Director of Public Prosecutions v Cook (a pseudonym)
[2022] VCC 1799
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JACOB HEATH COOK (A pseudonym) |
---
JUDGE: | HER HONOUR JUDGE LEIGHFIELD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 August 2022 | |
DATE OF SENTENCE: | 18 October 2022 | |
CASE MAY BE CITED AS: | DPP v Cook (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1799 | |
REASONS FOR SENTENCE
---
Subject:Criminal Law
Catchwords: Sentence – Indecent act with child under 16 – false imprisonment – make threats to inflict serious injury – child at time of sexual offending – youthful offender at time of making threats to inflict serious injury – applicability of general deterrence as a sentencing purpose – intellectual disability – multiple mental health disorders – application of Verdins principles – plea of guilty – delay – rehabilitation – justice plan – whether conviction or non-conviction
Legislation Cited: Sentencing Act 1991 (Vic) ss8, 80
Cases Cited:Verdins v R (2007) 16 VR 269 – R v Mills [1998] 4 VR 235
Sentence: Without conviction adjourned undertaking for 12 months with conditions to be of good behaviour and comply with justice plan – without conviction fine
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms N. Deltondo | Office of Public Prosecutions |
| For the Accused | Ms S. Coombes | Malkoun & Co Lawyers |
HER HONOUR:
Introduction
1Jacob Cook,[1] you have pleaded guilty to two charges of committing an indecent act with a child under 16 (Charges 1 and 2), one charge of false imprisonment (Charge 3) and one rolled-up charge of threatening to inflict serious injury (Charge 4). The maximum penalty for each of committing an indecent act with a child under 16 and false imprisonment is 10 years' imprisonment, whilst the maximum penalty for threatening to inflict serious injury is five years' imprisonment.
[1] Pseudonyms have been applied to all persons named within this sentence.
2The conduct constituting charges 1, 2 and 3 arises from incidents which occurred between 29 March 2013 and 4 August 2015 when you were aged between 14 and 16 years of age. The conduct constituting charge 4 occurred between
29 October 2019 and 6 January 2020 when you were 20 years of age. You are now 23 years of age and fall to be sentenced as an adult for offences which you committed as a child for Charges 1, 2 and 3, and as a young offender for
Charge 4.
Circumstances of the Offending
3The full circumstances of your offending, arrest and record of interview are set out in the summary of prosecution opening for plea dated 23 August 2022.[2] However, in shorter compass, in April 2013 your maternal cousin Ruby – who was eight years of age at the time, was in your bedroom at your home. She sat on your bed which was positioned against the wall. You took her pants down and rubbed her vagina. She could not move while you were doing this. You then stopped touching her and left the room. This conduct constitutes Charge 1 on the indictment, indecent act with a child under 16. You were 14 years of age at the time of the offending.
[2] Exhibit A.
4On another occasion in the period between 29 March 2013 and
29 September 2013 when Ruby was still eight years of age, you entered the bathroom at your home whilst Ruby was on the toilet. She was wearing a dress and underwear at the time. When Ruby finished using the toilet you blocked the door. You put her against the wall so that she could not move and told her she could not go out unless she let her [sic] touch her again. You told her to 'just be quiet'. You then pulled down her underwear and rubbed her vagina. When you were finished you told Ruby not to tell anyone. You said that if she did so, that you would both get in trouble and that it would be her fault. This conduct constitutes Charge 2 on the indictment, indecent act with a child under 16.5It is further alleged that throughout the period between 29 March 2013 and
28 March 2014 there were other occasions where you touched Ruby's vagina whilst the two of you were either in your bedroom or the bathroom. The prosecution alleges these additional incidents as uncharged acts. Whilst you only fall to be sentenced on the basis of the offences with which you have been charged, it is agreed between the parties that as a result of these further alleged incidents it cannot be asserted in your favour that Charges 1 and 2 were isolated instances of sexual offending by you.6In the period between 5 August 2014 and 4 August 2015 when you were between 15 and 16 years of age, you and another of your maternal cousins Sienna (who is now known as Taylor) were in the study at your home. Taylor was 12 years of age at the time. You tied Taylor to a chair which was positioned in front of the computer and placed duct tape across her mouth. While she was in that position, you were in communication with a man on Omegle. Your cousin could see this man on the screen. Whilst she was still tied to the chair you were laughing and telling Taylor to show the man her tits. The man asked Taylor how old she was, and when Taylor said she was 12, he also said 'show me your tits. You tried to get Taylor to lift her top but you were unsuccessful. This conduct constitutes Charge 3, false imprisonment.
