Director of Public Prosecutions v Guascoine, Brayden
[2013] VCC 503
•18 April 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01604
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRAYDEN GUASCOINE |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 April 2013 | |
DATE OF SENTENCE: | 18 April 2013 | |
CASE MAY BE CITED AS: | DPP v Guascoine, Brayden | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 503 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms K. Churchill | OPP |
| For the Accused | Ms J. Munster | Victoria Legal Aid |
HER HONOUR:
1 A year ago, on 8 April 2012, you, Braydon Guascoine, invited a 14-year-old boy to accompany you back to your home in Heidelberg Heights. You had known him for some time. You knew he was a child in the care of the Department of Human Services, and living in a Berry Street home. In order to preserve his anonymity, a protection he is provided by law, in these sentencing reasons I will call him Cody.
2 You were 21, and living alone in your unit in Heidelberg Heights. An older man, a Mr McRae, who you had met a couple of days earlier and who had accepted your offer of short-term accommodation with you, was also with you when you met Kodi and asked him home.
3 When the three of you returned to your unit, Mr McRae went to bed. After some time you went and had a shower and asked Cody to join you. Once in the shower you kissed him, then kissed and sucked his neck, leaving a mark variously described as a love bite or a hickey on his neck. You then began to wash him and knelt down and sucked his penis.
4 Some time later Cody and Mr McRae left the house and Cody told Mr McRae what had happened. Later again they returned to the house and Mr McRae confronted you. You became upset, threatened to kill yourself and held a knife to your throat. Police and an ambulance were called and it was necessary to use OC foam to subdue you. You were taken to hospital by a crisis assessment team. After you were released you were arrested and interviewed. At interview you denied the allegations.
5 You were charged with two charges of indecent act and one of sexual penetration of a child under 16 in respect of these acts that I have just recounted. You were charged with other offences alleged to have occurred later that same night or in the early hours of the following morning
6 At trial, you entered pleas of guilty to these three charges and contested the balance. You were acquitted of the remaining charges. You now come to be sentenced for those two charges of indecent act and one of sexual penetration of a child to which you have pleaded guilty.
7 You are now 22 years old. You have a mild intellectual disability and a significant criminal history for both sexual and nonsexual offences. They have been committed both as an adult and as a juvenile. You have been sentenced to a wide range of community based dispositions and also Juvenile Justice detentions and terms of adult imprisonment.
8 You have recently been assessed as representing a high and ongoing risk of sexual abuse to male pubescent children. Your likelihood of reoffending is double that of the average adult male sexual offender. You have a number of significant treatment needs which require intensive and specialised intervention. Although this has not always been the case in the past, at present you are motivated and have been assessed as being suitable to undertake the available treatment options available to you and specifically geared to your needs to address your sexual offending.
9 A formal assessment has been conducted by disability forensic assessment and treatment services of the Department of Human Services. According to the comprehensive and extremely helpful report prepared by Mr Connor Duggan, a clinician, and reviewed by Ms Linda Bennett, the clinical manager of the disability forensic assessment and treatment services or DFATS, you have been found to satisfy the criteria for admission to the intensive residential treatment program provided by DFATS. Those criteria are specified within s.152 of the Disability Act 2006.
10 A plan of available services prepared by Ms Renee Kelleher has been provided. Ms Kelleher recommends that you reside at the intensive residential treatment program and engage in treatment programs to address your offending as identified and authorised by the authorised program officer. She adds that Disability Services recommends the available services to reduce your likelihood of reoffending and advises that Disability Services will monitor your participation in the services and will advise the appropriate authorities if the recommendations require review. I have also been provided with the appropriate certificate under the Intellectually Disabled Persons Services Act declaring that you are eligible to receive services under that Act by virtue of your intellectual disability.
11 I am satisfied therefore that all of the necessary criteria set out in s.82AA(2) of the Sentencing Act have been met. That means that I can make a Residential Treatment Order under s.82AA of the Sentencing Act, for a period of up to five years, provided you had been convicted of an offence that bring you within its ambit. By s.82AA you must have been found guilty of a serious offence as defined in s.3(1) of the Crimes Act or an offence of indecent assault under s.39 of the Crimes Act.
