New South Wales Court of Criminal Appeal CITATION : Regina v Hopkins [2004] NSWCCA 105 HEARING DATE(S) : 15 April 2004 JUDGMENT DATE : 10 May 2004 JUDGMENT OF : Spigelman CJ; Wood CJ at CL; Simpson J DECISION : Appeal dismissed CATCHWORDS : Criminal law - sentencing - aggravated sexual assault - standard non parole period - mental disability - objective seriousness Criminal Appeal Act 1912 LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure Act 1999) R v Fahda [1999] NSWCCA 267 CASES CITED : R v Israil [2002] NSWCCA 255 R v Wright (1997) 93 A Crim R 48 PARTIES : Regina Luke Graham Hopkins FILE NUMBER(S) : CCA 60516/03 COUNSEL : R Cogswell SC (Crown) C Craigie SC (Respondent) SOLICITORS : S Kavanagh (Crown) S O'Connor (Respondent) LOWER COURT District Court JURISDICTION : LOWER COURT 03/51/1053 FILE NUMBER(S) : LOWER COURT Phelan DCJ JUDICIAL OFFICER : - 10 - IN THE COURT OF CRIMINAL APPEAL 60516/03 SPIGELMAN CJ WOOD CJ at CL SIMPSON J Monday 10 May 2004 REGINA v Luke Graham HOPKINS Judgment 1 THE COURT: This is a Crown appeal under s5D of the Criminal Appeal Act 1912 against the sentence imposed upon the Respondent by his Honour Judge Phelan for an offence of aggravated sexual assault contrary to s61J of the Crimes Act 1900. The circumstances of aggravation were that the Respondent did maliciously inflict actual bodily harm on the victim. 2 His Honour imposed a sentence of two years with a non-parole period of six months. The maximum sentence is twenty years. The "standard non-parole period" under s54B of the Crimes (Sentencing Procedure) Act 1999, is ten years. 3 The events occurred in the early hours of Monday 19 May 2003 at the Respondent's home. The victim was a former girlfriend, with whom he had had a long term relationship which, after an interruption, had then recently resumed. 4 The victim was subjected to a course of violence at the hands of the Respondent. He picked her up and carried her into the lounge room and threw her against the lounge. He hit her across the face. He told her to take her pants off and threatened "If you don't do it I'm going to hit you again". The victim undid the tie of her pants. The Respondent pulled her pants off and forced her to the ground saying "This is what happens if you don't do what I tell you". He told her to open her legs and then inserted a cigar wrapped in plastic into her vagina. He forced her to pose for him whilst he took sexually explicit photos of her. He dressed her in his suit coat, Akubra hat and draped a Eureka Stockade flag over her. He hit her a number of times. He picked up an empty wine bottle. She ran to the door which the Respondent had locked. He threw the bottle at her. He took a hammer and rubbed the outside of her legs with the claw and then put the hammer between her legs. 5 His Honour referred to a litany of bizarre behaviour by the Respondent: · speaking to the victim in what she described as "riddles … words that didn't make sense to me at all". · making the victim lick coffee from the wall. · dressing up the victim in a flag and ordering her to pose in different positions. · forcing her to drink detergent. · placing a knight from a chessboard on her mouth and other chess pieces on her hands and asking her to balance the pieces. 6 A neighbour came to the unit and saw the Respondent holding the victim's arms behind her back. She called the police. The police arrived and entered the premises. They took the victim to Tweed Heads Hospital. The cigar was removed from deep inside her vagina. 7 As a result of the offence the victim suffered bruises, grazes and contusions. Her right eye was so swollen that it caused the closure of the eye. A medical report outlined the significant extent of the injuries she suffered. The offence was degrading and humiliating to the victim. The insertion of an object into her vagina, which had to be medically removed, was particularly detestable. A Victim Impact Statement indicated the significant effect which the incident had upon the victim, both physically and emotionally. She was unable to continue to work, her university studies were affected, as was her social life, particularly her ability to develop a close relationship. 8 The sentencing judge described the offence in the following terms: "The objective circumstances … remain very serious and must have been extremely frightening to the victim." 9 Nevertheless his Honour imposed a two year sentence with a non-parole period of six months. The reason for imposing so light a sentence, given the objective seriousness of the events, was the mental condition of the Respondent. 10 In his remarks on sentence his Honour noted that the Respondent had no criminal record of any significance. Furthermore he noted the victim herself asserted that the conduct of the Respondent on the day in question was completely out of character. She said in her victim impact statement: "Luke Hopkins had never been physically or sexually violent towards me before". A number of aspects of her statement indicated the irrationality of the Respondent's conduct on the day in question. 