Carvahlo v R [2007] NSWCCA 344

New South Wales Court of Criminal Appeal

CITATION: Carvahlo v R [2007] NSWCCA 344

HEARING DATE(S): 15 November 2007

JUDGMENT DATE: 14 December 2007

JUDGMENT OF: McClellan CJ at CL at 1; Hall J at 2; Price J at 3

DECISION: (i) Leave to appeal granted. (ii) Appeal dismissed.

CATCHWORDS: Criminal Law - sentencing - evidence of frontal lobe damage - purposes of sentencing - rehabilitation - sentence not manifestly excessive.

LEGISLATION CITED: Crimes Act 1900 s 61 I, Crime (Sentencing Procedure) Act 1999 s 3A

Apps v The Queen [2006] NSWCCA 290 CASES CITED: R v Engert (1995) 84 A Crim R 67 R v Hamid (2006) 164 A Crim R 179 R v Scognamiglio (1991) 56 A Crim R 81

PARTIES: Andre Carvahlo Crown

FILE NUMBER(S): CCA 2007/3273

COUNSEL: J Conomos (applicant) T Thorpe (respondent)

SOLICITORS: M Vaughan (applicant) S Kavanagh Solicitor for Public Prosecutions (respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/0056

LOWER COURT JUDICIAL OFFICER: Knox DCJ

LOWER COURT DATE OF DECISION: 14 December 2006

LOWER COURT MEDIUM NEUTRAL CITATION: R v Carvahlo

- 7 - IN THE COURT OF CRIMINAL APPEAL 2007/3273

McCLELLAN CJ at CL HALL J PRICE J

14 December 2007 CARVAHLO v R Judgment 1 McCLELLAN CL at CL: I agree with Price J. 2 HALL J: I agree with Price J. 3 PRICE J: Andre Carvahlo was found guilty by a jury following a trial in the District Court of a single count of sexual intercourse without consent contrary to s 61 I of the Crimes Act 1900. On 14 December 2006 he was sentenced to a term of imprisonment of 8 years to date from 13 October 2006 and to expire on 12 October 2014. A non-parole period of 5 years 4 months which expires on 12 February 2012 was fixed. The applicant seeks leave to appeal against the severity of the sentence. 4 An offence contrary to s 61 I of the Crimes Act is punishable by imprisonment of up to 10 years. A standard non-parole period of 7 years has been prescribed. 5 The notice of appeal identifies two grounds each of which complains that the sentence is excessive. During oral argument, Mr Conomos confined the appeal to the length of the non-parole period. The feature of the case upon which this contention is founded is the evidence of Dr Neville Howard, a senior specialist in endocrinology and senior physician in diabetes. 6 The applicant had been diagnosed with type one diabetes at the age of nine. Dr Howard informed the sentencing Judge that the applicant had suffered frontal lobe damage during a severe hypoglycaemic episode in 1994. He was then fourteen years old. He had permanently lost some of the frontal lobe functions and as a consequence had intellectual and behavioural difficulties. The doctor suggested that the applicant would have difficulty understanding what is right and wrong. There was nothing that could be done by way of surgery or medication or a combination of both, Dr Howard said, which could correct the frontal lobe damage. However, he suggested that there might be room for him to have a current psychiatric assessment by an expert in that field. 7 Following Dr Howard's evidence, Mr Conomos conferred with him and then informed the sentencing Judge that the doctor felt (POS 14/12/06 p 21 L19-25): "One, that there should be a direction that the offender seek and receive treatment from the psychiatrist dealing with frontal lobe syndrome with a view to appropriate management strategies. And two, that upon release the offender should either report at the Young Adult Diabetes Centre at the Royal Prince Alfred Hospital or the Young Adult Diabetes Centre at Westmead." 8 Mr Conomos argues before this Court that the sentencing Judge in fixing the non-parole period did not give Dr Howard's evidence the emphasis that it deserved and a lesser non-parole period should have been imposed to permit the applicant to have treatment in the terms recommended by the doctor. 9 It is appropriate to observe that the sentencing Judge did not accept Dr Howard's evidence that the applicant would have difficulty in understanding what is right and wrong. There was before his Honour evidence in the form of reports from a forensic psychiatrist Professor David Greenberg that the applicant did not suffer any mental disability and from Dr Olav Nielssen a psychiatrist that it was unlikely that the applicant suffered from, or was affected by, a hypoglycaemic attack around the time of the alleged offence. In particular, what occurred was inconsistent with confusion surrounding a hypoglycaemic episode. The sentencing Judge said (ROS at 16): "What was of particular concern to me was Dr Howard's evidence that in his view, he, the offender, would have difficulty in understanding or differentiating right from wrong. My concern about that is, notwithstanding the expertise that Dr Howard brings to his evidence, that expertise is in the context of somebody who is not a psychiatrist. I am left with the clear evidence from both Dr Nielssen and Professor Greenberg as to the situation of the offender's mental capacity which was the basis on which the trial proceeded and indeed these sentencing proceedings took place." 10 At an earlier stage in his sentencing remarks, the Judge had considered the evidence of Dr Jane Holmes-Walker, an endocrinologist and specialist in diabetes, who had expressed the view that the applicant was not hypoglycaemic at the time of the commission of the offence. 