Director of Public Prosecutions v Guascoine

[2013] VCC 1981

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-12-01604

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRAYDON GUASCOINE

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JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	11 December 2013
CASE MAY BE CITED AS:	DPP v Guascoine
MEDIUM NEUTRAL CITATION:	[2013] VCC 1981

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	Mr P. O'Halloran	OPP
For the Department of Human Services	Ms J. Davidson
For the Accused	Mr M. Dempsey	VLA

HER HONOUR:

1This is an application to cancel a Residential Treatment Order made by me in respect of Braydon Guascoine on 18 April 2013.  I do not need to repeat the circumstances which led to the making of that order or the reasons why I considered a Residential Treatment Order was the appropriate sentencing option at the time.  They are set out in my reasons for sentence of that date.

2Unfortunately, on the materials before me today, it is clear that seven months after the making of that order, Mr Guascoine's very complex needs are not being met, that he is not complying with the order, and that the order is no longer appropriate.  There have been 70 documented incidents of behaviours of concern, six reported incidents of assaults to co-residents, eight of assaults to staff, five of attempted assault and 38 of threats to harm others.  There are nine reported incidents of property damage.  On 21 occasions Mr Guascoine has harmed himself and has threatened or attempted to do so on a further seven occasions.  Some of the incidents of self-harm have been very serious.  He has attempted to abscond from the Disability and Forensic Treatment Services (DFATS) home on ten occasions.

3I accept from the materials before me that DFATS has continuously reviewed Mr Guascoine's management strategies, particularly the use of restraint and seclusion.  They have held weekly meetings to review his progress, his behaviours of concern.  Mental health staff have been consulted and consideration has been given to modifying and adapting the most appropriate behaviour and support strategies.  His participation in individual sessions and groups and interactions with residents has been continuously reviewed and monitored.

4

DFATS has consulted with a range of professionals, including the psychiatric registrar, the dual-disability clinician from the DFATS Community Forensic Dual-Disability Clinic, the senior practitioner, the Port Phillip Prison Marlborough Unit manager and senior clinician and DHS's own Divisional Case Management Unit.  They have engaged psychiatric nurses who have had experience with forensic clients with a borderline personality disorder to work directly with Mr Guascoine on the shifts where the majority of the incidents occurred, not only to work with him but also to model interactions and responses in order to better assist other DFATS staff in assisting with

Mr Guascoine.

5

Rosters were reviewed and adjusted regularly in order to ensure that experienced staff were rostered to work with Mr Guascoine.  A secure services night manager, who had previously had a good professional relationship with Mr Guascoine when he was on remand in Port Phillip, was engaged.  They also arranged for staff to complete a Preventing Occupational Violence training module in order to assist Mr Guascoine and assist staff in dealing with him.  The residents who originally shared the unit in which

Mr Guascoine was housed were moved, in part to protect them and in part to enable him to live alone and in the more restrained and restricted environment  he seemed to want and need.

6Modifications to his living environment and treatment regime have resulted in the environment in which he lives more closely modelling a punitive environment as opposed to the therapeutic environment, which is the governing philosophy of DFATS.  Even with these modifications, Mr Guascoine has continued to suffer considerable distress in the less restricted environment generally operating at DFATS, and continuously expresses a desire to be where he can feel safer - that is, in the more restricted and punitive environment such as the Marlborough Unit at Port Phillip.

7His psychological state, despite all of these interventions and attempts to assist him, has deteriorated significantly whilst the order has been in force.  In her comprehensive affidavit, Ms Tiffany Carroll, the general manager of DFATS, concluded,

"It would appear now, however, that, although Mr Guascoine was initially reported as motivated to engage in treatment upon his admission to the residential treatment facility, the residential environment was counter-therapeutic for Mr Guascoine. The RTF residential setting provided opportunities for autonomy and independence and this significantly increased Mr Guascoine's anxiety, and thus was destabilising.  The modifications to the unit that have since been made have resulted in his current environment being more punitive than his previous prison environment and remains counter-therapeutic.  The restrictions placed upon Mr Guascoine at the present time severely impact on his psychological wellbeing.  Mr Guascoine's self-harming behaviours have increased both in frequency and severity since his admission. 