11 The Respondent had been involved in a severe motor vehicle accident in 1994. He had a period of three months of unconsciousness and thereafter a lengthy period of hospitalisation, which included treatment with psychotic drugs for his condition. 12 His Honour set out his findings on the Respondent's mental health history as follows: "The Northern Rivers Area Health Service has recorded him as a patient since July 1996, when he was referred by his mother who was concerned by his aggressive and threatening behaviour. He was diagnosed as having attention deficit syndrome and a hyperactivity disorder which was treated with Ritalin until aged sixteen. He was first seen by Doctor Braganza, a psychiatrist, on 19 January 2001 with a history of changed behaviour since a motor vehicle accident. His mother described him as more erratic, depressed, and, to use her word, apparently psychotic. He had had six weeks of depression, he was teary and withdrawn and felt life was not worth living. The history given that he had had a temper prior to the motor vehicle accident but it was worse after, and also he was inclined to forgetfulness and could not concentrate. He was put on anti-depressant medication but was not compliant. On 28 March 2001, his mother had complained about him talking about things that made no sense and talking to himself. The doctor concluded it was evidence that he was harbouring a psychosis but that the exact nature of the latter was difficult to assess. He describes him a week later as being paranoid. On 30 March he was seen by the acute care team emergency and referred again to Doctor Braganza. He was admitted to the Richmond Clinic following increased paranoid delusions, for example, that he had been poisoned and because of aggressive behaviour and property damage. He was discharged on a community treatment order on 12 April. Between April and September 2001 he was case managed by the Community Mental Health Services. During this time, he remained stable. He entered into employment and maintained contact with Mental Health. On 11 March 2002, he was referred to the Tweed Community Mental Health Service by his parents, who reported increasing paranoia and hyperactivity. He was apparently diagnosed as having hypomania. In July of 2001, he apparently ceased his medication of his own accord. He was again admitted to the Richmond Clinic on 5 May 2002 and discharged on 9 May on a community treatment order. He continued with case management up until 8 January 2003, the Acute Care Services to provide assessment and follow-up. Things again apparently deteriorated because on 11 May he had contact with the Acute Care Services following reports of his being unwell. He was monitored until 16 May and was seen by Doctor Braganza on 12 May with an over-active mind and a euphemic mood. It was shortly afterwards that the offence was committed. There is before the court a statement of the Community and Court Liaison Services, reporting an assessment on 3 June 2003. This assessment was carried out on 28 May by Doctor J O'Dea, consultant forensic psychiatrist. Doctor O'Dea's notes indicated that he was suffering a manic episode which was then resolving. He was recommenced on both anti-psychotic and mood stabling medication and had been compliant with these. There had been a noticeable improvement in his mental state since starting the medication. At the time of the report, he was described as mildly elevated in mood and remained somewhat suspicious. There was no evidence of formal thought disorder or psychotic symptoms, although his insight into his illness was described as poor and his judgment as impaired. It was determined that he was not mentally ill or disordered in terms of chapter 3 of the New South Wales Mental Health Act. The most significant document presented to the Court is the lengthy report of Doctor Robert Delaforce of 29 September 2003. After noting the prior accident history, he referred to his having completed all examinations for his electrician's apprenticeship and just had to work some more months to complete that apprenticeship. Since 1999 he had always been in employment, mainly working as an electrician though was between jobs at the time of the offence. The report noted that he had been in a de facto relationship from the age of sixteen years with the victim of the current offence. They had been separated for two years but had recently resumed the relationship, although they were not cohabiting. It was in that period his mental problems had become more apparent." 