DPP v Nop [TASCCA]

• Jurisdiction: Tasmania
• Court: Court of Criminal Appeal
• Judge: Evans J,Tennent J,Wood J
• Judgment Date: 27 October 2011
• Date: 27 October 2011
• Docket Number: 659/2011

[2011] TASCCA 15

SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

Evans, Tennent and Wood JJ

659/2011

Director of Public Prosecutions

and

Nop

Attorney-General v Smith [2002] TASSC 10 , applied.

Bowden v R [1968] Tas SR (NC) 15 ; Austin v R [1971] Tas SR 227; Thompson v R, Serial No A21/1971; R v Laredo Serial No A82/1977; George v R [1986] Tas R 49; Stonehouse v R A90/1993; R v Everett, R v Phillips [1994] TASSC 39, considered.

Aust Dig Criminal Law [3537]

Youth Justice Act 1997 (Tas), ss48, 49.

Criminal Law — Appeal and new trial — Appeal against sentence — Appeals by Crown — Other matters — Rape of child aged 6 by a youth aged 15 years and 6 months with a reduced mental age — Youth released and proceedings adjourned without conviction — Sentencing principles — General deterrence and denunciation — Whether sentence manifestly inadequate.

REASONS FOR JUDGMENT

COURT OF CRIMINAL APPEAL

Evans J

1 The appellant appeals against the sentence imposed on the respondent following his plea of guilty to charges of rape and indecent assault.

2 At the time of the crimes the respondent was aged 15 years and six months, and his female victim was six years of age. The sentencing hearing proceeded on the unchallenged basis that when he committed the crimes the respondent's mental age was about ten years eight months.

3 The learned sentencing judge, Blow J, sentenced the respondent under the provisions of theYouth Justice Act 1997. The sentence was:

• •A probation order for two years, with a special condition that the respondent undergo medical, psychiatric, psychological and other counselling and treatment as directed by a Youth Justice worker.

• •An order adjourning the proceedings for 12 months on condition that the respondent be of good behaviour for that period.

• •An order that no convictions be recorded against the respondent.

• •An order that the Registrar appointed under theCommunity Protection (Offender Reporting) Act 2005 place the respondent's name on the Community Protection Offender Register for four years, and that the respondent comply with the reporting obligations under that Act for that period.

4 The grounds of appeal are that:

1. ‘1 The learned Judge erred in law in that he imposed a sentence which was manifestly inadequate in all the circumstances of the case.

2. 2 The learned Judge erred in law in not seeking further psychiatric/psychological evidence and/or in proceeding to sentence without evidence addressing the risk of the Respondent re-offending.’

5 Ground of appeal 2 was addressed first by both counsel and I will do the same.

6 The following are relevant portions of the learned sentencing judge's comments when passing sentence:

‘[The respondent] has pleaded guilty to charges of indecent assault and rape. These two crimes were committed in or about spring of last year, that is, in or about September, October or November of last year on two separate occasions. He was 15. The victim of both crimes was his niece. She was 6 years old. On the first occasion he removed his pants. The girl remained fully clothed. He placed his penis between her legs on the outside of her vagina. On the second occasion he had vaginal sexual intercourse with her. She sat on top of him and he inserted his penis into her vagina and they had sexual intercourse. He told her, in relation to that act of intercourse, that he would go to gaol if she told on him, and then she would never see him again. Shetherefore initially remained silent about what had happened. But, early this year, someone overhead the girl discussing what had happened. That person spoke to the girl's parents. Discussions followed. [The respondent] admitted to his father what he had done, and was taken to a doctor, and admitted to that doctor, a general practitioner, what he had done.

That all sounds dreadful, but there is a very important factor that I have not mentioned. That is that [the respondent] is a boy of very low intelligence. The general practitioner referred him to a psychologist. The psychologist, amongst other things, did some testing and measured [the respondent's] IQ at 66. That means that, although he was 15¹/₂ years old at the time of these two crimes, his mental age was something like 10 years and 8 months. I have to decide what to do by way of sentencing someone who is now 16 but, in terms of his intellectual development and understanding, is nowhere near as mature as the average 16 year old. He is someone who is intellectually impaired. So we have a crime committed by an intellectually impaired 15 year old upon a very unfortunate girl of 6.