12 Charge 3 to which you have pleaded guilty comes within the definition of serious offence, sexual penetration of a child under 16. The other two charges to which you have pleaded guilty, charges of indecent act with a child under 16, do not fall within the definition of serious offence under s.3(1). Although I initially thought that once you had been convicted of an offence that fitted within the definition of serious offence it could provide a gateway in order for me to make a Residential Treatment Order in respect of all offences to which you had pleaded guilty or been found guilty, I am satisfied now after further reflection, having read the submissions of counsel and had the opportunity to consider the authorised report of the reasons of the Court of Appeal in the case of Farr, that that is not so. A sentence under s.82AA can only be imposed in my view in respect of a serious offence. That means I have to consider an appropriate sentence to impose on you for the two lesser offences of indecent act and which will sit with and not interfere with the making of the Residential Treatment Order.
13 The report that I was provided with recommends that there be a minimum period of three years fixed under that Residential Treatment Order. That would include two years to undertake and complete intensive sexual offending treatment, and then 12 months for reintegration into the community. That period was recommended in order to be able to show a sustained reduction in your current assessed risk of sexual recidivism.
14 The authors of the report recommended consideration be given to imposing a longer order of up to five years, the statutory maximum. They recommended that having regard to your early onset and persistent antisocial behaviour, your diverse victim groups, the high risk of sexual offending in a serious manner which you pose, and your complicated treatment needs. They pointed out that there is provision under s.162 of the Disability Act for you to apply for extended leave whilst on a Residential Treatment Order for the purposes of enabling reintegration within the community whilst still subject to the conditions specified by the court making the original order. This capacity to apply for extended leave the authors point out would assist in enabling a safe and graduated reintegration back into the community for you.
15 This is your only opportunity to hear what I have got to say, Mr Guascoine, so it is important that you listen to me.
16 PRISONER: Sorry, Your Honour, about that. And can I say something to you, Your Honour?
17 HER HONOUR: Not yet, let me finish giving my reasons.
18 PRISONER: Yes.
19 HER HONOUR: I must impose a sentence that is proportionate to the offending and that gives weight so far as it is appropriate to do so to a person with an intellectual disability to general and specific deterrence, punishment and denunciation. The sentence must in your case reflect the need to protect the community, given your youth, and to encourage your rehabilitation.
20 This is serious offending. Cody was a young and vulnerable child as you knew. You are physically much larger than him and although his disadvantaged background and circumstances meant that he may well have been more streetwise than many other 14-year-olds, his vulnerability was at the same time increased by his circumstances. He did not have parents or a stable home to go to, he did not have people who he considered he could readily turn to for safety or protection and he was under your power and control in your home.
21 I want to mention the role played by Mr McRae. He appeared to be a man who was in difficult circumstances himself at the time. However, that he was a decent and honourable man who acted to protect Cody once Cody made his disclosures to him is beyond doubt. If there were more people like Mr McRae in the world it would be a better place. He was visibly distressed when recounting the events and I can only hope that he has been offered the assistance that people who are exposed by circumstances beyond their control to criminal behaviour and are then confronted by it should be offered. He should also be commended for his efforts to protect Cody, and to keep you safe when you threatened harm to yourself.
22 I propose to make a Residential Treatment Order in accordance with the recommendations, having been satisfied that you are eligible, committed, and that there are the necessary programs available to you.
23 You have spent the last 12 months in custody in the Marlborough unit of Port Phillip prison. Whilst you have said on many occasions in the past that you did not feel safe in the community and wished to be in prison, the last 12 months has been the longest period you have spent in an adult prison and it is heartening to see that you no longer see it as the place you want to spend your life.
24 You have complex needs. By the age of three your mother first sought assistance from a disability services team with you. By then delays in your development of speech and motor movement were noticeable By the time you were seven you had been formally assessed as eligible to receive services under the Intellectually Disabled Persons Services Act. Your mother was by then concerned she was unable to manage your behaviour. You were demonstrating physical aggression and constant attention seeking behaviour. Your current reports of the behaviour of your mother and father, describing your mother as emotionally cold and neglectful and your father as caring and affectionate, are at odds with the contemporaneous documentation contained in the reports compiled by DHS over the years.
25 Your father died when you were 11, and by the time you were 13 you had been sent to live with relatives because your mother could no longer manage you. From there you were placed in care and moved between various supported residential facilities. You demonstrated problem behaviours including absconding, physical and verbal aggression, property damage and sexualised behaviours. You started amassing convictions in the Children’s Court, including convictions for assault and property damage in the residential facilities where you were living. You spent time living on the streets but otherwise you were institutionalised either in supported accommodation or as a result of orders directing you be detained.
