Director of Public Prosecutions v Carr (a pseudonym)

[2023] VCC 1044

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

Simon CARR (a pseudonym)

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JUDGE:	Her Honour Judge Blair
WHERE HELD:	Melbourne
DATE OF HEARING:	9 June 2023
DATE OF SENTENCE:	9 June 2023
CASE MAY BE CITED AS:	DPP v Carr (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2023] VCC 1044

RULING
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Subject:CRIMINAL LAW – CMIA ruling

Catchwords:              Intellectual disability – sexual offending – immigration detention – unfit – low risk – incest step-child

Legislation Cited:      Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; Criminal Procedure Act 2009

Ruling:Mr Carr to be released unconditionally

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms D Guesdon	Office of Public Prosecutions
For the Accused	Mr A Malik	James Dowsley & Associates

HER HONOUR:

R U L I N G

1Mr Carr[1] in the circumstances of your case, sex offender registration is mandatory. As you have been found guilty of a Class 2 offence you are considered to be a registrable offender and you will be subject to the Sex Offenders Registration Scheme for eight years. Paperwork, with information about your responsibilities under this scheme will be provided to you. I need you to acknowledge receipt of this information by signing a form that will be provided to you shortly.

[1] A pseudonym.

2The procedural background to this matter is that on 18 October 2022, a declaration was made that you were unfit to stand trial. There was also a declaration made that you were not likely to become fit to stand trial within 12 months and so a special hearing was listed within three months. Before the special hearing under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (“CMIA”) could occur, it was necessary for a special hearing under the Criminal Procedure Act 2009 to be conducted. That hearing took place on 14 December 2022 and the complainant was cross-examined at that time.

3On 1 February 2023, this matter came before me as an application for a judge-alone special hearing and I granted that application. I note it was unopposed and effectively supported by the prosecution. The special hearing was conducted in accordance with Part 11 of the Temporary Arrangements for Special Hearing by Judge Alone, that was inserted in the CMIA by sections 91 to 101. I heard evidence over two days and I delivered my verdict on 23 February 2023. You were found not guilty of Charges 1, 2 and 3 and found guilty of an alternative charge, Charge 4, a sexual assault that occurred on 27 August 2020.

4As a result of this finding, s98 of Part 11 of the CMIA provided that such a finding had the same effect as a finding pursuant to s17(1)(c) of the CMIA, that is, the accused having committed an offence, a judge must declare that the person is (a) liable to supervision under Part 5 or, (b), order that the person be released unconditionally.

5I did not make a declaration that you are liable to supervision at that time. I adjourned the case, extended your bail and made enquiries with Forensicare and the Department of Families, Fairness and Housing, (“DFFH”) as to whether the court could obtain a report that would conform with s40(2) of the CMIA. That is a report from a person who is either a registered medical practitioner or a registered psychologist who has personally examined the person in relation to the person's mental condition and the possible effect of the proposed order and the person's behaviour.

6The court received a letter from the DFFH, dated 29 March 2023. That letter indicated that, although it was accepted that you had an intellectual disability, given your status as an unlawful non-citizen, you were not eligible for services. Clarification of this information was sought and on 8 June 2023, the court received further advice from DFFH confirming that DFFH services are not available for an unlawful non-citizen on policy grounds.

7As a result of the initial response from DFFH, on 29 March 2023, the defence obtained a report from Carla Lechner who is a registered psychologist. Ms Lechner's report was dated 27 April 2023 and that was tendered on 24 May 2023 and marked as Exhibit 1. Ms Lechner was also cross-examined on this date.

8Ms Lechner provided the following information in her report;

(a)   You have no prior history.

(b)   You came to Australia in 2013 by way of a sponsorship to be involved in a Buddhist monastery.

(c)   You left that monastery in 2016 and you married your ex-wife who is the mother of the victim.

(d)   You have no psychological or psychiatric disorders.

(e)   You have no substance abuse or psychosexual disorders.

