REGINA v DJM [2002] NSWCCA 493

New South Wales Court of Criminal Appeal

CITATION : REGINA v DJM [2002] NSWCCA 493 FILE NUMBER(S) : CCA 60477/02 HEARING DATE(S) : 9/12/02 JUDGMENT DATE : 9 December 2002

PARTIES : REGINA DJM (Applicant) JUDGMENT OF : Bell J at 1; Buddin J at 29

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 02/41/0030 LOWER COURT JUDICIAL Garling DCJ OFFICER :

COUNSEL : GIO Rowling (Crown) HK Dhanji (Applicant) SOLICITORS : SE O'Connor DJ Humphreys

R v Engert (1995) 84 A Crim R 67 R v Fahda (1999) NSWCCA 267 R v Foster [2001] NSWCCA 215 LEGISLATION CITED : R v Letteri (unreported), NSWCCA 18 March 1992 R v Mooney (unreported) 21 June 1978 R v Scognamiglio (1991) 56 A Crim R 81 R v Wright (1997) 93 A Crim R 48 R v Zamagias (2002) NSWCCA 17 CASES CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 DECISION : Application for leave to appeal granted; Appeal dismissed

IN THE COURT OF CRIMINAL APPEAL 60477/02

BELL J BUDDIN J

9 December 2002 REGINA v DJM Judgment 1 BELL J: This is an application for leave to appeal against the severity of sentences imposed on the applicant in the District Court at Nowra by his Honour Judge Garling on 20 June 2002. 2 The applicant pleaded guilty to two counts of having sexual intercourse with a person aged between ten and sixteen, who at the time was under his authority contrary to section 66C(2) of the Crimes Act 1900. His Honour imposed sentences in each case of two years imprisonment and specified a non-parole period of one year. The sentences were ordered to be served concurrently and to date from the date of sentence 20 June 2002. The maximum penalty provided for an offence contrary to section 66C subsection 2 is one of ten years imprisonment. 3 The facts on which Judge Garling sentenced the applicant are as set out in his reasons for sentence: "The facts which I have been given are these. Firstly, the prisoner had a relationship with C prior to this date. It had commenced some months earlier with the relationship progressing to kissing and cuddling. On 26 October 2001 C was just under fifteen years of age, I believe two weeks under fifteen years of age. She and a friend, T, went with the prisoner and they went fishing. Whilst T was present the prisoner and C started kissing. They drove to another area, stopped and the prisoner placed his hand down the front of her swimmers and inserted his finger into her vagina. Later on there was further sexual activity. C got on top of the prisoner, they began kissing, touching and feeling each other's parts. C put her hand down the prisoner's pants, apparently masturbating his penis. She then put his penis in her mouth and, after a time, they went home. T spoke to her mother about it. C denied that anything of a sexual nature had taken place. At a later time, her mother again spoke to her and, on that occasion, she said that it had taken place and that it was against her will. I have been given a record of interview with T, who was eleven at the time, but who had, it seems, a pretty good memory of what went on. She says that: 'He stuck his hand down C's swimmers, stuck his finger up her hole because I thought she, that's what C said that he did, and they started kissing. Then they went to another place and then they started making love again while I was in the back seat. I didn't get involved. And then C stuck her hand down his pants but I didn't know what was happening under there but she kept moving her hand up and down or something like that and they started kissing and then, so I turned round and he asked me to keep a watch out and then I turned my head and I saw at a glance and she was sucking on his private parts and he told her to keep going. Later on, they started kissing. They had their clothes on. C got on top of him and they were kissing'. Turned her head again. 'He was sucking her on the boob and they were kissing.' So she gives a fairly accurate description of what she saw." 4 The applicant was aged thirty-one years at the date of the offences. The complainant is the niece of the applicant's wife to whom he was engaged at the date of the offences. Judge Garling made a number of favourable findings concerning the applicant's subjective circumstances, including that he was a man of otherwise good character. His Honour took into account the contents of the reference of Mr Bennett which detailed the applicant's closeness to his mother as a child and the impact of her death on him when he was aged thirteen years. There was a deal of evidence accepted by Judge Garling that the applicant had been very much affected by his mother's death. 5 Judge Garling also took into account the evidence of the applicant's father who suffers from a disabling condition that has led to the amputation of both his legs and to the loss of the fingers of both hands. The applicant is an only child and provides assistance to his father around the house with a variety of jobs. 6 Judge Garling took into account the report of Dr Quinn, a psychiatrist, observing that the psychiatric evidence was an important matter. His Honour noted that the case was somewhat unusual in that the applicant had been receiving psychiatric treatment around the time that the offences were committed. 