Director of Public Prosecutions v JF
[2016] VCC 235
•9 March 2016
| Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JF (A PSEUDONYM) |
---
| JUDGE: | HIS HONOUR JUDGE MURPHY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 29 February 2016 |
| DATE OF SENTENCE: | 9 March 2016 |
| CASE MAY BE CITED AS: | DPP v JF |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 235 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms L. Dipietrantonio | OPP |
| For the Accused | Ms R. Sleeth (Plea) Mr. T. Meehan (Sentence) | Victoria Legal Aid |
HIS HONOUR:
1JF you have pleaded guilty to one count of indecent assault. The maximum penalty is ten years' imprisonment.
2The circumstances of the offending were set out in the Crown opening which was read in open court and which I incorporate by reference. In brief summary, the offence occurred on the banks of the Yarra River near Yarra Bend Park at Fairfield on 2 January 2014. At the time of the offending you were residing at the Disability Forensic Assessment Treatment Facility Service located in Yarra Bend Road, Fairfield. You were on parole after having served a number of years' imprisonment for a series of armed robberies. It was a condition of your parole that you reside at that facility. At the time of the offending you were on a supervision order and had absconded from the program at the facility. The Parole Board had revoked your parole and issued a warrant for your arrest.
3The complainant in the matter was a 27-year-old female residing in the area and she was unknown to you. At around 6.30 pm that evening she left her address to go for a walk near the Fairfield boathouse and walked along the track that runs along the side of the Yarra River. There were a number of people around. She became aware of you walking behind her and found that this creeped her out. She continued walking and you ran towards her from behind and grabbed her in a headlock, threw her to the ground. You told her to shut up but she screamed for you to get off her and, as she did, you struck her behind the ear causing a small abrasion. You were lying on top of her trying to restrain her and she was screaming and kicking. You put your arms across her mouth to stop her screaming and she bit you several times on the fingers. You pulled at her clothing and then placed your hand down the front of her skirt on top her vagina over her clothing and tried to feel and grope her. You were using your body weight to pin her to the ground and had your hand across her mouth to stop her screaming. She bit your fingers again and continued to struggle and eventually you got off and walked away. She ran through the parkland to the Eastern Freeway and walked to the Chandler Highway where she was assisted and later identified you from a photograph.
4As a result of the offending she suffered bruising to the right ear area and abrasions to lower limbs and bruising. She suffered emotional trauma, was fearful during the assault and said, "I was so scared, I didn't think you'd ever get off me, I fought really hard". DNA swabs taken from her support the proposition that samples on her had come from you.
5At about 8 pm you attended at the Collingwood police station and were arrested. The police asked you where you had received the cut on the finger and you said you had cut it on a rock. When asked about your clothes you stated that you threw them in the river and also told them that you were planning your escape from DFATS for a month. When you were told you were being interviewed about an assault you denied the assault. You were examined by a forensic officer and found to have incision marks on your right index finger consistent with a bite injury.
6In the record of interview you stated you escaped from the facility at about 12.30 pm the previous day and ran through some paddocks and eventually ended up in Smith Street and Brunswick Street, Collingwood, had some drinks, played some pokies, and then attended at the police station. At some stage you said you were walking along the bike track near Clifton Hill and Fairfield. You denied the offending and confirmed again that you had been planning to escape for a month or so.
Victim impact statement.
7The complainant in this matter has filed two victim impact statements. In the first statement, she indicates that her anxiety levels have increased dramatically and she feels uncomfortable in her area where she previously found she was safe. She has intrusive thoughts and she is no longer comfortable wearing certain clothing.
8In a second victim impact statement, she indicates that she still has difficulty sleeping and still has a high level of fear in public places. She remains anxious and uncomfortable in parks and reserves. She is still conscious of clothing choices. In addition, she has chronic back pain and muscle tension and this affects her concentration, physical activity, and enjoyment of life. It has affected her studies and her engagement in the criminal justice system it has disrupted her employment.
