Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: BT v R [2012] NSWCCA 128 Hearing dates: 8 June 2012 Decision date: 10 July 2012 Before: McClellan CJ at CL at [1] Johnson J at [2] Adamson J at [3] Decision: 1. Grant leave to appeal. 2. Order that the appeal be dismissed. Catchwords: CRIMINAL LAW - sentence appeal - sexual assault offences - whether sentence manifestly excessive Legislation Cited: - Crimes Act 1900 Cases Cited: - Muldrock v R [2011] HCA 39; 244 CLR 124 - R v Hemsley [2004] NSWCCA 228 - R v Wilson [2005] NSWCCA 219 - R v Wright (1997) 93 A Crim R 48 Category: Principal judgment Parties: BT (Applicant) Regina (Respondent) Representation: Counsel: C Smith (Applicant) PG Ingram SC (Respondent) Solicitors: Legal Aid NSW (Applicant) S Kavanagh (Solicitor for Public Prosecutions) (Respondent) File Number(s): 2009/45312; 2009/152326 Decision under appeal Date of Decision: 2010-06-18 00:00:00 Before: Ellis DCJ File Number(s): 2009/45312; 2009/152326 Judgment 1McCLELLAN CJ at CL: I agree with Adamson J. 2JOHNSON J: I agree with Adamson J. 3ADAMSON J: On 18 June 2010, the applicant (BT) was sentenced after plea of guilty to the following three counts: (1)Aggravated indecent assault, contrary to s 61M of the Crimes Act 1900, which carries a maximum penalty of seven years imprisonment and a standard non-parole period of five years; (2)Aggravated sexual intercourse inflicting actual bodily harm, contrary to s 61JA of the Crimes Act, which carries a maximum penalty of life imprisonment and a standard non-parole period of fifteen years; (3)Sexual intercourse without consent, contrary to s 61I of the Crimes Act, which carries a maximum penalty of fourteen years imprisonment and a standard non-parole period of seven years. 4The standard non-parole periods did not apply to the applicant as he was under the age of 18 years at the time of the offences: s 54D(3) Crimes (Sentencing Procedure) Act 1999; BP v R [2010] NSWCCA 159; 201 A Crim R 379 at 388 [36]. 5In respect of count 3 he was sentenced to a term of 5 ½ years, with a three-year non-parole period to date from 3 March 2009. In respect of count 1 he was sentenced to a term of 2 ½ years with a one-year non-parole period to date from 3 March 2011. In respect of count 2, he was sentenced to a term of eight years with a three-year non-parole period. The total term for all three offences is ten years with a five-year non-parole period, with the applicant eligible to apply for release to parole on 2 March 2014. 6Counts 1 and 2 occurred within the same period on the evening of 7 - 8 March 2009. Count 3 occurred in a separate incident on the following evening, 8 March 2009. 7The applicant seeks leave to appeal on two grounds: first, that the sentence imposed on count 2 is manifestly excessive; and secondly, that the total effective sentence is excessive. Facts The circumstances of the offences 8The following narrative is derived from the statement of agreed facts. 9On 6 March 2009 the victim was entered into the custody of the Department of Juvenile Justice (the Department) for breach of an Apprehended Violence Order at the Frank Baxter Correctional Centre at Kariong (Baxter), a juvenile detention facility. He was then 16 years and 9 months old. 10BT and the co-accused were at Baxter for offences of violence and property offences. 11On Saturday 7 March 2009, BT, the co-accused and the victim were required to sleep on mattresses on the floor of an interview room because of the lack of suitable accommodation at Baxter. There was a CCTV camera in the interview room. 12BT and the co-accused then used duress to require the victim to masturbate them and used brute force and threats of violence to make him perform fellatio on each of them. These assaults continued over almost three hours between about 11.30 pm on 7 March 2009 and 2.20 am on 8 March 2009. Between the sexual assaults, both BT and the co-accused took turns to punch the victim. At one stage BT punched the victim in the left eye with a closed fist. 13The following evening, 8 March 2009, BT, the co-accused and the victim were again allocated the same interview room in which to sleep. At about 8.30 pm, when the victim was in bed, BT used force to roll the victim over and raped him. When the victim asked him to stop, BT threatened to hit him if he screamed. 14On 9 March 2009, the victim reported the offences and told police that he was fearful that he would suffer further assault at the hands of BT and the co-accused. The applicant's subjective circumstances 15The applicant was born on 3 March 1993 and had just turned 16 at the time of the offences. The Department of Community Services had been involved in the applicant's care since he was six. On 16 December 2003, when the applicant was ten, he and his brother were taken to the police station by their mother who told police that she could no longer care for them. They were found to exhibit signs of neglect and were made subject to the Minister's responsibility until they were 18. In April 2007 the applicant was placed with the Allambie Youth Services Residential Placement Service where he remained until he was taken into custody by the Department in early 2009. He completed Year 9 but not Year 10. When he was taken into custody in early 2009 he had a criminal record that included offences of violence but no sexual offences. Grounds for leave to appeal Ground 1: sentence for count 2 manifestly excessive 16The challenge to the sentence for count 2 was confined to the length of the parole period, the non-parole period of three years being accepted to be open to the sentencing judge. The applicant submitted that a term of eight years for count 2 was manifestly excessive. 17Ground 1 focuses entirely upon the sentence imposed on count 2. A narrow focus on the sentence imposed on one of several counts may introduce an element of artificiality given that the sentencing judge has had regard to principles concerning concurrency, accumulation and totality in passing sentences for all offences: cf R v Thalari [2009] NSWCCA 170; 75 NSWLR 307 at 320 [82]. 