Director of Public Prosecutions v Daniell (a pseudonym)

[2018] VCC 490

IN THE COUNTY COURT OF VICTORIA  Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

TRISTIN DANIELL (a pseudonym)

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	13 April 2018
CASE MAY BE CITED AS:	DPP v Daniell (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2018] VCC 490

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Stylianou
For the Offender	Mr S. Moglia

Pages 1 - 13

 

 

HER HONOUR:

1Tristin Daniell,[1] you have pleaded guilty before me to one charge of attempted rape.

[1] Tristan Daniell is a pseudonym.

2The facts underlying the offending are as follows.  The victim, Lilly Brett,[2] like you, has an intellectual disability.  At the time of the offending you were 40 and you were staying with Ms Brett at the house that she shared with her brother and his partner.  The two of you had been in a relationship since about May 2016 but you had never had sexual intercourse and had only kissed, held hands and hugged.  Ms Brett stated to police that that was as far as she would go with it, however the two of you slept in the same bed.

[2] Lilly Brett is a pseudonym.

3In the early hours of Friday 22 July 2016 you were both at home in bed and
Ms Brett was asleep, lying on her stomach.  While knowing she was asleep, and without asking for her permission, you pulled her pants and underwear down to her knees and climbed on top of her and tried to put your penis into her anus while she slept.  Ms Brett woke up when you ejaculated onto her back.

4The next morning, on 22 July, Ms Brett’s brother found her sitting on the couch and crying and she told him you had forced yourself on her.  She said that you had raped her.

5That afternoon you went to the Caulfield Police Station and told them you had forced yourself on your girlfriend.  Police spoke with Ms Brett and arrested you, then on 8 September 2016 you went, again, to the police station by appointment for interview in the presence of an independent third person, and you admitted to pulling down Ms Brett’s underwear and to attempting to penetrate her anus.  You admitted that whilst you did this she was asleep and that she woke up afterwards.  You told police that you sometimes did not think much.  You said you did not try and wake her.  You said you knew Ms Brett was not consenting and that what you did at the time was wrong.  You said to police, "Well, there's no reason, because I wasn't thinking.  'Cause sometimes I do think, sometimes I don't".

6You were charged on 18 January 2017.  Various filing and committal mention hearings were heard in the Magistrates' Court.  Ultimately on 23 June defence indicated, as they had previously, that they had not heard or received instructions from you and the matter was adjourned to a committal case conference on 6 July 2017, where the matter resolved to a plea of guilty.

7The maximum penalty for attempted rape is 20 years' imprisonment.

8You have prior convictions - that is, you have been in trouble with police before.  In 2002 you were placed on an adjournment to be of good behaviour on charges of theft and arson, in 2006 you were fined for wilfully damaging property, in 2008 you were sentenced to two years and six months' imprisonment with a non-parole period of six months on a charge of rape, and in 2011 you were placed on a community corrections order for criminal damage.

9It is important, obviously, in the circumstances that I deal with your prior conviction for rape.  That offending occurred also in very similar circumstances.  At the time of the offending you had a girlfriend, who was also intellectually disabled, and the two of you were in a girlfriend/boyfriend relationship but it did not include sexual intercourse.  You had asked your then girlfriend to have sex with you, but she had refused.  Your girlfriend had cerebral palsy and was confined to a wheelchair.

10On the day of the offending you and your girlfriend were watching TV.  You asked her for a kiss and a cuddle, which she agreed to, and you took her out of her wheelchair and sat her on your knee.  You asked her for sex and she refused.  Ultimately you had penile/vaginal intercourse with her even though she had said no.  You apologised, but the next day you were confronted by her carers.  You admitted having intercourse without her consent and you made admissions to police. 

11You are now 41 years of age.  You are the youngest of five children and were brought up in the Kyneton/Bendigo area, your father passing away in 1989.

12You are assessed as moderately disabled, which in the professional language used in this description means that your intellectual disability, in comparison with those not suffering from a disability, is relatively severe.

13You attended mainstream schooling until you were 12, when you were assessed and placed in what was then called a special school until you were 18.  You have worked stacking shelves and collecting trolleys at a local supermarket, you have done lawn mowing, you have worked at a recycling plant and you last worked at Creative Opportunities in Brunswick.

