Director of Public Prosecutions v Cunningham, Ross
[2013] VCC 227
•22 February 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-02336
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROSS CUNNINGHAM |
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JUDGE: | HIS HONOUR JUDGE TAFT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 January 2013 | |
DATE OF SENTENCE: | 22 February 2013 | |
CASE MAY BE CITED AS: | DPP v Cunningham, Ross | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 227 | |
REASONS FOR RULING
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Subject:
Catchwords: mental impairment – IQ of 47 – life-long intellectual disability – 62 years old – dementia –wilful and obscene exposure – inappropriate to spend 371 days on remand
Legislation Cited: Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
Cases Cited:
Sentence: non-custodial supervision order
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms K Swadesir | |
| For the Accused | Mr T Marsh |
HIS HONOUR:
1 Ross Cunningham is 62 years of age. He has had a life-long intellectual disability. Dementia has superimposed upon an original level of disability and has caused a further deterioration of intellectual function. A very recent assessment revealed that his IQ is calculated at 47.
2 At a special hearing conducted on 31 January 2013 I concluded, pursuant to s.21(4)(a) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (“the Act”), that the evidence established the defence of mental impairment. The prosecution had concurred with that outcome. I then directed that a verdict of not guilty be entered in respect of a charge of wilful and obscene exposure.
3 Previously, a jury at Horsham, empanelled for the purposes of determining Mr Cunningham's fitness to stand trial, had found that he was unfit to stand trial.
4 The circumstances in which Mr Cunningham was charged can be summarised briefly.
5 On 16 October 2011, Mr Cunningham entered the female toilets of a public toilet block in Ararat. SL, who was then 63, opened a door of the cubicle which he had occupied, and observed him in front of her with his genitals in full view and masturbating. SL was in total shock and yelled. SL read a statement to this court in which she recounted the complete and utter terror that she experienced when she opened the toilet door.
6 Mr Cunningham has appeared in court on several occasions since September 2010 charged with similar or related offending.
7 On the special hearing in January 2013 Dr Anthony Cidoni, consultant psychiatrist and formerly a member of the Mental Health Review Board of Victoria, and previously the Deputy Director of Clinical Services and Director of Inpatient Services at St Vincent's Mental Health Service, stated that Mr Cunningham suffers from significant frontal lobe dysfunction which affects his capacity to control his behaviour and regulate his impulses. Family members have noted a deterioration in intellectual function over the past two years, and Dr Cidoni considers that the onset of dementia has further impaired his ability to regulate his behaviour. The onset of dementia probably explains the decline in IQ to its current figure of 47 from an earlier assessment undertaken in 2005 which showed a full-scale intelligence of 61.
8 A body of further evidence has been tendered which details Mr Cunningham's personal background and psychosocial history.
9 In a report dated 10 September 2012, Ms Jane Lofthouse, clinical neuropsychologist, recounted information provided by Mr Cunningham's sister, Ms Judy Davie. Mr Cunningham, himself, did not have the capacity to provide a history, and such information had to be gleaned from other family members.
10 Mr Cunningham was born in Hopetoun in the Mallee. He moved to Geelong as a child with his family but returned to live in Hopetoun with his father in 1982. Mr Cunningham attended a special development school until the age of 14 and later worked in a bakery making biscuits. When he shifted back to Hopetoun he worked with horses for about 21 years.
11 Mr Cunningham has never been able to live independently and lived at home until his father died in about 2004. After the death of his father he was unable to care for himself and shifted to Golden Gate Supported Residential Service at Ararat. It is clear the level of support and supervision in that facility was not adequate and he offended whilst roaming in nearby streets.
12 Mr Cunningham was assessed at Port Phillip Prison by Ms Lofthouse. She observed that he was not oriented to person, place or time, and at times appeared to be confused. It was noted that he did not understand that he was imprisoned and believed he was still living in the community and was employed in his old job tending horses. He often looked at his watch stating that he had to get back to feed the horses.
13 Ms Lofthouse concluded that Mr Cunningham showed a significant level of executive dysfunction and will require ongoing appropriate services and accommodation, including a possible appointment of a guardian. Ms Lofthouse stated that Mr Cunningham is at significant risk of re-offending, given that he has little understanding or control over his behaviour. She stated that it would be inappropriate to place him in accommodation facilities, such as supported residential services, and that he required a high level of support services and individual monitoring.
