dea. That report is dated 17 June this year. The relevant opinion is set out in paragraphs numbered 21 through 30 of that report as follows: " 21. As detailed in my report dated the 09.05.2001, I consider that Mr(O)is suffering from a major psychiatric illness. This major psychiatric illness is a schizophrenic illness and has been characterised by persistent auditory hallucinations, visual hallucinations, paranoia, passivity phenomena, grandiosity, irritable mood and disorganised thinking and behaviour. 22. Although it appears likely that it has been complicated by alcohol and other drug abuse in the past, his schizophrenic illness appears to be best understood as independent of his alcohol and other drug abuse. 23. It appears that this schizophrenic illness has significantly stabilised and improved over the past 12 months. As such, I consider that Mr (O) is currently fit from a psychiatric perspective, to appear in court and to participate in his court process. 25. In paragraph 29 of my report dated 09.05.2001, I drew a relationship between Mr (O)'s index offences against his half brother and his mental state at the time. 26. However, due to the fact that he denied the allegation against his niece at the time, I could not relate that allegation directly to his schizophrenic illness at the time. However, in the "Personal Declaration" made available for 11.06.02 and at interview on that date, he acknowledged the index offence against his niece and directly related the offence to psychotic symptoms of command hallucinations (of Sandra Sully and his uncle) at the time. 27. Whilst the significant change in Mr (O)'s account of the index offence against his niece needs to be considered with caution, the account he gave to me on 11.06.2002 and contained in the "Personal Declaration" is consistent with his history of schizophrenia, and his mental state and clinical picture during his treatment in custody. 28. If, in fact, Mr (O)'s current account of the index offence against his niece is to be accepted, then the defence of mental illness may have been open to him in relation to this charge In particular, it may be argued that the symptoms of his schizophrenic illness (including the auditory hallucinations, his mood disturbance, and his disorganised thinking and behaviour at the time) may have, amongst other influences, significantly impaired his ability to understand the nature and quality of his actions and his ability to reason with sufficient calmness in relation to the offence against his niece. 29. In addition, and as stated in paragraph 29 of the report dated 09.05.2002, his mental state at the time of the index offences against his half brother may have significantly complicated his ability to understand the impact of his behaviour on his half brother and his ability to control his anger and aggression in relation to this behaviour. 30. Regardless of the outcome of the Court case, Mr (O) will require ongoing psychiatric care and supervision and in the long-term in order to optimise his response to treatment and minimise the risk of relapse of his psychiatric illness and further offending behaviour. In addition, it is likely that he will require to be abstinet from alcohol and other drug abuse in the long-term to aid in this process. An opportunity to explore his sexuality in more detail in conjunction with the treatment of his mental illness could also be undertaken in the future to assist in the management and minimisation of his risk of further sex offending behaviours." 21 It will be seen from a comparison of the two sets of opinions given by Dr O'Dea that the significant change addressed in the second of the two opinions derives from the acknowledgment in connection with that second consultation by Dr O'Dea of the offence against K. 22 Dr O'Dea expresses the view that what is now a frank acknowledgment by the applicant of something that he had previously denied, "needs to be considered with caution". I am not quite clear exactly what it was that Dr O'Dea wished to convey by that expression; and it is sufficient to say that, in Dr O'Dea's view, what is now said by the applicant, especially in connection with the offence against K, "is consistent with his history of schizophrenia and his mental state and clinical picture during treatment in custody". 23 The written submissions of the applicant put as follows the basic propositions upon which the present application rests " (1) The sentence imposed was manifestly excessive in the circumstances as they are now apparent. (2) The sentences imposed, arose in circumstances of unintended but inherent procedural unfairness. Resulting from the applicant being mentally ill and unrepresented at the sentencing hearing. (3) The applicant was unrepresented and incompetent to advance his case on sentence. This was essentially because of his mental illness. In this regard the interests of justice should ameliorate principles which would otherwise leave him with the consequences of forensic decisions made by him or on his behalf. (4) The applicant relies upon further material as to his mental state at the time of sentence, which material he was disabled from presenting at the sentencing hearing by reason of his mental state and by a related decision as to his legal representation. (5) To the extent that such material as may now be relied upon in order to activate the Court's discretion to intervene is regarded as fresh evidence, the applicant seeks leave to rely upon such evidence as being effectively unavailable at the time of sentencing." 24 It seems to me that the correct starting point for consideration of those submissions is the following extract from the decision of the High Court of Australia in Veen v The Queen (No 2)(1988) 164 CLR 465 at 476,477 as follows: " The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions. And so a mental abnormality which makes an offender a danger to society when he is at large but which diminishes his moral culpability for a particular crime is the factor which has two countervailing effects: one which tends towards a longer custodial sentence, the other towards a shorter. These effects may balance out, but consideration of the danger to society cannot lead to the imposition of a more severe penalty than would have been imposed if the offender had not been suffering from a mental abnormality." 25 I take that statement of principle to require that in a case of the present kind a balance has to be struck in a prudent and discerning kind of way between two legitimate interests not always easy to accommodate. The position of the individual prisoner is, of course, one; but the legitimate interests of society to be protected against crime of the kind with which this application is concerned is another. 26 It seems to me that the facts of this case provide an example in which those countervailing considerations of which the High Court spoke in Veen (No 2) do, indeed, and as their Honours recognised might well be the casein a particular matter, cancel out. 27 For my part, I would say simply this: The offences in question were on any reasonable reckoning serious offences. They involved the abuse of young children who were then in the practical care and control of the applicant. On any view, they were deserving of serious censure and an appropriately severe penalty. 28 The matters which are now brought to the attention of the Court in the affidavits to which I latterly referred are important; and they have their proper place in the scheme of things. They do not seem to me, however, to provide a new element of so compelling a kind as would justify this Court in interfering with the sentences imposed in the Court below. I think that both as to the head sentences imposed, and as to the non-parole period fixed by the learned sentencing Judge, the end result falls well within the appropriate range of penalty. 29 I would grant the application for leave to appeal, and dismiss the substantive appeal. 30 HOWIE J: I agree with the remarks of the Presiding Judge and simply wish to add two short comments. The overall leniency of the sentences imposed by his Honour can only be justified on the basis that the applicant had pleaded guilty and at the time of the offences and the sentence he was suffering from a relevant mental disorder. Had those factors not been present the overall sentence would have been inadequate to reflect the objective seriousness of the offences committed by the applicant. 31 Although the Court received the further material in order to avoid the possibility of unfairness arising by the fact that the applicant was mentally disordered at the time of sentence, I do not believe that the further reports or material indicate that any unfairness did in fact arise. I consider, as does the Presiding Judge, that the sentence imposed by his Honour Judge Christie, was well within his discretion. 32 SULLY J: The orders of the Court will be as I have proposed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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