(f)    You have a cognitive impairment however and you have a history of educational impoverishment and likely environmental impoverishment.

(g)   You present as an extremely simple man in Ms Lechner's view.

(h)   Your sexual history is characterised by lack of education and experience.

(i)    Further detail about your background is that you are now 43 years old, your parents live in Cambodia, you have a four-year-old son. Further, you have an ex-wife, and a 10-year-old daughter, who is the victim in this matter. The relationship with your ex-wife is the only intimate relationship you have had. You were born in Vietnam but raised in Cambodia. Your parents were very poor, and worked as labourers.  You had only one year at school, otherwise you have had virtually no education. As a result, you can read and write a small amount of Cambodian but not so in relation to English.

(j)    You had a loving upbringing even though your family were very poor. There was no violence in your upbringing. You were advised by a friend that it would be good to be a monk and this was supported by your parents, in part as a way to gain more education.  You lived with monks in Cambodia and then came to Australia in 2013.

(k)   During the course of working for the monastery, you met your wife, fell in love, and left the monastery. Your ex-wife is Thai, therefore communication has always been difficult within the relationship. Your ex-wife sponsored you on a spousal visa and you took on the care of her daughter, as your own.

(l)    You began labouring work after leaving the monastery and are keen to return to that work if possible, however, your position in immigration detention certainly rules that out for the present time. You are also keen to be able to support your elderly parents if possible.

(m)     When the offending behaviour, was discussed with you, you repeated similar instructions to those you gave in your record of interview, that is that the victim had asked you to scratch her on her vagina and you did so.  You also described the vagina as being, 'Not clean, it's dirty, not good', and you said you received no sexual gratification from it.

9Ms Lechner provided the following opinions;

(a)   Based on your report, there was no sexual intent to your offending and you have no sexual interest in children. At the time of your offending you did not understand your actions were unlawful.

(b)   You have found your arrest, detention and the court proceedings very stressful.

(c)   You did not understand the court system nor did you really understand the outcome of the court, although you did say though that you knew what you have done was wrong and that it is certainly something that you would not do again.

(d)   You were assessed as being intellectually disabled by Ms Lofthouse and Dr Sakdalan. On that basis, both practitioners considered you were unfit to stand trial.

(e)   You have immense difficulty in processing complex information, abstract verbal reasoning, logically sequencing events and anticipating outcomes and engaging in mature problem-solving and decision making. You are socially and emotionally immature.

(f)    You do not have a strong social network. You are committed to your son, and you would pay child support and work very hard if employed. You are also very attached to your parents.

(g)   It has been brought home to you in very drastic ways that you are not to touch any child in that region and you have since said that no matter who asked you for help, you will not do that again in the future because it just leads to trouble.

(h)   You have had no sex education and very limited sexual relations when married. You were celibate as a monk.

(i)    Assessment using both the Static-99 and the RSVP revealed you as being a low risk with regard to future offending. You do not appear to have any deviant sexual interests.

(j)    Your offending appears to be due to a lack of sexual education, lack of knowledge about appropriate boundaries, lack of knowledge of laws regarding what is deemed sexual touching and general immaturity.

(k)   You respond best to external limits being placed on your behaviour. Hence in the setting of the external consequences you have faced due to your behaviour, you now have a clear understanding that touching children in the genital region is not acceptable.  Your very simple response is to avoid future relationships in the future.

(l)    You would most likely benefit from education in relation to sexual matters and such education should be delivered by a disability worker with experience in that field. 

10Ms Lechner was cross-examined on 24 May 2023 and was asked what would happen if you were to be released unconditionally without mandated services or support. Specifically, Ms Lechner was asked what effect that would have on your offending behaviour. Ms Lechner responded that she thinks you have been shaken by the consequences of your offending, in terms of going into custody and then detention. In her view, you are a simple man, who needs simple instructions and simple structure in your life. You are now aware that any such behaviour results in imprisonment and Ms Lechner’s was of the view that this now acts as a strong deterrent to you. It was her view that ideally, you would have some further education in relation to your offending and just generally in relation to sexual matters.