14 The observations of Dr Cidoni and Ms Lofthouse are consistent with those of Dr Adam Deacon, consultant forensic psychiatrist, in a report dated 16 July 2009.
15 Of major concern to this court is that Mr Cunningham spent 371 days in custody after being arrested on 18 October 2011. Had he pleaded guilty in the Magistrates’ Court to exposing himself, the gravity of the offence would not have attracted such a lengthy term of imprisonment. That a man with a significant intellectual disability and dementia should be imprisoned for such time is an embarrassment to the administration of criminal justice. From my own observations of Mr Cunningham in court, it is patently clear that he has little or no appreciation of what is going on. Those acting for Mr Cunningham did not pursue a bail application. It would appear that difficulties in securing accommodation through the Department of Human Services were a factor in that omission.
16 However, for whatever reasons, the fact remains that Mr Cunningham spent over a year in custody when he should not. It is not appropriate that Corrections should be forced to assume responsibility as gaoler for this category of offender.
17 Mr Cunningham's case should have been identified at an early stage and fast-tracked for a fitness or impairment hearing. One can only hope that lessons are learned from this sorry episode and better practices are followed in the future.
Orders
18 Section 23 of the Act provides that a person who is found not guilty because of mental impairment must either be subject to supervision or released unconditionally.
19 On 31 January 2013, I ordered that Mr Cunningham be liable for supervision. In coming to that conclusion, I was conscious that his disabilities are unlikely to lift and that he remains at risk of re-offending. In determining to make a supervision order, I have had regard to the underlying principles contained in s.39 of the Act, which provides that the restrictions on his freedom and personal autonomy should be kept to the minimum consistent with the safety of the community.
20 Section 40 of the Act prescribes a number of matters that should be taken into account and, in my view, the form of supervision should be a non-custodial supervision order.
21 It is not in dispute that Mr Cunningham's underlying intellectual disability, together with the onset of dementia, is a cause of his disinhibition and conduct. He has a relevant criminal history and, in my view, the community does require ongoing protection that a non-custodial supervision order can provide.
22 The Department of Human Services (DHS) has provided a comprehensive Certificate of Available Services pursuant to s.47 of the Act, and a report pursuant to s.41 of the Act. The Certificate of Available Services specifies that Disability Client Services of DHS can provide case management to Mr Cunningham for the length of his order. Case management staff will monitor and review progress and facilitate access to support services aimed at reducing the likelihood of re-offending and meeting Mr Cunningham's physical and neurological healthcare needs.
23 Significantly, Mr Cunningham will live in Disability Residential Client Services Unit Shared Supported Accommodation in Ararat. The residence is located some ten minutes walk from central Ararat, accommodates five residents at a time, and is staffed between 7 to 10.30 am and 3 to 9 pm with a further sleepover staff member at night. During the weekend, additional staff are rostered on during the day.
24 Mr Cunningham has been allocated an individualised support package which enables him to receive a further eight hours of one-to-one support each week and it is proposed that he will attend a supported pre-vocational placement in Ararat which is focused on providing activities for people with disabilities. Further, the Disability Forensic and Treatment Services (DFATS) and Behaviour Support Services (BSS) will provide consultation to case management, residential and day program staff regarding Mr Cunningham's management.
25 In my view the proposed regime appropriately manages the risks that Mr Cunningham presents, alongside recognition of his particular vulnerabilities and special needs.
26 The report provided pursuant to s.41(1) of the Act has been prepared by Peter Stanislawski, forensic psychologist, and is dated 30 November 2012 and further amended on 4 February 2013. The recommendations made by Mr Stanislawski have been, for the most part, incorporated in a Certificate of Available Services.
27 I consider that the conditions which were proposed by the Secretary to DHS are appropriate and the order incorporates those conditions.
28 The non-custodial supervision order lasts indefinitely. The nominal term fixed by s.28(1) of the Act is 30 months, that being half the maximum penalty of five years for the offence of wilful exposure.
29 Pursuant to ss.28(4) and 28(5) of the Act, I declare that the nominal term of the order runs from 18 October 2011, that being the day Mr Cunningham was arrested, and thereafter either remanded in custody or subsequently held in secure accommodation pending the resolution of this proceeding.
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