9Overall, the significant impact of your offending on the complainant goes to increase the seriousness of the offending. I take into account the impact of your offending on the complainant in sentencing you.
Overall seriousness
10The offence of indecent assault can be committed in a wide range of circumstances. This was a serious example of the offence as it involved a degree of violence as you attempted to subdue the complainant who was resisting your attack. The offence occurred in broad daylight when the complainant was going about her business going for a walk. It must have been a very frightening experience for her as is evidenced from her victim impact statement.
11The most significant aggravating feature here was that the offence occurred while you were under sentence for a number of armed robbery offences and were on unauthorised absence from the facility that you were required to reside in as a condition of your parole.
12There are some similarities between this offence and the offences of armed robbery that you were serving the sentences for at the time, as they all involved an unprovoked assault on the female complainant.
13A further aggravating factor is that you have multiple prior convictions for offences of violence. Also in assessing the seriousness of the offence, I have taken into account the impact on the complainant as a relevant consideration.
14Overall, while you are to be treated as a first offender for this offence, your status as being on parole and your prior offences involving violence against the person and the impact on the complainant, all put together, mean that this offending must be characterised, at least, in the upper range of seriousness for this offence.
Prior convictions
15You are now aged nearly 40 and have admitted prior convictions back to when you were around 18. Over the period 1994 until 2003 you have admitted a number of prior convictions for predominantly dishonesty offences and burglary. Included in these offences, however, was an appearance on 1 May 1998 before this court when on charges of attempted armed robbery and intentionally causing serious injury you were sentenced to a total effective sentence of three years and six months with a non-parole period of 18 months. You were before the Magistrates’ Court on 17 September 2003 on offences including discharging a stone to cause injury or danger, burglary, criminal damage and failing to answer bail. You were required to serve one month of a three-month aggregate sentence. The balance was suspended.
16Your most significant prior appearance was on 31 August 2007 when you were before this court on five counts of armed robbery and one count of recklessly causing serious injury. You were sentenced to a total effective sentence of six years with a non-parole period of four years. The sentencing remarks of Her Honour Judge Rizkalla were before me. You were also dealt with, on 20 August 2008 in the Magistrates' Court at Broadmeadows, for intentionally destroying property and you were sentenced to three months concurrent for that offence.
17The circumstances of the armed robberies, which all occurred over a ten-week period in late 2006 when you were aged 30, all involved opportunistic attacks on teenage female complainants. You were armed with a knife or weapon and each of the offences involved you inflicting violence on the complainants. On two occasions you also touched them sexually although you were not dealt with for that. One of the occasions involved you jumping on top of one of the complainants and pulling at her clothes. Another involved you hitting the complainant around the legs and grabbing her hair. On another occasion in the course of a robbery when you were using a weapon, a broken glass bottle, you proceeded to unbutton the top button. A final count involved you grabbing the victim, approaching her from behind, pushing her to the ground and holding a glass bottle, and when you were doing this you grabbed her right breast. According to Her Honour's sentencing remarks you were under the influence of alcohol at the time and in a spiral of alcohol dependence and your motive was money for drinking.
18As I have already indicated there was a degree of similarity between this offence and the offences for which were serving a sentence at the time of the offending.
Personal circumstances
19Your personal circumstances were outlined on the plea and are set out in a number of reports that I have considered in the course of the plea. In particular, the most salient factor is that you suffer from an intellectual disability and come from a terribly deprived upbringing.
20In the sentencing remarks of Judge Rizkalla, she indicates that, as at August 2007, you had previously had two important relationships with adult women in your life and have a young child who was two or three years old at that time, and you had some contact with that child. It is not clear whether that provides any protective factor in your long-term future. On the plea, it was indicated you have some contact with your son through phone calls to his mother.
21The material before me sets out your background upon which I deal with you and I incorporate the list of exhibits. The chronology in this matter I need to indicate. In order to understand the difficult sentencing task facing the Court, it is appropriate to record the appropriate chronology here.