7At some point in 2019, Taylor's mother, Phoebe Cook, became aware of your conduct towards Taylor after Taylor had been hospitalised at the Austin Hospital. On 3 November 2019, your cousin Ruby told her mother Zara Cook about your offending. This was the first person Ruby had told.
8On 28 October 2019, Dylan Bell, who is the brother of Ruby and the cousin of Taylor, sent you a message telling you how disappointed he was with you. Dylan was 19 years of age and you were 20 years of age at the time. The next day you responded to Dylan's message and threatened to go to his house and knock him out. Dylan believed the threat to hurt him would be carried out. You then posted a further threat to assault Dylan on Facebook on 6 January 2020. Dylan was again scared when he received the message and believed that the threat to hurt him would be carried out. This conduct constitutes Charge 4 on the indictment, a rolled up charge of threat to inflict serious injury.
Record of Interview and Charges
9On 25 March 2020 you were interviewed by the police in the presence of an independent third person at Preston Police Station. You made some admissions to your offending against Taylor and Dylan but denied committing any sexual offences against Ruby. In relation to Taylor, you admitted taping her to the chair in the context of a game, and further admitted putting Omegle on when Taylor was in the room on a separate occasion. However you denied duct taping her mouth, and denied ever tying Taylor up and making her watch Omegle on the same occasion. In relation to Dylan, you admitted to sending the Facebook post to Dylan. You stated that you did so because Dylan told about six of your friends that he thought you had tampered with his sister Ruby, and they blocked you.
10You were released at the conclusion of the interview without charge. Charges were ultimately laid against you on 27 January 2021.
Victim Impact
11I received victim impact statements from both Taylor and Zara Cook during the plea.
12Taylor's statement details the significant psychological and social impact which your offending has had upon her. She continues to have nightmares and flashbacks and suffers from complex psychological issues which she attributes to the trauma of this incident. She says that she does not feel safe knowing that you live only three kilometres away and that you know where she lives. Taylor also stated that she was unable to finish school due to the trauma causing her so much distraction; that she has not yet learnt to drive despite being 20 years of age; and that she can only manage to work minimal hours at her job.
13In Mrs Cook' statement, she detailed the considerable impact that your offending has had upon both Ruby and her entire family. Mrs Cook stated that as a result of your offending Ruby has, over a number of years, engaged in self-harm as well as developing an eating disorder. She is paranoid about how she looks and will not leave the house without her make up on and her hair being perfect.
14Further she has a very hard time trusting males as she blames men for the crime that was committed against her. Mrs Cook explained that your offending has not only affected Ruby, but also has a flow on effect to the manner in which she and her family are able to function on a daily basis. In particular they find that they need to be very careful with what they do and how they do it as they never know whether Ruby will be having an okay day or a bad day.
15Mrs Cook' statement is a reflection on the widespread and longstanding trauma which can be caused not only to a victim, but also to a victim's family when a child is sexually offended against. I accept that the impact of your offending against Taylor, Ruby, and Ruby's family has been profound both in its immediate effect and its enduring impact. I take that impact into account in sentencing you.
Plea of Guilty and Remorse
16Despite the length of time between charge and sentence in this matter, your plea of guilty was entered at an early stage.
17As I have already noted, you were interviewed in March 2020 and made some admissions, but were not charged until January 2021. The initial filing hearing for the matter was then listed on 5 February 2021. From that point, there were a number of adjournments in the Magistrates' Court as various assessment reports were being sought in relation to one of the complainants. Once that material had been obtained, the matter proceeded on 17 September 2021 by way of straight hand-up brief to the County Court, whereupon you were then assessed in respect of your fitness to plead. Upon being found fit to plead, negotiations commenced in respect of resolution of this matter, with a plea offer initially being made in
April 2022. The matter then ultimately resolved on 27 May 2022 after further discussions.18Your plea is significant for a number of reasons. Firstly, you have saved the witnesses, and in particular the victims in this matter, from having to give evidence and relive the traumatic events to which they were subjected.
19Secondly, your plea facilitates the course of justice and has utilitarian value. That utilitarian value is further enhanced by the timing of your plea which has been entered during the pandemic and in circumstances where COVID-19 has had an unprecedented impact on the efficient running of the criminal justice system.