7 The central challenge mounted to the exercise of Judge Garling's discretion related to the approach that his Honour adopted to the psychiatric evidence. 8 Mr Dhanji, who appears on the applicant's behalf, submits that in the light of this evidence the judge erred in the emphasis that he placed on the factor of deterrence in sentencing the applicant. In support of this challenge, Mr Dhanji referred us to R v Fahda (1999) NSWCCA 267 in which Simpson J reviewed the authorities dealing with the impact of mental disorders on the sentencing of offenders. 9 Mr Dhanji also drew our attention to a passage in the judgment of Grove J (with whom Clarke JA and Newman J agreed) in R v Scognamiglio (1991) 56 A Crim R 81 at 86. In that case his Honour extracted and adopted the remarks of Young CJ of Victoria in R v Mooney (unreported) 21 June 1978: "In sentencing generally, it is necessary to balance personal and general deterrence on the one hand with rehabilitation on the other. But in the case of an offender suffering from a mental disorder or abnormality general deterrence is a factor which should often be given very little weight .... general deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others." 10 Mr Dhanji complains that Judge Garling made no mention of the principles relating to the sentencing of offenders suffering from mental disorders in the course of the remarks on sentence. He noted that his Honour placed emphasis on considerations of deterrence saying at ROS 6: "It is a most serious matter. It is most serious for this young lady. It is an offence which the community demands will be severely punished and the prisoner must be punished in such a way that he understands he cannot offend in this way and that others in the community understand that he cannot." 11 Mr Dhanji pointed to his Honour's finding that the applicant was a person unlikely to re-offend. The significance of this, in Mr Dhanji's submission, was that the reduction in the importance of general deterrence (having regard to the applicant's mental condition) was not counterbalanced in his case by any increased need for specific deterrence; R v Engert (1995) 84 A Crim R 67 per Gleeson CJ at 71. 12 It is appropriate at this juncture to review the evidence contained in the report of Dr Quinn and to note the approach that Judge Garling took to it. Dr Quinn observed that he had seen the applicant on two occasions prior to the date of the offences, namely, on 13 September and 31 October 2001. He had also seen the applicant on 11 June 2002 for the purposes of preparing his report. Dr Quinn observed that the applicant had been residing in Nowra since October 2001 and that he had not been able to find a psychiatrist in that area in order to continue treatment. Nowra and its surrounds have poor psychiatric services. 13 The applicant's general practitioner had referred him to Dr Quinn. The purpose of the referral was for an assessment as to the applicant's suitability for a disability pension. The referring practitioner reported that the applicant had been quite healthy up until commencing his present relationship. Reference was also made to him working on rotating shifts at service stations. The applicant was the father of a new baby and he had been complaining of stress and of depressive symptoms. 14 When the applicant first attended Dr Quinn he was asked to complete a standard questionnaire. During the course of this process, he identified four major stressors that had affected his life: (i) a car mounting the pavement and injuring or killing a pedestrian around the time he was thirteen or fourteen years old; (ii) the death of his mother when he was aged thirteen in respect of which he had evidenced a pathological grief reaction; (iii) a go-kart accident in which his right hand had been injured to the degree that it required microsurgery; (iv) various traumas associated with his employment at a service station. Dr Quinn reported that the applicant had been only moderately affected by the first of the four stressors and had not suffered a post traumatic stress reaction to that incident. The other three stressors were of rather more significance. Dr Quinn reported that at the initial consultation the applicant obtained a score on the Beck Depression Inventory within the range of moderate depression. On the Penn Inventory, which is an indirect measure of trauma, the applicant's score was a high one placing him close to the scores seen in combat veterans seeking treatment for post traumatic stress disorder. Generally Dr Quinn assessed the applicant as a person who was not prone to exaggerating his responses. Dr Quinn had no hesitation in making the diagnosis of depression and post traumatic stress disorder in the setting of a borderline personality problem and attention deficit hyperactivity disorder (adult) 15 In Dr Quinn's opinion, there were many mitigating factors in this case. He described the applicant as being "Extremely damaged prior to the alleged offences." He observed that the applicant's treatment will be long and complex. He considered the risk of the applicant re-offending to be quite small. In the concluding section of his report, Dr Quinn observed: "If it is decided he can be managed in a non-custodial manner, I believe the interests of society and of his own will be much more appropriately served. If a non-custodial approach is taken, then it is essential that very strict measures are built in to ensure meticulous compliance." 