CDirector of Public Prosecutions v Dowdle
[2013] VCC 1845
•25 November 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT SHEPPARTON
CRIMINAL DIVISION
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ADRIAN DOWDLE |
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JUDGE: | HIS HONOUR JUDGE MULLALY | |
WHERE HELD: | Shepparton | |
DATE OF HEARING: | 2, 4, 5, 6, 9, 10 September 2013 | |
DATE OF SENTENCE: | 25 November 2013 | |
CASE MAY BE CITED AS: | CDPP v. Dowdle | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1845 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Mr J. Jassar | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr J Kantor | Geoff Clancy Solicitor |
HIS HONOUR:
1 Adrian Dowdle, on 10 September 2013 a jury found you guilty of a charge of using a carriage service with the intention of making it easier to procure a 14 year old girl to engage in sexual activity.
2 Yet again the courts are dealing with an older man who engages with a girl, having first come across the young girl on Facebook. From Facebook you obtained her mobile telephone number and then communicated with her directly. The jury saw the content of your mobile text messages from 23 July until 23 September 2012. You also sent photographs, most disturbingly of your penis.
3 An analysis of your computer revealed you had searched the internet using terms likely to reveal child pornography. This is a matter of some concern.
4 It should be noted that you ran a trial on the basis that you were not guilty by reason of mental impairment, the impairment being your mild intellectual disability. The course of the trial involved the cross-examination of the complainant before another judge in a hearing pursuant to s.370 of the Criminal Procedure Act. Ultimately the parties agreed that the evidence of the complainant need not be put before the jury. The evidence before the jury was from the forensic psychiatrist, Dr Sullivan, and a psychologist called by the defence, Mr Jago.
5 Before leaving the cross-examination of the complainant which occurred during the special hearing, it seems clear enough that the complainant does not recall much about the text messages and as such there is nothing emphasised as to any adverse effect upon her from the sexually explicit aspects of the conversations. Her concern was how the relationship ended with anger directed to her from you.
6 However, I must assess the seriousness of your offending. The content of the communications is particularly troubling and the discussions turn speedily to sexually explicit matters. Her young age was known to you. You were significantly older chronologically, being 31 years old.
7 The community will not abide older men corrupting children, using the internet or telephones, mobile telephones in particular. Your crime was to do that with the intention of making it easier to engage in sexual activities. It seems from the text messages you were keen on phone sex with her.
8 I see this as a serious example of the offence but plainly not at the most serious end of the spectrum. What makes your offending more serious is that you were awaiting sentence for a similar offence. You were on bail for using a carriage service to transmit indecent communications and for breaching the Sexual Offenders Registration Act by communicating with young people on Facebook.
9 You were sentenced by Judge Harbison on 25 January 2013 in the County Court at Wodonga. Her Honour placed you on a three year Community Corrections Order. As is the case here before me, the most significant aspect of the sentencing task for Her Honour was your intellectual disability.
10 I will return to that important matter shortly.
11 Mr Dowdle, you have prior convictions including for attempted bestiality, arson, fire-lighting offences including lighting a fire on a total fire ban day. You have dishonesty offences, and, of note, you have breaches of Community-based Orders. All matters thus far, except for the matter before Her Honour Judge Harbison, have been dealt with in the Magistrates' Court.
12 The evidence on the trial established that you have a mild intellectual disability with an IQ of 63. You have been eligible for intellectual disability services since 2001, pursuant to the Act. The Community Corrections Order of Judge Harbison was based upon a Justice plan.
13 I heard evidence on the trial and today on the plea from Mr Christopher Kelly, an experienced psychologist in the field of treating intellectually disabled sex offenders. He has treated you by counselling in the past and again of late, arranged by the Department of Human Services. Your problems are your inability of comprehend and to remember things told to you about appropriate behaviour. You have poor concentration and limited social skills. You functioned socially as a teenager, and an impulsive one at that.
14 Mr Kelly emphasised that progress towards you understanding the limitations of acting appropriately, in particular in establishing relationships on the internet, was slow and painstaking. You were likely to have setbacks but counselling of this kind, or the kind that he engages you in, is the only realistic methodology to ensure rehabilitation. Mr Kelly was unaware of the phrases you used on search engines that were found on your computer. He was aware of your use of Facebook to contact young women in recent times but he explained the purpose and the context of those contacts and did not see them really as a true setback.
15 It seems that while on bail awaiting the preparation of the reports for my sentence you have used social media sites and in one instance established what you say was a relationship. The age of the girl is said to be, or appears to be 18. The point is such conduct was not permitted by the bail conditions that you were under. You seem to have used your mother or her social media accounts to buy a piece of electrical equipment. The seller was a 16 year old girl.
