Gagan (a pseudonym) v R

1. [1]

   LEEMING JA: The applicant cannot be named, by reason of s 578A of the Crimes Act 1900 (NSW); Gagan is a pseudonym. He pleaded guilty to four counts of sexual intercourse with a child under the age of 10, contrary to s 66A of the Crimes Act in the form it then took. In the period of his offending, between 2006 and 2009, the offence carried a maximum penalty of 25 years imprisonment with a standard non-parole period of 15 years. Two of the counts related to one of his daughters, the other two to another daughter. The daughters were aged around seven and five, respectively, at the time of the offending. In each case, the counts involved fellatio and cunnilingus. In each case, it was agreed that the offending conduct took place on a regular basis in the family home until, on 3 April 2009, the children were removed from Mr Gagan’s care. Later that year, a final order was made placing both girls in the care of the Minister.

2. [2]

   How precisely the daughters came to be in the applicant’s care given his long history of serious mental illness and drug abuse, itself the product of a violent and sexually abused childhood, is unexplained. The agreed facts stated that the mother attended a six month rehabilitation program towards the end of 2004, returned to the family home for around a month “when she again left leaving the accused to care for the children”.

3. [3]

   The applicant was sentenced to concurrent terms of imprisonment of 11 years, with non-parole periods of 6 years and 6 months, for the counts involving one daughter, and concurrent sentences of 10 years imprisonment, with non-parole periods of 6 years, for the counts involving the second daughter. There was a large measure of concurrency between the two pairs of sentences. The total effective sentence was a term of imprisonment of 12 years, with a non-parole period of 7 years and 6 months, which was backdated to 19 October 2017, immediately following the conclusion of a 3-month term of imprisonment following his conviction on an unrelated matter.

4. [4]

   The applicant seeks leave to appeal from that sentence, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), on two grounds:

5. [5]

   The narrowness of those grounds means that it is sufficient to proceed directly to the two most material aspects of the sentencing process: (a) the psychiatric report of Dr Alexey Sidorov and (b) the Victim Impact Statement of the older of the two daughters.

Psychiatric Evidence

1. [6]

   The applicant tendered the report of Dr Sidorov dated 25 October 2018. Dr Sidorov stated that the applicant reported he had been admitted to multiple Mental Health Units, at least 30, over the years commencing at Royal Park Hospital in Melbourne in 1991 when he was 18 years old, when he was experiencing depression and hearing voices. Mr Gagan reported that that he had been diagnosed with both Bipolar Affective Disorder and Schizophrenia, as well as Cluster B Personality Disorder. He reported multiple self-harm episodes including cutting himself, resulting in the need for stitches, overdosing on medications, requiring hospitalisation, and once jumping out of a second-storey window, fracturing his ankle. He reported that the last time he self-harmed had been about two years earlier, and the last time he had tried to kill himself was before his children were born. He said that his last hospital admission was in Cooma, 10 years before, and that subsequently he had been “avoiding hospitals as he was put on a number of involuntary treatment orders in the past and treated against his will”. He reported an extensive misuse of alcohol and cannabis (which started when he was 5 or 6 years old).

2. [7]

   He reported that his father used to beat him on a daily basis, blaming him for his mother’s suicide, and that one of his brothers sexually abused him “from the age of 5 to 6 or 7”, stopping when he hit him with a piece of wood. He had been in foster homes from the ages of 11 to 17, and had lived on the streets of Melbourne thereafter. He had met the mother of his children in a mental health hospital in Goulburn where she was also a patient.

3. [8]

   Dr Sidorov gave the following summary and opinion:

4. [9]

   Dr Sidorov was also briefed with medical records. Whether they were complete is not known. His report states the following:

5. [10]

   No issue was taken with any aspect of Dr Sidorov’s report.

6. [11]

   The applicant’s mental illnesses featured prominently in the submissions to the sentencing judge on his moral culpability, and a large part of her Honour’s reasons on sentence were directed to Dr Sidorov’s report.

7. [12]

   The sentencing judge addressed the applicant’s mental health in two ways. First, her Honour declined to accord any weight to his mental health conditions in terms of moral culpability, saying:

8. [13]

   The applicant candidly conceded that finding was open to her Honour.

