Director of Public Prosecutions v McCarthy (a pseudonym)
[2021] VCC 2028
•6 December 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL MCCARTHY (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE GAYNOR |
WHERE HELD: | Melbourne |
DATE OF HEARING: | |
DATE OF SENTENCE: | 6 December 2021 |
CASE MAY BE CITED AS: | DPP v McCarthy (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2021] VCC 2028 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Brown | |
For the Accused | Ms E. Millar |
1HER HONOUR: Thank you. Good morning, everyone. Hello Mr McCarthy[1], how are you travelling?
[1] A pseudonym.
2OFFENDER: Fine, thank you.
3HER HONOUR: Good. Morning Mr Brown, morning Ms Millar.
4MS MILLAR: Good morning, Your Honour.
5HER HONOUR: I know I'm jumping in and not letting anyone even announce their appearances actually, but I've read the materials. The situation seems to be Ms Millar that Mr McCarthy can be placed in appropriate housing straight away, is that right?
6MS MILLAR: Your Honour, someone from BADAC in Ballarat can come and pick him up from Hopkins today.
7HER HONOUR: Yes.
8MS MILLAR: An elder, by the name of Uncle Rob. Apparently, he works with Hopkins in mentoring.
9HER HONOUR: Great. Yes.
10MS MILLAR: He will take Mr McCarthy back to Ballarat and they will give him a night's emergency accommodation initially.
11HER HONOUR: Yes.
12MS MILLAR: And then they'll take him to Uniting Care tomorrow and they can provide two week's accommodation in a motel.
13HER HONOUR: Yes.
14MS MILLAR: And in that period they will then assist him with more long term housing options ‑ ‑ ‑
15HER HONOUR: Okay.
16MS MILLAR: - - -in conjunction with NDIS.
17HER HONOUR: Look, it seems to me that in the circumstances, and that's to my satisfaction, thank you for all the extra work that you've done there, Ms Millar, I appreciate it. Mr Brown in the circumstances of this case, given that Mr McCarthy has created the entire case against him essentially, he has now - there's delay and the delay is relevant. Not so much because of any sort of form of rehabilitation but because of, in the sort of decade, 11 years since, the development of a serious mental illness. So, I am sensing a person quite different to the person he was at the time.
18And it seems to me that it would be most appropriate if simply deal with him by way of time served. Have you anything to say about that? You're on mute, Mr Brown.
19MR BROWN: Yes, Your Honour. I think we conceded that last time.
20HER HONOUR: Did you?
21MR BROWN: Yes, and now that ‑ ‑ ‑
22HER HONOUR: I'm getting something, Alzheimer's, anyway.
23MR BROWN: Well, I only know that, Your Honour because I read the submissions this morning.
24HER HONOUR: Okay. Yes.
25MR BROWN: I can't remember.
26HER HONOUR: It would seem to be the most appropriate thing. I mean what's been useful is he's been kept stable for a couple of years. Ms Millar, he is getting - is it Depo injections?
27MS MILLAR: Your Honour, I don't think it is a Depo, cause I understand he's going to be released with a week's worth of medication.
28HER HONOUR: Okay. So, look it's up to Mr McCarthy, but I'm sure Uncle Rob will understand this. I know I'm jumping around. Mr McCarthy?
29OFFENDER: Yes, Your Honour.
30HER HONOUR: You realise how important it is to keep your medication going?
31OFFENDER: Yes, Your Honour.
32HER HONOUR: It's just really horrible for you when, you know, when the voice completely takes over, isn't it?
33OFFENDER: Yes. Yes, it is.
34HER HONOUR: What I'm going to do is, I'll go back to counsel, but I think I indicated last time, I'm going to sentence you today and I'm just going to sentence you to time served.
35OFFENDER: Yep. Thank you.
36HER HONOUR: And then Uncle Rob will come and get you and you won't be on any orders with the court, but you've got to look after your mental health really carefully, okay.
37OFFENDER: Yes, Your Honour. Thank you.
38HER HONOUR: Good luck to you. Just thinking, Mr Brown and Ms Millar, the mercy of NDIS.
39MR BROWN: Yes.
40HER HONOUR: In terms of, you know, the number of cases I think I've had where the capacity to be more flexible with a person is just completely opened up because of the NDIS. Have either counsel got anything to say before I proceed to sentence?
41MS MILLAR: No, Your Honour. Perhaps though if I just formally tender that NDIS plan.
42HER HONOUR: Yes.
43MS MILLAR: And the psychiatric report of Dr Darjee.
44HER HONOUR: Yes, they will be Exhibits A and B the psychiatric plan and the psychiatric report which I must say was extremely helpful.
