Director of Public Prosecutions v Dodds (a pseudonym)

[2017] VCC 1108

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
(Not) Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRODIE DODDS (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	26 July 2017
DATE OF SENTENCE:	11 August 2017
CASE MAY BE CITED AS:	DPP v Dodds (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2017] VCC 1108

REASONS FOR SENTENCE
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Subject:Criminal law – sentencing – sibling incest – youthful offender – Community Correction Order imposed.   

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr D. Glynn	John Cain, Solicitor for Public Prosecutions
For the Accused	Ms M. Tittensor	Victoria Legal Aid

HER HONOUR:

1       Brodie Dodds,[1] you have pleaded guilty before me in respect to one charge of incest, contrary to s.44(4) of the Crimes Act 1958.

[1]Brodie Dodds is a pseudonym.

2       Your offending took place on 17 July 2016 and involves an act of sexual penetration with your sister, Lucy Dodds.[2]

[2]Lucy Dodds is a pseudonym.

3       You were aged 23 at the time you offended.  You are now aged 24.  You come before the court with no prior criminal history.

4       I shall proceed to sentence you on the basis of the summary of the prosecution opening that was read out during the plea hearing.

5       Briefly, your sister was aged 15 at the time of the offending and she is now 16.  You were then living together in a home occupied by your mother, step-father and three younger siblings.  Prior to the offending, you were getting on well. 

6       On the evening of Saturday, 16 July 2016, your sister had taken two sleeping tablets that had been prescribed to assist her to sleep.  Her experience was that those tablets would normally take half an hour to take effect.  You were having a cigarette with her and you were together watching a movie in your room.  You were sitting on a chair watching the movie on your computer and the complainant was lying on your bed.  She fell asleep.  You then came over to the bed and spoke to the complainant.  This was now in the early hours of Sunday, 17 July.

7       She partially woke but, owing to the effects of her sleeping medication, she was in a half asleep state.  You then got onto the bed, kissed her on the forehead and hugged her, touched her on her vagina, both under and over her clothing and inserted your fingers into her vagina.  That constitutes the facts of the charge of incest. 

8       Whilst this was happening, your sister felt herself lapsing in and out of consciousness and was unable to say or do anything to stop your behaviour.  After a while, she curled herself into a ball and your offending ceased.  She fell asleep.  The next morning, you apologised to her, saying, “Sorry I’m such a horrible brother”.

9       Your sister was not attending a regular school at the time and was being taught through a home teacher, Ms Thomas.[3]  On 18 July 2016, the Monday following the evening of the offending, after her regular lesson, she complained to her home tutor that she did not want to go home and told her about the offending.  She was then taken to Craigieburn Police Station, where she made a report and later a video/audio record of evidence statement was taken. 

[3]Ms Thomas is a pseudonym.

10      On that same day, in the evening at about 7 pm, you were taken to Craigieburn Police Station in order to have an intervention order served on you.  That order arose from this offence.  You became extremely emotional and spontaneously confessed to the offending and threatened suicide.

11      You were then taken to the Northern Hospital where you were admitted into the care of the crisis assessment team. 

12      When you were discharged from hospital on 29 July 2016, you were then formally interviewed in the presence of an independent third person.  You made appropriate admissions about your offending.  You told police you did not feel that you were yourself and that you were hearing voices in your head.  Some of those voices were telling you that your sister liked to be touched.  You told police you had been taking medication, namely Endep, and you were not feeling well.  You felt extremely guilty afterwards and seriously contemplated taking your life, but refrained from doing so.  Importantly, you told police that you wished to apologise to your sister.

13      You were charged on 11 October 2016 and entered a plea of guilty at committal proceedings, listed at Melbourne Magistrates’ Court on 23 March 2017. The matter then proceeded by a straight hand-up brief and importantly, no witnesses, especially your sister, were called to be cross-examined. 

14      Your offending is serious and that is reflected in the maximum penalty that is prescribed for this offence, namely, five years’ imprisonment. 