20Thirdly, I accept that your plea of guilty demonstrates, to the extent that you have the ability to express such concepts, remorse and an acceptance of responsibility by you for your conduct.
21In the circumstances I have given you a substantial discount on sentence for your plea of guilty.
Personal Circumstances
22Turning now to your personal circumstances. You were born in February 1999 and have no siblings. Your mother and father separated before you were born and you have been raised by your mother who is extremely supportive of you. You have had next to no contact with your father throughout your life – your mother estimates that you have met him less than five times, and the last of those was over ten years ago.
23As a young child you suffered from restlessness, impulsivity, poor concentration and defiance, and at five years of age you were diagnosed with
Attention Deficit Hyperactivity Disorder ('ADHD') and Oppositional Defiance Disorder ('ODD'). You commenced treatment with Dr Rick Jarman, a
Consultant Paediatrician in 2004 and were placed on Ritalin and an antipsychotic medication to try and manage your symptoms. Shortly thereafter you were also found to suffer from a mild intellectual disability.24You commenced your schooling in mainstream primary schools but struggled to cope in that setting. Further testing was undertaken and you were diagnosed as also suffering from autism spectrum disorder with associated severe behaviour disturbance. As a result of this diagnosis and your difficulty coping in a mainstream education setting, you attended the Northern School for Autism from 2007 onwards. Both you and your mother report you also having difficulties at this school which included you being exposed as an eight year old to a staff member's erect penis after a swimming lesson; being locked in a room with windows painted over to try and manage your behavioural difficulties; and at times, being physically manhandled by teachers.
25Despite these difficulties you managed to form some friendships whilst at school, and managed to remain at school until partway through Year 9. However upon leaving school you again became socially isolated. You were unemployed, and on Centrelink benefits and remained at home with your main interests being playing video games, listening to music and watching football.
26It was during your last couple of years at school that your offending against Ruby and Taylor occurred. During this same period, you attended an assessment at the Royal Children's Hospital amid concerns about your medication and the worsening nature of your aggression, depression and social isolation. You continued to have ongoing hospital admissions with associated adjustments to your medication regime throughout the period between 2015 and 2020.
27Towards the end of 2019, your offending against Ruby and Taylor first came to light, and it was in this context that you wrote the threatening messages to
Dylan Bell which constitute Charge 4 on the indictment. It was also in this context that in November 2019, Ruby's father who is also your uncle, attended at your home where you were living with your mother, your grandmother, and your step-grandfather, and assaulted your step-grandfather. You were present during this altercation which resulted in your uncle being charged with criminal damage and assault charges.28After you were interviewed and then charged in relation to your own offending, your mental health deteriorated and I am told that you have made six substantial attempts at taking your own life in the past two years. These attempts included you tying a brick to your neck and jumping into a swimming pool. Fortunately, your mother realised you were missing and managed to extract you, unconscious, from the pool. You reported in the aftermath that you were feeling frustrated and wanted to die at the time. You have also jumped in front of cars on the road, jumped out of a moving car, and crossed into traffic whilst a support worker called PARC.
29You are still currently residing with your mother and maternal grandparents, and receive services from the National Disability Insurance Scheme ('NDIS'). At the time of hearing the plea you were about to commence with CRANK in their No Barriers Foundations and Discovery Program, which is a 12-month career, study and living skills development program for those interested in a career in gaming and esports. Since the plea hearing you have started in that program and are attending on Wednesdays and Thursdays between 10 am and 4 pm.
30Additionally, you are engaged with a mental health support worker for five hours every week, who is currently supporting you to access the community and participate in the development of independent living skills, for example learning to tie your shoelaces. For the past two months you have also been linked in with a behaviour support practitioner from ermha365 who is assessing your behaviours of concern and is in the process of formulating a behaviour support plan and facilitating appropriate skill development training for you.
31You have 130 hours of positive behaviour support approved in your current NDIS plan which will be active until January 2023. You are also currently medicated with clonidine (used as a sedative), sodium valproate (an anti-epileptic and mood stabilising medication), sertraline (an anti-depressant), quetiapine (a
mood-stabilising anti-psychotic medication) and diazepam (a sedative) to assist with your mental health problems.Relevance of Mental Health and Cognitive Issues to Sentencing
32I received a number of assessment reports in relation to your mental health and cognitive functioning on the plea. Whilst I have read and had regard to each of those reports I do not intend to refer to all of them, or all of the matters covered in each report, as the conclusions are consistent and not in dispute on this plea. Of particular note within those reports, however, are the following.