Furthermore, he is self-harming at a significantly greater frequency than when he was incarcerated.  Although Mr Guascoine is mandated to undertake compulsory treatment at DFATS, the ultimate success of his treatment depends on the extent to which he is motivated to participate in the treatment program and apply what he learns to his life.  In his current environment, Mr Guascoine is both unmotivated and significantly impeded in his efforts to undertake treatment.  Furthermore, the current environment is impacting on his psychosocial wellbeing, resulting in significant distress and self-harm.

On 15 November 2013 a meeting was held with the CFDDS psychiatric registrar, Mr Liam Turnbull, the CFDDS dual-disability clinician, Ms Melanie Smerdon and Mr Guascoine's clinician and PET worker.  The purpose of the meeting was to discuss Mr Guascoine's current psychosocial functioning and to discuss whether alternative medications and/or strategies could be implemented to assist Mr Guascoine.  It was agreed that there were no further identified alternative strategies or medication options that could be implemented at the current time., and that the service had exhausted its resources in attempting to manage and provide a therapeutic environment for Mr Guascoine."

8Ms Carroll concluded:

"DFATS' management must consider the safety and wellbeing of all residents and staff and the ability of this service to provide a therapeutic environment conducive to good treatment outcomes for all residents.  Given Mr Guascoine's violent and self-harming behaviours, it is considered that his continued placement in the RTF is untenable." 

9

Mr Dempsey in his submissions acknowledged that it was clear that the Residential Treatment Order was no longer suitable or appropriate for

Mr Guascoine and he advised that Mr Guascoine consents to the revocation of the order.  I am satisfied that indeed at this stage in his life, and given his current state of psychological wellbeing, the gulf between the DFATS environment and prison is simply too wide for him to be able to bridge.  His attempts to create an environment like the prison environment that he was in before he was sent to DFATS should not be seen as a failure on the part of those people who have clearly tried so hard, and with all resources available to them and all resources they could seek and the advice that they properly sought, to alleviate his distress and to try and assist his rehabilitation.

10Despite their efforts, his mental health has declined and it is clear that the time has come to arrest that decline before he deteriorates even further.  It is a sad reflection on his complex needs and the state he is in that it seems that the Marlborough Unit at Port Phillip Prison is indeed the only place at present which can provide the structured environment he needs and which can also provide him with the types of programs that are available through DFATS but which he has been unable to properly participate in and benefit from whilst he has been under the residential treatment order.

11I am satisfied for all of these reasons that, although every effort has been made to provide that safe and therapeutic environment for Mr Guascoine under the RTO, his complex needs are not and cannot be met and, as a result, he is not complying with the orders.  That is why I am satisfied the order is no longer appropriate and I accept that I should cancel it and resentence him for the original offence of sexual penetration of a child under 16.

12Although Mr Guascoine has spent twelve months in pre-sentence detention, I have already declared that in respect of the sentences I imposed for the indecent act charges, which I dealt with at the same time as I placed him on the RTO in respect of the charge of sexual penetration.  I cannot therefore declare that twelve months to be counted and reckoned as part of this sentence, but I accept that I should in a general sense take into account that his time on remand was spent in part in respect of this offence as well as the other two offences.

13

I accept that I should also take into account in a general sense the fact that

Mr Guascoine has spent seven months at Fairfield under the RTO and that his noncompliance has been due to his complex needs, and therefore should not be treated as a wilful noncompliance.  So in the general sense I take into account also the seven months that he has spent under the RTO.

14For the reasons I expressed when imposing the original sentence for the offence of sexual penetration, it was a serious one, having regard to the circumstances of the offence itself, to the youth and vulnerability of the victim and to Mr Guascoine's previous history of escalating sexual offending, and seen against the background of the wide range of other non-sexual criminal offending.  The weight to be given to denunciation and general and specific deterrence must be modified by reason of his intellectual disability and the complexity of his needs.  I am sad to say that the only conclusion that I can draw at the moment in respect of prospects for rehabilitation are that they are at this stage poor and there is a clear need to give weight to protection of the community.