11Although Ms Lechner was cross-examined, her findings and opinions were unchallenged. The prosecution were given the opportunity of obtaining their own expert report and have not done so. I accept Ms Lechner's evidence. 

12Pursuant to s. 40(2)(a) of the CMIA, I must consider a report from a registered psychologist. Ms Lechner is a registered psychologist, I have considered her report and I accept her findings. Subject to s40(2)(c) of the Act, family members have been given reasonable notice and have provided reports. Two family reports, have been provided to the court and have been tendered as Exhibits A and B. I take in to account their views. Obviously, the complainant’s parents were devastated by what you did to their daughter.

13I have considered a brief report from the DFFH dated 29 March 2023 and the further information the court has since received. As an unlawful non-citizen, you cannot either voluntarily or under a supervision order be provided treatment or services.

14I must consider s39 of the CMIA, this being the principle that restrictions on a person's freedom and personal autonomy should be kept to the minimum consistent with the safety of the community. Further, I have had regard to the section 40 factors. Firstly, section 40(1)(a), the nature of impairment is that you have an intellectual disability. I note that you have no psychological or psychiatric issues, no substance abuse problems, no psychosexual problems, and no sexual deviancy.

15In relation to section 40(1)(b), the relationship between the impairment and the offending, Ms Lechner has found that you do not appear to have deviant sexual interests and I accept her opinion that the offending appears to be due to the lack of sexual education and lack of knowledge of sexual matters.

16I acknowledge that the offending is serious, any sexual offending against a child is serious but it is not the most serious example of such offending.  The offending for which you were found guilty did not involve penetration and given my findings, I consider it to be an isolated incident.

17In terms of section 40(1)(c), that is whether the person would, if released, likely endanger themselves, or another person, or other people generally because of their mental impairment, I note you been assessed as a low risk. There is nothing in the evidence to suggest that you are a danger to yourself. You have an intellectual disability but there are no psychiatric or psychological issues and I also note that you are in immigration detention at the current time and likely to remain there for the foreseeable future. Specific deterrence has really been brought home to you by the direct and extreme consequences for your behaviour. Further, in the terms of having an intellectual disability and the opinions of Ms Lechner, you are considered to respond very well to external consequences.

18It is therefore my view that for a combination of those factors, including that you have no prior history, you are not likely to be a danger to yourself and that you have been assessed as a low risk of reoffending, I find you are likely to be of very little danger to anyone in the community.

19I have had regard to Section 40(1)(d), the need to protect people from such danger. I also take into account the following, namely that you have no prior history, no subsequent offending, and you have been and will remain in detention for some time, the low risk assessment from Ms Lechner, and my previous finding, that you present little to no danger to any person in the community.

20Further your placement on the Sex Offenders Register in my view would assist in monitoring you in the community and certainly should protect any children that you may come in contact with, given the onerous reporting obligations.

21In terms of section 40(1)(e), whether there are adequate resources available for treatment and support of the person in the community, there is no treatment available given your current circumstances in immigration detention.

22Section 40(1)(f) gives me quite broad discretion of what I can take into account as being relevant. Certainly the fact that you are in detention is a matter that I take into account. Put simply the fact you are in immigration detention, means you do not present a risk because you are detained.

23Further, I take into account that pursuant to the order I have made under the Sex Offender Registration Act, you will be subject to onerous reporting conditions for eight years, if and when you are released from detention. The reporting obligations provide a supervisory regime and afford some protection to the community in the absence of any educational or offence-specific treatment. This allays any fears that the court might have in terms of endangerment.

24After consideration of the submissions of the parties, the reports, the evidence from registered psychologist, Carla Lechner, the family reports from the complainant's mother and father, the letter and information from DFFH and after consideration of the applicable provisions of the CMIA, it is my view that you should be released unconditionally and that is the order I propose to make.