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Judgment handed down in Director of Public Prosecutions (Cth) v Rowan Boyles (a pseudonym)
15 November 2016
The Court of Appeal today dismissed an appeal by the Commonwealth Director of Public Prosecutions against a non-custodial order imposed on a 26 year old man for internet-based sexual offences.
The offender (RB) sent a large number of explicit Facebook messages to a 15 year old girl, suggesting or requesting sexual activity. He also sent her a picture of his erect penis. At the time, the victim was doing work experience with the organisation which employed RB.
RB suffered from a mental illness, bipolar disorder. When he committed the offences, RB was in a manic state, that being one manifestation of the disorder. The sentencing judge accepted, as did the Court of Appeal, that there was a causal link between the mental illness and the offending. The judge concluded that the nature of the offending behaviour —
would seem to fit with a period of manic activity where his capacity to monitor himself and behave in an appropriate way is undermined.
The evidence showed, however, that in the period leading up to the offending RB had ceased taking the medication which had been prescribed for his disorder. He did so knowing that the medication was of benefit to him and that, if he ceased the medication, mood swings would return.
The judge initially concluded that the effect of the mental illness reduced RB’s moral culpability. In written reasons, however, the judge acknowledged that this conclusion was incorrect. The Court of Appeal concluded that the erroneous finding had had a direct bearing on the sentencing decision.
RB had been sentenced to a Community Correction Order for a period of two and a half years. The special conditions included in the Order required him to perform 250 hours of unpaid community work, undergo mental health assessment and treatment, and attend for judicial monitoring every six months.
The Court of Appeal concluded that there had been specific error and that a different sentence should have been imposed at first instance. The Court noted that the offending was not of the type characterised as “on-line grooming”, as the offender and his victim were known to each other. On the other hand, the solicitation was repeated and made in the crudest terms. And RB had abused his position of power and authority.
The Court of Appeal concluded that the nature of the offending, taken as a whole, demanded a custodial sentence, albeit of relatively short duration.
In the event, the Court of Appeal decided to exercise its residual discretion to dismiss the appeal, because of the particular circumstances of the case. President Maxwell and Justice Osborn (with whom Justice Tate agreed) said:
RB remains seriously unwell, however. A supplementary expert assessment reveals that his condition has worsened significantly as a result of the institution, and the pendency, of the Director’s appeal. That is a matter which bears directly on the exercise of the residual discretion which the Court has, to dismiss a Director’s appeal even where a ground of appeal is made out.
It is also relevant that, by the time the appeal come on for hearing, RB had been at liberty for four months and had been fully complying with the CCO which the judge imposed. There is a clear public interest in ensuring RB’s continued rehabilitation. In these circumstances, we have concluded that it would not be just to interfere with the sentence.