16 I do not intend to over-state these matters, however, to those supervising your Community Corrections Order, it was not the only evidence but was further evidence which led them to conclude that you are not a suitable candidate for another Community Corrections Order.
17 The author of the pre-sentence report indicates the following:
18 "Mr Dowdle has, in summary, displayed little or no insight into his behaviours. Risk management strategies are only effective after the event, and indeed given the most recent example, despite bail conditions to the contrary, he continues to use social media sites to gain access to young females. Mr Dowdle appears only to grasp the concept of consequences with concrete examples, such as when he was placed on remand. He will state: 'I don't want to go back to prison', and such like. He has no victim empathy and a tendency to make statements that he has learnt, in his view is what the listener wants to hear. While the Community Corrections Service can continue to provide case management and supervision under a specialist case manager, it is noted that Mr Dowdle has not made significant progress on his current order."
19 I also received a Justice plan and a client overview report prepared by your long-term case manager, Ms Hair, and is much more optimistic. During 2013 you have shown some signs of application, doing a men's behaviour change program. You were proud of that achievement and it is to your credit. You have attended your regular counselling with Mr Kelly and that too is to your credit. Both matters indicate that you have some capacity to deal with your problems.
20 You have not shown much interest in employment. Hopefully in the future this can improve and you can find some appropriate work. Improved socialisation may occur if you are in contact with others in your community.
21 As referred to already, you have a mild intellectual disability. As the High Court made clear in Muldrock v. R, an IQ level of the kind that you have is a matter that ought to be considered in the sentencing synthesis. Usually it is a factor affecting moral culpability as those with an intellectual disability are less able to make sensible and appropriate judgments. I see your offending and your moral culpability as affected by your intellectual disability. While in your case, Mr Dowdle, your low IQ does not completely excuse what you did, I cannot, and I do not ignore that you are intellectually disabled and this aspect of you was present when you made the misguided decision to communicate with the victim in the way that you did.
22 The circumstances of the offending give rise to the question that your judgment was not as it might have been had you not been intellectually disabled. You are different from others and to that end the full and usually very weighty matter of denunciation is not to be visited upon you as it might be on someone without your disability. Ordinary citizens would understand this approach and see it as fair and just. In my view it is what the High Court in Muldrock authorised sentencing judges to do.
23 To the same end, though perhaps more straightforwardly, I have moderated the full impact of general deterrence because of your disability. I have done so because I consider it will not be fully acceptable to the community that I use you, with your disability, as the vehicle for sending a message of deterrence to others but you and the community should understand that by suitably moderating general deterrence, it still remains a factor given the primacy of deterrence in sentencing for offences of this kind. I also reduced the role of specific deterrence because of your intellectual disability, not withstanding your prior history.
24 I do note that you were on remand for these matters and the Office of Corrections' report that I have already referred to indicates that the impact of that is clear enough to you. However, I do moderate specific deterrence.
25 I also consider because of your intellectual disability that prison will be particularly onerous for you and I have factored that into the equation. Also, as the High Court recently in Bugmy v. R make clear, at times an intellectual disability, because it is enduring and intractable, may mean that greater emphasis needs to be placed on protection of the community. Although in Bugmy the High Court was not dealing specifically with intellectual disability, the point made applies to those with intellectual disabilities. It is a well understood aspect of sentencing, though one not raised in Verdins.
26 I consider that all the material, your past criminal behaviour, your behaviour while on the current Community Corrections Order and on bail is such that the protection of the community is a key consideration. I consider that you are a high risk of re-offending, notwithstanding the dedicated work of your psychologist and case manager. I am well mindful that gaol is a blunt instrument, in particular for those with intellectual disabilities. I am well aware that rehabilitation for you is most likely to succeed if you are under the care of Mr Kelly and Ms Hair, however, I must consider what you did and your risks to do it again, or worse.
27 That brings into consideration in the synthesis of all matters that the appropriate sentence at this time is a term of immediate imprisonment. Mr Kelly made clear that you will remain eligible for long-term treatment and counselling and probably case management by Ms Hair by reason of the Intellectual Disability Services Act. All those services are not dependent on any justice system order. I must do what I can to facilitate your rehabilitation but in my view that is not to be a dominant matter to the exclusion of all other sentencing purposes.
28 Considering the offences, your past conduct, the reports, including that of the Office of Corrections that recommended that you were not suitable for another Community Corrections Order and the evidence of Mr Kelly, I have after anxious consideration come to the conclusion that the only appropriate and just sentence is one involving immediate imprisonment. All of the matters raised in mitigation operate to bring about a sentence significantly less than would be the case if you had committed these offences and were not intellectually disabled.