18I consider that the sentence of eight years on count 2 was not unreasonable or plainly unjust: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 370-371 [25]. The relationship between the non-parole period and the balance of term on that count is to be understood by reference to the total effective sentence imposed for all three offences, so that the non-parole period itself is not manifestly excessive. 19As part of his challenge to the sentence for count 2 the applicant contended that the sentencing judge had not adequately taken into account the effect of the applicant's mental illness. This contention was not expressed in the ground of appeal, but it was developed in the course of oral argument before this Court, purportedly in support of ground 1. 20The submissions made in this Court were markedly different to those advanced before the sentencing judge. This Court has expressed concern about this approach recently in Zreika v R [2012] NSWCCA 44 (Zreika) at [79] - [81]. As was said in Zreika, this court is a court of error. In sentencing appeals the Court is reviewing the exercise of a discretionary judgment. An appeal to this Court is not an opportunity to recast the case presented to the sentencing judge. I propose nevertheless to consider the submissions to determine whether error has been demonstrated. 21The applicant relied on R v Hemsley [2004] NSWCCA 228 (Hemsley) at [33] - [36], where Sperling J, with whom Grove and Dowd JJ agreed, said that ways in which mental illness may be relevant to sentencing included the following: (1) Where mental illness contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced and there may not be the same need for denunciation and punishment; (2) Mental illness may render the offender an inappropriate vehicle for general deterrence and moderate that consideration; and (3) Mental illness may have the effect that a custodial sentence weighs more heavily on the offender; 22The first factor was expressly eschewed by the applicant's counsel in the sentence hearing in the following terms: "there is no evidence of any causal connection between his mental health problems and the offence" 23This concession was consistent with the history the applicant is recorded to have given to Justice Health, the report of which records that BT "denied that any psychotic symptoms were particularly related to the index offence". 24Notwithstanding the concession made before the sentencing judge, the applicant contended in this Court that the point was still open, having regard to the following passage in the Justice Health report dated 17 June 2010: "[BT] told Dr Kasinathan on arrival to the Bronte Unit, that his psychotic symptoms were not related to the index offences. [BT] continued to deny that psychotic symptoms were directly over [sic] to his alleged commission of the index offences. However, on 26 November 2009, [BT] told Dr Kasinathan that the voices may have said 'bend him [the victim] over.' This was more consistent with a commentary nature of his voices, rather than any commanding nature of the psychotic symptoms in relation to the alleged offences." 25The offences were committed in March 2009. The applicant was admitted to the Bronte Unit at the Forensic Hospital on 1 September 2009. He maintained his denial of any causal link between his offending behaviour and his mental condition until 26 November 2009. That the applicant did not give evidence at the sentence hearing affects the weight to be given to the history recorded in the report: R v Wright (1997) 93 A Crim R 48 (Wright) at 52, per Hunt CJ at CL. There was no investigation of the possible reasons for the inconsistency between what the applicant told Dr Kasinathan prior to 26 November 2009 and what he said on that day. Such investigation would have been irrelevant having regard to the concession and difficult, if not impossible, to undertake, in any event, since the applicant did not give evidence. 26In Zreika, this Court said, at [81]: "The court will not lightly entertain arguments that could have been put, but were not advanced on the plea, and will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of submissions previously made." 27In light of the concession and the circumstance that the applicant did not give evidence at the sentence hearing I am not persuaded that the sentencing judge erred in any respect in taking into account mental illness. 28As to the second factor, the applicant contended that the applicant's mental illness made him an inappropriate vehicle for general deterrence. 29It is an accepted principle of sentencing that general deterrence may be given less weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others: Hemsley; Muldrock v R [2011] HCA 39; 244 CLR 124. However, if the offender acts with knowledge of what he is doing and with knowledge of the gravity of his actions, the moderation need not be great: Wright. It is important to ensure that the subjective features of the offender do not outweigh the significance properly to be attached to the objective features of the case: Wright at 55, per Gleeson CJ. 30In the Remarks on Sentence (ROS), the sentencing judge accepted that the applicant may not have been fully aware of the consequences of his actions because of his "level of immaturity and by reason of the mental health issue set out within the forensic psychiatrist's report and the Juvenile Justice background report". 31After referring to the material tendered, including psychiatric evidence, the sentencing judge said: "That material sets out what in many ways can only be described as a tragic background. The lack of role models, the physical, sexual and emotional abuse and neglect to which he was subject over many years has been exacerbated by his abuse of illicit substances and alcohol and that in turn has exacerbated what is clearly a latent serious mental health issue noting Dr Goh's diagnosis of paranoid schizophrenia. It is a tragic background and close examination of it, at least in some way, makes explicable this otherwise inexplicable conduct of 7 and 8 March 2009." 