22As indicated, you were on parole at the time of this offence on 2 January 2014. Your parole had been revoked. Upon your arrest you then went back into custody and continued to serve out the parole sentence imposed by Judge Rizkalla. At that point your parole was due to expire in March 2014. As the parole was cancelled you were to complete the sentence imposed by Judge Rizkalla and did so on 20 October 2015.
23You pleaded guilty to this offence on 14 October 2014 and, at the urging of your counsel, I sought a certificate of available services from the Department of Human Services. It was in response to that request for a certificate that DHS indicated that a relevant facility was not available. Your solicitors contemplated seeking judicial review of that decision but subsequently did not proceed with that course of action. You remained in custody and ultimately completed your sentence imposed by Judge Rizkalla.
24You have remained on remand and you have 140 days of pre-sentence detention for this offence.
25The material before me sets out your personal background. As I said, you are now nearly 40 and have suffered from a very deprived and dysfunctional background that commenced when you were born, with your mother, at that stage, being aged 14 at the time. You have had no contact with your biological father and, while you remained in the care of your mother until 18 months, you were then effectively placed in foster care and since that time you have had only intermittent contact with your biological mother.
26You remained a ward of the State until you were aged 18 and your offending behaviour commenced at age 14. You have served a number of terms of imprisonment and, as I have indicated, your offending has been primarily property offences, although you have had two significant sentences in 1998 and 2007 for offences involving violence.
27The psychological report from Ms Leigh-Smith indicates that you have a complex psychological condition resulting from severe disruption to your psychosocial and psychosexual development during the developmental period, and a cognitive impairment which significantly impacts on your level of functioning. You have a low level of intellectual functioning and your traumatic early life experiences have demonstrated that you have a limited capacity to regulate impulses such as sexual urges and the need for stimulation. Medication has been of some impact.
28You were suffering from anxiety as you approached your parole release date shortly prior to this offending. The writer opines that feelings of frustration or anger can trigger deviant sexual thoughts with the likelihood of you becoming disinhibited and impulsive through alcohol consumption. It was in this context that the offence occurred and in the context of you believing you needed to commit a serious offence to ensure a return to prison. Your counsel was critical of the transition proposed for you and submits that this may have contributed to the offence.
29On the other hand Ms Leigh-Smith is of the opinion that your maladaptive and entrenched style of coping gave the potential for the same outcome. She is of the opinion that imprisonment or the prospect of imprisonment does not function as a specific deterrent for you. She also regards your risk of re-offending as high and has recommended various treatment options. You have difficult barriers to actually participating meaningfully in treatment. You require a structured residential setting to effectively manage the level of risk.
30On the basis of her report, I sought a certificate of available services from the DHS. That agency first certified that you have an intellectual disability under the Disability Act in that you have the concurrent existence of (1) significant sub-average general intellectual functioning and (2) significant deficits in adaptive behaviour, each of which became manifest before the age of 18.
31In a report dated 19 June 2015, DHS indicates you were not suitable for admission to a residential treatment facility. The reports assessing your suitability canvass your difficult background and the difficulties faced by the Department of Human Services and the corrections authorities in dealing with you.
32A particular concern is that, due to your long periods of imprisonment, you are at risk of institutionalisation, if you have not already been institutionalised. It seems this may have been an explanation as to why you committed this offending in order to be returned to an institution where you feel comfortable.
33You have limited pro-social interests or support and, according to the report of Dr Murphy, you are psychologically reliant upon external mechanisms of control to make you feel safe and secure, and to manage your risk of recidivism. In that assessment, based on a number of different tools, Dr Murphy, like Ms Leigh-Smith, assesses you as being at risk of further offending including both to strangers and to females known to you.
34Dr Murphy opines that you require intensive therapeutic services encompassing long-term offence-specific and related interventions as well as appropriate management of your mental health issues. You also require a high level of containment and supervision with gradual reductions in this occurring on the basis of your progress in treatment and ongoing assessments. You need an extensive list of therapeutic programs as well as ongoing psychiatric assessment, psychiatric monitoring and intervention.
