Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Dawson v R [2013] NSWCCA 61 Hearing dates: 5 March 2013 Decision date: 21 March 2013 Before: Price J at [1] McCallum J at [2] Schmidt J at [3] Decision: 1. Leave to appeal is granted. 2. The appeal against sentence is upheld. 3. The sentence imposed is quashed, 4. In substitution the applicant is sentenced as follows: count 1 - non-parole period of 2 years dating from 6 September 2011, expiring 5 September 2013, with a balance of term of 1 year expiring 5 September 2014 count 2 - non-parole period of 3 years dating from 6 March 2012, expiring 5 March 2015, with a balance of term of 2 years expiring 5 March 2017 count 3 - non-parole period of 3 years dating from 6 September 2012, expiring 5 September 2015, with a balance of term of 2 years expiring 5 September 2017 count 4 - non-parole period of 4 years, 6 months dating from 6 March 2013, expiring 5 September 2017, with a balance of term of 3 years expiring 5 September 2020 count 5 - non-parole period of 4 years, 6 months dating from 6 March 2013, expiring 5 September 2017, with a balance of term of 3 years expiring 5 September 2020 5. The earliest date from which the applicant will be eligible for release on parole is 5 September 2017. Catchwords: CRIMINAL LAW - appeal against sentence - error in not giving effect to finding of special circumstances - error conceded - applicant to be re-sentenced - principal of totality - whether insufficient weight given to intellectual disabilities other than on contrition and remorse - applicant re-sentenced Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Category: Principal judgment Parties: Rodney John Dawson (Applicant) Regina (Respondent) Representation: Counsel: Mr D O'Neil (Applicant) Mr H Wilson (Respondent) Solicitors: Legal Aid NSW (Applicant) S Kavanagh, Solicitor for Public Prosecutions (Respondent) File Number(s): 2010/398870 Publication restriction: None Decision under appeal Jurisdiction: 9101 Date of Decision: 2011-11-25 00:00:00 Before: Neilson DCJ File Number(s): 2010/398870 Judgment 1PRICE J: I agree with Schmidt J. 2McCALLUM J: I agree with Schmidt J. 3SCHMIDT J: In November 2011, Neilson J sentenced the applicant to a total of 9 years imprisonment, with a non-parole period of 6 years and 6 months for five offences involving the sexual assault of his niece. The applicant seeks leave to appeal from that sentence. The Crown has conceded that his Honour erred in one aspect of the sentencing exercise, but the other grounds of appeal were disputed. 4The charges, maximum penalties and sentences imposed, after a 25% discount for an early plea and finding of special circumstances were: Count 1 - s 61M(1) Crimes Act 1900 indecent assault on a person aged under 16 years - maximum penalty of 7 years and standard non-parole period of 5 years - non-parole period of 2 years dating from 6 September 2011, expiring 5 September 2013, with a balance of term of 1 year expiring 5 September 2014 Count 2 - s 61I Crimes Act 1900 sexual intercourse without consent - maximum penalty of 14 years and standard non-parole period of 7 years - non-parole period of 3 years dating from 6 March 2012, expiring 5 March 2015, with a balance of term of 2 years expiring 5 March 2017 (pronounced as 2018) Count 3 - s 61I Crimes Act 1900 sexual intercourse without consent - maximum penalty of 14 years and standard non-parole period of 7 years - non-parole period of 3 years dating from 6 September 2012, expiring 5 September 2015, with a balance of term of 2 years expiring 5 September 2017 Count 4 - s 61I Crimes Act 1900 sexual intercourse without consent - maximum penalty of 14 years and standard non-parole period of 7 years - non-parole period of 5 years dating from 6 March 2013, expiring 5 March 2018, with a balance of term of 2 years, 6 months expiring 5 September 2020 Count 5 - s 61I Crimes Act 1900 sexual intercourse without consent - maximum penalty of 14 years and standard non-parole period of 7 years - non-parole period of 5 years dating from 6 March 2013, expiring 5 March 2018, with a balance of term of 2 years, 6 months expiring 5 September 2020 Grounds of Appeal 5The three grounds of appeal advanced were: "1. His Honour erred in not giving effect to his finding of special circumstances. 2. His Honour failed to apply the totality principle in relation to the sentences imposed. 3. His Honour gave no weight to the Applicant's significant intellectual disabilities other than on the issue of contrition and remorse." The facts 6The applicant was 55 years of age when sentenced. 7The facts were agreed. The victim was aged 15 years at the time of the indecent assault and 16 at the time of the other four offences. They were reported in November 2009 and the applicant was arrested after investigation in November 2010. 8In a telephone conversation in August 2010 the applicant admitted that some sexual incidents had taken place. In later text messages he conceded that there had been sexual contact. He admitted the offences charged during interview after arrest. He then said that the victim had not spoken during the incidents and that he had taken her silence for acquiescence. He later asked her, however, if he should leave the family home, so that she could feel 'safe'. He was granted conditional bail, which was revoked during the sentencing hearing. 