11 Where the evidence of witnesses conflict it is a matter for the Judge at first instance to determine which evidence is to be preferred. The applicant does not submit that there is error by his Honour in the preference expressed for the evidence of the psychiatrists. His Honour did accept Dr Howard's evidence that the applicant had sustained permanent damage to the front lobe area of his brain. 12 It has long been established that the existence of a mental illness may be of relevance in the sentencing task in a number of ways. Where mental illness is causally related to the offence committed the offender's moral culpability may be reduced: R v Hamid (2006) 164 A Crim R 179 at [94]; Apps v The Queen [2006] NSWCCA 290 at [53]. It may also be a factor which reduces the weight to be given to general deterrence: R v Scognamiglio (1991) 56 A Crim R 81 at [86]; R v Engert (1995) 84 A Crim R 67 at [71]; or the need for personal deterrence of the offender: Scognamiglio at [85]. 13 The existence of a disability, falling short of mental illness, which impacts upon the cognitive or behavioural functioning of an offender may give rise to similar considerations in the sentencing process. In the present appeal, however, the applicant does not contend that the sentencing Judge failed to appropriately assess the applicant's moral culpability for the offence nor the need for general deterrence and the consideration does not arise. 14 The question, as confined by Mr Conomos, for this Court to determine is whether there was any error in the weight given by the sentencing Judge to the applicant's need for treatment and hence his rehabilitation in the light of the acceptance that the applicant had frontal lobe damage. 15 His Honour, it is clear, assiduously considered Dr Howard's evidence and the applicant's need for treatment and rehabilitation. It is evident that his Honour took these matters into account in the exercise of his discretion as to the overall sentence to be imposed (ROS at 17) and in finding special circumstances (ROS at 22-23). The conditions upon which the applicant is to be released on parole are fashioned in accordance with the recommendations made by Dr Howard as they include compliance "with any psychiatric treatment as may be directed in relation to frontal lobe syndrome for appropriate management strategies" and reporting to "the Young Adult Diabetes Centre at either Westmead or the Royal Prince Alfred Hospital with the aim of modification of your diabetes for the management of your problems" (ROS at 25). 16 As special circumstances were found, the balance of the term of the sentence amounts to one half of the non-parole period. 17 The facts of the offence are serious. The applicant had met the victim, a 19-year-old English tourist, in the Darlington Hotel. He and a companion had been drinking with her for about twenty to thirty minutes when the victim went into the ladies toilet near where they were sitting. She was in a locked toilet cubicle when the applicant knocked on the door. When she opened the door, the applicant was standing in front of her and said words to the effect "I want you now, I want you tonight". The victim said "No" and tried to get out of the toilet. The applicant started pulling at her skirt which came down and at her underwear. The victim was upset and screaming and the applicant told her to shut up or she would be killed. After pushing and hitting her, the applicant pushed her flat on the toilet seat. He then had penile intercourse with her without consent. 18 The sentencing Judge found that there was a degree of planning and clear premeditation as to what the applicant wanted to do. It was his intention to have a sexual encounter with a woman in the toilets. He and his companion had positioned themselves where women going to the toilets had to pass them by. He had carried out that plan notwithstanding the protestations of the victim whom he had only just met and with whom he had been engaged in conversations of a non-sexual nature. The offence was assessed by his Honour to be above the low range and just below the mid range level of criminality. The harm done to the victim by the crime was recognised by the sentencing Judge who further observed that: "The squalid circumstances in which the events took place would also have been a physical and emotional affront to her as it would have been indeed to anybody in those circumstances having to endure that kind of experience having recently arrived in a foreign country" (ROS at 18). 19 At the time of the offending the applicant was 26 years old being the only child of a hard working Portuguese family who had emigrated to Australia. His Honour noted that "if there are any prospects of rehabilitation… it will be in the context of the family support and parental support available to [him]" (ROS at 10). He has a criminal history which was described by the sentencing Judge as "significant". Although the applicant has no previous matters for sexual assault, he has a conviction for assault in November 1999 as well as convictions for matters involving the theft of vehicles and break and enter. He has been previously sentenced to terms of imprisonment. When the present offence was committed, he was on parole. His Honour observed that the applicant's criminal involvement had "probably been exacerbated by his illicit drug use" (ROS at 11). He had a history of cannabis and then heroin usage, which commenced about the age of 18. 20 His Honour was required to balance rehabilitation with the other purposes of sentencing which are set out in s 3A of the Crime (Sentencing Procedure) Act 1999. Section 3A is as follows: " Purposes of sentencing 3A The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community."