33In a letter dated 3 December 2020, your Paediatrician, Dr Rick Jarman, identified that you have been his patient since you were four years old and have a mixed developmental disorder with diagnoses of ASD, ADHD, ODD and severe learning difficulties. He noted that you have been difficult behaviourally all of your life and have a pattern of chronic relapsing mood, anxiety, anger and aggression problems that have caused you difficulty at home, at school and in social situations. He also confirmed that you have a tested mild intellectual disability with a full scale IQ of less than 70, and mid-primary school level literacy skills.
34In a report dated 16 August 2022, which was prepared for the purposes of this plea, Forensic Psychiatrist Dr Kevin Ong confirmed that you have significant neurodevelopmental problems including a mild intellectual disability, ASD and ADHD, all of which are considered permanent. He stated that as a result of these conditions you display poor social skills and problematic irritability and anger that has impacted upon your ability to form social connections and limited your schooling, occupational and relationship opportunities. He also noted that you have a history of anxiety and depression, culminating in self-harm and suicide attempts in the context of significant psychosocial stressors.
35In Dr Ong's view you would be prone to decompensation in mental state should you experience what you consider to be an adverse outcome at court. Further, given you are a vulnerable individual with multiple co-morbid mental abnormalities, in his view you would be likely to experience any term of incarceration with significantly more difficulty than an offender without your problems.
36In respect of your sexual offending, Dr Ong has formed the opinion that your offending was likely opportunistic and poorly planned. In his view, your autism spectrum disorder and intellectual disability would have contributed to your propensity to make poor, ill-judged decisions, and is also likely to have contributed to your difficulty in retaining any requisite knowledge in sex education and consent, if this was even provided to you. He was also of the opinion that your mental disorders would have also contributed to poor social skills, thereby causing you difficulty in considering the impact of your actions on your victims.
37He noted that there is no suggestion that you experience deviant sexual arousal such as paedophilia; you do not appear to have engaged in any similar or other problematic sexualised behaviours since the index offences; and that you appear to have developed an improved understanding in relation to issues of consent. Ultimately, he was of the opinion, on the basis of tests that he administered and the results of his assessment of you that you are a low risk of sexually re-offending.
38Insofar as the offence of threat to inflict serious injury charge is concerned, Dr Ong noted that you have a history of problematic and difficult to control anger, related to your intellectual disability and your ASD. In his opinion, you are likely to have been somewhat bewildered by the allegations and would have made the threat in an impulsive, unthinking manner, without consideration for the consequences to yourself or the victim.
39Dr Ong concluded by stating that in his opinion you would benefit from:
(a) ongoing engagement with your current clinical team with an eventual transition to clinicians with a special interest in adult intellectual disability and autism psychiatry; and
(b) a review of your NDIS plan to allow for:
(i)social skills and relationship training;
(ii)psychological management of social anxiety;
(iii)development of skills to better regulate emotions and improve distress tolerance; and
(iv)development of a behavioural management plan involving carers and family.
40Dr Ong advised that any attempts to engage you in activity should be focused on your indicated interests and goals, and noted that any opportunity for you to develop socialisation with same age peers engaged in meaningful activity is likely to reduce the risk of recidivism.
41It was submitted on your behalf by Ms Coombes, and conceded by Ms Deltondo, that your sentence should be mitigated by reason of the impact of your mental health conditions upon your functioning. It was agreed by both counsel that all six principles in Verdins v R (2007) 16 VR 269 are applicable in your case. That is, your mental health reduces your moral culpability for the offending; has a bearing upon the kind of sentence and conditions that should be imposed; moderates the weight to be given to general deterrence given the impact upon you both at the time of offending and now; moderates the weight to be given to specific deterrence; and means that any sentence imposed will weigh more heavily upon you than a person in normal health.
42Further, although of minimal relevance here, if you were to be imprisoned, there would be a serious risk of your mental health deteriorating significantly, as already demonstrated by the deterioration of your mental health in the period following you being charged.
