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District Court 14 June 2011

R v HADDAD

[2011] NSWDC 137

Sexual offences
CRIMINAL LAW SENTENCE FORM 1 MENTALLY ILL AT TIME OF OFFENDING

Citation: R v Haddad [2011] NSWDC 137
Court: District Court of New South Wales
Date: 14 June 2011
Judge(s): Berman SC DCJ

Background

The offender, a 63-year-old former medical practitioner, pleaded guilty to having sexual intercourse with a 13-year-old boy contrary to the Crimes Act. The offence occurred on 21 October 2009 after the offender approached the complainant near a public library, engaged him in conversation, and used a stethoscope to falsely present himself as a doctor. He then coerced the complainant into a library bathroom and performed fellatio on him. A secondary act of indecent contact was placed on a Form 1 (a procedure allowing the court to take additional offences into account when imposing a sentence for the principal offence, without recording a separate conviction).

The offender had a significant psychiatric history, including prior hospital admissions for manic episodes and a bipolar disorder diagnosis. He had been admitted to James Fletcher Hospital in April 2009, approximately six months before the offence, following a relapse into mania. He also had a prior criminal conviction for sexual offending against a patient, which had led to his medical deregistration in 1994.

The central sentencing question was what weight should be given to the offender's mental illness at the time of the offence, and how that interacted with the objective seriousness of the conduct.

  • What sentence was appropriate for an offence of sexual intercourse with a child aged between 10 and 14, where the maximum penalty is 16 years imprisonment?
  • To what extent did the offender's mental illness at the time of the offence reduce his moral culpability?
  • What discount, if any, was warranted for the guilty plea, given it was entered only the day before the trial was due to commence?
  • Whether special circumstances existed justifying a variation to the standard non-parole period ratio.

Decision

The District Court found that, objectively, the offence was very serious. The offender was a stranger to the victim, exploited the boy's fear to achieve compliance, and committed the offence in a public library. The court noted that, absent any mitigating factors, a lengthy term of imprisonment would have been appropriate.

However, the court was satisfied on the evidence that the offender was suffering from bipolar disorder at the time of the offence, and that this disorder substantially impaired his ability to control his impulses. The court accepted that the connection between the mental illness and the commission of the offence was established. This significantly reduced the offender's moral culpability and, consequently, the weight given to general deterrence in sentencing.

The court allowed a 10 per cent discount for the guilty plea. It noted that the plea came very late, entering only the day before the trial was scheduled to begin, which materially limited its utilitarian value (the practical benefit to the justice system of avoiding a trial). The court acknowledged a submission that the offender may only have been well enough to understand and accept his guilt shortly before the plea, but the limited discount reflected the timing regardless.

Special circumstances were found to exist, warranting a departure from the standard non-parole to head sentence ratio. The offender's age (63) and the fact that this was his first time serving a custodial sentence both supported that finding.

Orders Made

  • The offender was sentenced to imprisonment with a head sentence of 4 years and 6 months, commencing 23 October 2009.
  • Non-parole period set at 2 years and 3 months, expiring 22 January 2012.
  • The offender became eligible for release to parole on 22 January 2012.
  • The secondary offence (indecent contact) was taken into account on a Form 1.

Key Takeaways

  • A diagnosis of bipolar disorder, supported by evidence of mental illness both before and after the offence, can substantially reduce an offender's moral culpability and result in a materially lower sentence than the objective gravity of the conduct would otherwise attract.
  • Where mental illness impairs impulse control and is causally connected to the offending, the sentencing court will reduce the weight ordinarily given to general deterrence.
  • A guilty plea entered only the day before trial attracts only limited utilitarian discount, even where there is a plausible explanation for the delay related to the offender's mental health.
  • Special circumstances justifying a lower non-parole period ratio can arise from a combination of the offender's age and the fact that the sentence represents a first period of custody.
  • The District Court noted candidly that the resulting sentence might appear manifestly inadequate to those aware only of the objective facts, but held it was appropriate once the offender's mental state at the time of offending was properly weighed.

Legislation and Cases Referenced

Legislation:
- Crimes Act (NSW) (including the former s 556A, under which proceedings may be dismissed without conviction)
- Mental Health Act (NSW)

Cases cited: None stated in the judgment.