New South Wales Court of Criminal Appeal Regina v Gill [2005] NSWCCA 308 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 29 August 2005 JUDGMENT DATE: 29 August 2005 JUDGMENT OF: Spigelman CJ at 1; Ipp JA at 38; Adams J at 2 DECISION: Leave to appeal granted; Appeal dismissed CATCHWORDS: Sentence appeal - sexual offences - offender with compromised mental state - relevance - reduces importance of general deterrence - increased importance of personal deterrence Mental Health Act (1990) LEGISLATION CITED: Criminal Appeal Act 1912 Mill v The Queen (1988) 166 CLR 59 CASES CITED: Veen (No2) (1988) 164 CLR 465 AT 476 PARTIES: Regina Crown - Respondent v David Gill - Appellant FILE NUMBER(S): CCA 2005/816 W Dawe QC (Crown) COUNSEL: S J Odgers SC (Appellant) S Kavanagh - Solciitor for Public Prosecutions (Crown) SOLICITORS: Star Carver & Sons - Solicitor (Appellant) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 03/11/0955 LOWER COURT JUDICIAL OFFICER: Judge Goldring IN THE COURT OF CRIMINAL APPEAL 2005/816 SPIGELMAN CJ IPP JA ADAMS J Monday 29 August 2005 REGINA v David GILL Judgment 1 SPIGELMAN CJ: I invite Adams J to deliver the first judgment. 2 ADAMS J: On 13 February 2004 the applicant pleaded guilty to one count of aggravated sexual intercourse without consent of his natural daughter, then only just sixteen years of age and under his authority. The offence occurred on or about 29 January 2001. He asked to be taken into account two further offences which occurred on the same occasion, one of which also involved aggravated sexual intercourse without consent and the other aggravated indecent assault. On 23 April 2004 the applicant was sentenced to an overall term of four years' imprisonment comprising a non-parole period of two years six months commencing on 23 April 2004 and expiring on 22 October 2006, with the balance of the term expiring on 22 April 2008. The applicant seeks leave to appeal from this sentence. Facts 3 The facts are, in substance, not disputed. The following summary is extracted largely from the learned sentencing judge's reasons for sentence, the victim's police statement and the judgment in the Queensland District Court. 4 The applicant had been married three times. The victim is his daughter by a previous marriage who was living with her mother and maternal grandmother in country New South Wales. The applicant happened to meet the grandmother early in 2001. Shortly afterwards he travelled with three of his younger children from a subsequent marriage to where the victim lived in order to see her. He had not been in contact with her since she was nine months old. The applicant learned that the victim was suffering from a number of mental conditions, including bipolar disorder and depression, for which she was being treated. The applicant invited her to travel with him so that they could get to know each other. The mother and grandmother advised her against this, but the victim decided to go. The grandmother warned the applicant about her granddaughter's mental problems and that it was imperative that she should not drink alcohol. 5 When the applicant and the children were at Tweed Heads, something over a week later, he went to a bar, consumed some alcohol and despite the grandmother's warning, bought a number of alcoholic drinks for the victim to celebrate her sixteenth birthday. The victim became intoxicated. They all returned to a motel where they occupied the same room. The applicant, the victim and one of the other children went for a swim in the motel pool, the applicant in the nude. The applicant and the victim continued to drink. She said he was mumbling and hard to understand and yelling about his ex-wife. When eventually they went to bed, two of the younger boys slept in the single bed and the applicant, the victim and his other son slept in the double bed. It appears that the applicant and the victim went to sleep. 6 During the night, however, the applicant woke, undressed the victim, inserted his finger in her vagina and full penile intercourse took place, in the course of which he ejaculated. Later that same night he repeated the intercourse over a longer period and again ejaculated. 7 During these incidents the applicant spoke to the victim and one of the other children and, after the second, started talking again about his ex-wife. I mention these matters as suggesting that the applicant's claim (mentioned without comment by the learned sentencing judge) that he did not recall what happened after returning to the motel should be treated with some scepticism. The victim said that she was frightened of the applicant and was too afraid to do anything to stop him from touching her. 8 On the following day the family went to the applicant's house in Queensland where he again had intercourse with the victim, on this occasion suggesting that is what he wished to do, and the victim telling him she did not want him to do it. Full vaginal intercourse occurred again and he again ejaculated. The course of the proceedings 9 On the following day the victim made a complaint to one of her father's friends. The police were informed and the applicant was eventually arrested on 21 April 2002. In substance he told the police when interviewed, that he was drunk and could not recall what had happened. A detailed statement had been taken from the victim shortly after the police became aware of the matter, which disclosed all three acts of intercourse. 