43I agree with these submissions by counsel. As identified by Dr Ong, there is a clear causal link between the substantial impact which your various neurodevelopmental conditions have upon you and your offending conduct. Accordingly, your moral culpability for your offending conduct is reduced and the weight which would ordinarily be given to general deterrence and specific deterrence should also be moderated. Additionally, the manner in which you function is an important consideration when determining the type of sentence to be imposed, the length of sentence to be imposed, and the conditions which should be attached to any such sentence.
Relevance of Age to Sentencing
44Your age at the time of offending is also a relevant sentencing consideration in this case. You were only 14 years of age at the time of committing the conduct subject of Charges 1 and 2; either 15 or 16 years of age at the time of Charge 3; and
20 years of age when you committed the conduct subject of Charge 4. Accordingly, you were a child at the time of committing charges 1, 2 and 3, and a youthful offender at the time of committing Charge 4 and you are still now a young man.45If the incidents the subject of charges 1-3 came to light at the time they were committed, you would have been dealt with in a different jurisdiction pursuant to a different regime. In particular you would have had access to a therapeutic treatment path which may have resulted in the withdrawal of all sexual-offence based charges and/or would have had different sentencing principles applied if the matter did ultimately proceed in the criminal jurisdiction. Whilst there is no utility in attempting to determine the kind of sentence which may have been imposed if this matter had been finalised in the Children Court when you were still a child, it is important for me to keep in mind that general deterrence has no part to play when sentencing you for offences committed as a child, and is to be moderated when sentencing you for offences committed as a youthful offender.
46Further, in assessing your moral culpability I must take into account not only the impact of your mental functioning, but also that your offending conduct was committed as a child for Charges 1-3, and as a youthful offender for Charge 4, not as an adult or a person of greater maturity. Additionally, as identified in
R v Mills [1998] 4 VR 235, I must bear in mind that when sentencing a young or youthful offender rehabilitation is usually the most important sentencing purpose.47I have taken into account and applied each of these principles when determining the appropriate sentence in this case.
Gravity of Offending
48I turn now to the gravity of your offending.
49Viewed objectively your offending in respect of Charges 1, 2 and 3 is serious. It is acknowledged by the courts that any sexual offending against children is serious and there is a legal presumption that child victims of sexual offending will suffer harm, as has happened in this case. The victims of your sexual offending and the false imprisonment offence were young children at the time of the offences. You were their older cousin. In each case you attempted to keep your victims quiet. In Ruby's case by telling her not to tell anyone and in Taylor's case by taping her mouth shut with duct tape. In each case your offending has had a significant and long lasting psychological and social impact upon your victim.
50Your offending against Dylan is also objectively serious, although not as serious as that against Ruby and Taylor. The charge is a rolled-up charge and therefore in sentencing you I must have regard to the entirety of your conduct, the period over which it took place and the totality of the harm. You threatened to seriously injure Dylan on two occasions and caused him to fear that you would take action in accordance with those threats. However, I note that the threats were made over social media rather than in person and, in my view, they fall towards the lower end of conduct of this kind.
51Of course, as I have already identified, whilst your offending is objectively very serious, the overall gravity of the offending in this case must be tempered by reference to your youth at the time of the offending and the impact of your mental functioning, both of which operate to substantially reduce your moral culpability for your conduct.
Relevance of Delay and Prospects of Rehabilitation
52Ms Coombes on your behalf submitted that delay is also a relevant matter to take into account in sentencing you in this case. There has been a passage of approximately nine years since the sexual offending, eight years since the false imprisonment and three years since making the threats to inflict serious injury, and there has been no further offending since that time. Ms Coombes submitted that you are remorseful for your conduct, have a supportive family, have supports in place through the NDIS, and have been assessed as a low risk of sexually
re-offending by Dr Ong. Ms Coombes submitted that in the circumstances I should consider that you have undergone rehabilitation in the period since your offending occurred, and that your prospects for long term rehabilitation are strong.53Further, Ms Coombes noted that the delay and uncertain suspense between interview and sentence in this case has been particularly burdensome for you as evidenced by the deterioration in your mental health and multiple suicide attempts in that period.
54By contrast, Ms Deltondo submitted that whilst you have engaged with various medical professionals over the years there has been a lack of treatment that has resulted in you gaining any insight into your offending. Further, she noted that up until the time of the plea you had not adequately utilised psychosocial rehabilitative offerings through the NDIS due to you failing to engage in programs. Accordingly, she submitted, you cannot be considered to have attained rehabilitation, and as a result rehabilitation remains a paramount sentencing purpose in your case.
