Director of Public Prosecutions v Coote

[2016] VCC 385

Pages 1 - 1   IN THE COUNTY COURT OF VICTORIA

Revised Not Restricted Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR -15-00683

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAMIEN COOTE

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JUDGE:	HER HONOUR JUDGE SEXTON
WHERE HELD:	Melbourne
DATE OF HEARING:	5, 6 October 2015
DATE OF RULING:	8 February 2016
CASE MAY BE CITED AS:	DPP v Coote
MEDIUM NEUTRAL CITATION:	[2016] VCC 385

REASONS FOR RULING
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Subject:              CRIMINAL LAW
Catchwords:      Found to have committed the offence of indecent act with a child under 16 – offender mentally impaired – no likelihood of endangering himself or others – there are adequate resources available for treatment and support of offender in community – not liable to supervision.
Legislation Cited: ss.40, 42, 47 of the Crimes (Mental Impairment and Unfitness to be Tried) Act; Sex Offenders’ Registration Act.
Ruling:                Not liable to supervision, subject to the reporting obligations under the Sex Offenders’ Registration Act for 8 years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G. Slim	OPP
For the Accused	Mr D. Gibson	VLA

HER HONOUR: 

1On 6 October 2015, a jury found that Mr Coote had committed the offence of indecent act with a child under 16. 

2That finding having been made, I must either declare Mr Coote liable to supervision, or order he be released unconditionally. 

3I cannot do either without receiving reports under ss.40, 42 and 47 of the Crimes (Mental Impairment and Unfitness to be Tried) Act. 

4I have now received those reports. The s.40 report, or in fact could also be referred to a s.41 report, but it is the same thing, has been provided by Peter Stanislavski, a forensic psychologist, who has dealt with the factors to which the court must have regard, pursuant to s.40 and other relevant factors relating to the issue for me to decide.

5Section 42 is a statutory declaration from the mother of the victim, which in terms, must contain the views of the family member or victim, on the conduct of the person being considered, the offender, and the impact of that conduct on the victim. The purpose of such report is to assist the court in determining any conditions it may impose on an order made in respect of a person under this Act.

6Section 47 is a certificate of available services, provided by the secretary to the Department of Health and Human Services, as to the services that would be able to be provided to Mr Coote, if the court imposes a non-custodial supervision order.

7

Just returning briefly to the family report received under s.42. Section 45 of the Act allows that the court may rule as inadmissible, the whole or any part of a report, under s.42. The prosecution and the defence today both referred to the fact that there was inadmissible material in that report and in discussion, with the defence counsel, it seems to me that there is only one sentence that is relevant for my consideration for the purpose for which

I received the report, which is the one that I read out earlier,

"My daughter has tried to push it away, but recently came to   me and said she knows it probably won't happen again, but   she's scared it will." 

So I declare that the rest of the report is inadmissible, pursuant to s.45, but

I have regard to that sentence. 

8On the basis of the material in the reports, particularly that of Mr Stanislavski, Mr Gibson, appearing on behalf of Mr Coote, submitted that I should release Mr Coote unconditionally.  The prosecution submitted that he should be declared liable to supervision and released on a non-custodial supervision order. 

9Mr Gibson submitted that the reason for the appropriateness of a release unconditionally arises out of the following factors: 

·

That Mr Coote was found, by Mr Stanislavski, to be of a low risk of

re-offending;  and

·That he is not likely to endanger others, and despite the implicit reference to supervision in the report, it was submitted that there is no need to specifically supervise him to ensure that he does not loiter around schools, as there is no evidence that he has ever done so and that was certainly not the basis of the case. 

10Further, it was relied on by Mr Gibson:

·That there is no history of sexual offending, or indeed any other criminal history; 

·That Mr Coote is living in supported accommodation, where he has been living since he left the house and the family in which the offence occurred; 

·That he is supported by Disability Client Services and is partly funded by Mr Coote's parents; 

·Through Disability Client Services, Mr Coote has a case manager.  He is shortly to change to a different case manager and it is understood that they are looking to find work for him again in the community; 

·Mr Coote has the ongoing support of his parents and his family, one other sister in particular.  They are vigilant in respect of contact with children in the family.  There is no other incidental contact with children and his parents will maintain close contact with him by phone and see him on a regular basis; 

·

There is no further contact with the victim, who was living with

Mr Coote with her mother and sibling, but that relationship broke down after the offence was committed and detected;  and

·Mr Coote is not currently in a relationship, so there is no direct access to children. 

11In determining the decision in this case, I have to have regard to the matters in s.40, which, as I have indicated, were addressed by Mr Stanislavski in his report. I will go through those briefly now.

12I have had regard to the nature of Mr Coote's intellectual disability and the relationship between that disability and the offending conduct. 

13I have had regard to whether he is likely to endanger himself or another person, or people generally because of a mental impairment, and I am satisfied that he is not likely to endanger himself or another person. 

14It follows that there is little or no need to protect people, because no such danger arises and there are adequate resources available for the treatment and support of Mr Coote in the community, whether under the order or voluntarily under the auspices of Disability Client Services. 

15I also need to have regard to the guiding principles in s.39 of the Act.  That is, I must apply 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. 

16On the basis of all of the material before me, I find that there is no risk to the victim of the offence.  There is a very low risk of Mr Coote committing another offence, so, very little risk to others in the community, such as potential victims, and I find that the resources are in place to assist Mr Coote, and if there is no order of the court requiring that he participate in the services provided by Disability Client Services, he will nevertheless be strongly encouraged to do so by both his case manager with Disability Client Services, who will still be in place, and his parents.

17

Despite the voluntary nature of his participation in the services if a

non-custodial supervision order were not to be made and he was not declared liable to supervision, I find it that it is highly likely that he will indeed continue to engage with Disability Client Services and that, combined with the low risk of his re-offending, leads me to conclude that he is not likely to endanger other members of the community and there is no need to protect people.

18

Having regard to the principle in s.39, about restrictions on a person's freedom and personal autonomy, it seems to me that I would be in error to declare

Mr Coote liable to supervision, having regard to the findings that I have made. 

19As a result, I propose to order that he be released unconditionally.  However, as a result of the finding of guilt, it is still necessary for me to address the Sex Offenders’ Registration Act.  By virtue of that finding of guilt, the charge, being a Class 2 offence, requires that Mr Coote, within seven days, report his personal details and begin a regime of annual reporting required by the Sex Offenders’ Registration Act, and be otherwise subject to the Act for a period of eight years. 

20In a moment I will have the reporting obligations printed out and signed by me.  I will not require Mr Coote to sign it, but I will expect that Mr Gibson will undertake to go through that with him. 

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