10 The applicant was charged in Queensland with incest arising out of the Queensland conduct and, on 7 October 2002, pleaded guilty to this charge. He was sentenced on that day to a term of imprisonment of three years, to be suspended after serving a period of six months. This somewhat surprisingly lenient sentence may be in part explained by the fact that the plea was conducted upon the basis that this was, as Judge Healy QC put it: "a one-off act of intercourse committed while you were drunk and it was certainly not premeditated". 11 His Honour also accepted that the applicant was drunk at the time and had no memory of the event. I interpolate that, on 23 October 2002 the applicant was sentenced for different criminal conduct at Maroochydore District Court to imprisonment for three years commencing on 16 September 2002, suspended after twelve months and was released on 15 September 2003, when in due course the matter came before the New South Wales courts. 12 Dealing with the Queensland proceedings, Goldring DCJ said: "This type of offence is one which the law regards as extremely serious. It is a more serious offence, in my view, than the offence for which the accused was convicted in Queensland. [With respect, I am far from sure this is so.] However, I must take into account the fact that he has faced those proceedings and that he has served a term of imprisonment. If the matters had all occurred in New South Wales they would all have been dealt with at the same time and while separate sentences would have been imposed for each of the offences, the result, in my view, would almost certainly have been a partial accumulation of the sentences. So for that reason the overall sentence that I will impose is less than it would have been otherwise". 13 In light of the ground of appeal concerning the way in which his Honour dealt with the Queensland offences, I should say I regard this statement of principle as unexceptional. Subjective features 14 So far as subjective features are concerned, Goldring DCJ had available to him a report from Dr Roberts, a psychiatrist, who examined the applicant on 20 April 2004. This report disclosed that the applicant had been admitted to hospital in September 2000 with an overdose of amitriptyline with symptoms "that would suggest a very severe suppression of consciousness and a high risk circumstance for the production of brain damage", and an earlier admission in February 1985 when he was scheduled under the Mental Health Act 1990, essentially for suicidal ideation, having threatened to kill himself, his wife and his mother-in-law. 15 It seems clear that the applicant has been an alcoholic for many years, but largely uncontrolled. The 1985 hospital records contain a diagnosis of acute situational stress reaction with a depressive component, alcohol problems and personality disorder. It appears that his mother suffered from some mental illness. The applicant's history, as disclosed to Dr Roberts, included a statement that he had been treated at Chelmsford Hospital under Dr Harry Bailey and, Dr Roberts inferred, had been unconscious for a long period, suggesting that he may have had both electro-convulsive therapy and deep sleep treatment. The applicant told Dr Roberts that his psychiatric problems started in 1969 at the time of his first marriage with a steady decline since his admission to Chelmsford. He said, and it may well be true, that he had attempted suicide on about six different occasions over the years. 16 It is clear that the applicant has had a very severe problem with alcoholism for a long time. He was taking medication indicated for the reduction of the desire to drink when he saw Dr Roberts. However, it was not entirely effective. 17 Alcoholism is a serious and major addictive condition. There is no doubt that many people with it manage to control or eliminate their drinking. It nevertheless remains a risk and, in the applicant's case, the only sensible conclusion is that it is a real and substantial one, particularly having regard to another significant problem to which I will now turn. 18 The applicant, in Dr Roberts' opinion, probably suffers from frontal lobe impairment syndrome. One of the effects of this condition is the impairment of the capacity to control impulses, a general disinhibition and inability to appreciate the seriousness of a situation. Its presence is consistent with the applicant's long history of severe substance abuse disorder and his presentation on examination. 