26 Although formally you remained at school until the age of 18, you have no educational achievements, and since you turned 18 you have been in receipt of a disability support pension. You have no experience of formal employment.
27 You have no real family support. Although you have had some limited telephone contact with family members whilst you have been in custody, you are essentially estranged from them.
28 In addition to your intellectual disability and your challenging behaviours you have abused alcohol and cannabis on a regular basis since you were in your early teens.
29 It is not surprising with this history that you have a lengthy and varied criminal history for nonsexual offences, and because of the other history that I have recounted you have also amassed that history of sexual offences. Your nonsexual offending is varied. You have convictions for assault, making hoax calls, property damage, arson, theft, driving, and motor vehicle offences. It would appear that so far as your nonsexual offending is concerned you act impulsively and opportunistically without regard for the consequences. Some of your more recent offending may have been motivated in part by a desire to be remanded in custody. You report experiencing significant levels of anxiety when attempting to live independently.
30 So far as your sexual offending history is concerned, you were convicted of committing an indecent act with a child under 16 in 2006. This was a Children’s Court hearing and you were placed on a 12 month youth supervision order. You denied the offence and alleged that the victim had demanded money from you. That had a refrain in some of what happened in respect of the later charges of which you were acquitted before me. You have two separate convictions for loitering at places frequented by children. On the first occasion in 2009 your conduct indicated you were trying to find a child in a playground who was unaccompanied. On the second occasion in 2011 you were in company with another registered child sex offender. One of you engaged the mother of a 9-year-old in conversation, whilst the other concentrated on the child. You were later seen engaging in sexual activity whilst watching children from a distance. When arrested you admitted that you had engaged in planned activity to distract the mother and lure the child away.
31 Following the 2009 conviction you were referred to the Corrections Victoria sex offender program. That referral took place in 2010. However, you were found to be unsuitable to participate in the program because there was insufficient time remaining on your order by the time the referral had been made. In the past you have successfully participated in child and adolescent programs aimed at addressing anger management, behavioural control, bullying and grief management. It appears that you have been able to make short term adaptive changes from treatment but you have been unable to maintain them in the longer term.
32 Your sexual offence history dates from 2006, and as the reports make clear, your offences have escalated over time. These charges include for the first time a charge of sexual penetration of a child, and so properly to be regarded as the report points out as being at the more severe end of the offending continuum. The report says that you evidence paraphilic tendencies, including paedophilic arousal, and you have targeted stranger victims or those casually known to you in the community.
33 Although you have been sentenced to a number of community-based dispositions, they have had limited impact on deterring you from engaging in sexual or nonsexual offending, and as your criminal history shows there have been significant difficulties with you complying with these orders.
34 These charges are the most serious you have faced, and it is the first time you have been dealt with anywhere other than the Children’s Court or the Magistrates' Court. I was told and I accept that you are conscious of the fact and have at times been overwhelmed by the fact that you are being dealt with in a superior court.
35 That, together with the 12 months you have spent at Port Phillip on remand, may well have brought about a greater preparedness in you to engage with the services that are available and which could assist you to live in the community, without posing a risk to yourself or to others.
36 When you were assessed it was clear that you had heard of DFATS and the intensive residential treatment program. When you were younger you had had some contact with the DFATS Dual Disability clinic. You told the assessors that you needed help and you were accepting of the prospect of entering the intensive residential treatment program. A number of assessment tests were administered to you and the results of those, together with what you volunteered, indicate that you are motivated to take part in offender treatment programs and prepared to make changes in your life.
37 I am under no illusion about the difficulties you face, and the risks that you pose to the community if untreated. Although you have indicated that you are ready and prepared to take part in treatment and motivated to make changes to improve your life, there are still a number of matters of real concern. They arise in large part from your intellectual disability and your personality. If, however, there is to be any real prospect of assisting you to change and protecting the community it is in a program like this rather than by imposing a more punitive disposition of a term of imprisonment in an adult prison.
38 I am told and I have been advised that you are currently registered on the sex offender register for life. It is therefore not necessary to make any further orders in respect of registration. I therefore now come to sentence you.