16 Judge Garling commented on Dr Quinn's report saying: "He says that there are a number of matters which one has to take into account when assessing the prisoner, a very important one is the death of the prisoner's mother but, not only that, he had unfortunately had incidents at work in a service station where he worked, as I understand it they are sort of hold-up incidents or threats, which have caused him to have a post-traumatic stress disorder and the diagnosis the doctor reached was of chronic complex trauma syndrome, disassociation, borderline personality disorder, post-traumatic stress disorder and depression. The doctor went on to say that he needed treatment, that there are mitigating factors in the case and that he was extremely damaged prior to the offences. I have been told from the Bar Table, and I accept, that the doctor has said that some of those problems were that he is very impulsive, he is vulnerable, he can make the wrong type of decision and he has difficulty with self-confidence. I take all those matters into account" (ROS3-4). 17 His Honour also took into account the psychiatric evidence in determining that there were special circumstances such as to justify a departure from the statutory proportion between the sentence and the non-parole period. In this context his Honour noted: "Special circumstances really fall into two categories. One, he has not been to gaol before but, secondly, and more importantly, is his psychiatric state and he does need help there, he need treatment and he needs some rehabilitation. Accordingly, I find special circumstances." 18 In R v Letteri (unreported), NSWCCA 18 March 1992, Badgery-Parker J, after an extensive review of the authorities touching on the impact of a mental condition on sentencing observed: "The principle then is clear enough. It is correctly stated as follows - that whereas general deterrence is a relevant consideration in every sentencing exercise, it is a consideration to which less weight should be given in the case of an offender suffering from a mental disorder or severe intellectual handicap. In an extreme case, the proper application of this principle may produce the result that considerations of general deterrence are totally outweighed by other factors. In every case it is a matter of balancing the relevant factors in a manner no different from that which is involved in every sentencing exercise." 19 In R v Wright (1997) 93 A Crim R 48 Hunt CJ at CL in the context of discussing the principles to be applied in sentencing offenders suffering from a mental disorder observed at p 50: "It is an accepted principle of sentencing that general deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others. In most of the cases in which that principle is applied, the offender has suffered from a significant mental illness or retardation, but such a condition is not a necessary condition for the principle to be applied. Considerations of general (or even personal) deterrence are not rendered completely irrelevant, and the significance of the offender's mental incapacity is to be weighed and evaluated in the light of the particular facts and circumstances of the individual case. The reason for the principle is that the interests of society do not require such persons to be punished as severely as persons without that disability because such severity is inappropriate to their circumstances. The full understanding of the authority and requirements of the law which is attributed to the ordinary individual of adult intellectual capacities cannot be expected of a person whose intellectual function is insufficient to have that understanding. The means by which the courts give effect to that principle (as an instrument of social administration) is to moderate the consideration of general deterrence to the circumstances of the particular case. But, if the offender acts with knowledge of what he is doing and with knowledge of the gravity of his actions, the moderation need not be great." 