19 The applicant denied any recollection of intercourse but described to Dr Roberts a recollection of physical contact, short of intercourse. Otherwise, it is sufficient to mention under this head that the applicant was fifty-two years old when the offences were committed. He did not do well at school and left before he obtained the Intermediate Certificate. He was self-employed as a licensed builder and publican. Married three times, he has a number of children, some of whom he was caring for when he was arrested and for whom, it may be inferred, he is concerned. 20 As I have mentioned, the applicant pleaded guilty. This has not only utilitarian benefit but also indicates some remorse and contrition. I will return to this aspect shortly. The appeal 21 The grounds of appeal allege firstly that the sentencing judge erred in failing to give sufficient reasons for the sentence imposed. It is contended that this ground is made out by the omission by the sentencing judge to make any explicit findings as to: (a) the applicant's "knowledge" that the complainant was not consenting; (b) the applicant's intoxication at the time of committing the offences; (c) the applicant's remorse and contrition; (d) the significance of the delay between the commission of the offences and sentencing of the applicant; and (e) the significance of the fact that the applicant had been sentenced for the Queensland offence. 22 These elements are themselves the matters complained of respectively in grounds 2, 3, 5, 6, 7 and 8. Ground 4 contends that the sentencing judge erred in failing to give sufficient weight to the applicant's mental disorder. 23 As to ground 2, the plea of guilty carries with it an admission of the elements of the offences. Here it is plain enough the proceedings were conducted upon the basis that the applicant was reckless as to whether the victim was consenting. Whether he realised that she was not really consenting, despite her lack of protest, or failed to consider the question of consent at all, is incapable of determination. To my mind, in the circumstances here, it is of little moment. To be indifferent to the question was seriously culpable. Nothing in this case turns on the distinction and it was not therefore one to which Goldring DCJ needed to advert. 24 As to ground 3, Goldring DCJ plainly accepted that the applicant was intoxicated when the offences were committed. He referred extensively to the applicant's alcoholism and to the fact the applicant had said that he did not remember what had happened. The fact of the applicant's intoxication was implicit in the Short Facts and explicit in the victim's impact statement, as well as the report of Dr Roberts. It was plainly the basis upon which the applicant was sentenced. In some cases this might have the effect of reducing culpability, as giving some support to the likelihood that the offence was an impulsive aberration, and in this case, as it seems to me, the sentence itself indicates this is the way in which Goldring DCJ treated the matter. In its very nature it was neither necessary nor desirable to give this factor any particular weight. Accordingly, I do not think that there is any error in the failure to discuss the specific significance of the applicant's intoxication. 25 Ground 5: This ground asserts that the sentencing judge erred in failing to give any or sufficient weight to the applicant's contrition and remorse. It was submitted by the applicant that the plea of guilty was significant in circumstances where the applicant had no memory of committing the offences and his Counsel specifically referred to the applicant's contrition. Goldring DCJ referred to the utilitarian value of the plea but made no reference to the evidence of the applicant's contrition, which was the subject of explicit evidence from him. It is submitted the applicant's remorse and contrition is powerfully demonstrated by a plea of guilty in circumstances where he had no memory of the incidents. This submission would be stronger were I minded to accept the argument that the prosecution case was not otherwise overwhelming. But I do not. The evidence of the victim, if accepted, and there was no reason not to accept it, made it clear that despite the applicant's lack of recollection, he had the necessary mens rea for the offences for which he was charged. 