New South Wales Court of Criminal Appeal CITATION : Regina v Sankey [2002] NSWCCA 135 FILE NUMBER(S) : CCA 60499/01 HEARING DATE(S) : 26 March 2002 JUDGMENT DATE : 26 March 2002 PARTIES : Regina v Joseph Michael Sankey JUDGMENT OF : Studdert J at 39; Smart AJ at 1 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0436; 00/11/0940 LOWER COURT JUDICIAL Latham DCJ OFFICER : COUNSEL : (A) D I Cassidy QC (R) L M B Lampratti SOLICITORS : (A) - (R) S E O'Connor CATCHWORDS : Sentencing - serious drug and sexual offences - applicant assaulted by burglars and suffers quite severe brain damage substantially affecting his conduct - insufficient allowance for medical condition. LEGISLATION CITED : Nil CASES CITED: Nil DECISION : See para 38 IN THE COURT OF CRIMINAL APPEAL 60499/01 STUDDERT J SMART AJ Tuesday, 26 March 2002 REGINA v JOSEPH MICHAEL SANKEY JUDGMENT 1 SMART AJ: Mr Sankey seeks leave to appeal against the alleged severity of sentences aggregating 8 years with a non-parole period of four and a half years. The applicant was sentenced on each of counts 1 (supply methylamphetamine) and 4 (sexual intercourse without consent) to imprisonment for a fixed term of 4 years starting on 30 May 2000 and expiring on 29 May 2004. On count 2 (supplying methylamphetamine) and taking into account 8 offences on Form 1(hindering police, self administer prohibited drug (2 charges) administer prohibited drug to another, supply prohibited drug (3 charges) and commit an act of indecency), the applicant was sentenced to imprisonment for 5 years starting on 30 May 2003 and expiring on 29 May 2008 with a non-parole period of 18 months expiring on 29 November 2004. On each of counts 3 (supply methylamphetamine) and 5 (homosexual intercourse) the applicant was sentenced to imprisonment for a fixed term of 3 years starting on 30 May 2000. 2 The following chronological summary is largely based on the judge's remarks which were unchallenged on this aspect. Count 2 alleges that the applicant supplied methylamphetamine between 20 October and 8 November 1999. There were four separate acts of supply charged as a composite charge, to three males in their late teens on a number of occasions while they were staying in the applicant's Sussex Street unit. 3 As to the Form 1 offences the applicant supplied methylamphetamine to a young male prostitute over a number of days in early November 1999 and cannabis to one of the male teenagers. When his co-resident and partner died in November 1999, apparently as a result of a heroin overdose, the applicant arranged for the removal of a number of syringes and other drug paraphernalia to the basement garage. Thus he hindered the police. There were acts of self administration by the applicant of methylamphetamine. He also administered methylamphetamine to one of the teenagers. In August 1999 the applicant supplied methylamphetamine to two further males. Whilst in the presence of one of them the applicant masturbated. The applicant was charged with these offences on 9 November 1999. He was released on bail. 4 Count 3 relates to the events of 1 February 2000. In the early hours the applicant was at Darlinghurst in an area frequented by male prostitutes. After some resistance the applicant was forced to remove his hands from his pockets and police found a plastic bag containing about 15 grams of methylamphetamine. He permitted the police to search his unit where a further two grams of methylamphetamine were found. The applicant admitted ownership of all the methylamphetamine which was in excess of the traffickable quantity. 5 Count 1 is a composite charge made up of 20 individual acts of supply of methylamphetamine between 21 and 30 May 2000. On 22 and 23 of May 2000 two young males moved into the applicant's unit. He supplied them with methylamphetamine on a daily basis until 30 May 2000. On 29 May 2000 two young males were approached by the applicant in George Street Sydney in the early hours on the pretext that he wished to take their photographs. They went to his unit where he supplied them with methylamphetamine. 6 Count 5 relates to events in the early hours of 30 May 2000. A young male fell asleep in the applicant's bedroom. When he awoke he found that his pants had been lowered to his knees and his anus was sore. The applicant told him that he (the applicant) had inserted his penis into the young male's anus. 7 Count 4 covers events later the same day. After administering amphetamine to the young male the applicant inserted his finger into the young male's anus. The applicant was reckless as to the young male's consent. 8 Counts 1, 3, 4 and 5 were committed whilst the applicant was on bail. The judge said that such a sustained course of serious criminal conduct by a 50 year old man with no prior convictions was uncommon and that when regard was had to the prisoner's background and life history it took on tragic proportions. I agree. 9 The applicant, who was born on 18 December 1949, was raised in England. He was an only child and he told the Probation and Parole Officer that he had a very loving upbringing. His parents separated when he was 13 years old as his father was a gambler. His mother retained custody. At the age of 17 he migrated to Australia alone. He entered his first homosexual relationship when he was 22 and the relationship lasted for three years. He entered into his next relationship two years later and that lasted for about 25 years until his partner died from AIDS in 1994. This shattered him. Eventually he found another partner who after a short relationship died in November 1999. 