New South Wales Court of Criminal Appeal CITATION : R v Walder [2002] NSWCCA 310 FILE NUMBER(S) : CCA 60797/01 HEARING DATE(S) : 25 June 2002 JUDGMENT DATE : 25 June 2002 PARTIES : Regina v Peter Bernard Walder JUDGMENT OF : Smart AJ at 1, 25; Blanch AJ at 24 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/41/0101 LOWER COURT JUDICIAL Goldring DCJ OFFICER : COUNSEL : (A) P G Berman SC (C) W G Dawe QC SOLICITORS : (A) Mark Klees & Associates (C) S E O'Connor CATCHWORDS : Sentencing - aggravated indecent assault - not the most serious example - sentence not to be increased because of prior record - sentence out of accord with Judicial Commission statistics - inadequate allowance for early reporting of offence by offender, early admission and plea of gulty - underlying medical condition not correctly taken into account LEGISLATION CITED : Nil CASES CITED: R v Ellis (1986) 6 NSWLR 603 DECISION : See para 23 IN THE COURT OF CRIMINAL APPEAL 60797/01 SMART AJ BLANCH AJ Tuesday, 25 June 2002 REGINA v PETER BERNARD WALDER JUDGMENT 1. SMART AJ: Peter Bernard Walder seeks leave to appeal against the severity of a sentence of imprisonment for four years ten months to commence on 12 October 2001 with a non-parole period of three years for aggravated indecent assault which occurred on 17 February 2001. The maximum penalty is imprisonment for seven years. The applicant pleaded guilty. 2. After returning from fishing the applicant spoke to the victim, aged ten, and later her mother. They knew him quite well. This was just after lunch, according to the mother. He asked if he could wash out his boat using her hose. He stayed at her house for the next six to eight hours. He had a meal there. The mother said that he had too much to drink and he suggested that he stay the night. According to the applicant he and the mother also smoked cannabis. 3. According to the applicant the mother complained that her daughter was irritating and he said that he would speak to her. He went into her bedroom. Her nine year old friend was also there. The applicant pulled the sheet off the victim. In his very discursive record of interview he said that he put his hands on her leg and "lightly touched my fingers up her thighs past her panties". He said that he kissed her for one and a half seconds in the area of the vagina but on the outside of her panties, which were pulled up, and also on her stomach. He said that he did not touch the child between the legs and that his hand never touched her vagina. 4. At the time the mother entered the room she saw the applicant pulling up the doona on the bed. She immediately left the house with the children and reported the matter. The applicant rang the DOCS help line and informed the telephonist what he had done. There was a prompt police investigation. The applicant was interviewed by the police on 18 February 2001 and admitted the offence. 5. The applicant was born on 24 June 1958 and is unmarried. On 18 June 1987 he was sentenced to concurrent terms of imprisonment for five years with a non-parole period of two years for each of the offences of assault a person under sixteen years with an act of indecency and commit an act of indecency with a person under sixteen years and to a concurrent term of four years with a non-parole period of two years for sexual assault (category 3). On 28 March 1991 he was sentenced to imprisonment for two years with a non-parole period of eighteen months on each of two charges of indecent assault and commit an act of indecency on a person under sixteen years. 6. Dr G R W Davies, an experienced psychiatrist, first saw the applicant on 13 October 1986. He saw him on several occasions in the period to October 1987, on several occasions between June 1989 and February 1991, again in 1997 following two admissions to hospital and regularly until February 1998. He was reviewed in July 1998, in September 1999 and seen again in March 2001 and regularly thereafter by Dr Davies. Dr Davies did not treat the applicant while he was in hospital. In his report Dr Davies stated that the applicant was suffering from a psycho effective psychosis associated with a well organised paranoid delusional system. He was treated with the anti psychotic Risperdal and the mood stabiliser Epilim. This diagnosis was confirmed by his florid episodes requiring hospitalisation. Dr Davies wrote:- "The present offences are also likely to be the result of his psychiatric illness as he had a clear delusional system related to them." 7. Dr Davies was taken to the applicant's discursive recorded interview entered into some twenty four hours after the offence. Dr Davies agreed that in the course of the interview the applicant made it clear that he had a sexual drive for young girls. Dr Davies stated that the applicant had paedophilic inclinations as part of his overall sexual drive. The question was about the way his inclinations were controlled. 8. Dr Davies accepted that the applicant told the police in the recorded interview that the applicant was well affected by alcohol and cannabis. He said:- "It's possible that there was a measure of disinhibition and, yes, some of that could be due to alcohol as well but we're not talking about a florid manic episode at that point." 9. Dr Davies explained that the applicant had an underlying life-long illness that expresses itself periodically and needs continuing treatment on that basis. The doctor thought that the applicant was not floridly psychotic at the time of the offence. 10. Dr Davies said that on a purely statistical basis it had to be considered that there was a substantial risk of the applicant re-offending. 11. The judge made these findings:- "Dr Davies referred to 'disinhibited' behaviour and the effect that a person with a predisposition of sexual attraction towards young girls might have if engaging in such disinhibition. He admitted freely that the use of drugs and alcohol might well result in disinhibited behaviour but although he could associated (sic) the delusional or manic condition from which Mr Walder suffers to his general situation, when cross examined it seems to me that he was unable to attribute this particular behaviour to the mental condition. I am certainly not satisfied that he was able to do so and displace any inference I draw from the fact that Mr Walder admitted to being affected by alcohol and cannabis." 