14You have got a bit of a history of drug and alcohol use.  You started drinking alcohol when you were 13, at about the time of your mother's death, and according to a neuropsychological report dated 16 September 2017 by neuropsychologist Dr Linda Borg you estimated at the time she interviewed you that in the previous three years you were consuming about a slab of beer a day.  You also began smoking cannabis when you were 13 and apparently were using on a daily basis.  You have used, on an experimental basis, heroin, ice, magic mushrooms and cocaine.  You have also chromed paint in your adolescence.  You have also had a problem with smoking Kronic or synthetic cannabis, and have in fact had an overdose and presented at hospital suffering the after effects of smoking this drug.

15You were assessed by Dr Borg as having a full scale intelligence quotient - that is, an IQ - of 56.  That, in terms of available scores, represents a fairly low functioning IQ.  Obviously a large number of associated problems attend that IQ.  You have got difficulties with verbal comprehension, perceptual reasoning - that is, "An ability to analyse and synthesise abstract visual information and a capacity for visual constructional skills were impaired, as was non-verbal reasoning, which limited his ability to piece together items to solve problems".  Your working memory is below functional range, as is your processing speed.  You have a diminished attention span and difficulties, although working memory was a relative strength, but hindered by your limited attention span.  Of particular concern was testing involving executive functioning.  Dr Borg stated:

"Mr Daniell demonstrated impaired novel planning abilities, encountering significant difficulty in determining appropriate starting points, integrating information in a cohesive manner, maintaining vigilance and monitoring errors, hence, thinking tended to be fragmented, disjointed and haphazard, leading to a lack of foresight, forethought and planning.  Furthermore, performance was characterised by poor self-awareness, with formal measurement of response inhibition revealing moderate impulsivity".

16I have quoted to some extent in relation to the findings insofar as executive functioning is concerned because it is this intellectual capacity which, in my view, plays into the decision that you made - both in 2008 and then in 2016 - in relation to deciding to have sex with your then girlfriends, even knowing they were not consenting.  Again, Dr Borg stated:

"Mr Daniell can be impulsive, and consequently will tend to act based on emotion rather than rational thought, meaning that under situations of stress he demonstrates the potential to refer to others, or revert back to firmly entrenched well-learnt patterns of behaviour".

17It was Dr Borg's view that the risk of reoffending, given your neuropsychological profile, was quite high under certain conditions.  She stated:

"Mr Daniell demonstrates the potential to react impulsively and/or revert back to well-entrenched, or firmly entrenched patterns of behaviour.  In this context strict consideration to Mr Daniell’s environment, and close ongoing monitoring, will be necessary to reduce environmental triggers/maladaptive behaviours to such behaviour".

18Of considerable concern at the time this matter first came on plea was that you were residing in a boarding house in Ringwood and showing a marked propensity to associate it with peers who engaged in drug and alcohol use, and there was some indication of there being fairly liberal sexual behaviours between the members of that group.  I regarded that accommodation as particularly unsuitable, in any event, but particularly in the light of Dr Borg's assessment of the need for an appropriate environment as a protective factor in relation to your offending.

19You have been a client of the Department of Health and Human Services disability support services for many years.  You - if I may make the comment - are extremely fortunate in your current worker case manager, Mr Karim, who has worked tirelessly on your behalf.  Understandably in the circumstances - particularly given the prior matter - it was the submission of the prosecution that I should deal with you by way of a term of imprisonment to be immediately served.

20At this point I do need to refer to the victim impact statement of
Ms Lilly Brett.  In her victim impact statement she said that she was worried that you were going to make contact with her, or send people to hurt her.  She said she used to have nightmares, although things were better now, and she was worried that other men might try to do what you did.  She stated:

"For the first few months after what happened with Tristin I was petrified to leave my home, as I was worried Tristin would ask his friends to hurt me.  I have since found out many of Tristin’s friends no longer like him, so I am less afraid".

21And Ms Brett has attended every day of the hearings in this matter, and as I have said, she was extremely courageous in doing this, and I congratulate her on doing this.

22Of considerable mitigatory force, in my view, is the fact that you voluntarily attended on police - although no doubt Ms Brett’s brother had something to say about that - but nevertheless, you did attend upon police, you did confess as to what you had done, and any person charged with sexual offending who acts in this way is considered to be deserving of a considerable discount.  I am satisfied that as far as you are capable you are remorseful for your offending.