9At the time of the offences the applicant had entered a de facto relationship with the victim's mother and was living with them and the victim's brother at their home. 10The aggravated indecent assault (count 1) occurred on a day that the victim was unable to go to school due to a sports injury. The applicant approached her and offered to rub cream onto her injured leg. He then gradually moved his hand higher along her leg towards her genitals, placed his hand inside her shorts, outside her underwear and rubbed her genitals for some minutes, until she said 'it's better' and got up and moved away. She then telephoned her boyfriend and told him what the applicant had done. The applicant entered the room and told her 'don't tell'. The victim did not tell her mother. This incident was followed by uncharged assaults in which the applicant approached the victim while she was lying down in her bedroom and fondled her genitals and buttocks. 11The first sexual intercourse offence (count 2) occurred in late November or early December 2007, in the victim's bedroom. The applicant rubbed his hands over her body, pulled the rear of her underwear down, moved his hands to her genitals and rubbed her vagina, before digitally penetrating her. 12The second sexual intercourse offence (count 3) occurred on 8 December 2007, in the victim's bedroom, after she came home from a Christmas party. She was in bed when the applicant pulled her underwear down, rubbed her vagina and then digitally penetrated her. 13The third and fourth sexual intercourse offences (counts 4 and 5) occurred on a night in January 2008, in the victim's bedroom, where she was asleep. The applicant entered around midnight and lay down in the bed with the victim. He began touching her body, pulled down her lower clothing and used his fingers to penetrate her vagina for a couple of minutes (count 4). He then climbed on top of her and inserted his penis into her vagina. Intercourse continued for up to 5 minutes, before the victim managed to push him off (count 5). The victim said that he then lay with her for a time, like he was drunk, pretending that he hadn't done anything, before leaving the room. 14Afterwards, the victim got her mother to help her rearrange the furniture in her room in order to barricade one door, which could not be locked. She then locked the other door when in her bedroom at night, in order to prevent further assaults. 15Also in evidence were the applicant's criminal history; relevant sentencing statistics; a pre-sentence report of 18 July 2011; and a neuropsychological report of 6 November 2011 provided by Dr Susan Pullman, a neuropsychologist and forensic psychologist; and Ms Lisa Zipparo, a psychologist. 16The pre-sentence report noted the applicant's previous contact with the community offender services in 1999 and 2001, when strategies to address alcohol and drug issues had been pursued, with less than satisfactory response from the applicant. At the time of the report the applicant was residing with his mother, as her carer. Prior to being granted bail he had been an involved community member, participating in sports and volunteering with charitable organisations. The report noted that he had been referred to a psychiatrist, to whom he had stated that the victim had initiated the sexual contact. He was unable to explain his failure to set limits, but his risk of re-offending was assessed to be in the low range. 17This report noted that a worsening abuse of alcohol and cannabis had been admitted. The applicant had been referred to a counsellor, who reported guarded responses and questionable commitment to addressing his drug and alcohol problems, which he suggested had pushed him to this offending, about which he said he had 'lost his commonsense'. He could not explain his offending, for which he attributed significant blame to the victim and which he considered at the time to have been a harmless joke. 18It was concluded that the applicant had failed to accept personal responsibility for his offending and that he minimised its seriousness. It was considered that longstanding alcohol abuse could have contributed to his memory problems. Assessment for a sex offenders' programme and a neuropsychologist's report were recommended. 19The neuropsychologist's report noted no developmental issues or illnesses in the applicant's childhood. Learning issues at school were noted. He left in year 8 to work on the railways and worked as a labourer for 14 years before running his own milk delivery business for five years and a car detailing business for another five years. He was primary care giver for his children for two years and then did odd jobs, before receiving a disability pension in 2002 as the result of back injuries sustained from labouring. 20The applicant provided a medical history of back surgery 6 years previously, with further back surgery required. He was suffering considerable back pain, which caused him difficulty sitting. He had received treatment for angina in the past and was receiving medication for discomfort after eating. 