REGINA v HAINES [2004] NSWCCA 295

New South Wales Court of Criminal Appeal

CITATION : REGINA v HAINES [2004] NSWCCA 295 HEARING DATE(S) : 5 July 2004 JUDGMENT DATE : 30 August 2004

JUDGMENT OF : Sheller JA at 1; Sperling J at 2; Adams J at 3 DECISION : Leave to appeal granted; appeal dismissed

CATCHWORDS : Sentence appeal - sexual assault - mental abnormality falling short of psychiatric disease - relevance - effect on sentence LEGISLATION CITED : Crimes Act 1900 s61J CASES CITED : R v Hemsley [2004] NSWCCA 228 Regina PARTIES : v Silas Gordon HAINES FILE NUMBER(S) : CCA 60164/04 COUNSEL : Mr B Knox SC (Crown) Mr C Craigie SC (Applicant) SOLICITORS : S Kavanagh (Crown) R Mathur (Applicant)

LOWER COURT District Court JURISDICTION : LOWER COURT 03/11/0341 FILE NUMBER(S) : LOWER COURT Robison DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 69164/04

SHELLER JA SPERLING J ADAMS J

MONDAY 30 AUGUST 2004 REGINA v SILAS GORDON HAINES Judgment

1 SHELLER JA: I agree with Adams J. 2 SPERLING J: I agree with Adams J. 3 ADAMS J: The applicant seeks leave to appeal against a sentence of six years' imprisonment with a non-parole period of four years imposed in the District Court on 26 September 2003. The offence in question is aggravated sexual assault under s61J of the Crimes Act 1900 committed at Chippendale in Sydney on 13 October 2002. The aggravation averred in the indictment, to which the applicant pleaded guilty, was that the applicant having had sexual intercourse without the victim's consent, inflicted actual bodily harm. The maximum term of imprisonment is twenty years' imprisonment. 4 The circumstances of the crime, which were not in dispute, were very serious. The following account is taken from material tendered in the proceedings by consent. Shortly after 2am the victim and the applicant were walking to the victim's home, where the applicant was lodging, from a tavern in the city. As they made their way down Regent Street, Chippendale, the applicant made sexual advances to the victim, which she sought to deflect by consenting reluctantly to a kiss. As they walked a little further, the applicant then grabbed the victim and pulled her into a side lane. She attempted to resist by kicking and hitting him. The applicant pushed the victim onto the bonnet of a nearby car, and she continued to struggle and scream. This scream was heard by a resident in a nearby house who saw the two in the alley. She turned away briefly, heard a slap and, when she looked again, saw the victim on the ground apparently unconscious, with the applicant standing over her. He appeared to be removing the victim's pants and then removed his own. The applicant then got on top of the victim and had intercourse with her. The resident yelled at the applicant to get off. He stood up, pulled up his trousers and then the victim's pants, calling out that the victim was his wife. This was both irrelevant and a lie. He then threatened to assault the resident. He looked dazed, looked around and then ran off. The victim got unsteadily to her feet. Shortly after the police arrived and took the victim to hospital. The victim's injuries included bruising under her left eye, several small bruises on her shins and a graze on her forehead. She was bleeding from her right ear and was concussed. This explains the fact that she did not know that sexual intercourse had actually occurred, though there were small grazes in the vaginal area. The applicant's semen was discovered in the vaginal swabs. 5 The applicant was arrested on 15 October 2002 but declined to be interviewed. He was charged on that date with shoplifting and assault occasioning actual bodily harm which was committed on 8 October 2002, just a week before the violent attack in this case. He was sentenced to concurrent terms of six months' imprisonment, which expired on 14 April 2003, the date upon which his present imprisonment commenced. 6 The applicant, an Aboriginal, was born in July 1978 and was accordingly just over twenty-five years old when sentenced for the present offence. His criminal record commenced when he was fifteen with stealing offences of varying gravity which he has continued to commit ever since. He has two convictions for assault occasioning actual bodily harm, (one of which I have already mentioned) but, until the present charge, no convictions for sexual offences. The applicant had been released from prison on 7 October 2002, only a week before the present offence. 7 The applicant had come under the notice of the Corrections Health Service for psychiatric reasons whilst serving earlier terms of imprisonment. Dr Olav Nielssen, a visiting psychiatrist to the CHS, had assessed him at that time and provided two up-to-date reports of his condition for the purposes of the sentence proceeding in the District Court, having examined him again at the request of the Aboriginal Legal Service. 8 It is not necessary to set out Dr Nielssen's reports in detail but some important matters should be mentioned. The applicant gave Dr Nielssen a history of drug and alcohol abuse since the age of thirteen, commencing with cannabis and moving onto amphetamine at seventeen, with occasional use of heroin and sedative drugs. Dr Nielssen noted that the applicant told him that he had suffered a head injury when he crashed a stolen car into a telegraph pole, which resulted amongst other things, in occasional epileptic seizures but for which he had never taken anti-convulsant medication. Furthermore, he has a family history of psychotic illness, as his half brother has schizophrenia as does one of his first cousins. 