23As a result of my concerns about your accommodation issues and your peer group I adjourned this matter to see if enquiries could be made, and arrangements be made, to resolve the accommodation issues.  I received a report from Mr Karim dated 11 April 2018 entitled 'Client Progress Report'.  You and he had a number of discussions after the last court case and it was arranged for you to visit the Hazelwood Supported Residential Services in Boronia, and you agreed it was more suitable that you live there.  You and your brother spoke about a female friend, who you took with you to see if she could live there as well, and apparently she has been accepted and there is no relationship between you.  You officially moved into Hazelwood on 6 March 2018.  In the report Mr Karim stated:

"The manager of Hazelwood has provided an update that Mr Daniell has been seen to be pleasantly social with other residents.  He has also been seen to attend to his personal care more, visiting a podiatrist, and attending to his personal grooming more regularly when prompted".

24There was a referral to the Disability Forensic Assessment and Treatment Service (DFATS), however you have been found by DFATS not to be suitable for placement there at this stage.  You have been referred to the EACH Drug and Alcohol Counselling, although you were found unsuitable for their program and there was a recommendation that you be referred to DFATS.

25In their report dated 10 April 2018, authored by Gayani Maddumage, it was stated that DFATS recognise that you would benefit from a neuropsychological assessment to inform as to your capacity to engage and benefit from treatment.  It was considered you would benefit from comprehensive psychiatric assessment to determine if pharmacological intervention would assist with what seemed to be your sexual preoccupation, and the DFATS Community Forensic Dual Disability Service can conduct this review and make recommendations.  It was recognised that you would benefit from a comprehensive assessment to determine treatment needs as a community client, which would assist in identifying offence specific and related needs, and this can be done - that is, DFATS can complete an assessment of service level 2.  It was also believed, given the lapse of time since your last formal assessment in relation to the risk of sexual recidivism that such an assessment should be taken out again, and it is understood that DFATS will be engaged to undertake those assessments.  You have also been referred to a program that would support you with community access to computer literacy, which is provided within Hazelwood, and also including activities such as dinner group, tenpin bowling, swimming group and breakfast group.

26A Justice Plan has been prepared and I am satisfied that it contains appropriate programs and undertakings involvement case management, appropriate sexualised behaviour training via ACSO, vocational and life skill activities, and also that there be some work to engage you in an organisation called 'Employees', which prepares people with intellectual disabilities for employment or further training/education.

27I am a little concerned that the drug and alcohol program has not been able to be accessed.  In my view it is appropriate that there be some sort of treatment in that regard pursuant to the justice plan.  I have also had you assessed by Corrections and you have been found suitable for placement on the order, and certain recommendations have been made about the sorts of conditions that were considered appropriate, such as the justice plan, supervision, sex offender programs, drug treatment and alcohol treatment.

28Now, this is the second time, Mr Daniell, that you have seriously offended in a sexual manner against women.  True, it has been a number of years since your last offending, but it is very worrying that it happened again.  I am satisfied that you have some insight into your offending.  I am also satisfied that you have appropriate housing - which, as I said, I regard as crucial to your prospects for rehabilitation.  I am concerned that if I place you in gaol the sorts of supports that you require, as outlined by Dr Borg, would not be properly met in prison.  You would be placed in the disability unit at the gaol, but your intellectual disability is severe, and in my view your capacity to participate in the programs available in the unit in the gaol would not be high.  Generally speaking, as I understand it, the intellectual disability level of people in the specialised unit in the gaol are considerably higher than yours.

29Given the fact that you are now living in appropriate accommodation, given that I am satisfied that the justice plan is appropriate, given what I accept is your genuine remorse for your offending, and given your profound disability, it is my view in all the circumstances that, firstly; you are not a suitable vehicle for general deterrence.  Secondly; specific deterrence is still an issue, but better - in my view - dealt with by way of a non-custodial disposition, and thirdly; I am satisfied that you are surrounded with the appropriate circumstances so that I can be satisfied the community is well-protected.

30I have decided that the most appropriate disposition in this case is to place you on a community corrections order.  I can only place you on this order,
Mr Daniell, if you agree.