15      Mr Dodds, I heard how the offending impacted on your sister when the Victim Impact Statement was read out in the court.  Your sister related how the incident has affected her relationships within her own family, especially her relationship with her mother.  She finds it hard to talk about her feelings now and what is going on inside her head, because your mother is somewhat conflicted, because she continues to  support you, as much as she does her.  She finds it hard to confide in her mother like she used to in the past.  She also suffers some symptoms of post-traumatic stress, including flashbacks, nightmares and an aggravation of her depression.  She suffers extreme anxiety, especially in the presence of unfamiliar men.  She holds fears that they will hurt her.  She describes incidents of having cut herself and her wish that this never happened.  She wants a normal life.  She is having ongoing psychological counselling. 

16      Ms Tittensor, on your behalf, outlined to the court all the matters that the court must take into account in mitigation of your penalty.  She referred to the report of Dr Nina Zimmerman, whose report, dated 22 May 2017, was exhibited and the contents I have read and had regard to. 

17      I noted your personal history and background.  You were born in Wodonga.  You are the eldest child of the union between your father and your mother.  They have four children and your sister is their third child. 

18      You had a very disruptive childhood, with your parents constantly separating and then reuniting.  They finally separated when you were aged about nine.  All the brothers then went to live with your father at a farm in regional Victoria and your sisters left to live with their mother in Canberra, with her parents.  Your mother then married another man, who is described as being abusive and she experienced unstable accommodation for a number of years.  Ultimately, she divorced and re-partnered and now has further children with her current partner.  You have three younger half-siblings.

19      At the time of the offending, you had moved back to live with your mother and had been residing with her from about 2015. 

20      As a consequence of your disrupted childhood, your education was also very disrupted.  You attended three primary schools and did not finish Year 10.  You were enrolled at a TAFE to undertake a VCAL course, but could not finish that because of your psychiatric illness.  You have never worked and you have been granted a disability support pension because of your psychiatric condition.

21      There is a predisposition to mental illness in your family.  Your mother, maternal uncle and a cousin have been diagnosed with psychiatric illnesses. 

22      Your mental illness was first picked up in your early high school years, when you were diagnosed with depression, but serious mental health issues presented themselves around 2010.  At around that time, you developed an interest in Satanism and that interest was also taken up with some enthusiasm by other family members, in particular, your mother.  You began hearing voices and seeing visions of demons and devils. 

23      You were hospitalised in November 2010 and at that time, diagnosed with schizophrenia.  There have been multiple admissions and presentations to psychiatric wards over the years for that condition. 

24      

In May 2016, you formed an age-appropriate relationship with a female and following sexual relationships with her, you began experiencing severe headaches, for which you were prescribed the anti-depressant, Endep (Amitriptyline).  At around that time, both your mother and girlfriend noted

a change in your behaviour, which they attributed to the medication.  You spoke to your mother about whether or not to continue the medication and she was going to take you to be seen by a doctor.  You were saying you were not feeling like yourself, as though your mind was not there and you were fighting in your mind at around the time of the offending.

25      

Dr Zimmerman agrees with the diagnosis of schizophrenia.  She also believes you have a borderline personality style and that you experience brief

psychotic-like symptoms as well.  She did not think she could relate your offending behaviours to the voices associated with your schizophrenia and/or borderline personality disorder.  She stated that, although you were agitated and distressed when arrested, it is difficult to say what your state of mind was at the time of the offending, given that you had been watching a movie.  She indicated that your illness does include difficulties with impulsivity and controlling emotions. 

26      On 18 July 2016, you were sectioned under the Mental Health Act 1986 and admitted to a psychiatric unit. You were transferred to Eastern Health in September 2016. 

27      You are currently living in a share house in Doncaster.  You are a patient at the Koonung Clinic, Dandenong Continuing Care Team and you receive monthly depo, an anti-psychotic.  You recently received the inpatient psychiatric treatment in February and you were discharged on 13 February 2017. 

28      There is some limited substance abuse history, but because the offending is not in any way linked to that, I will not take that any further.

29      The discharge summary from North-West Area Mental Health Inpatient Unit of 29 July 2017, confirms that you were admitted on 19 July 2016.  You told police somebody had taken over your body and you could tell that because your voice changed.  You were hearing the voices of three people.  You had been prescribed medication, but it was not helping.  Then you were commenced on another drug, Aripiprazole and discharged on 29 July 2017, to be followed-up by the brief intervention team.