21The applicant gave a report of being involved in two motor bike accidents while in his 20s, the second causing loss of consciousness and extended hospitalisation for a head injury. He could recall no other details of the accidents and could not reveal details of his recovery. There was no history of mental illness given, but he had experienced feelings of paranoia, which he attributed to his cannabis use. A history of drug and alcohol abuse was given, with cannabis used to self medicate for back pain. The applicant believed this had led to him developing a poor memory, which he described. Momentary lapses of attention were noted, but no comprehension problems were observed, when the applicant was attending to the conversation. His criminal antecedents were noted. 22The neuropsychological assessment was that based on his educational and vocational background, as well as a formal reading measure, his premorbid intellectual functioning was assessed to be within the borderline range. Various tests were administered, with the result an overall intellectual functioning falling within the 5th percentile. 23Testing of attention and concentration/information processing, showed that his basic auditory attention span was within the average range; his ability to hold and manipulate information in the low average to average range and mental arithmetic in the below average range. Speed of information processing was within the borderline range. His verbal memory was extremely low and for visual material, below average. His verbal memory was considered to be significantly and unusually below what would be expected given his verbal intellectual abilities. Tests of executive functioning were also well below average, as was verbal fluency. He was assessed as having worked satisfactorily during assessment. He was assessed on the depression scale to be in the mild range, but anxiety was in the extremely severe range. 24It was noted that despite the applicant's history of daily cannabis use for over 18 years, alcohol abuse and a serious traumatic brain injury in his 20s, as well as limited education, he had described a consistent work history at the semi-skilled and labouring levels, until 2002 when he received a disability pension for back injury. 25It was concluded that on neuropsychological testing there was evidence of significant organic brain impairment which was consistent with 38 years of daily cannabis use, alcohol abuse and a serious head injury. This was considered to have implications for the applicant undertaking the suggested sex offender's treatment programme. It was considered that repetition of information would be crucial to him learning new information, given that his impaired higher level functioning meant that his ability to problem solve, reason, extrapolate and apply new information was limited. The sentencing remarks 26His Honour began by noting the Crown's acceptance that there had been a plea entered at the earliest opportunity and that the applicant was accordingly entitled to a discount of 25% for the utilitarian value of his plea. He then turned to the evidence, noting that his victim had known the applicant all her life, referring to him as her favourite uncle, for whom she had a lot of respect. After recounting the agreed facts, his Honour noted that it had been agreed that all the crimes occurred without the victim's consent. The victim never spoke, explaining 'I didn't know what to say, I didn't know what to do, I would just pretend I was sleeping and roll over or move'. 27His Honour observed that on arrest the applicant candidly conceded that each incident had occurred as described by the victim. He admitted that she never spoke to him and had never encouraged his actions, but said that he had taken her lack of reaction as acquiescence. 28His Honour concluded: "These offences were committed by the offender in the home of the victim, in the place where she would seek sanctuary: in her bedroom in her own home. I accept that the emotional harm and psychological damage suffered by the victim was substantial and I will shortly refer to the victim impact statement. I have already mentioned the aggravating factor that the offender abused a position of trust in relation to the victim." 29His Honour considered that other aggravating factors were not established. His Honour noted the remorse evidenced by the admissions and pleas which the applicant had entered, but observed the difficulty presented by the contents of the pre-sentence report, where the author noted that the applicant attributed significant blame to the victim, who he then claimed had initiated the sexual behaviour which he perceived to be a harmless joke at the time. His engagement in the interview was questioned, the author noting that he appeared evasive. His Honour accepted the submission that this may have been because of his psychological makeup. 30His Honour noted the conclusions of Dr Pulman and Ms Zipparo and accepted that the applicant's executive functioning could explain how he showed one attitude on arrest and another during interview for the pre-sentence report. In the result, his Honour accepted that contrition and remorse had been established. 31His Honour then referred to the victim impact statement, observing that the offences had involved substantial emotional harm and damage. 