31Now, Mr Daniell, I had to use a lot of legal language then, which you probably didn't understand.  What I've decided is because you were sorry, because you went to the police yourself, because you're living somewhere now which is good, I've decided I'm not going to put you in gaol, but I'm going to put you on what's called a community corrections order - Mr Moglia will explain what that means - where you promise you won't do this again, and that you won't get into any offending trouble.  You won't use drugs, you won't steal anything, you won't damage anything, you won't get into fights - in particular, you won't do any offending the way you did against Lilly - and if you promise you won't do those things I won't put you in gaol, and you have to sign a piece of paper saying that you won't, and there's going to be some conditions, and the conditions are that you be put on a justice plan, and what that means is that you have to go to the sorts of things that Mr Karim organises for you.

32OFFENDER:  Yeah.

33HER HONOUR:  You can't say you're not going to, you have to go.  If you don't do these things we'll all be coming back to court and I might put you in gaol, okay?

34OFFENDER:  Yeah.

35HER HONOUR:  So you have to do what you're told.  The other thing you have to do is you have to go and get treatment for drug and alcohol use, and you have to go to a program that'll talk to you about how to behave towards women, and how you mustn't behave in a certain way sexually to them, okay?  And you've also got to go to programs about your drinking, all right?

36OFFENDER:  Yes, Honour.

37HER HONOUR:  It's called a community corrections order.  Are you prepared to go on that order?

38OFFENDER:  Yes.

39HER HONOUR:  You agree to do what you're told to do?

40OFFENDER:  Yes.

41HER HONOUR:  And the other thing that'll be happening under the order is that you'll be coming back and seeing me every three months, and I'll get a report on how you're going, so I'll always know how you're behaving, all right?  So the order will last for a period of two years and ten months.

42So you have to go the Office of Corrections within two days.  I'm going to use fairly formal language here, because I'll get Mr Karim to explain it, and
Mr Moglia to explain it.

43You must report to the Office of Corrections within two working days - that is, by Tuesday of next week.  Whilst on the order you may not leave Victoria without the permission of the Community Corrections office.  You are not allowed to go outside Victoria unless Corrections say ‑ ‑ ‑ 

44OFFENDER:  Yep.

45HER HONOUR:  ‑ ‑ ‑ you can.

46OFFENDER:  Yep.

47HER HONOUR:  You must report any change of address or employment within 48 hours of that change; you must report to and receive visits from the Community Corrections office; you must obey all lawful directions of the Community Corrections office, and you cannot go to Community Corrections under the influence of drugs and alcohol.  You got that?

48OFFENDER:  Yes, Honour.

49HER HONOUR:  All right.  The conditions are going to be that you are under supervision - so they'll be keeping an eye on you.  You're going to be on a justice plan, so you have to do what Mr Karim says, okay?  You have to attend programs to reduce drug and alcohol use, you have to attend a sex offenders program - and I don't think there's a mental health component?  No.  And there's going to be judicial monitoring.  You're going to come back and see me in three months and I'll get a report.  Friday 13 July at 9.30, all right?  Got all that?

50OFFENDER:  Yes, Honour.

51HER HONOUR:  Good on you.  You have a seat.  Pursuant to section - I don't have to?

52ASSOCIATE:  No.

53HER HONOUR:  I hope I haven't left anything out there, but I thought it was fairly important we got it done today.  All right?

54MS STYLIANOU:  Yes, Your Honour.

55MR MOGLIA:  Thank you.

56HER HONOUR:  Thank you very much.  Excellent, that's done.  Thank you.  Okay, how are you travelling now?

57VOICE (from body of the court):  Yeah, good.

58HER HONOUR:  Good.  You don't have to come back to court anymore.

59VOICE:  Yep, it's all done.

60HER HONOUR:  Good.  It's all over, all right?  Good on you.  Thank you.  Yes, thank you very much.  I thank both counsel very much indeed for all their assistance in this matter.

61COUNSEL:  As Your Honour pleases.

62HER HONOUR:  And Mr Karim, I want to thank you again.  Thank you.  It's wonderful having someone - as we have had with Mr Karim - making the efforts that he has made.  All right.  Well, we've had one good result this morning.  Thank you very much.  I'll stand down so that we can get on with the trial.  Thank you very much, counsel are excused.  I just need to tidy my desk here, so thank you.

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