12. It is unarguable on the evidence that the applicant does have an underlying life-long illness. That can manifest itself either as a result of a florid psychotic state or the consumption of alcohol and/or drugs. If the manifestation is due to the consumption of alcohol and drugs the criminality would usually be greater but the underlying illness is important on the question of penalty. 13. The judge held that even though the subject offence was not particularly severe, because of the previous offences a sentence approaching the maximum penalty ought to be imposed. Save for the plea of guilty and the admission to the police the judge would have imposed a sentence of six years imprisonment. The plea and the admission saved the victim and the mother having to give evidence. The judge discounted the sentence by twenty per cent. 14. The judge took into account that the applicant suffered from permanent and severe deafness and his dysfunctional background. He obtained the School Certificate and qualified as a carpenter. He was described as hard working with an excellent work ethic. He experienced considerable difficulty in expressing himself and this led to much frustration. 15. The judge correctly found special circumstances. These included the applicant's hearing impairment which has contributed to the applicant's mental condition and the extra difficulties he will experience in a form of protective custody. I would also find special circumstances. 16. Counsel for the applicant submitted that the objective facts did not justify the sentence imposed as this offence was at the lower end of the continuum of seriousness. Counsel pointed out that the assault was not prolonged, the victim's underwear was not removed and there was no direct contact with the applicant's private parts. 17. The applicant relied on the statistics produced by the Judicial Commission. Of a hundred and forty-one instances of this offence where there was a plea of guilty sixty-one received full-time custodial sentences. Two people received head sentences of five years and only six persons received sentences of four years. Most of the head sentences ranged from twelve months to three years. Sixty-eight per cent of the non-parole periods were in the range of twelve to eighteen months. 18. Of those ten instances where there were prior offences of the same kind and custodial sentences there was no head sentence above forty-two months. This is a small sample. However, for a case which was not in the most serious category of aggravated indecent assaults the statistics suggest that the sentence imposed was too high. 19. The applicant submitted that: the treatment of the discount for the plea of guilty was erroneous in that: (a) at least twenty-five per cent should have been allowed by way of discount for the utilitarian value of the plea of guilty because it saved the child, and possibly her nine year old companion, giving evidence. (b) The immediate admission to the police should have resulted in a further discount. (c) The expression "immediate admission to the police" used by the judge understates the significance of the applicant's conduct following the offence. The judge appears to have overlooked that it was the applicant who first notified the authorities. (d) He was entitled to a further discount to take into account his remorse. The remorse is evidenced by the applicant contacting DOCS and reporting his offence. The judge did not allow for this. 20. A sense of proportion has to be maintained when dealing with discounts. The judge was entitled to take the view that the correct discount for the utilitarian value of the plea was twenty per cent. The applicant was not entitled to the substantial discount referred to in Ellis (1986) 6 NSWLR 603 merely because within a short period of time he first reported the matter. The mother was taking action. Her first concern was the children. Remorse is a difficult matter when there are repeat offences. Nevertheless, when all the circumstances are taken into account a total discount of twenty per cent was too low. It should have been in the order of thirty per cent. 21. The applicant complains that the judge failed to take into account the applicant's subjective features when fixing the head sentence, in particular, his permanent and severe deafness and, I would add, the applicant's underlying medical condition. This appears to be the case when regard is had to the terms in which the judge has couched his remarks and their structure. 22. The applicant's prior record for similar type offences even though there was a ten year gap since the last offence deprives him of much of the benefit of any entitlement to leniency but the sentence which the objective criminality when taken with his subjective features warrants cannot be increased on account of that record. 23. The correct starting point was a sentence of four years four months. When that is discounted by about thirty per cent the resulting sentence is one of about three years. There are special circumstances as earlier indicated. I think that the correct non-parole period is twenty-one months. I propose the following orders:- (1) Leave to appeal granted. (2) Appeal allowed. (3) Sentence quashed. In lieu of the sentence imposed the applicant is sentenced to imprisonment for three years to commence on 12 October 2001 with a non-parole period of twenty-one months to commence on that day and to expire on 11 July 2003 on which day the applicant is to be released on supervised parole. 24. BLANCH AJ: I agree. 25. SMART AJ: 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. 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