32His Honour then turned to the applicant's criminal history, which commenced when he was aged 13 years, with only one other offence of sexual misconduct when he was aged 20 years, involving assaulting a female and committing an offence of indecency. There was other offending involving traffic offences, break and enter offences and assaults but no offending for some 6 years prior to these offences. 33His Honour then considered the applicant's personal circumstances, including his school and work record. His Honour also noted his relationship with his former wife between the ages of 16 and 41, which broke down 9 years previously, a break-up he attributed to his excessive use of cannabis. His children were then aged 22, 20 and 19 years. 34His Honour noted that the applicant had used large amounts of cannabis his entire adult life and now for chronic back pain, as well as his history of alcohol use. His Honour noted that excessive use of cannabis could have an effect on brain functioning and the organic brain damage which Dr Pullman considered could also be attributable to a head injury suffered in a motor cycle accident in his twenties; and that Dr Pulman considered him to be in the bottom 5% of the normal population, so far as his IQ was concerned. His Honour noted that this was consistent with his history of education and occupation, but he also noted that he had been able to provide for his family for the most part. 35His Honour concluded that: "Why the offender committed these offences can only be explained by an inability to control his own animal instincts." 36His Honour noted the applicant's other medical conditions and accepted the submission that his incarceration would be quite onerous for him. He observed that there was no evidence that he would serve his sentence in protective custody, but accepted that imprisonment would be more onerous for him than for younger offenders. 37His Honour referred to other considerations, observing: "In sentencing for crimes of this nature, there are always a number of important considerations. Of particular importance are general deterrence; that is, trying to prevent others from committing crimes of the same type. Specific deterrence is also important to prevent this offender from committing any such crime again. Denunciation is also very important; the courts are called upon to enforce Parliament's desire that all children should be protected, that young persons should not be abused by older people, who could be seen as predators, and the courts must do their best to ensure that trust given to people is honoured by them. Crimes of this nature must be severely punished. The Court also is concerned with rehabilitation, because if a person is rehabilitated the likelihood of his or her committing further offences is greatly diminished, and that is one other aspect of sentencing: to ensure that crimes are no longer committed." 38His Honour then again referred to Dr Pullman's report and the difficulties that the applicant might have in completing the sex offender's programme. He also took account of the assessment that the applicant was unlikely to offend again. 39His Honour rejected the submission that these offences reflected only one episode of criminality and that all sentences should be served concurrently, concluding that there had to be at least partial cumulation, because there were four episodes of criminality. He concluded that the sentences for counts 4 and 5 should be concurrent, because the two acts of sexual intercourse were immediately one after the other, but the other three sentences had to be partially concurrent, given that those three acts of criminality all occurred at different times. 40After announcing and adjusting the sentences for the first three counts to reflect the need to impose a non-parole period, his Honour indicated that he had departed from the standard non-parole period because of the early plea; because the offences in counts 1, 2, 3 and 4 fell below the mid-range of objective seriousness for such offences, having regard to the acts in question and the age of the victim. He considered that the most serious offence was count 5, when penile/vaginal intercourse occurred without consent over a number of minutes, but took the view that this offence fell just below the mid-range of objective seriousness, because there had been no ejaculation involved, so that the victim had not been exposed to the risk of pregnancy or having some sexually transmitted disease passed on to her and because there was no rough handling involved. Ground 1 - special circumstance - error conceded Ground 2 - totality 41It is convenient to deal with these grounds together. 42The applicant's case was that the overall sentence imposed upon him was too high, falling at the top of the spectrum of sentencing statistics. This was principally submitted to have been the result of his Honour erring in his approach to deterrence, given the evidence of the applicant's intellectual disability and also because of his failure to properly apply the principal of totality. Further, in order to give true effect to his Honour's finding of special circumstances, there should have been a ratio of 60% and at most 66% of a lower overall sentence fixed as the total non-parole period, rather than the 72% imposed. 