35Sentencing you presents a major difficulty given that due to your prior involvement with DFATS, and in particular your absconding from that facility, you are unable to be provided with a place in that facility. Therefore there is no alternative but to a sentence of imprisonment for you.
36Your counsel has indicated that you have been advised by the Parole Board that it is unlikely that you will be granted parole again and a non-parole period is not being sought.
37It was not disputed by the prosecution that, due to your psychological dysfunction and intellectual impairment, under the principles of Verdins there is to be a reduction in your moral culpability. Further, considerations of general deterrence are to be given lesser weight.
38On the other hand I am satisfied from the report of Dr Murphy that there is a significant risk of re-offending in sexual matters and thus specific deterrence and protection of the community are relevant considerations.
39Weighed against those matters are issues of delay, proportionality and totality. Due to the delay in clarifying whether there was a place available for you, you have lost the opportunity to be sentenced while you were undergoing the balance of the sentence imposed by Judge Rizkalla. It may be that a new non-parole period may have been set. On the other hand, because you committed the offence while on parole, there is a presumption of cumulation in relation to offences committed while on parole. It may, therefore, be that you would not have been given any concurrency between your existing sentence which has now expired and the sentence to be imposed for this offence.
40Dealing with you now, considerations of totality are relevant. It is an unfortunate fact that since you were sentenced by Her Honour on 31 August 2007, more than eight and a half years ago, you have been in prison for the entire period save for a period of around 18 months when you were paroled to DFATS, which you subsequently breached. It follows that there is a real risk of institutionalisation and your transition back into the community at the end of any sentence is a major problem.
41Although your counsel did not seek a sentence that had a non-parole period, I do propose to make provision that you be eligible for parole so that the authorities may consider whether an appropriate facility can be obtained in order to smooth your transition back into the community.
42As I have indicated, this was a serious example of the offence of sexual assault, notwithstanding that you do not have a prior conviction for the offence. It has caused a considerable impact on the complainant as is testified in her victim impact statement. As I have indicated, however, due to your intellectually impaired condition, there is to be a reduction in your moral culpability due to your problems with impulse control, and considerations of general deterrence are less salient. Protection of the community, however, is an important, if not the most important, consideration. Due to your prior criminal record and the assessment of Ms Leigh-Smith and Dr Murphy, I regard your prospects of rehabilitation as poor.
43I have taken into account as making prison more onerous that you have no community supports and thus have not been receiving visits except for professional visits since you have been incarcerated. Weighing the competing considerations, and having regard to issues of totality, taking into account the period of delay and your plea of guilty, on the count of indecent assault I sentence you to 18 months' imprisonment and I set a non-parole period of 12 months.
44I declare 140 days of pre-sentence detention excluding today. I further declare that had you not pleaded guilty, I would have imposed a total effective sentence of two and a half years with a non-parole period of 21 months. I make the disposal order that is being sought by the authorities.
Application under the Sex Offenders Registration Act
45Consequent on your conviction for the count of indecent assault, the prosecution seeks your registration under that Act. Under s.11(3), a court may make an order,
"If after taking into account any matter that it considers appropriate, it is satisfied, beyond reasonable doubt, that the person poses a risk to the sexual safety of one or more persons or of the community".
46The prosecution relied on the opinion of Dr Murphy that you are at high risk of further sexual offending and that on that basis the Court could be satisfied beyond reasonable doubt that the jurisdictional fact set out in s.11(3) is made out. Your counsel disputed that the Court could be so satisfied. In particular, counsel submitted that part of the basis upon which Dr Murphy opined that you are at risk of further offending was voluntary disclosures made by you in a therapeutic environment.
