Director of Public Prosecutions v Jarod Corbin Dwight (a pseudonym)
[2016] VCC 890
•22 June 2016
| IN THE COUNTY COURT OF VICTORIA AT GEELONG CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAROD CORBIN DWIGHT (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 13 April 2016 | |
DATE OF SENTENCE: | 22 June 2016 | |
CASE MAY BE CITED AS: | DPP v Jarod Corbin Dwight (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 890 | |
REASONS FOR SENTENCE
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Subject: Criminal Law- Sentencing- Indecent Assault- Husband Assaulted Wife- Intellectual Disability.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J Lewis | John Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr J McLoughlin | Victoria Legal Aid |
HER HONOUR:
1 Jarod Corbin Dwight[1], you have pleaded guilty before me to one charge of indecent assault. That assault took place on 10 June 2015 and involved your wife, Calla Marlow[2]. The charge is serious, and that is reflected in the maximum penalty that is prescribed by the law, 10 years’ imprisonment.
[1]Jarod Corbin Dwight is a pseudonym.
[2]Calla Marlow is a pseudonym.
2 I will now proceed to sentence you on the basis of the Crown opening. There was no issue taken with the summary at the time of the plea hearing.
3 Briefly, on the morning of 10 June 2015 you were home alone with your wife, Calla, at home. There was a verbal argument over some domestic duties. Your wife went into your bedroom in order to prepare to leave the home, and you followed her, and forced her onto the bed, where you sexually assaulted her by rubbing your penis against her vagina until you ejaculated.
4 At the time of the incident you were 49 and you were living with your wife. Since this incident, you have separated from your wife, there is an intervention order in place, and it is also a condition of the bail that you do not contact your wife. You are now living alone in rental accommodation. You are now age 50.
5 You were married to Calla on 4 September 2000. Both you and your wife Calla have intellectual disabilities. Calla Marlow has been deeply affected by the offending. Her victim impact statement says that it caused her upset, she was scared and did not know what you would do next, and she was angry because you did not listen to her when she said she did not want to have sex. She has had a little trouble sleeping and fears that you may sneak into her house again and do it again. She has found living away from you very difficult. She has had some counselling, and she is conflicted because she still expresses her love for you.
6 When you were arrested by the police, at the interview in the presence of a third party, you made full admissions in relation to the allegation. You admitted doing what you did, and you told police that "She didn't want it".
7 Following the charge being laid, you entered a plea of guilty at an early stage at the committal hearing.
8 You come before the court with a known prior criminal history. I do note that the past convictions relate primarily to historical offending, none of which reflects any sexual offending.
9 Mr McLoughlin on your behalf considered this was serious offending, and he outlined to the court in both his written and verbal submissions, details about your background and history, and your current circumstances.
10 Briefly, you are the second youngest of 10 children. Two of your brothers have died in accidents. You are a person who has always lived in the Geelong area, and from a young age you were diagnosed with an intellectual disability and also given the diagnosis of schizophrenia. You have had a very difficult background. Your father died in 1969, and in the early 70s you were removed from home because of welfare concerns and, together with three of your siblings, you were placed in Glastonbury Children’s Home, Geelong. You only attended school halfway through Year 6, and you were at Nelson Park Special School. You cannot read or write, and require assistance with your activities of daily living.
11 You have had a long history of inpatient psychiatric treatment dating back to the 70s. You were placed in Turana on welfare grounds in the early 1980s, and you have had inpatient treatment at Dax House, Geelong Hospital for psychiatric admissions in 83 and 85. You have been married twice. You lived with your first wife in the late 1980s and there are three children of that marriage born in 1990, 91 and 92. One son, Carver[3], is severely disabled and presently resides in a care facility in Geelong, and you continue to visit him.
[3] Carver is a pseudonym.
12 There have been times where you have had further inpatient psychiatric treatment, once as a consequence of you attempting suicide, and other times to manage your behaviour. You are currently on a high-level dose of intramuscular Modecate, an anti-psychotic drug, to manage your mood.
13 You met Calla (the complainant), on a train, and lived with her in Warrnambool in the late 1990s. You were married in September 2000. With Calla you have a daughter Gina[4], and she was removed to foster care whilst still a baby, and remains in long-term foster care.
[4] Gina is a pseudonym.
14 You have worked voluntarily for the Brotherhood of St Lawrence in the past as part of a lawn crew and involved in sorting recycling materials. You had that role for about 11 years. Currently, you are not working, but you have been undertaking some courses, including the retail baking certificate and other courses through the assistance of Karingal Trans and Teach.
15 In respect to the offending, I note that you are extremely upset and remorseful about your behaviour, and you acknowledge that what you did was wrong, and you acknowledge that it has had serious consequences for your wife Calla. You no longer live with her, and it has been very difficult for you both, given that you both continue to have expressed feelings for each other.