43The applicant's case on totality was that his Honour's error in relation to the overall sentence was demonstrated by his conclusions as to special circumstances; the applicant's intellectual disabilities; and the circumstances of the offending, having in mind the relatively short amount of time involved on each occasion, that three of the counts involved digital, rather than penile penetration, that there was no ejaculation involved in the penile penetration, that the victim did not convey non-consent during the incidents and that the applicant took the victim's approach as indicative of acquiescence. The difference in the criminality involved in counts 4 and 5, even though the same sentence was imposed for each matter, and the common elements involved, namely essentially the same conduct, the same victim and the offences occurring over relatively short period of time of some 4 months together meant that an overall sentence less than 9 years should have been imposed. 44The Crown conceded that ground one had been established, the non-parole period imposed not reflecting the conclusions which His Honour reached as to special circumstances. It did not accept, however, that the total sentence of 9 years was in error, given the overall criminality of the offending for which the applicant was being sentenced. It submitted that the error in sentencing was probably the result of a mathematical error which occurred in his Honour's totality exercise. In the result, while the overall sentence of 9 years would not be disturbed, that representing a lenient sentence in all of the circumstances, a non-parole period of 6 years with a 3 year parole period, would be more than sufficient to reflect the finding of special circumstances. The Crown's concession was properly made 45His Honour found that special circumstances existed, justifying a variation in the usual ratio of sentence of 75% provided by s 44(2) of the Crimes (Sentencing Procedure) Act 1999. 46On the Crown's case the basis for making that finding was tenuous, but conceded that having reached that conclusion, his Honour had to give proper effect to it in the sentences imposed, or he had to give reasons for not doing so. While his Honour imposed non-parole periods of 60% or 66% for the individual sentences imposed, the overall ratio was 72.2%. That result was not explained and did not reflect his Honour's conclusions as to special circumstances. In view of his sentencing remarks, it was accepted to be apparent that this was not what his Honour intended. 47It does appear, as the Crown observed, that there has been an error, which may have flowed from his Honour's initial mistaken belief that it was unnecessary to impose a non-parole period in relation to any but the last two counts, because the non-parole periods for the other three counts would be overtaken by the non-parole period for the most serious offences. His Honour's attention was then drawn to s 44 and s 45 of the Crimes (Sentencing Procedure) Act, which required that non-parole periods be set for the first three counts. 48Having had those sections drawn to his attention, his Honour then fixed a non-parole period for each count, specifying commencement and expiration dates, with non-parole periods ranging from 60 to 66% of the head sentence. It was when his Honour dealt with considerations of concurrency and accumulation of sentences, by which the overall sentence was arrived at, applying the principle of totality, that an overall non-parole period of 72.2% of the head sentence was reached. That does not reflect his Honour's findings as to special circumstances and the conclusions which he reached as to the nature and seriousness of the respective sentences. 49In the result, it must be accepted that there has been relevant error. The finding of special circumstances was not given effect and so the applicant must be re-sentenced. In that exercise the question of totality must be revisited. Ground 3 - insufficient weight given to intellectual disabilities other than on contrition or remorse 50While in written submissions addressed at the sentencing hearing, the applicant's counsel had suggested an overall range of 5 to 7 years for the non-parole period and 8 to 10 years for the overall sentence, that submission was modified during the oral submissions pressed. A sentence at the lower end of the suggested range was urged. 51His Honour imposed an overall sentence of 9 years and a non-parole period of 6 and a half years, having indicated during oral submissions that he had this figure in mind. It was then that the applicant's counsel urged a sentence closer to the bottom of the submitted range. 52On appeal it was submitted that this had revealed that his Honour had not approached the sentencing exercise as required by Pearce v R [1998] HCA 57; 194 CLR 610 at [45]. His Honour did not rely on s 53A of the Crimes Act 1900, which permits a court sentencing an offender for more than one offence, to impose an aggregate sentence of imprisonment with respect to all or any of those offences, instead of imposing a separate sentence of imprisonment for each. In the result, his Honour was obliged to impose a sentence for each matter before considering questions of accumulation and concurrence. His Honour was not entitled to commence the sentencing exercise with the overall term being fixed first. 