10 In his early days in Australia the applicant worked on a dairy farm for six months and as a labourer for two years. After a four year course he obtained a Diploma in Photography (Science). He worked as a photographer for a government department for three years. He then completed post-graduate training in London. In 1976 he returned to Australia and was appointed as Deputy Director of the Audio Visual Unit at a major Sydney teaching hospital where he remained for 23 years. In 1999 he suffered a stroke and was retired medically unfit. 11 The applicant was fulfilled by his professional responsibility and was good at his work which included managerial duties. His position was a senior one. 12 In May 1994 the applicant took long service leave to nurse his partner. Following the partner's death the applicant took his partner's body back to England. Over this time the applicant gained three and a half stone in weight and became depressed. On his return to Australia he began using amphetamines orally on the advice of a doctor to alleviate his depression and to assist with weight loss. The use was intermittent. However, his alcohol consumption increased, taking on the character of binge drinking on occasions. 13 In January 1995 a number of persons broke into his home, struck his head repeatedly with a bat or rolling pin and pushed him to the floor. The door of the dishwasher was placed over his head and then his assailants jumped on top of the dish washer door. The applicant suffered a linear fracture in the right temporo-parietal region and a subarachnoid haemorrhage and a mild degree of temporal lobe cortical contusion. He was described as having sustained "quite a severe and significant closed head injury with associated traumatic subarachnoid haemorrhage". He was in hospital for some eight days. He was left with persistent disabilities. The neurosurgeon wrote in December 1996: "In summary he has disturbance of mood, behaviour and cognitive changes which ... are probably of a permanent nature. In addition he has had ongoing visual difficulties." 14 The neurosurgeon recommended formal neuropsychometric assessment to document the changes in cognitive function. In July/August 1995 he was assessed at the St John of God Hospital, after psychiatric and psychological examination and review, as having post traumatic stress disorder probably of a chronic kind. 15 On 19 January 1998 the clinical neuropsychologist at Royal Prince Alfred Hospital made this assessment: "The neuropsychological profile of this 48 year old man indicates moderate deficits in executive function (particularly self monitoring, ability to shift mental effect and sequencing) moderate global memory deficits and mild psychomotor slowing. This occurs against a background of self reported severe depression, anxiety and stress. The history, presentation and neuropsychological test results are consistent with the head injury suffered in 1995, and in particular the evidence of right frontal encephalomalacia. Mr Sankey's presentation is entirely consistent with frontal lobe impairment. His dishevelled appearance and inability to get to his appointments on time, his overfamiliarity, his logorrhoeic and tangential speech, his obsessive fixation on minor details and over reaction to events around him are all features of frontal lobe impairment. It is difficult to a imagine how Mr Sankey has been performing in his senior role at work over the past two years since the assault, and I was not surprised to hear that he is now working in a supervised role rather than as the Deputy Director of the Department. Mr Sankey did not appear to have any insight regarding his cognitive deficits and his current work situation and reduced role in the Audio Visual Department." 16 Dr G Dore, Senior Staff Specialist Psychiatrist and Clinical Lecturer, University of Sydney, has written in a report dated 27 May 2001 as follows: "As a consequence of this brain injury, he experienced ongoing problems with memory and 'executive function'. His ability to monitor his own behaviour, understand the complexities of it, and modify his behaviour appropriately was affected. His ability to move from one form of mental activity to another was also affected. It is likely his episodic binge drinking made these problems worse. ... Mr Sankey has been on a number of medications for PTSD and depression, including prozac and aurorix (both antidepressants). He is currently on another antidepressant, cipramil. ... Mr Sankey met his most recent partner (Tom Ross) early in 1999, and the couple moved in together. Mr Sankey's mother died six months prior to this. Tom Ross had a heroin addiction, and felt that using amphetamines was a safer option for him than heroin at that time. He began to involve Mr Sankey in obtaining amphetamines for his (Tom's) own personal use. He then introduced Mr Sankey to the use of amphetamines intravenously. Mr Sankey found this drug (along with alcohol) very effective at blocking out his emotional problems. He eventually lost control of his use of this drug, and developed an addiction to amphetamines. He found them very useful in relieving the ongoing sadness about the death of Richard, and the more recent death of his mother. He was also dealing with the problems at work related to his head injury. He injected amphetamines daily for about a year. ..." 