30      You told Dr Zimmerman that you accept responsibility for what happened.  You said you were in a state of tension and distress ever since this offending occurred.  Following the offending, you commenced living with your girlfriend at her parents’ house, but that relationship has since broken down and thereafter, you moved to the share house where you remain.  One of your housemates is currently your carer.  Some efforts are being made to relocate you to more supported accommodation, to enable you to build up positive living skills.

31      Dr Zimmerman’s opinion was that you are likely to suffer from psychotic symptoms, including auditory hallucinations, and these are probably due to a schizophrenic illness.  She also believes you have a borderline personality style and you experience brief psychotic-like symptoms as a result.  She noted the possibility of a paedophilic disorder must be considered, given self-reported history of thoughts of sexual interacting with your sister from your early teenage years. 

32      

Dr Zimmerman spelt out the effects of your condition generally and considered that your psychiatric condition would likely mean that you would suffer greater stress than an individual without your conditions, if you were to receive

a gaol term.  Further, she said there is a risk that there will be an escalation in your psychiatric condition and a deterioration in your condition, should you be gaoled. 

33      She recommended that you be treated and that there be consideration given to psychological interventions concerning your personality functioning and your chronic distressing thoughts regarding your sister.  She confirms you would benefit from ongoing case management for your schizophrenia and that there should be additional psychological input in respect to your difficulties with stress management.  She further suggested an assessment in respect to the sex offenders’ program.

34      I have read the letter from Seigrid Cook, who is part of the Doncaster Continuing Care Team, whom you are attending in a voluntary capacity and you have done so since September 2016 on a fortnightly basis.  She is your case manager.  You also attend there monthly for medical examinations and three-monthly for consultant psychiatric reviews.  You obviously have established a very good therapeutic relationship with that team.  You are treated with both oral and injectable medication.  Sadly you have only responded partially to that treatment and currently, there is consideration being given to changing your medications   for better control of your symptoms.

35      In sentencing you, I have had regard to everything that was put by Ms Tittensor.  I accept you have entered a plea of guilty at an early opportunity and that you have spared the witness, especially your sister, the further trauma of having to give evidence on a trial.  There is real utility in your plea and you have facilitated justice.  Your sentence will be discounted accordingly.

36      I have also had regard to your expressions of remorse and contrition and I consider that you are genuinely remorseful.

37      Whilst I do not accept there was a link demonstrated between your known psychiatric condition and the behaviour, subject of the offending, I have nonetheless taken into account that you do suffer from a major psychiatric illness with the degree of impulsivity associated with that condition.  I have therefore assessed your moral culpability as not being as high as it would be for a normal person.  I still consider there is a need for the court, in this case, to emphasise both general and specific deterrence. 

38      I have taken into account Dr Zimmerman's expressed opinion concerning the effects that a gaol term would involve upon your condition and also her recommendations.  I note that they reflect, to a large extent, the findings of the comprehensive report that I have received, which was obtained at the request of the court, being the Pre-sentence Clinical Assessment Report, Specialist Offender Assessment and Treatment Service (SOATS) report, dated 9 August 2017, written by Alyce Crosswell, who is a SOATS clinician.    

39      Overall, I accept that you have demonstrated that you understand what you did was wrong.  You acknowledge the need for treatment to assist you to deal with your thoughts and to provide you with proper supports in the future, to enable your rehabilitation and also to provide some protection for the community for the future.  You have expressed your willingness to undergo counselling and treatment.  You are still relatively young.  You have no prior criminal history. 

40      I have taken into account the significant disadvantages you have suffered as a consequence of your disrupted childhood, together with your psychiatric illness.   

41      Both Ms Tittensor and Mr Glynn confirmed, in their submissions, that a Community Correction Order with appropriate therapeutic conditions was a disposition that was open to the court in all the circumstances.  Mr Glynn recommended that it be of a lengthy duration, with treatment directed at treating the underlying offending behaviour, namely a sex offenders’ treatment program, monitoring your medical health and your situation generally. 

42      All in all, I have come to the conclusion, notwithstanding the very serious nature of the offending and the circumstances of the offending, where you breached your sister's trust at a time when she was severely compromised and incapacitated, due to her taking her sleeping tablets, notwithstanding all of that and the destructive effect, that the most appropriate disposition in all the circumstances is a Community Correction Order.  That has been assessed as being a suitable disposition.