53In my view that submission may not be accepted. That his Honour raised with counsel during submissions his view as to a matter expressly addressed in the written submission, the overall sentence, does not reveal that he engaged in the erroneous approach suggested on appeal, namely that he did not give the necessary consideration to the individual sentences to be imposed and how they were arrived at. Given the sentences which were imposed, it is apparent that his Honour did give consideration in the required way to the individual sentences. 54In fixing the individual sentences his Honour had regard to both the maximum penalties for each offence and the standard non-parole periods, as well as the other relevant factors, in the way discussed in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [27]. His Honour concluded that count 5, the penile penetration, was the most serious offence. The maximum penalty was 14 years and the standard non-parole period 7. His Honour explained why he departed from the standard non-parole period, amongst other things finding the offence to have fallen just below the mid-range of seriousness. He imposed a sentence of 7 years, 6 months and a non-parole period of 5 years, with 6 months of that sentence made concurrent with that imposed for count 3. 55The sentence imposed for count 4, the digital penetration committed on the same occasion as count 5, was identical, even though his Honour expressly found that it was a less serious offence, falling below the mid range. That may have been an error, but it has had no practical effect given that sentence was made entirely concurrent with the sentence imposed for count 5. 56His Honour also found that counts 1, 2 and 3 fell below the mid range. The maximum penalty for count 1 was 7 years and the standard non-parole period 5 years. The applicant was sentenced to 3 years imprisonment with a non-parole period of 2 years. Counts 2 and 3 also had maximum penalties of 14 years and standard non-parole periods of 7. In each case his Honour imposed a sentence of 5 years with a non-parole period of 3 years, each sentence being made concurrent by 6 months. 57The applicant also complained in written submissions on appeal that no weight was given in the sentences imposed to his 'significant intellectual disabilities', other than on the issue of contrition and remorse. It was submitted that the evidence of his borderline intellectual functioning and well below executive functioning were such that neither general nor specific deterrence should have had a significant impact on the sentences imposed. This should have also been considered in the context of the impact of his time in custody. 58In oral submissions it was argued that while his Honour had referred to the applicant's intellectual disabilities in his sentencing remarks, he had erred in his approach to deterrence, because the evidence required that deterrence be approached in the way discussed in Muldrock: "[53] Black DCJ's finding, expressed in lay terms, that the appellant's intellectual disability is "significant", was apt. It was an error for the Court of Criminal Appeal to reject the finding, if that is what it did. Alternatively, it was an error for the Court to find that Black DCJ's determination, that general deterrence had no place in sentencing the appellant, was not justified by the evidence. One purpose of sentencing is to deter others who might be minded to offend as the offender has done. Young CJ, in a passage that has been frequently cited, said this[66]: "General deterrence should often be given very little 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." In the same case, Lush J explained the reason for the principle in this way [R v Mooney unreported, Victorian Court of Criminal Appeal, 21 June 1978 at 8, cited in R v Anderson [1981] VicRp 17; [1981] VR 155 at 160-161]: "[The] significance [of general deterrence] in a particular case will, however, at least usually be related to the kindred concept of retribution or punishment in which is involved an element of instinctive appreciation of the appropriateness of the sentence to the case. A sentence imposed with deterrence in view will not be acceptable if its retributive effect on the offender is felt to be inappropriate to his situation and to the needs of the community." [54] The principle is well recognised [Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465 at 476-477. See also R v Anderson [1981] VicRp 17; [1981] VR 155; Scognamiglio (1991) 56 A Crim R 81; R v Letteri unreported, New South Wales Court of Criminal Appeal, 18 March 1992; Engert (1995) 84 A Crim R 67; Wright (1997) 93 A Crim R 48. It applies in sentencing offenders suffering from mental illness, and those with an intellectual handicap. A question will often arise as to the causal relation, if any, between an offender's mental illness and the commission of the offence[See Engert (1995) 84 A Crim R 67 at 71.]. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender's moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community." 