17 Because of the brain injury the applicant had major problems with his employment. He was no longer able to manage the senior position he had previously occupied. After his medical discharge in June 1999 he worked as a freelance photographer, but there was not a lot of work available. Dr Dore further wrote: "In relation to the charges of supplying amphetamines, Mr Sankey states that he shared amphetamines with others who also used the drug. He openly admits that he was addicted to amphetamines, and therefore regularly had them in his possession. He says that he spent all of his $300,000 payout from work (when given medical discharge) on amphetamines. He also had obvious track marks on both arms, consistent with previous injecting drug use. Mr Sankey reported enlisting for a dexamphetamine treatment trial with Kirketon Road clinic at one point, hoping to get help for his amphetamines addiction, but he was excluded from the project because of his age. He had otherwise not had any drug and alcohol treatment. In relation to the sexual assault charges, Mr Sankey says that he has pleaded guilty to those charges after receiving advice to do so. He says that, despite this, he believed the sexual contact between himself and Mr Jay Dowsett was consensual. He also admits that he was intoxicated with both speed and alcohol at the time of the incidents. In summary, Mr Sankey was a highly successful professional man until he was assaulted by burglars in January 1995, sustaining a severe head injury in January 1995. He experienced Post Traumatic Stress Disorder and depression as a consequence of this attack. He also experienced significant brain damage, which has left him with ongoing problems with memory and judgments. He has had difficulty dealing with this, and with a number of other significant deaths in his life. These include the AIDS related death of his partner of over 20 years; the later death of his mother, and the death of his most recent partner from a drug overdose. He coped with these tragedies by using increasing amounts of amphetamines and alcohol, to the point that he became addicted to both. Alcohol, in particular, is likely to have exacerbated the underlying difficulties related to his previous brain injury." 18 The subjective features of the applicant are compelling. He was devastated emotionally by the death of his partner and this affected his physical and mental well-being, as the evidence so clearly establishes. Less than one year later he was brutally assaulted and sustained severe and significant head injuries. These had far-reaching effects on his mental abilities and his capacity to make sound judgments and rational decisions as to his behaviour. The injuries denied him the opportunity to continue with fulfilling and responsible work at a senior level. That had been a significant part of his life. The serious criminality emerged after he was retired medically unfit. 19 The judge correctly remarked that the most disturbing feature about the offences was the solicitation of young males. The applicant sought them out in a railway station and on city streets, offering them amphetamines in return for their company and on occasions to provide him with sexual activity. His offences arose out of his exploitation of young males, some of them homeless, devoid of moral constraints and sexualised beyond their years. 20 The judge found that the applicant's medical condition affects his capacity to make rational decisions concerning his behaviour and stated that her sentences accordingly did not give full expression to the principle of general deterrence. She assessed his prospects for rehabilitation as promising and she noted the support of a close friend who visited the applicant regularly in prison. She also took into account that the applicant had applied himself assiduously since going into custody on 30 May 2000. The judge thought that it may be reasonably confidently predicted that the applicant will not come before the courts again. 21 The judge took into account the applicant's plea of guilty at the earliest available opportunity and accorded to him the full benefit for the utilitarian value of those pleas. She found special circumstances in that this was the prisoner's first custodial sentence and the accumulation of the sentences on counts 2 and 3. I agree that there are special circumstances. 22 Counsel for the applicant submitted that the sentence was manifestly excessive. Counsel made these points in summary form: (a) Sufficient regard had not been had to the applicant's exceptional subjective features. (b) The sentencing judge, whilst identifying, and purporting to have regard to, three discounting factors, can be seen by reference to the sentencing statistics to have given no, or an insufficient discount. (c) The sentencing judge failed to specify the sentence which she would have imposed, absent the discounting factors, and then to apply the appropriate discount. (d) Although the sentencing judge purported to allow a discount for the plea of guilty on the basis of its utilitarian value she failed to recognise, and allow for it, as evidence of contrition. (e) Although the sentencing judge said that in the circumstances the relevance of deterrence, both specific and general, was reduced she failed to give effect to that recognition in her sentence. 23 Counsel for the appellant relied heavily on the statistics issued by the Judicial Commission. He further relied on a series of mitigating factors. 