32In my view, the ROS and, in particular, the passage set out above, indicate that the sentencing judge gave the applicant's mental condition such weight as was appropriate. 33As to the third factor, the applicant's submissions can be dealt with shortly. The sentencing judge found special circumstances and can be taken to have accepted that time in custody would weigh more heavily on the applicant. There is no challenge to the finding of special circumstances or the appropriateness of the non-parole period. In these circumstances I am not persuaded that the sentencing judge erred in taking into account the third factor. Ground 2: overall sentence manifestly excessive 34In addition to relying on the matters in support of ground 1, the applicant submitted that the commencement date for the sentence on count 2 should not have been two years after the commencement date for the sentence imposed on count 3. 35The sentencing judge dealt expressly with the issue of totality in the following passage in the ROS: "...In the Court's view the sentences to be imposed for count 1 and count 2 can be concurrent in that the sentence on count 2 can reflect the total criminality of that incident. However, in relation to count 3, it occurred on a different day, involved a different type of sexual intercourse and in my view requires some cumulation...the Court will comply with the decision of the High Court in Pearce by imposing discrete sentences to reflect the criminality of each sentence. The concurrence between 1 and 2 and the partial cumulation with count 3 will result in an effective total sentence that reflects the effective total criminality. The Court notes that the offender had been in custody for a short period of time prior to the commission of this offence and in fact served the balance of a control order until 2 April 2009. The Court notes that according to the record, it was a two-month control order, commencing on 3 February 2009 expiring on 2 April. The Court proposes to back date the first sentence to 3 March, that is to take into account the time already served and also by way of partial concurrence with that two-month control order. It will also have the effect and meaning that the non-parole period will expire the day before the offender turns twenty-one." 36Count 3 was committed on the evening following the commission of counts 1 and 2. Not to partially accumulate count 3 with the concurrent sentences for counts 1 and 2 would, in my view, have been erroneous. Indeed, the applicant conceded in this Court that some partial accumulation up to one year would have been open to the sentencing judge. As Simpson J said in R v Wilson [2005] NSWCCA 219 at [38]: "...In this context the Crown appropriately reminded the Court of the purposes of sentencing set out in s 3A of the Sentencing Procedure Act. The first purpose so specified is ensuring adequate punishment for crime; others here relevant include crime prevention by deterrence, denunciation, making an offender accountable, and recognition of the harm done to the victim and the community. To fail to accumulate, at least partially, may well be seen as a failure to acknowledge the harm done to those individual victims." 37I do not regard the two years' accumulation to be excessive in circumstances where count 3 was committed on a subsequent evening and involved fresh and, in relation to this victim, unprecedented acts of sexual violence and violation. I consider the degree of accumulation was within the discretion of the sentencing judge and appropriate having regard to the principles of proportionality and totality. Additional remarks 38In the ROS, the sentencing judge referred to the situation in which BT, the co-accused and the offender found themselves in the following terms: "Now the victim was, in my view, vulnerable because of his incarceration and the fact that he was effectively forced to be in that particular room with those two individuals. The Court accepts that the criminality was not planned, but rather appears to have been a response to a given situation." 39Neither BT nor the co-accused can be absolved of criminal responsibility by reason of the circumstance that the Department housed them in such a way as to provide them with the opportunity to commit the index offences. 40Nonetheless authorities which control detention centres for juveniles have particular obligations to safeguard the welfare of such juveniles. 41At the time of these offences, s 4 of the Children (Detention Centres) Act 1987 provided as follows: "4 Objects of Act (1) The objects of this Act are to ensure that: (a) persons on remand or subject to control take their places in the community as soon as possible as persons who will observe the law, (b) in the administration of this Act, sufficient resources are available to enable the object referred to in paragraph (a) to be achieved, and (c) satisfactory relationships are preserved or developed between persons on remand or subject to control and their families. (2) In the administration of this Act: (a) the welfare and interests of persons on remand or subject to control shall be given paramount consideration, and (b) it shall be recognised that the punishment for an offence imposed by a court is the only punishment for that offence." 42The welfare and interests of the victim in particular do not appear to have been given sufficient, let alone, paramount, consideration. Overcrowding in such centres may, as the events of the instant case illustrate, lead to conduct that is inimical both to the interests of justice and to the welfare of the inmates of such Centres. Orders 43I propose that leave to appeal be granted but the appeal be dismissed. ********** 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. Decision last updated: 10 July 2012