20 Mr Dhanji noted that in R v Wright Gleeson CJ, while expressing his general agreement with Hunt's J reasons for the orders that he proposed, reiterated the views that he had expressed in R v Engert (1995) 84 A Crim R 67 in relation to the significance of mental disorders in the sentencing of offenders. In this context, Mr Dhanji drew our attention to a passage in R v Engert at 71: "In truth however, for the reasons given at the commencement of this judgment, the question of the relationship, if any, between the mental disorder and the commission of the offence, goes to circumstances of the individual case to be taken into account in the application of the relevant principles. The existence of such a causal relationship in a particular case does not automatically produce the result that the offender will receive a lesser sentence, any more than the absence of such a causal connection produces the automatic result that an offender will not receive a lesser sentence in a particular case." 21 Mr Dhanji submitted that it is not necessary for the offender's mental condition to be causally related to the circumstances of the offence in order to attract the operation of the principles referred to in R v Letteri, R v Engert, R v Fahda and R v Wright. I accept that to be the case although it is a plainly relevant consideration. This view seems to me to be consistent with the approach both of Gleeson CJ in Engert and Hunt CJ at CL in R v Wright. 22 In this case, Judge Garling accepted that the applicant suffers from a number of significant psychological difficulties. The evidence did not suggest that the applicant acted with a lack of knowledge of what he was doing or of the gravity of his actions. However, Judge Garling did accept from the bar table statements made by the applicant's legal representative based on his telephone discussions with Dr Quinn that supplemented the contents of his report. His Honour accepted that by reason of his psychological make up the applicant is impulsive, vulnerable and a person who can make the wrong type of decision and who has difficulty with self confidence. Those matters have significance in explaining the background to the commission of the offence. 23 However, I am not persuaded that this is a case in which it might be said that Judge Garling was required to moderate considerations of deterrence to a significant degree by reason of the applicant's mental condition. To my mind, the sentence that his Honour imposed evidences a considerable measure of leniency. His Honour's reasons suggest that leniency came about as the result of the acceptance of Dr Quinn's report. I am satisfied that his Honour took those matters into account. I am not persuaded there is substance to ground one. 24 Ground two contends that Judge Garling erred in failing to consider whether any alternative to a sentence of imprisonment was appropriate, or, in the alternative, if a sentence of imprisonment was the only appropriate sentence whether an alternative to a sentence of full time custody should have been imposed. 25 Mr Dhanji referred us to the judgment of Howie J in R v Zamagias [2002] NSWCCA 17 at [25] to [32]. Judge Garling did not, in terms, refer to section 5(1) of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act") which provides that a court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. 26 The alternatives that were open to his Honour were an order directing that the sentence be served by way of periodic detention pursuant to section 6(1) of the Sentencing Procedure Act, or an order suspending the execution of the sentence either wholly or in part pursuant to s 12 of that Act. The failure to record that the sentencing court has taken into account that a sentence of imprisonment may be served by periodic detention or that it may be suspended either wholly or in part does not of itself evidence error; R v Foster [2001] NSWCCA 215. 27 Dr Quinn expressed a view that the interests of society and of the applicant would be more appropriately served if the applicant could be managed in a non-custodial manner. Given the care with which Judge Garling reviewed the contents of Dr Quinn's report, I do not accept the contention that he might be thought to have overlooked that alternatives existed to full time custody in the light of the recommendation that was made. Judge Garling was required to balance competing considerations in determining the appropriate sentence. Notwithstanding the applicant's psychological difficulties, his Honour considered that these were objectively serious offences that called for a sentence of imprisonment. 28 It is to be remembered that there were two counts involving sexual intercourse with a girl of fourteen years who was then under the applicant's authority. As Mr Dhanji observes, the complainant was not under the on-going supervision of the applicant as might be the case with a parent, step-parent or teacher. Nonetheless, she and her eleven-year-old friend were under the applicant's authority on the occasion of the fishing trip on which he took advantage of her immaturity to obtain sexual gratification for himself. Taking into account his prior good character, his mental condition and his pleas of guilty, Judge Garling considered that the terms of imprisonment should be served in full time custody. That his Honour did not recite his satisfaction that no penalty other than imprisonment was appropriate, nor that having fixed on a term of two years imprisonment, he was not of the view that it was appropriate to suspend its execution or to direct that it be served by way of periodic detention does not, to my mind, reveal error. For these reasons I would propose that the application for leave to appeal be granted but that the appeal be dismissed. 29 BUDDIN J: I agree. 30 BELL J: The orders of the court will be as I have proposed.