24 In the present case, while the subjective features are exceptional, the combination and extent of the offences are unusual. The court is looking at some 13 offences in total, most of which are serious and offences committed on bail. 25 It is true that the judge did not refer to the applicant's contrition and remorse or lack thereof. Dr Dore wrote that the applicant appeared genuinely remorseful about the events leading to his imprisonment. That opinion cannot be dismissed lightly. A similar statement was also contained within Mr Pearce's careful letter. On the other hand, the applicant did not give evidence. 26 I reject the complaint based on the judge not specifying the sentences she would have imposed absent the discounting factors. She was engaged in a complex sentencing exercise and had to balance a number of disparate factors. 27 The Crown submitted that the sentences imposed should not be disturbed. The objective seriousness of the offences was the paramount factor. The Crown emphasised the importance of deterrence. While the medical condition of the applicant made it appropriate not to give full reign to the principle of deterrence, his condition was not such as to render the factor of deterrence irrelevant. The Crown also stressed that the applicant committed similar offences while on bail. 28 As the Crown pointed out, some of the mitigating factors relied upon by the applicant lack substance. It is not to the point that the drugs were not supplied for gain when they were used as a bait to lure young males to the applicant's unit and then to persuade them to stay. It is not correct to say that no force was used and no physical harm was done. One boy's anus was sore. General and specific deterrence are not irrelevant. They play a lesser role, as the judge recognised. 29 The judge's sentencing remarks reveal that except for the question of remorse and contrition, she had regard to the relevant factors. She gave the question of sentence careful consideration and was confronted with an extraordinarily difficult sentencing exercise. 30 I am grateful for the careful and comprehensive submissions of counsel and I accept that my brief summary probably does not do them justice. 31 The objective gravity of the offences is high. This application really turns on the extent and effect of the applicant's medical condition and whether the sentences reflect sufficient allowance for it. I have earlier summarised the evidence of his condition. That condition was well documented and was due to a combination of organic brain damage resulting in cognitive problems affecting his ability to monitor his own behaviour, understand the complexities of his condition and modify his behaviour, post traumatic stress disorder likely to remain chronic and depression necessitating antidepressant medication. That is a very disabling combination and greatly reduces the role general deterrence plays. The position was compounded by the applicant being unable to work. He would have felt the loss of his senior position, due to no fault of his, very keenly. That would have hindered his recovery. 32 The applicant is serving his sentence in protection or strict protection. 33 I am persuaded that the sentences imposed do not sufficiently reflect the extent of the applicant's medical condition and its effect upon his capacity to make rational and appropriate decisions as to his behaviour and to control it. The applicant has lost most of his assets, including moneys he received on retirement. It also seems that he had to sell his home and other possessions. He has lost his position and his capacity to earn income of consequence has been much affected. While there have been the factors earlier mentioned, he has also destroyed himself. 34 There are special circumstances. These include that this is the applicant's first time in custody, his need for extended supervision and support on release and his need to re-establish himself, including the obtaining of some part-time or casual work to assist with his rehabilitation by restoring some sense of fulfilment and the accumulation of sentences. 35 At the hearing further evidence has been adduced and it is noted that the applicant has continued to apply himself to doing useful courses. 36 I have taken into account the offences on Form 1 on count 2. 37 In the exceptional circumstances of this case, the applicant's effective total sentence should be reduced to seven years and his non-parole period to three and a half years. I have stated the overall result first but that must be preceded, as I have done, by looking at each of the individual sentences imposed and matters of concurrency and cumulation. I have had regard to the principle of totality. 38 I propose the following orders: 1. Leave to appeal against sentences granted. 2. Appeal against sentence on counts 1 and 4 allowed. Sentences quashed. In lieu thereof the applicant is sentenced on each to imprisonment for a fixed term of three and a half years, commencing on 30 May 2000 and ending on 29 November 2003. 3. Appeal against sentence on counts 3 and 5 dismissed. 4. Appeal against sentence on count 2 allowed in part. Vary the commencement date of five years imprisonment on count 2 from 30 May 2003 to 30 May 2002 with the non-parole period of 18 months to start that day and expire on 29 November 2003 when the applicant will become eligible for parole. 39 STUDDERT J: I agree with the orders proposed and the reasons expressed for those orders. The orders of the court will be those proposed by Smart AJ. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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