13 Doctor Delaforce's diagnosis was expressed in the following way: "Bipolar one disorder, most recent episode, manic. The details he provided to me about the change in his behaviour about a week prior to the current offences were very consistent with the diagnosis of a manic episode. Prior to the current offences he had been treated since 2001 for bipolar disorder, both for a manic/hypomanic episode and major depressive episode. Since his imprisonment following the offences, he has been diagnosed with and responded to treatment for bipolar disorder. … At the time of the current alleged offences, Mr Hopkins was in a manic episode stage of his continued bipolar disorder. The manic episode represented his disease of the mind that resulted in his defect of reasoning, such that he could not calmly, rationally and appropriate reason in relation to the moral quality of the right or wrong in what he was doing. I would therefore support a use of the defence of mental illness (McNaughton Rules) for the current change. His excessive use of alcohol at the time probably contributed to some degree to his behaviour in the offences. Nevertheless that use alone would not cause him to act as he did. Instead it was his manic episode that caused him to act as he did. He felt influenced by a spirit related to a murdered rap singer, grandiose and all-powerful because he thought he had solved the mystery of that murder, and therefore for some reason he had power and control over the victim who somehow in some irrational manic state driven way he connected to the murder and the related styles of rap music. His behaviour during the night leading to the offences is typical manic behaviour, where he inappropriately interacts with his environment." Doctor Delaforce also said: Speaking generally, bipolar disorder is generally an episodic lifelong illness with a variable course. Those with untreated bipolar disorder may have more than ten total episodes of mania and depression during their lifetime. The time interval between subsequent episodes usually decreases. Although the majority have no significant symptoms of bipolar disorder between episodes, the majority will have other symptoms or impairment in psycho-social functioning such as chronic inter-personal or occupational difficulties. The natural course of bipolar disorder can be in up to about 70 percent of cases, adequately managed/controlled by mood stabilising medication such as sodium valproate (Epilim Valpro) or Lithium. … There has been a good response to treatment during Mr Hopkins' imprisonment such as currently no manic symptoms are present. He does currently have some depressive symptoms which are not those of a major depressive order, but normal depressive symptoms expected as a result of the offences and his imprisonment. He well understands and accepts that he needs to take for the rest of his life, medication to prevent any further episodes of depression or mania. He will need to continue to have outpatient psychiatric treatment from the Northern Rivers Area Health Service including attendance on the psychiatrist, Doctor M Braganza. In my opinion he is not at risk of any significant mental or physical harm to another person, if he was from now closely managed by outpatient psychiatric services in the community. Medication compliance can be determined by the need to do a blood test to determine the levels of sodium valproate. The risk of violence only relates to his manic episodes." 14 Doctor Delaforce concluded: "Probably he will continue to have improved mental health if he continues to comply with psychiatric treatment that will include continued use of psychiatric medication." 15 The sentencing judge referred to the relevant provisions of the Crimes (Sentencing Procedure) Act 1999, including the new provisions of Div 1A dealing with standard non-parole periods and the list of factors required to be taken into account under s21A. The standard non-parole period for the offence is ten years. As noted above, the non-parole period in this case is only six months. 16 Phelan DCJ said: "It is clear both from the assessment immediately after the offence, his prior mental history and the report of Doctor Delaforce, that he was labouring under considerable disability at the time in the form of mental illness, such that Doctor Delaforce was prepared to go so far as to say that the McNaughton Rules applied so as to raise the availability arguably of that defence which in the circumstances he has not pursued." 17 His Honour said: "So that in the light of the requirement of s54B, I am satisfied that there are reasons for setting a non-parole period in this case shorter than the standard non-parole period. I have no doubt that the community would be aghast if I would proceed to sentence him on the basis that he should spend ten years in gaol for a crime in which his understanding of what was taking place was so grossly irrational as brought about by his mental state. … On its face, if one were to accept Doctor Delaforce, which I do, there seems to be a strong argument in favour of the proposition that s5 of the Act should prevail and there should be no sentence of imprisonment at all. On the other hand, the circumstances have an objective seriousness about them, and no doubt there will be some influence of a personal nature on the offender by way of the fact that he had been in gaol since the commission of the offence, so in order to recognise that aspect of the case, I propose to fix a non-parole period of six months which will have expired on 18 November this year. There will be a balance of parole of eighteen months which will expire on 18 May 2005." 