43      I have the Community Correction Order Assessment Report, dated 26 July 2017, together with the Pre-sentence Clinical Assessment Report of 9 August 2017.

44      

You have been assessed overall as being a person who falls into the

moderate-high risk category of re-offending, notwithstanding that the Static-99 test results indicate moderate to low risk for re-offending of this kind. 

45      I do not propose to go into any more detail of the findings of the SOATS assessment, having regard to the fact that it is comprehensive, it is 16 pages in length and it is an exhibit in this matter and it will be retained on the court file. 

46      Nonetheless, the SOATS report is reflective of the recommendations that were contained in the psychiatrist's report of Dr Zimmerman and they are recommendations which the court does endorse. 

47      In relation to this matter, I confirm that you will be convicted of the one charge of incest and you will be placed on a Community Correction Order for three years, commencing from today's date and ending on 10 August 2020.

48      You must attend the Box Hill Community Corrections Services at 703 Station Street, Box Hill, within two clear working days after this order commences. 

49      

You are subject to mandatory terms as well as additional terms, being supervision for three years, treatment and rehabilitation, including assessments for mental health, assessment and treatment and also you must participate in programs or courses that address your offending behaviours, as directed and there will be judicial monitoring, the first occasion of which will be on

26 February 2018 at 10 am in this court and that is just so that I can be satisfied that appropriate arrangements have been put in place in relation to your care. 

50      Your counsel, Ms Tittensor, has explained to you how a Community Correction Order works and you have acknowledged that you understand the effect and conditions of the order and you consent to it being made.  You also understand the consequence of a breach of such and order. 

51      Am I required to make a s.6AAA declaration, given no gaol has been imposed?

52      MR GLYNN:  Yes.  There has been a relatively recent amendment providing that if a CCO of two years or more is imposed, then a s.6AAA is required.

53      HER HONOUR:  All right.  I make the declaration, pursuant to s.6AAA, but for your plea of guilty, I would have imposed a sentence of 12 months' imprisonment, to be followed by a Community Correction Order, on the same terms and conditions. 

54      I have to make a declaration in relation to the Sex Offenders Registration Act 2004 (SORA).  This is a Class 1 offence and on your conviction, registration is compulsory for a period of 15 years.  A notice of the relevant requirements has been prepared and has been signed by me and shortly I will get you to adopt that.

55      Finally, I make the forensic sample order sought.  It is not opposed.  I consider it is necessary in the interests of public interest and also I have had regard to the seriousness of the circumstances of the offending and find that it does warrant the making of such an order. 

56      So I have signed the s.464ZF orders.  I have signed the notice under the SORA and also the Community Correction Order. 

57      I will just add that, the reason why I consider a Community Correction Order on these terms to be appropriate, is that in my view Mr Dodds needs particularised individual psychiatric care and particularised individualised psychological treatment, in order to address the underlying offending behaviours and the community based disposition is the most suitable method of ensuring that that is done in the community.

58      

I have had regard to the fact that I must look to the future, as well as to the past.  I consider there is paramount benefit in the community, as well as benefit to

Mr Dodds personally, that his program from here on in is implemented in the manner that has been suggested, pursuant to the SOATS report, so as to provide him with the best opportunity to rehabilitate, but also to provide the best opportunity for community protection and to ensure that no further offending of this nature is repeated in the future.

59      So that concludes my sentencing remarks. 

60      MR GLYNN:  As Your Honour pleases.

61      HER HONOUR:  We will just get the order signed and copied.  The only other thing I need to say, Ms Tittensor, is, I know from the experience in similar cases such as this, that SOATS requirements are terribly onerous for these sorts of individuals, but again, if you would not mind just going through with him, not necessarily now, but at some stage, just the requirements, because the potential for penalties being imposed for breach is very real.

62      MS TITTENSOR:  Yes, thank you, Your Honour. 

63      HER HONOUR:  All right, thanks. 

64      MS TITTENSOR:  Thank you, Your Honour.

65      HER HONOUR:  All right, we are all finished?  Well that completes that matter.  I will ask my associate to provide you with the copies of relevant documents and then once they have been received, you are free to leave.  Mr Dodds can come out of the dock now.

66      MS TITTENSOR:  Thank you, Your Honour.

67      HER HONOUR:  All right, we will adjourn. 

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