…[T]his is not, in my view, a case that should result in the offender being locked up. I think his rehabilitation has to take priority, and, if he were to be placed in a detention centre, he would come out in a more worrying state than he is now. He has the support of significant sections of his family. His brother, who is the father of the victim, has broken off all contact. His mother died years ago. But he has the support of his father, who has been placed in an unfortunate position of having to be loyal to his other son, and to his granddaughter, as well as supportive and protective of this son. He has the support of his three sisters. He is getting help from the psychologist whom he is continuing to see. He is receiving advice from the psychologist about appropriate sexual focuses and activity.

[The respondent] is a boy who otherwise has not presented a problem. At school there has been no problem with his behaviour or his attendance. He is a slow learner but he has got friends. He does not have any problems involving alcohol or drugs, or any of the usual sorts of problems that I see with young offenders.

It would be inappropriate to lock him up. I cannot punish him by imposing a community service order. He was not considered by a youth justice worker to be suitable for one. He needs to know that, if [he] does anything like this again, he will be in the most terrible trouble. I do not think that it is appropriate for me to make a suspended detention order because I do not think it would be appropriate to punish somebody who, at the time of offending, had a mental age of something like 10 years 8 months, even with a suspended detention order. I will definitely make a probation order. And I think it is appropriate that I also adjourn the proceedings on the basis that he will be ordered to be of good behaviour. I will make an order under s47(1)(d), as well as a probation order.

The only aspect of his sentencing that I have not referred to involves the Community Protection (Offender Reporting) Act 2006. Frankly I think that that Act can only serve a purpose if the information that is recorded by the police in relation to sexual offenders might assist in monitoring some future conduct or solving a crime. This is a boy who has the support of his family. I do not see any purpose in requiring him to comply with the reporting obligations that that Act requires for a terribly long period. If he does move out of his father's home and go to live in a residence of his own, normally for a young man that is a very positive thing. But in his case, he will have to report that to the police. When he gets his first car, normally for a young man of limited intelligence that is a very positive thing. He will have to report it to the police. If he gets a job, he will have to report that to the police. If he wants to go on a trip outside Tasmania, normally for a young man of limited intelligence that would be a major milestone in his life. He will have to give the police seven days' notice. I do not think the risk of re-offending, given all that I know about him, and given the psychological counselling that he is receiving, warrants an order that is going to operate for a very long time.’

7 In the course of the initial sentencing hearing, on 14 June 2011, counsel for the respondent provided the learned sentencing judge with a report on the respondent from his treating psychologist, Mr Stephen Pinkus. The respondent had attended on Mr Pinkus on six occasions. The report relevantly included the following:

‘Both [the respondent] and [his father] have been compliant in their attendance and [the respondent] has been open in his discussions with me. My impression of [the respondent] is that he is both intellectually and emotionally a younger child than his chronological age. This is confirmed in the school reports where I note that [the respondent] is regarded as “an agreeable student at school who relates well to his friendship group and all adults in the school. It is extremely rare for [the respondent] to require any form of disciplinary intervention though obviously curriculum support is an ongoing necessity.” Psychometric assessment, in 2005, placed his Full Scale Intelligence Quotient (IQ) at about 66 …, which would mean, [the respondent] had a mental age of about 10 at the time of the offences, when his chronological age was 14 years and 6 months.

This is important both for treating [the respondent] and understanding his misbehaviour. These acts were not just inappropriate, but they were opportunistic. [The respondent's] statement that he will not repeat these actions because he understands the effect it has had on his niece and because he is afraid of the consequences is age appropriate.

In therapy, we are addressing the areas of appropriate sexual focus and activity and the manner in which [the respondent] can appropriately make restitution. He understands the limitations and the anger that other[s] feel towards him, and is actively seeking ways to address this, such as making himself absent when his brother, the father of the victim, may want to spend time to see his father.

I understand that this is a very serious offence and [the respondent] needs to understand its full implications, to the victim, her family, his family and...