15Balancing these matters as best I can, I make the following orders.  First, pursuant to s.82A(1)(c), that the Residential Treatment Order be cancelled.  In its place I am going to sentence you, Mr Guascoine, to a term of imprisonment in respect of that charge of sexual penetration.

16Can you stand while I actually pass that sentence on you, please.

17PRISONER:  Yes, ma'am.

18HER HONOUR:  Thank you.  Braydon Guascoine, on that charge of sexual penetration of a child under 16 I sentence you to be imprisoned for a period of three years and I fix a period of 18 months as the time that you must serve before being eligible for parole.

19Because I am resentencing you, I am making a declaration pursuant to s.6AAA of the Sentencing Act. I made one at the time I placed you on the RTO, but the circumstances are different now, and so I'm making another 6AAA declaration. Had you not pleaded guilty to the charge - and in the circumstances I am now in - I would have sentenced you to be imprisoned for a period of five years and I would have fixed a period of three years as the time to serve before being eligible for parole.

20But as Mr Dempsey and Ms Richter will explain to you, the sentence that I am passing today, and taking into account the time that you spent on remand and the time that you've spent at DFATS, is three years with a non-parole period of 18 months.  It is my hope and expectation that you will be forthwith taken from Melbourne Assessment Prison to Marlborough as soon as a place is available, and I hope that is in days.  It is my strong recommendation that, upon your reception into Marlborough, you be assessed for suitability for participation in a sex offender treatment program and other behaviour programs specifically designed to cope with your complex needs and adapted to your needs.

21Are there any further orders that are required to be made under the orders that I have made now?

22PRISONER:  Also there's one thing I've got to mention to you, Ms Hampel - - -

23HER HONOUR:  Yes, Mr Guascoine.

24PRISONER:  - - - whilst I'm here.  The Magistrates' Court put me on a CCO, to let you know.  And where I am now, since they put me on the CCO, can you please cancel that order also when you - - -

25HER HONOUR:  I don't think I can do that, because I don't have the papers before me and the law says that the Magistrates' Court will have to deal with a breach of the CCO.  But I am sure Ms Richter will make contact with Community Corrections and with the Magistrates' Court so that can be fixed up as quickly as possible so you don't have any other matters hanging over your head.

26PRISONER:  Yes.

27HER HONOUR:  All right.

28PRISONER:  That's why I thought I'd let you know.

29HER HONOUR:  Thank you for doing that, but I'm going to pass that on to
Ms Richter to look after, and I can see she's nodding her head and she knows about that, I'm sure, and she'll assist in that.  So you can take a seat again now, just for a moment.  Can I thank all counsel for their assistance and can I thank all of those people who have come to court today, some of whom I know have been here seeing Mr Guascoine throughout his progress through this court.  I really want to make it clear I am really struck by the efforts that have been made to try and accommodate him and assist him.  His needs are very complex and you've obviously all understood that and done much to assist.

30When I first heard that the application was foreshadowed, I was afraid that I would be faced with explanations that things couldn't be done because of lack of resources.  I don't know whether lack of resources has been a problem, but there certainly has not been any lack of good will or genuine efforts to try and work out how best to accommodate his needs and to look after him as well as the other people at DFATS and as well as the staff.  I hope that some day soon he'll find his way back to DFATS when he's in a better state, and that the efforts that are being put into looking after him to date will be seen to be a building block for the efforts that are obviously going to be needed in the future to continue to care for him.

31It is a sad situation today in a sense, but it would have been a much sadder one if he had been in Port Phillip without any assistance, without this having been tried, and without the learning that can come from this in looking at how to look after him in the future.  But I will certainly have a much greater confidence when I have people with needs, perhaps not quite as complex as Mr Guascoine's, that recommending people to assessed for an RTO is still a very good sentencing option for people with an intellectual disability who commit offences and are at serious risk of getting into further trouble. 

32So you'll no doubt be seeing more people sent at least for recommendation for treatment from me and from other judges of this court.  I just wish there were more beds available and more facilities, but I'm so grateful for what you've done for him to date and what I hope you'll still be doing for him the future.  Thank you. 

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