26 The evidence of the remorse and contrition was also less than convincing. There was a plea of guilty, but there had been committal proceedings in which the victim had been obliged to give evidence. He said he was sorry for the victim but this was in terms which were qualified and there was little or no acknowledgment of any personal responsibility for the culpable and wicked acts which he had committed upon her. 27 The presence of contrition and remorse has always been regarded as important in the sentencing process and it is most unfortunate that Goldring DCJ did not specifically refer to it. Having carefully examined his Honour's reasons for judgment, I am left in some doubt as to whether he took this aspect into account, especially when one bears in mind he made specific reference to the plea of guilty only in respect of the element of its utilitarian value. 28 Ground 6 refers to the delay between the commission of the offences and sentencing of the applicant. This was clearly before the trial judge. It was capable of significance but part of the delay was due to the criminal activity of the applicant himself and his being subjected to a period of incarceration. This inevitably had the result of delaying completion of the charges in this State. Having regard to the nature and seriousness of the offences under appeal and the history of the matter, I think that this delay would not have played any significant role in reducing his sentence. Again, it was a relevant matter; again, it ought to have been mentioned by the learned sentencing judge in his reasons, but in the end I do not think that it would have played an important role. 29 Grounds 7 and 8 are concerned with the manner in which the learned sentencing judge dealt with the Queensland proceedings. I have already set out a passage from the judge's reasons which refers to this matter. In my view, Goldring DCJ gave far too much favourable effect to what had happened in Queensland. Having regard to the seriousness of the offences overall, I have no doubt that whatever might have been the better way of expressing the process of reasoning by which this matter is taken into account (see Mill v The Queen (1988) 166 CLR 59), Goldring DCJ did not err in the way in which he ultimately dealt with the matter. It is impossible, in my view, sensibly to maintain the argument that the totality of the criminality here was less than the sentence passed on the applicant. 30 I return to ground 4 which is in the following terms: "The sentencing judge erred in failing to give sufficient weight to the applicant's mental disorder." 31 I have already set out a summary of this material. Goldring DCJ referred to this aspect of the case only in the context of the difficulty that the applicant's condition posed for him in serving his sentence and the fact that its presence required a lengthier period of supervision than might otherwise be required to enable him to address his alcohol problem when released into the community. 32 There is no doubt that a mental condition of the kind here suffered by the applicant is relevant to his culpability. It supports also the conclusion that this was an unpremeditated and impulsive, opportunistic offence. It was committed in conjunction with intoxication and it may be that had both these aspects not been present the offences might not have been committed. However, considerations of this kind point in a different directions (vide Veen v The Queen (No.2) (1988) 164 CLR 465 at 476. In one direction it suggests a lesser culpability; in the other direction it suggests the need for a greater degree of personal deterrence. 33 In this case it seems to me that these factors balance themselves out and that no significant leniency is justifiable because of the applicant's mental condition. I accept that it does mean that the applicant might not be an appropriate vehicle for general deterrence, but the need for specific deterrence in his case is an evident and important element of the sentence that he should serve. 34 In overlooking the significance of the applicant's mental condition, it seems to me that Goldring DCJ, with all respect, did err and this was an error which was capable of being significant. However, for the reasons that I have given, I do not think that it should be regarded in the result as being significant. 35 It is, I think, obvious from what I have already said that I do not regard this sentence itself as being inappropriate, harsh or excessive. I think it was well within the sentencing judge's discretion. 36 Accordingly, it is unnecessary for me to consider the effect of s6(3) of the Criminal Appeal Act 1912. Certainly, I am of the view that nothing has been shown to suggest that a sentence differing from that passed below was warranted and should have been imposed. For these reasons I would propose the following orders: 1. Leave to appeal be granted. 2. Appeal dismissed. 37 SPIGELMAN CJ: I agree. 38 IPP JA: I agree. 39 SPIGELMAN CJ: The orders of the court will be as proposed by Adams J. ********** 11/10/2005 - Date of judgment changed from 29 September 2005 to 29 August 2005 - Paragraph(s) Coversheet 12/10/2005 - Amendment to cover sheet (Judges' names added) - Paragraph(s) Coversheet 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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