9. [14]

   Secondly, in accordance with the third consideration mentioned in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177], her Honour had regard to the fact that his mental health would make his experience of custody more onerous, as well as informing the (significant) adjustment to the statutory ratio of the non-parole period incorporated within the sentence.

10. [15]

    Those two aspects of her Honour’s reasons reflected the submissions which had been made orally at the sentencing hearing. But there was also a third point which was common ground. The applicant submitted in writing that “less weight should be given to general deterrence [in] circumstances where the prisoner is not an entirely suitable medium for making an example of others”. The Crown’s written submissions very fairly stated:

11. [16]

    Her Honour’s reasons do not reflect that common approach. Indeed, the sentencing judge proceeded to give an elevated role to general deterrence, stating:

12. [17]

    The applicant’s submission in this Court was that it was necessary for her Honour to undertake further consideration before concluding, as she did, that general deterrence would play a large role in the exercise of discretion. The general proposition is uncontroversial. Mental illness may have “the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed”: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] and see Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [53]-[54]. By way of example, in Manly v The Queen [2014] NSWCCA 59; 240 A Crim R 92 at [120] this Court identified error in the sentencing judge accepting the evidence that one of the offenders was mentally ill and concluding that that did not render him an inappropriate vehicle for general deterrence, without expressing any reasons for reaching that conclusion.

13. [18]

    Particular attention was given in the applicant’s submissions to what had been said by this Court in Ryan v R [2017] NSWCCA 209 at [22]:

14. [19]

    In Ryan, there was once again evidence of significant mental illness, but quite limited reliance upon general deterrence. The passage from the sentencing remarks on which the applicant in Ryan relied was as follows:

15. [20]

    This Court rejected the ground of appeal that the sentencing judge in Ryan failed to take into account the diminished need for general deterrence in light of the applicant’s mental disorders.

16. [21]

    Each such case will turn on its own facts. The present case is quite different from Ryan. On the face of her Honour’s reasons, significant weight was attributed to general deterrence, and little or no consideration was accorded to the limited value of general deterrence given the applicant’s mental illness.

17. [22]

    This ground is made out.

Ground 2 – Substantial harm for the purposes of s 21A(2)(g)

1. [23]

   The older sister made a victim impact statement which spoke powerfully to her experiences following the offending. Anyone reading that statement would be moved by it. Indeed, it should be noted that Mr Brock, who appeared in this Court although not at first instance for the applicant, made it perfectly clear that in no way was he seeking to diminish its impact or cast doubt upon any aspect of it.

2. [24]

   The sentencing judge fairly summarised the statement as follows:

3. [25]

   Before the sentencing judge, the Crown contended, and the applicant opposed, a finding that the older sister had experienced substantial harm, so as to establish the aggravating factor in s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The Crown’s written submissions asserted as much, without giving reasons, and were elaborated orally, briefly, by reference to the victim impact statement. Counsel then appearing for the applicant submitted that there was no evidence of the nature and extent of the harm that was occasioned by the acts of the prisoner and that the sentencing judge “would proceed with great caution in forming a view or making a finding in relation to the infliction of substantial harm”.

4. [26]

   The sentencing judge made such finding, and it is convenient to reproduce that finding and the preceding paragraph:

5. [27]

   In this Court, the applicant submitted that there were two flaws with that conclusion. The first was that it was not open to find that the generalised statements of hardship and harm had been caused by the offending conduct, as opposed to other aspects of the older sister’s disadvantaged family background. The second was that it was necessary to take care to ensure that the aggravating feature was not engaged by harm which is implicit in the elements of the offence. Particular reliance was placed on the reasoning directed to the offences against the sister who had not provided a victim impact statement, summarised in the paragraph immediately preceding the finding.

6. [28]

   It was common ground that the aggravating factor had to be established beyond reasonable doubt, as Simpson J noted in R v Tuala [2015] NSWCCA 8; 248 A Crim R 502 at [77]. Her Honour later observed that there can be difficulties in the use of victim impact statements where their content is the only evidence of harm. Her Honour cautioned that in such a case “considerable caution must be exercised before the victim impact statement can be used to establish an aggravating factor to the requisite standard”: at [80]-[81].