55As I have already outlined, there has been delay in this matter both between the offending occurring and being interviewed, and also between interview, charge and sentence. I have taken the consequences of this delay into account in your favour in two ways.
56Firstly, I have taken into account that you have had the weight of this matter and the uncertainty as to the possible consequences hanging over your head since March 2020. It is apparent from the material before me that your mental health has suffered during that period as a result of this proceeding.
57Secondly, it is now almost three years since your last offence, and approximately nine years since you committed the sexual offences. You have not committed any further offences in the meantime. Further you have engaged in some treatment, although not specifically designed to address your offending behaviour, and have commenced engaging with NDIS service providers. Whilst you would still benefit from ongoing supervision and additional treatment and skills development as outlined by Dr Ong, I am satisfied that during the period of the delay you have commenced upon the path of rehabilitation. I have also taken this progress in rehabilitation into account in your favour in sentencing you.
58Further, given the passage of time, your progress in rehabilitation, the impact that having these charges hanging over your head has had upon you, your low risk of re-offending sexually as identified by Dr Ong, and the supports available to you both through your family and the NDIS, I am of the view that you have good prospects for rehabilitation, and that minimal weight needs to be given to the sentencing purposes of specific deterrence (that is deterring you) and community protection. I do however agree with Ms Deltondo that rehabilitation does remain a paramount sentencing purpose in your case, and that a supervised disposition which provides some oversight of your engagement in appropriate programs and your transition to clinicians specialising in adult psychiatry is necessary to achieve that purpose.
Sentencing Submissions
59Turning now to the sentencing submissions made by each counsel.
60On the plea, Ms Deltondo submitted that despite the seriousness of your offending and the profound impact that your conduct has had upon your victims in this case, having regard to your unique circumstances, the mitigatory factors present in this case, and relevant sentencing principles, a Community Correction Order is within range. Ms Deltondo submitted that in order to address the concerns raised in
Dr Ong's report and to give effect to the sentencing purposes of rehabilitation and community protection, that an order which contains supervision and programs tailored to your needs is required. However, Ms Deltondo did not seek to make a specific submission as to whether any such order should be with or without conviction. Rather, Ms Deltondo submitted that this was a matter for the court.61Having received and had regard to the reports ordered by the court in the meantime, which I will come to in a moment, Ms Deltondo on the return date has now submitted that an adjourned undertaking of some length, with conviction, would be an appropriate disposition.
62Ms Coombes on the plea, submitted on your behalf that an adjourned undertaking would be an appropriate disposition in respect of Charges 1, 2 and 3, and a fine would be an appropriate disposition in respect of Charge 4, taking into account:
(a) that you were a child at the time of committing the offences subject of Charges 1, 2 and 3, and were a young offender at the time of committing the offence the subject of Charge 4;
(b) you entered a plea of guilty at an early opportunity;
(c) your plea of guilty gains additional weight by virtue of having been entered during the pandemic;
(d) you have no prior criminal history;
(e) your functioning is impacted upon by the multiple mental health and cognitive issues from which you suffer being a mild intellectual disability, ASD, ADHD, ODD and learning difficulties; and
(f) the impact of delay in this case.
63Like Ms Deltondo, Ms Coombes on the plea submitted that whilst regard must be had to the fact that you were a child at the time of the offending, subject of Charges 1-3, ultimately it is the matter for the court as to whether any disposition imposed upon you is imposed with or without conviction. On the return date having had regard to the relevant reports, Ms Coombes maintained her submission that an adjourned undertaking is still the appropriate disposition in this case.
64I note that neither counsel were in a position to provide comparable cases given the unique constellation of factors before the court in this case. Each counsel submitted that in coming to an appropriate disposition I must have regard to the various principles which apply and take into account all relevant sentencing factors.