29 Can you please stand Mr Dowdle.
30 For committing the offence of using a carriage service to transmit a communication to a child under the age of 16 with the intention of making it easier to procure the child to engage in sexual activity, you are sentenced to 18 months' imprisonment with a recognisance release after eight months. The recognisance release period will be 18 months and in the sum of $100.
31 You have already served time in prison on remand, a period of 137 days. I declare that you have already served 137 days of the sentence that I have just imposed. I will ensure that this declaration is entered into the records of the court so that prison authorities can be left in no doubt that you have already served 137 days of the sentence that I have imposed.
32 Because of the offences that you have committed, it is mandatory that you be placed again on the Sex Offenders Register. However, the period of time that you must remain on the register is now 15 years. You will be provided with documentation which you are required to take with you and acknowledge that you have been provided with that documentation.
33 You can be seated Mr Dowdle.
34 Mr Jassar, what I wanted to bring about was 18 months with release after eight - have I brought that about? Have I announced the sentence correctly so it - - -
35 MR JASSAR: Yes, Your Honour.
36 HIS HONOUR: Thank you. So it was an 18 months with a recognisance release after eight months. The period of the recognisance I said was 18 months in the sum of $100. Is that all that needs to be said?
37 MR JASSAR: That's correct, sir.
38 HIS HONOUR: Mr Dowdle, so it's all clear to you. The sentence that I have imposed is a minimum term of incarceration of eight months. You have already done 137 days. You will have to do the remaining period to bring it up to eight months and then you are to be released. You are on a recognisance, that means ten more months are still hanging over your head and if you don't behave in that period of time, that ten months - if you don't behave after you're released from prison for the next 18 months, if you commit other offences then you'll be brought back before me and you may well have to do an extra ten months. Mr Kantor will explain that to you after I have left the bench.
39 Is there anything else required?
40 MR JASSAR: 6AAA, Your Honour.
41 HIS HONOUR: He pleaded not guilty, Mr Jassar - - -
42 MR JASSAR: Sorry, I do apologise, Your Honour.
43 HIS HONOUR: I decided not to say anything to you because it would have brought about the embarrassment that I feel as though has just occurred.
44 MR JASSAR: Your Honour, the recognisance release order - - -
45 HIS HONOUR: Have you prepared one?
46 MR JASSAR: No, Your Honour, I have to contact Melbourne office, the Commonwealth DPP office to send one here.
47 HIS HONOUR: What do we do until they get to that?
48 MR JASSAR: It shouldn't be too long, sir.
49 HIS HONOUR: No, no, that's an amelioration of a problem. How do we get around the problem? Do you do it here?
50 MR JASSAR: Yes, Your Honour, I shall do it from - - -
51 HIS HONOUR: Mr Dowdle shouldn't have to wait because no instructor came with you or no documents were here. The prison system - he needs to move quickly.
52 MR JASSAR: Of course, sir.
53 HIS HONOUR: Thank you. They have to be signed by someone, don't they?
54 MR JASSAR: Pardon me, sir?
55 HIS HONOUR: You have to sign a document of some sort or other, don't you?
56 MR JASSAR: My understanding was Your Honour would have to - - -
57 HIS HONOUR: The accused has to sign it, sorry. The first thing we can do, because we've got the documents here, it's the Sex Offenders Registration Regulations and there's a document here that has to be provided to Mr Dowdle and if he then signs it he's got the document. I'll just hand that to you and Mr Dowdle can sign it.
58 MR KANTOR: Mr Dowdle understands that. He's signed that, Your Honour.
59 HIS HONOUR: All Mr Dowdle is signing for is that he got the documents, that's all. It'll be put on the file and sent to the Chief Commissioner. Where are we up to with that, the recognisance release?
60 MR JASSAR: If Your Honour could stand down, sir, I could make the phone call.
61 HIS HONOUR: So came here asking for a recognisance release but don't have a document that you can fill in the gaps.
62 MR JASSAR: Your Honour, I wish I had an answer for that, my instructor - - -
63 HIS HONOUR: I can't believe how many hurdles this case has met to frustrate me but they just keep continuing. It'll be stood down but I don't expect to wait very long.
64 MR JASSAR: Certainly, sir.
(Short adjournment)
65
MR JASSAR: Your Honour, I have a copy of the recognisance release order. I note one thing; it says here in the County Court at Wangaratta in the State of Victoria, that's the way it was prepared although the trial took place there
in - - -
66 HIS HONOUR: (Indistinct)
67 MR JASSAR: There are three copies there, sir.
68 HIS HONOUR: The document and the Commonwealth sentence must be signed by Mr Dowdle, Mr Kantor, so you'll take those down and Mr McIntosh will also ensure that he sees that Mr Dowdle signs the document. The documents are now signed, is there anything else required?
69 MR JASSAR: No, sir.
70 HIS HONOUR: Thank you, Mr Dowdle can be removed when I stand down.
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