7. [29]

   True it is that there are cases where victim impact statements have been used to ground a finding of substantial harm: see for example Muggleton v R [2015] NSWCCA 62; 250 A Crim R 180 at [40] and Marrow v R [2015] NSWCCA 282 at [52]. Each case turns on its own facts and, in particular, on the nature of the harm disclosed in the statement.

8. [30]

   The Crown accepted, realistically, that very little could be said against the force of the second ground of the appeal. It is established. Even if the victim impact statement is read as directed to harm based solely upon the offending conduct, as opposed to other circumstances of deprivation, it does not establish substantial additional harm over and above that which is inherent in the offence of sexual assault upon a child under the age of 10. That conclusion is confirmed by the reasoning of the sentencing judge as to the harm suffered by the younger sister, in the immediately preceding paragraph of her reasons.

9. [31]

   It will be clear from the above that nothing in these reasons is intended to diminish the harm suffered by either sister from the conduct of their father.

Orders and resentence

1. [32]

   It follows that there should be a grant of leave, the appeal should be allowed, the sentence imposed on 28 March 2019 quashed, and the applicant resentenced.

2. [33]

   No submissions were made in relation to the following matters found by the sentencing judge, and which I accept, namely:

   1. (1)

      the offences are in the mid-range of objective seriousness, and aggravated by the abuse of his position of trust;

   2. (2)

      the applicant’s upbringing was “particularly dysfunctional”;

   3. (3)

      he has abused alcohol and cannabis for many years, he was physically beaten by his father who blamed him for his mother’s suicide, sexually abused by an older brother, and physically abused while in foster care;

   4. (4)

      he suffers from a variety of psychiatric disorders, including schizoaffective disorder, substance use disorder, antisocial and borderline personality disorder and paedophilic disorder, although his offending is not to be attributed to his mental illnesses;

   5. (5)

      there has not been a full acceptance of responsibility or contrition, save as is demonstrated by his guilty pleas;

   6. (6)

      his time in custody will be more onerous as a result of his mental health and the nature of his offending;

   7. (7)

      there should be a finding of special circumstances, being a person who is “in need of a far greater than normal period of supervision on parole to enhance his prospects for rehabilitation”.

3. [34]

   This Court’s resentencing must take place in accordance with s 25AA of the Crimes (Sentencing Procedure) Act 1999 which relevantly provides:

4. [35]

   The sentencing judge also had regard to those provisions, referring to them in terms (in accordance with what was said in R v Cattell [2019] NSWCCA 297 at [125]) while noting that the maximum penalty for the same offences today would be life imprisonment, although the standard non-parole period of 15 years remained unchanged.

5. [36]

   I would adopt the same structure as the sentencing judge, namely, two wholly concurrent sentences for the two counts concerning the older sister, and two wholly concurrent sentences for the two counts concerning the younger sister, with a substantial measure of concurrency between the two pairs of sentences. No submission was made to the contrary. Bearing in mind all of the above, but noting further the more limited role of general deterrence given the applicant’s mental illnesses, and that the aggravating factor in s 21A(2)(g) is not made out, I would impose a sentence of 9 years imprisonment, with a non-parole period of 5 years, for each offence. I have concluded that the same sentence is warranted for the offending upon each sister, on the basis that the threat which accompanied the assault upon the older sister is counterbalanced by the additional youth of the younger sister.

6. [37]

   I would backdate the sentences for counts 1 and 2 to 19 October 2017, which coincided with the expiry of the 3 month unrelated sentence, with the sentences for counts 3 and 4 to commence on 19 October 2018. There was a muted submission that there be a measure of concurrency with the earlier sentence, but in the absence of any information about that offending, other than that it was unrelated, I do not accept that should be so.

7. [38]

   Accordingly, I propose the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Appeal allowed.

   3. (3)

      Quash the sentence imposed by the District Court on 28 March 2019, and in lieu thereof:

8. [39]

   HARRISON J: I agree with Leeming JA.

9. [40]

   HAMILL J: I agree with the orders proposed by Leeming JA and with his Honour’s reasons.