Availability of, and Suitability for, a Justice Plan and/or CCO
65At the conclusion of the plea hearing, I adjourned this matter in order to obtain a plan of available services (or justice plan) and an assessment of your suitability for a Community Correction Order. I received a statement of intellectual disability dated 8 September 2022 from the Manager of Forensic Disability State-wide Access Service confirming that you have an intellectual disability; a disability overview report and a justice plan (plan of available services) both dated
10 October 2022 from Wellington Nyagwande from the Disability Justice Coordination Forensic Disability Program; and a Community Correction Order assessment outcome report dated 17 October 2022 authored by Monica Dankoff.66It is apparent that you engaged well with the author of the disability overview report and justice plan over a number of appointments. During those appointments you were able to engage in meaningful conversations with the writer over the phone where you were able to identify some of your criminogenic needs. You also expressed a willingness to engage in the support which would be provided by Disability Justice which would include:
· engaging with a Disability Justice coordinator for the duration of the order;
· an assessment of your sexual knowledge through Disability Justice Coordination, and oversight of your engagement in recommended activities;
· oversight of your engagement with your Positive Behaviour Support Practitioner from ermah365;
· oversight of your participation in the referral process and your engagement with an appropriate mental health professional for counselling as recommended by your General Practitioner and your Disability Justice Coordinator; and
· oversight of other support and treatment as identified by the Disability Justice coordinator.
67Additionally, as part of the justice plan, your participation in the services recommended in the justice plan will be monitored and, if review is required, this will be communicated by the Department to the appropriate authorities.
68The assessment in respect of your suitability for a community correction order did not go so well as your assessment with Disability Services. According to
Ms Dankoff you displayed resistance towards the imposition of a Community Correction Order and expressed your concern that you would not be able to handle it. Ultimately you refused to consent to undertaking a Community Correction Order and you were accordingly assessed as unsuitable.69Section 80 of the Sentencing Act allows the court to attach a justice plan condition to either a Community Correction Order or an adjourned undertaking whether such a disposition is imposed with or without conviction. Effectively a justice plan condition requires you to participate in the services specified in the plan of available services which has been prepared for you, and is designed to reduce the likelihood of you committing further offences. In my view, it is necessary given your particular combination of issues and the findings which I have made in respect of rehabilitation, that any disposition which I impose today does have as part of it a requirement that you comply with a justice plan.
70However, taking into account all of the relevant sentencing principles and purposes in this case and in particular your youth at the time of the offending and the impact of your mental health on your functioning, and also having regard to the principles of totality and parsimony, I am of the view that each of the sentencing purposes in respect of Charges 1, 2 and 3 can be adequately met through the imposition of an adjourned undertaking with a justice plan attached, rather than requiring the imposition of a Community Correction Order. Further, I am satisfied that in respect of Charge 4, each of the sentencing purposes can be adequately met through the combination of the imposition of the adjourned undertaking together with a small fine.
Conviction or Non-Conviction
71In deciding how to exercise my discretion as to whether or not to record a conviction, s8 of the Sentencing Act requires me to have regard to all of the circumstances of the case including the nature of offences; your character and past history; and the impact of recording a conviction on your economic or social well-being or on your employment prospects. As I have already identified, your offending is serious offending. However, it was also committed in circumstances where for three of the offences you were a child and for the fourth you were still a youthful offender; your culpability for your conduct is reduced by reason of your impaired functioning, and you have no prior or subsequent criminal history.
72The offences for which I am sentencing you are such that, by their very nature alone, they may have some impact on your future employment prospects if you are able to progress towards employment as you hope to do so. However, I accept that the recording of a conviction for such offences would result in an even greater impact on your future employment prospects. Taking the entirety of the circumstances of this case into consideration, and in particular the above outlined matters, I do not propose to impose a conviction in respect of any of the offences before me.
73All right, so Mr Cook, what I'm going to do now, is I'm just going to explain it to you very briefly, very quickly. All right, so, basically the things that you've done could, if you had been an adult and if you didn't have your mental health issues, could have resulted in you being sent to gaol because they were very serious. But I'm not going to send you to gaol, what I'm going to do is I'm going to get you to make a promise to the court, which you have to keep, for a period of time, and I'll explain that promise to you in a moment. The reason I'm doing that is because you were a child for most of the offences. You were a young person when you committed the threats offence, and so that's a really important thing that goes into the sentence.
74Also, because of your mental health which also changes the sentence that I put in place, and your plea of guilty. The fact that you pleaded guilty is really important too. Also, the fact that you've had to wait so long for this matter, from the point that you were first interviewed to today to find out what was going to happen with it. All of those things put together, mean that I am not sending you to gaol, what I am doing is I'm getting you to give this promise to me and I'm also going to give you a very small fine as well, which is a payment of money. All right? So, I'm going to explain firstly what the promise is. So, on all of the charges, on all four charges, without conviction, you need to make a promise to me that over the next 15 months, so that's between now and 18 January 2024, that you are going to be of good behaviour for that period. So you can't get yourself into anymore trouble with the police in the next 15 months. You will need to - - -
75OFFENDER: Yes, Your Honour.