16 Mr Dwight, it is important to understand that every person must be respected whenever they express their views about having sexual relationships. You must understand and acknowledge that what you did on this occasion was wrong and has caused great hurt to your wife.
17 Dr Aaron Cunningham, forensic psychologist, provided a report to the court of 21 December 2015, and there is also a report from Ms Jane Lofthouse, clinical neuropsychologist of 27 January 2016. They both confirm that you are significantly intellectually impaired, and that your intellectual impairment contributed to the offending behaviour. It is said that you have a general impairment in thinking and reasoning, judgment, and impulse control, and so for the future, it is important that you get guidance about more appropriate behaviour and responses in enabling you to make better decisions for the future, and reducing the risk of you taking impulsive actions.
18 Dr Cunningham said in his report there are several protective factors that may reduce your risk of further offending and stabilise you within the community and improve your psychological functioning, and they are: the support that you get from your sister Doretta[5], the support that you get from the workers from Karingal, including your support coordinator Bram Chamberlain[6], and also the other gentleman who is involved in helping you with your day-to-day activities, namely Chas Paulson[7].
[5]Doretta is a pseudonym.
[6]Bram Chamberlain is a pseudonym.
[7]Chas Paulson is a pseudonym.
19 You have also expressed a strong desire to have some employment, and efforts are being made to get you a job for the future. You have also expressed your commitment to undertaking treatment to help you to avoid this sort of offending.
20 Having regard to your particular circumstances and your known intellectual disability, I accept that your moral culpability was reduced, and I also accept that you are not an appropriate vehicle for either general or specific deterrence. I further accept that imprisonment would have been very onerous for you than for a person who does not have your disabilities.
21 Mr McLoughlin submitted, having regard to the particular features of your case, that a Community Correction Order with a Justice Plan was the appropriate disposition, and that submission was supported by Mr Lewis, the prosecutor. Mr Lewis said "Whilst this is a serious example of indecent assault, in the circumstances the proposed disposition was within range". Mr Lewis acknowledged the unique combination of factors that operate in this case, and he submitted because of those factors, the court could take a more merciful approach when sentencing.
22
I have now received a full and comprehensive presentence report, and I have also received an assessment about your suitability for a Community Corrections Order, and it is accepted by the authors of those reports, Ms Walsh and
Ms Simms, that you are suitable for a Community Corrections Order with a justice plan to be attached.
23 Having regard to the various recommendations made in those reports, together with all the relevant mitigating factors, such as your full admissions in interview, your guilty plea entered at the earliest practicable opportunity, your expressed remorse, the solid supports you have in community from family and your support workers, I do consider that a Community Correction Order of two years' duration with the attached Justice Plan is the most appropriate disposition and offers you the best opportunity for the future in terms of your rehabilitation and also minimising your risk of reoffending for the future. And that provides the optimum protection for the community in the long term.
24 In sentencing you I must impose just punishment and formally denounce your behaviour on behalf of the community.
.The Formal Court Orders Are:
25 On the one charge of indecent assault, you will be convicted and placed on a two-year Community Correction Order with the attached Justice Plan with the recommendation that you participate in programs or courses addressed at your offending behaviour, in particular that there be consideration of you undergoing assessment and treatment in respect to sex offender treatment available to people with intellectual disabilities, either from the Disability Forensic Assessment and Treatment Service, or from the Problematic Sexual Behaviour Services, or any other service that is deemed suitable by those responsible for implementation of the Justice Plan.
26 Today you have had explained to you the Community Corrections Order. You consent to the order, you understand the effect and the conditions of the order, so that order will now be signed by me, and I will provide that to my associate so that you can sign it now, too.
27 So no ancillary orders are sought on the previous occasion?
28 MR BOURKE: I was just raising that with my instructor, Your Honour, that there is - there is a forensic sample that has already, as I understand it, been taken -
29 HER HONOUR: Has it?
30 MR BOURKE: - - - from Mr - - -
31 HER HONOUR: Yes, that was not raised on the earlier - - -
32 MR BOURKE: And I am instructed to seek an order that that be - be retained. So he has already been - - -
33 HER HONOUR: Yes.
34 MR BOURKE: He has already undergone the procedure.
35 HER HONOUR: All right, that was not sought on the previous occasion, have you got any instructions about that?
36 MR MCLOUGHLIN: I do not, Your Honour, could Your Honour - - -
37 HER HONOUR: Would you like to get some?
38 MR MCLOUGHLIN: - - - just excuse me. There is consent to that, Your Honour.
39 HER HONOUR: All right, so I will make the order for the retention of the forensic sample.
40 MR BOURKE: Thank you, and I will hand up those orders, thank you.
41 HER HONOUR: I make that order having regard to the seriousness of the circumstances of the offending, I consider they warrant the order being made. I note that it is not opposed and the granting of the order is in the public interest. All right, so those orders have been signed and will be provided back to the prosecutor. That completes the matter, gentlemen? Thank you, we will adjourn, thank you.
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