47Further, it is the fact that this is the first conviction you have for a sexual offence. Although there were arguably some sexual element to one or two of the armed robberies, in that you did touch the breasts of the complainants in those matters, you were not sentenced for that conduct. She submitted that any disclosures that you have made in the course of the therapeutic environment must be scrutinised carefully given that you are institutionalised and that your self-identification is that you are institutionalised.
48The prosecution on the other hand submitted that on the basis of the opinion of Dr Murphy and Ms Leigh-Smith, the Court could be satisfied that you are at risk of committing further sexual offences and therefore the basis on which an order could be made is made out beyond reasonable doubt.
49It was not in dispute that in the event that I find the basis made out there remains a discretion for the court as to whether an order should be made: Bowden v the Queen [2013] VSCA 382.
50I am satisfied beyond reasonable doubt that you do pose a risk to the sexual safety of one or more persons in the community. I do this on the basis of the report from Ms Leigh-Smith, who says that imprisonment or the prospect of imprisonment does not function as a specific deterrent to you.
51The reports indicate you have undertaken specific therapy for sex offenders in the past. This was before you committed this relevant offence. You have been assessed in 2012 as having a high risk for sexual recidivism. Those assessments were undertaken before you committed this offence. You have not shown any remorse for your action and little victim empathy. The more recent assessment of Dr Murphy based on a number of different measures is that you pose a high risk of engaging in sexual violence when in the community, and that the offending could be both non-contact and contact sexual offences.
52The report of the forensic services manager, Ms Dennis, opines that due to your difficulties complying with supervision and treatment arrangements there is a risk of recidivism. All these matters and in particular the report of Dr Murphy lead to a conclusion beyond reasonable doubt that you do present a risk. In reaching this conclusion I note that your counsel has not sought to lead any competing evidence to contest the conclusions of Dr Murphy.
53I have considered your counsel's submissions that I should be cautious in relying on disclosures by you in a therapeutic environment. I do not accept the submission as the disclosures are consistent with your actions, where I am satisfied there was a sexual element to your prior offending which gives rise to my overall conclusion, beyond reasonable doubt, that you are a risk of further sexual re-offending.
54The next issue is whether as a matter of discretion I should make an order that you go onto the Sexual Offenders Register. In exercising this discretion, it is to be exercised within the boundaries of the Act. The purpose of the Act is to require offenders who commit sexual offences to keep the police informed as to their whereabouts so as to reduce the likelihood they will re-offend and also to facilitate the investigation and prosecution of future offences that they may commit. A second reason for the sex offender registration scheme is to prevent sex offenders working in child-related employment. As you have little work experience, the issue of child-related employment is of little relevance here.
55Given my conclusion that, based on the opinion of Dr Murphy, you face a high risk of re-offending by way of a sexual offence, then the purposes of the Act would be advanced by a requirement imposed on you that under the Act that you advise the police of your address and changes of addresses, which is part of obligations imposed on you under the Act.
56I have considered whether due to your difficult intellectual status a requirement that you fall under the registration scheme would be too onerous for you. Having considered the matter and noted that you have been engaged with the DHS for many years and you have a limited ability to live independently in any event, I am of the opinion that a requirement that you comply with the Act would not be too onerous such as to exercise my discretion against registration. In weighing up the competing considerations, I have had regard to the high risk you are seen as posing by Dr Murphy and the fact that in the past you have undertaken relevant therapy to minimise the risk of sexual offending, yet notwithstanding that therapy, you committed the relevant offence.
57For all those reasons, I propose to impose a requirement on you that you be registered under the Act.
58The registration period is eight years. So for the next eight years you are under the sex offenders registration scheme and you will be required to sign a document acknowledging that you have received the form relevant to the scheme, - and you will be handed that document before you leave court - and I would ask your solicitor to explain the obligations under the scheme to you. So are there any other matters, Madam Prosecutor?
59MS DIPIENTRANTONIO: No.
60HIS HONOUR: Yes, I thank you, Ms Dipientrantonio, and the solicitor, and Ms Sleeth, and I will stand down temporarily.
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