76HER HONOUR: You will need to do - - -
77OFFENDER: Yes.
78HER HONOUR: - - - what Disability Services ask you to do, so you know the people you've been talking to on the phone from Disability Services?
79OFFENDER: Yep. Yep.
80HER HONOUR: You need to do what they tell you to do for the next 15 months.
81OFFENDER: Yep. Yeah.
82HER HONOUR: All right. You're also going to have to come back to see me if you're asked to do so. I'm only going to do that if you're not doing what you're supposed to be doing, all right?
83OFFENDER: Yep.
84HER HONOUR: So, you only have to come back to court if you're not doing the right thing. Does that make sense?
85OFFENDER: Yes, that makes sense.
86HER HONOUR: All right.
87OFFENDER: Thank you, so much.
88HER HONOUR: All right. The other thing is, on Charge 4, so that's the threats to Dylan, you're also going to have to pay - - -
89OFFENDER: Yeah.
90HER HONOUR: - - - a fine of $300, all right.
91OFFENDER: That's fine.
92HER HONOUR: All right. So, that's because - the reason you got the extra for that, is because you were an adult at the time you made those threats and so the sentencing is a bit different than what it is for when you were a child.
93OFFENDER: Yeah.
94HER HONOUR: All right?
95OFFENDER: Yeah, I understand.
96HER HONOUR: Now -
97OFFENDER: It's about what terrible (indistinct) those threats I made.
98HER HONOUR: Yes, so now I need to tell you - - -
99OFFENDER: And I'm sorry.
100HER HONOUR: I need to tell you what happens if you break your promise that you're going to give me all right?
101OFFENDER: Yep. Yep.
102HER HONOUR: So, if you break your promise and you get yourself in trouble, or if you break your promise - - -
103OFFENDER: Yeah.
104HER HONOUR: - - - and don't do what Disability Services ask you to do, then you might have to come back to see me, all right?
105OFFENDER: Yep. That might be awful.
106HER HONOUR: And what can happen - what can happen if you come back to see me, is I might have to give you a different sentence than what I've give you today. So, I might have to think about what else I need to do, if you're not doing what I ask you to do and what you promised to do. Do you understand that?
107OFFENDER: I do, Your Honour.
108HER HONOUR: All right.
109OFFENDER: And I promise to do everything.
110HER HONOUR: All right. So, just so that I know that you understand what happens - what's going to happen if you're not of good behaviour?
111OFFENDER: Oh, I'm gonna be in trouble um, but with the law and that's not good and I'll - - -
112HER HONOUR: That's right.
113OFFENDER: - - - I'll have to come in to see you and I - I - I don't want that.
114HER HONOUR: All right.
115OFFENDER: And nobody wants that.
116HER HONOUR: Yes, that's good you understand. All right, and same thing what's going to happen if you don't do what Disability Services ask you to do?
117OFFENDER: I'll have to come and see you again.
118HER HONOUR: Absolutely.
119OFFENDER: And it'll be like today and things will be different and - I - I - - -
120HER HONOUR: Yes.
121OFFENDER: - - - just want to live the normal happy life and just move on.
122HER HONOUR: Yes.
123OFFENDER: Get somewhere - get somewhere of life.
124HER HONOUR: That's good to hear. So are you willing to make me that promise that you're going to be of good behaviour?
125OFFENDER: I absolutely, am, Your Honour.
126HER HONOUR: And that you're going to do what Disability Services asks you to do?
127OFFENDER: Yes, Your Honour, I - I - I completely agree.
128HER HONOUR: All right, good.
129OFFENDER: To everything.
130HER HONOUR: All right, that's good. So, what's going to happen is, that promise in writing's going to be sent through to your lawyer soon. I've just got to do one or two quick things here first and then we'll get that promise sent through to you in writing and Mr Malkoun will be able to go through that with you and get you to sign it, all right?
131OFFENDER: No problems at all.
132HER HONOUR: All right.
133VOICE: Yes, Your Honour.
134OFFENDER: Your Honour.
135HER HONOUR: So, before we do that though, I just want to check with both counsel. There's no application made by the prosecution in respect of registration.
136COUNSEL: No, Your Honour.
137HER HONOUR: Are there any other ancillary orders?
138MS COOMBES: No, Your Honour.
- - -
0