39 On the three charges to which you pleaded guilty you are convicted. On each of charges 1 and 2, the two charges of indecent act with a child under 16, you are convicted and on each of those charges you are sentenced to be imprisoned for a period of nine months. I direct that three months of the sentence on charge 2 be served cumulatively on the sentence on charge 1. That makes a total effective sentence of 12 months' imprisonment. It is in the circumstances inappropriate to fix a non-parole period. I declare that you have spent 374 days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served. As I told you before I started, that means that that sentence has been served and has expired.
40 PRISONER: Yes.
41 HER HONOUR: On charge 3 you are convicted. I direct that you be detained for a period of four years in the intensive residential treatment program conducted by Disability Forensic Assessment and Treatment Service, at the Fairfield complex, Yarra Bend Road, Fairfield.
42 I declare that but for your pleas of guilty, I would have sentenced you on the two charges of indecent act with a child under 16 to a total effective sentence of 18 months' imprisonment and I would have fixed a period of nine months as the sentence to be served before you are eligible for parole. I make no s.6AAA declaration in respect of the sentence on charge 3 because I am not required to do so. However, I would have still sentenced you to detention in the residential treatment facility.
43 I have been asked to make orders for retention of the forensic samples taken from you and for disposal of various items. Those orders are not opposed and I propose to make them. You can take a seat again while I sign the formal orders, Mr Guascoine.
44 Finally I would like to express my thanks to all of those who have taken part in this trial and assisting in managing what has been a long and complex matter. In particular to counsel and their instructing solicitors, and to the various officers of the Department of Human Services, including Ms Catanach Ryan, Ms Kelleher, Mr Dibbin and Ms Bennett. I am convinced that the trial would not have been able to proceed in the manner in which it did if Ms Kelleher or those who occasionally relieved her had not sat in the dock with Mr Guascoine throughout the trial. I have been particularly struck and assisted by the long thoughtful thorough and carefully researched report to which I have made extensive reference in the course of these reasons. If Mr Guascoine is to have real prospects of being able to be reintegrated into the community and not to pose a risk to himself or to others, it will be in no small part due to the commitment that they have shown and the services that they are available to offer.
45 I will now formally sign the Residential Treatment Order under s.18AA in respect of charge 3, and I have signed the disposal order in triplicate and the retention order in duplicate. Have the orders that I pronounced reflected what I said I intended to do?
46 MS CHURCHILL: Yes, Your Honour.
47 HER HONOUR: Any further orders that are required to be made?
48 COUNSEL: No, Your Honour.
49 HER HONOUR: Can I just check logistically what happens from here. I can see that Mr Dibbin and Ms Gallagher - - -
50 PRISONER: Your Honour, I need to go to the toilet for a break.
51 HER HONOUR: Yes, you can go to the toilet. We are just going to make all those arrangements for taking you for the Residential Treatment Order.
52 PRISONER: And also before I go I'd like to say something to you, Your Honour Hampel.
53 HER HONOUR: Yes, Mr Guascoine.
54 PRISONER: I'd like to do the SOP treatment program, violence course, anger management treatment course and other various programs and treatments with the supervisor of the place and management and other clinicians. I would like that to be on the order if possible.
55 HER HONOUR: A transcript of what you have said will be available and I will make sure that is provided to DFATS. Those programs are already part of the programs that are available under the order and it will be up to you and the clinicians who will be working with you to decide what programs are suitable for you at any particular time. Your preparedness to do them clearly counts very much in your favour, but you will have to talk with them and consult with them about the appropriate timing and staging of all of those programs. I want to make sure that you are not overloaded and that the programs are delivered to you at the right time for you in the course of your treatment.
56 PRISONER: I understand, Your Honour.
57
HER HONOUR: You can be removed so you can go to the bathroom.
Mr Dibbin can leave the dock and I will just speak to Ms Munster about the arrangements then for your removal from here. I think he has probably got to go downstairs and be processed from the cells.
58 MS MUNSTER: That's right, and Ms Gallagher tells me that staff are already downstairs. As soon as Mr Guascoine is processed they are ready to take him.
59 HER HONOUR: Thank you. The orders are being processed now and I should be able to sign that straightaway. We have a new process, we have to email the orders down to the cells to make sure they actually get there, so I will sign it and then it will be scanned and sent down, but that is a matter of minutes.
60 MS MUNSTER: Yes, Your Honour.
61 HER HONOUR: Ms Kelleher, I am not sure I included your name in the list of people who should be acknowledged. If I did not, I will do so. I know it was a considerable demand on the time of all of those who came and assisted, but it could not have worked without that.
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