45#EXHIBIT A - The psychiatric plan.
46#EXHIBIT B - The psychiatric report of Dr Darjee.
47HER HONOUR: What's the obligations under the Sex Offences Register.
48MR BROWN: Fifteen years, Your Honour.
49HER HONOUR: I don't have any choice?
50MR BROWN: No. He's over 20, it's mandatory.
51HER HONOUR: Okay. He's not
52MR BROWN: I think even if you haven't made the order, it still operates.
53HER HONOUR: Pardon?
54MR BROWN: I think even if you don't make an order, it's by operation of law.
55HER HONOUR: Yes, I understand. Well, I'm going to make a comment about that cause this is a classic case of overuse which we see so many times in this court. People placed on the Sex Offences Register who don't need to be and, you know, it's a drain on police and really needs to be revisited, I think.
56Every criminal practitioner and every judge or magistrate would agree with that. Anyway, this is another classic example where he's found to be clearly not paedophilic and low risk of re-offending and here we are, 15 years.
57Thank you very much. I'll begin sentence now.
58Daniel McCarthy[2], you have pleaded guilty before me to two charges of committing an indecent act with a child under 16.
[2] A pseudonym.
59The facts underlying your offending are as follows. The victim in this matter was six years old at the time and he was living with his parents in country Victoria. You, at the time of this offending in 2010, had a relationship with the victim's aunt and you came to stay with the victim's family on three separate weekends and the offending occurred on one of those weekends.
60On each occasion when you stayed with the victim's family, you slept in the same room as him. One weekend, the victim, Freddy Walsh[3], was outside on the back of a truck and you and Freddy Walsh’s father were also outside. Freddy Walsh’s father had been drinking and he went inside to get more alcohol, at which time you picked Freddy Walsh up by the ankles so that he was upside down facing you. You pulled your pants down partially exposing your testicles and touched them on Freddy Walsh’s face. Freddy Walsh’s father then came outside and Freddy Walsh ran inside.
[3] A pseudonym.
61These actions underly charge 1, indecent act with a child under 16.
62The next night Freddy Walsh was asleep under a Wiggles blanket. When you came into the room, Freddy Walsh woke up and you put on a pornographic movie which you showed him, which depicted an adult male playing with the testicles of another male. These actions underly charge 2 on the indictment, indecent act with a child under 16.
63After the incident, Freddy Walsh told his father that you, 'had just tried to touch him.'
64Police began investigating the matter in May 2015, contacting you in October of that year and arranging for you to attend a police station in Queensland to participate in a record of interview. In that interview you denied the allegations. No further action was taken.
65Then on 3 January 2020, you voluntarily attended a Police Station in Queensland, saying you wanted to discuss an offence and told police there that you had previously been interviewed about the allegations by Freddy Walsh and that you had denied those allegations because you were ashamed.
66The prosecution, however, did not rely on that record of interview as you were not considered to be in a fit mental state at the time of the interview. However, following it, you were charged with these offences and the matter, ultimately, proceeded to a committal mention hearing at the Bendigo Magistrates' Court, where you were committed, pleading not guilty. But then the matter was resolved into a plea by August of 2021 and proceeded that way.
67The maximum penalty for indecent act with a child under 16 years is 10 years' imprisonment.
68You have been in custody since January 3, 2020. Pre-sentence detention therefore is now reckoned as 703 days. I now turn to your personal circumstances.
69You are now 36 years of age. You have had a difficult background. You are a First Nations man. Your parents divorced when you were very young and your father is now dead and your mother and one of your brother's have suffered from severe mental illness, indeed, as will become clear so do you.
70You told a psychiatrist, Dr Rajan Darjee, whose report dated 29 November 2021, was tendered on the plea, that you were emotionally, physically and sexually abused by your father and during your childhood you also suffered neglect and struggled to fit in with others. Understandably, in that background, you had behavioural problems. You struggled academically and you started taking drugs at 14 and immediately began getting into trouble with police.
71You were in the care of your father for one period of time, then you were taken into care, until your mother could be tracked down in Queensland. She, however, had severe mental health difficulties and you were unable to live with her in any sort of stable way.
72Ultimately, you left school and after leaving school, stayed in various hostels and basically shifted for yourself from then on. You had no contact with your family for some years as they simply have not been there for you, and you have not been able to establish a relationship with them.
73The drug use you described to Dr Darjee, as I said, began when you were 14 and you subsequently used cannabis, amphetamine, methamphetamine or ice and ecstasy. You stopped taking drugs about a year ago because, ultimately, you have developed a serious mental illness which really started to come to the fore in about 2015 and has been serious since 2017.