59This was not a submission advanced at the sentencing hearing. Nor could it have been. In Muldrock there was unchallenged evidence of the causal relationship between the appellant's retardation and his offending in the reports in evidence. Thus it was concluded at [55] that: "The fact that the appellant possessed the superficial understanding of a mentally retarded adult that it was wrong to engage in sexual contact with a child and that he told childish lies in the hope of shifting the blame from himself were not reasons to assess his criminality as significant [R v Muldrock [2010] NSWCCA 106 at [34]], much less to use him as a medium by which to deter others from offending." 60This was quite a different case. Here there was no opinion expressed in the reports as to any causal relationship between the applicant's intellectual functioning and his offending. Nor do the reports reveal that the applicant had 'significant intellectual disabilities'. That no doubt explains how the case was put below. 61There the parties addressed their written submissions, which for the applicant's part did not develop a case that he had an intellectual disability. For its part, the Crown submitted that both general and specific deterrence had to feature in the sentence imposed. Reference was made to the applicable standard non-parole periods, the objective seriousness of the offences, as well as the requirements of s 21A of the Crimes (Sentencing Procedure) Act and considerations of concurrency and accumulation of sentence. Relevant statistics and authorities were addressed. 62For the applicant the matters addressed in written submissions were the early plea and other evidence of contrition and remorse; the applicant's age and other subjective matters. The objective seriousness of the offences was addressed, as was the applicant's prospects of rehabilitation and comparative cases. Reference was made to Muldrock, but not to that aspect of the judgment now relied on. Rather, the role which standard non-parole periods played in sentencing was addressed and the appropriate range specified. 63In oral submissions a sentence at the bottom of the range proposed in the written submission was urged for the applicant. It was then that it was submitted that he had an impairment of his memory and executive functioning which would be considered in determining the seriousness of the offending, which was submitted to have been reckless, rather than to have been committed in circumstances of true knowledge that the victim was overtly protesting. In the result it was argued that the applicant was in a less culpable position than an offender who had engaged in such conduct with full knowledge that the victim was not consenting. 64It was also accepted that general deterrence had to play a role in this sentencing exercise, but argued that specific deterrence would be ameliorated somewhat, given the applicant's state of functioning, his inability to comprehend and his ability to engage in and learn from sex offender treatment programmes. This and his age meant that he was unlikely to improve, a matter which would be a question down the track for parole. 65His Honour raised his concern that a non-parole period of 6 and half years would provide the applicant with an opportunity to repeat the sex offender programme to reinforce it, prior to release. His Honour observed that that circumstance could be in his interests, given that the Parole Board might not otherwise approve his parole. It was accepted for the applicant that this could pose a problem. It was submitted that this had to be considered in fixing the appropriate non-parole period, consistently with a finding of special circumstances. In the result, it was submitted that there should be an amelioration of the non-parole period. 66The Crown's case on appeal was that there was no evidence that the applicant had an intellectual disability, as that phrase is ordinarily understood. On the reports, his long years of abuse of illicit drugs and alcohol, coupled with the residual effects of a head injury sustained while he was in his twenties, had led to some level of brain injury, affecting parts of his cognitive functioning. That was not an intellectual disability of the kind dealt with in Muldrock. 67The Crown also submitted that his Honour's sentencing remarks showed that he had given careful consideration to the evidence, quoting extensively from the reports and accepting that the applicant's apparent lack of remorse may have been attributable at least in part to his cognitive defects, as may have been his evasive conduct with the author of the pre-sentence report. It followed that the favourable consideration which his Honour gave this evidence, was not limited to issues of contrition and remorse, but also to accepting his reduced moral culpability for the offences charged. 68His Honour was obliged to consider all of the evidence, including the applicant's subjective circumstances, which included a positive employment and business history. The evidence did not point to a man incapable of understanding the import of his actions, or their magnitude. Nor was the evidence indicative of an individual with a complete absence of self-control, or overwhelming cognitive limitations. 69The result of the sentencing exercise had been a favourable one to the applicant, particularly given his Honour's finding of special circumstances and the approach adopted to questions of accumulation and concurrence. To further reduce the sentence would result in a sentence which would not adequately reflect the criminality of his offending. 