18 The Crown did not suggest his Honour failed to apply the new scheme in Div 1A Pt 6 of the Crimes (Sentencing Procedure) Act 1991, in accordance with its terms. It was the result alone which manifested that error must have occurred. 19 The submissions focused on the standard non-parole period of ten years and the degree of divergence from that statutory guide in the sentence imposed on the Respondent. This is not, however, a case which turns on the particular statutory scheme. His Honour turned his mind to the relevant question. He expressly said that he found that there were reasons for setting a non-parole period shorter than the standard non-parole period, in accordance with the provisions of s54B(2). The reasons he expressed were entirely related to the mental condition of the Respondent at the time of the events. 20 In its appeal the Crown submitted that his Honour placed too much weight on the Respondent's mental condition and, alternatively or in addition, that his Honour placed insufficient weight on the objective seriousness of the offence. 21 His Honour expressly concluded that the mental condition of the Respondent was a direct cause of the conduct, some of it quite bizarre, constituting the offence. The objective seriousness, particularly from the point of view of the victim, was not understated in any way by his Honour. This was a degrading and frightening experience which had both short term and long term adverse consequences for the victim. These were matters which his Honour took into account. The only basis for a conclusion that his Honour gave relevant matters inadequate or excessive weight is the ultimate sentence. This is tantamount to a submission that it was not open to his Honour to give the mental state of the Respondent, which was directive causative of the commission of the offence, determinative weight. 22 Where two highly relevant considerations are so totally incompatible as are the two considerations involved here, it is not necessarily the case that the end result must constitute some kind of averaging out between the two. There are circumstances in which one is entitled to be determinative. 23 In the legislative scheme under consideration, s54B(3) permits the decision that the standard non-parole period not apply, to take into account the range of matters referred to in s21A. Amongst those matters there appears in s21A(3)(j) "the offender was not fully aware of the consequences of his or her actions because of the offender's … disability". That appears to be the case here. 24 A person's mental condition may also be pertinent in the sentencing exercise in a manner not entirely encompassed by 'awareness of the consequences of his or her actions'. Such further considerations would be encompassed by s21A(c), which extends the range of considerations to "any other objective or subjective factor that affects the relative seriousness of the offence". 25 The mental condition at the time of the offence, goes directly to the level of culpability of the offender and would, in our opinion, affect "the relative seriousness of the offence". A range of such matters may arise in a particular factual situation. (See, e.g. R v Fahda [1999] NSWCCA 267; R v Israil [2002] NSWCCA 255; Sully Traynor "Sentencing Mentally Disordered Offenders: The Causal Link", Judicial Commission of New South Wales, Sentencing Trends & Issues No 23, September 2002.) 26 The manic episode experienced by the Respondent on the day of the offence was the first occasion on which his mental condition had manifested itself in this way. This is not a case where the psychotic state was self-induced by a failure to take medication (cf R v Wright (1997) 93 A Crim R 48). 27 The expert medical evidence suggested that the Respondent could experience a further manic episode, if he does not take his medication. However, such further episodes are unlikely to be a frequent occurrence. 28 The following circumstances were given considerable weight by the sentencing judge: · The Respondent had no relevant criminal history. · He suffered significant brain injury in an accident and was receiving treatment for mental injury. · The manic episode on the day of the offence was entirely unprecedented. · There was a direct causal relationship between the mental illness and the offence. · He is unlikely to offend again, as long as he takes his medication and remains subject to medical supervision. 29 In our opinion it was open to his Honour to conclude that on the particular facts of this case the degree of culpability of the offender was considerably attenuated to the extent that a short sentence with a very short non-parole period was within the range of the appropriate exercise of discretion. In our opinion, the appeal should be dismissed. ********** Last Modified: 05/17/2004 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.