9 The applicant's first admission to a psychiatric hospital occurred in 1994 after he attempted suicide in custody. He experienced the onset of auditory hallucinations in 1998, shortly after his release from gaol, following amphetamine ingestion. When he was returned to custody he was transferred to the psychiatric ward where he was prescribed medication and eventually the psychiatric symptoms resolved. The applicant had been detained in the Acute Care Management Units at Long Bay and at Bathurst after episodes of deliberate self harm. The prison medical records show that the applicant was transferred to an ACMU in August 2002 following apparent symptoms of mental illness, including paranoia, depression and auditory hallucinations. He was agitated and aggressive and considered to be a risk to himself and others. Olanzapine was prescribed but (and this seems both extraordinary and irresponsible) the applicant was not provided either with a supply of the medication or a referral to any mental health service on his release from gaol. 10 It appears from Dr Nielssen's report that, although the applicant's symptoms had receded on his release (probably because of his medication), the lack of continuing medication together with his resumption of illicit drug use, probably led to a recurrence of symptoms of his underlying mental illness. 11 Dr Neilssen's opinion was that, although the applicant developed an acute psychosis after a period of amphetamine use prior to 1998, the correct diagnosis of his condition is schizophrenia, rather than amphetamine induced psychosis, for reasons explained by the doctor but not presently material. Although Dr Nielssen found the applicant's cognitive performance to be near the normal range, he noted that he had been assessed as having frontal lobe impairment, which adversely affects emotional regulation, planning, social judgment and impulse control. 12 The applicant had a poor prognosis, in Dr Nielssen's opinion, because of the combination of risk factors and his limited living skills. This aspect of the applicant's situation, of course, militates in favour of a longer rather than a shorter sentence within the otherwise appropriate range to serve the function of protecting the public and, perhaps, personal deterrence although it seems to me that, for obvious reasons, this latter aspect is of little relevance where an offender has frontal lobe damage. Dr Nielssen noted that the applicant had been prescribed medication whilst in custody but required persisting treatment with antipsychotic drugs after release. 13 The applicant informed Dr Nielssen that he was significantly intoxicated when he committed the present offence with a combination of cannabis, alcohol and sedating drugs plus Rohypnol, which would explain his amnesia. In the result, Dr Nielssen considered that it was probable that the offence was due to a combination of the applicant's intoxication and his underlying psychiatric disorders comprising a relapsing psychotic illness (schizophrenia) and frontal lobe damage. 14 The learned sentencing judge was satisfied that the applicant suffered from a serious mental illness and was dependent on prescribed medication (as I understand his Honour) to ameliorate its symptoms, medication which he was not given on his release, as I have noted. His Honour's conclusion that the applicant's drug and alcohol intoxication at the time of the offence was not entirely a matter under his control is, if I may respectfully say so, entirely justified, as was the conclusion that he was not, to a large degree, aware of the consequences of his actions. 15 The relevance of mental illness in the sentencing context was summarised by Sperling J in R v Hemsley [2004] NSWCCA 228 as follows – "[33] Mental illness may be relevant – and was relevant in the present case – in three ways. First, where mental illness contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced; there may not then be the same call for denunciation and the punishment warranted may accordingly be reduced: Henry at [254]; Jiminez [1999] NSWCCA 7 at [23]; Tsiaras [1996] 1 VR 398 at 400; Lauritsen (2000) 114 A Crim R 333 at [51]; Israil [2002] NSWCCA 255 at [23]; Pearson [2004] NSWCCA 129 at [43]. [34] Secondly, mental illness may render the offender an inappropriate vehicle for general deterrence and moderate that consideration: Pearce (NSW CCA, 1 November 1996, unreported); Engert (1995) 84 A Crim R 67 at 71 per Gleeson CJ; Letteri (NSW CCA, 18 March 1992, unreported); Israil at [22]; Pearson at [42]. [35] Thirdly, a custodial sentence may weigh more heavily on a mentally ill person: Tsiaras at 400; Jiminez at [25]; Israil at [26]. [36] A fourth, and countervailing, consideration may arise, namely, the level of danger which the offender presents to the community. That may sound in special deterrence; Israil at [24]." 16 It was submitted in this Court that the learned sentencing judge did not give sufficient weight to the applicant's mental incapacity (to attempt a general description of his condition) and the failure of the prison authorities to take appropriate steps to ensure continuing availability of medical treatment, although his Honour made appropriate findings about the presence of these factors. It was argued that this was exemplified by his Honour's conclusion that – "I consider that there is a link between [the applicant's] mental state and his behaviour but that, of course, does not excuse his behaviour but goes, to some extent, in explaining it."