70I am satisfied that this ground was not made out. 71At the sentencing hearing it was accepted for the applicant that general deterrence had a role to play in the sentence imposed. On the evidence that concession was properly made. While his Honour did not accept that specific deterrence had no role to play in the sentencing exercise, it is apparent from both the individual sentences which his Honour imposed and the overall sentence of 9 years, that he took quite a generous view of what the reports and the other evidence revealed as to the applicant's mental capacity and functioning, when considering remorse, determining his moral culpability for his objectively serious offences and in reaching the conclusion that special circumstances had been established. 72His Honour concluded that remorse had been shown, notwithstanding evidence of the applicant's view that the victim's silence had showed acquiescence and that the offences had been a harmless joke. Consent was not an issue on the first count. The agreed facts were that the applicant had not consented; that she had been silent because of fear; and that she had struggled to physically throw the applicant off, during the last offence. His Honour's conclusion that the applicant's views could have been the result of his impaired brain functioning was an extremely favourable one, given what the reports and other evidence revealed as to his level of past functioning. 73That is consistent with affidavit evidence received on appeal, which revealed, as was accepted for the applicant, that apart from his back injury, the applicant is doing very well in prison in terms of his intellectual functioning, successfully completely a number of TAFE programs and assisting other prisoners who have literacy problems. He has not been able as yet to participate in a sex offender's programme, because he is not yet close enough to release on parole to be eligible to participate in the programme. That picture is contrary to the view which his Honour came to, that incarceration might be more difficult for the applicant than for other offenders, but is consistent with the view which his Honour took of the evidence of his level of functioning, which required that specific deterrence play a role in the sentencing exercise. 74His Honour also took a favourable view of the most serious offence, count 5, because there had been no ejaculation. It is difficult to see how that was a matter which could have been considered to reduce the objective seriousness of this offence in any real way. It was a matter which rested on the victim's belief, not on any evidence given by the applicant. His Honour also considered that the absence of ejaculation had not put the victim at risk of pregnancy or disease. The latter conclusion plainly had no foundation, as was conceded for the applicant, it being contrary to how diseases can be transmitted. The former conclusion is also entirely questionable. It was certainly not the subject of any evidence. 75His Honour also made the sentence for count 4 entirely concurrent with that imposed for count 5. Notwithstanding the apparent error in the length of that sentence, that, too, was a generous approach, when the agreed facts are considered. While count 4 involved digital, rather than penile penetration, to order no accumulation at all for the sentence imposed for that offence, was quite lenient. 76In the result while I accept that in resentencing, the overall non-parole period should be reduced by 6 months, as the Crown conceded, in my view no error warranting the imposition of a lesser overall sentence has been established. 77To give effect to that conclusion, the non-parole period for counts 4 and 5 should be decreased from 5 years to 4 years, 6 months, so that the earliest date from which the applicant will be eligible for release will be 5 September 2017, rather than 5 March 2018. Orders 78I would make the following orders to give effect to the conclusion that the applicant should have been sentenced to an overall sentence of 6 years non-parole period and 9 years total sentence: 1. Leave to appeal is granted. 2. The appeal against sentence is upheld. 3. The sentence imposed is quashed, 4. In substitution the applicant is sentenced as follows: count 1 - non-parole period of 2 years dating from 6 September 2011, expiring 5 September 2013, with a balance of term of 1 year expiring 5 September 2014 count 2 - non-parole period of 3 years dating from 6 March 2012, expiring 5 March 2015, with a balance of term of 2 years expiring 5 March 2017 count 3 - non-parole period of 3 years dating from 6 September 2012, expiring 5 September 2015, with a balance of term of 2 years expiring 5 September 2017 count 4 - non-parole period of 4 years, 6 months dating from 6 March 2013, expiring 5 September 2017, with a balance of term of 3 years expiring 5 September 2020 count 5 - non-parole period of 4 years, 6 months dating from 6 March 2013, expiring 5 September 2017, with a balance of term of 3 years expiring 5 September 2020 5. The earliest date from which the applicant will be eligible for release on parole is 5 September 2017. ********** Amendments 17 April 2013 - mispelling - Nielsen J now corrected to Neilson J Amended paragraphs: 3 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: 23 April 2013