74You suffer from very difficult auditory hallucinations where you believe you are being tracked by the government, when your illness is particularly acute. You believe there is a report from an admission in a psychiatric ward in 2017 (this is according to the Queensland mental health records) where you said that you had negative voices, that your mind had been manipulated to think that everyone was against you, out to get you. You believe the government was out to get you, that your brain was being manipulated by the government, that you were followed everywhere by people who you did not know, that you did not even have peace in the shower. You felt safe in hospital but said that there was an electromagnetic field which had been put on you by the government which messed with your head and so forth.
75In other words, when you are really unwell, Mr McCarthy, you display auditory hallucinations which could also be described as classic symptoms of schizophrenic auditory hallucinations. That is, you become paranoid, you believe you are being stalked by the government, you believe you are constantly unsafe.
76You told Dr Darjee, as I have said, that you started hearing voices in about 2014 or 2015 but this got serious in 2017 by which stage you were hospitalised and the reports that I have just referred to come from the Queensland mental health records.
77The current charges are related to a time when you were staying at your ex-partner's house when you were living in Victoria and the victim, Freddy Walsh, was your partner's nephew essentially.
78You have been in remand though since January 2020 and you told Dr Darjee that prison made you feel safer, that you saw mental health clinicians there and that you were prescribed both anti-psychotic and anti-depressant medication which would make you feel much more comfortable medically and psychologically.
79Your time in gaol has also meant that you have been able to detox from drug use and it would appear that you have a good understanding of the link between your drug use and your schizophrenia and the distressing voices that you hear.
80Basically, Dr Darjee, diagnosed you as suffering from schizophrenia, at least since 2015 and since the start of your mental illness, you have not been free of symptoms. Anti-psychotic medication apparently makes you feel less affected, and you feel safer, less influenced and less persecuted and you also feel safer in environments such as psychiatric hospitals and in prison, which is understandable because if you think the government is out to get you, you are going to feel as if you are better protected in gaol and in a psychiatric ward.
81Dr Darjee said the drug use appears to have made your symptoms worse. What is important for you to remember, Mr McCarthy, is that drug use and particularly ice use, can lead to schizophrenic onsets but it sounds as if you have a genetic tendency in that you have a mother and a brother who are unwell in any case. So, it is a little hard to know whether the drugs have caused the psychiatric illness you suffer from or whether they have simply sparked it off because you had a tendency to do it.
82In any event, you also described to Dr Darjee, a long-standing history of impulsivity and inattention which meant that you received a diagnosis of ADHD when you were young. And one of the problems for you is that someone with that condition also finds ice soothing and calming, whereas for other people it tends to make them feel the opposite.
83In any event what is very important insofar as this sentencing exercise is concerned is that Dr Darjee also administered tests to determine whether you are a sexual risk to children and concluded that you are not. He stated, 'Despite the nature of his offences, there is no evidence that he has paedophilic disorder.' Dr Darjee also said, 'Many people who commit acts of sexual abuse against children do not have a strong or preferential sexual interest in children. It seems likely that he has a primary sexual interest in adult females.'
84I should also note that you have always had relationships with age-appropriate women, and you are also the father of three children, whom unfortunately, you do not see.
85Dr Darjee said the testing showed that there was no evidence of any particularly concerning risk factors such as 'sexual deviance, chronic sexual offender psychopathy or attitudes that condone sexual violence.' He said that your offending against Freddy Walsh appeared to have been a 'one-off incident in the context of being significantly intoxicated, not using any physical coercion but betraying a position of trust. There is no evidence he has committed any further sexual offences since then and his ability to function in society appears to have deteriorated once he developed schizophrenia, but without him committing any sexual offences. So, overall, he is assessed as posing a low risk of further sexual offending, a low risk of causing serious sexual harm. He requires minimal intervention to prevent further sexual offending as he does not require a sexual offending treatment program and if he were in the community there would not be an imminent risk of sexual offending.'
86Dr Darjee said that as a result your prospects for rehabilitation were good.
87The nature of the offending means that according to the legislation, I must place you on the Sex Offences Register. The offending being class 2 offending under the Sex Offenders Registration Act, and I must place you on the Sex Offenders Register for a period of 15 years.
88May I make the comment here, that this is a classic case which demonstrates, in my view, one of the great flaws in the Sex Offenders Registration Act. That is, that a person who commits a particular offence must therefore be placed on the Sex Offences Registrar with all the supervision and obligations that entails. In your case for 15 years. This despite the fact that you have been found psychiatrically not to present a risk to children in a sexual manner in the future.
89Nevertheless, you have to be now overseen for a period of 15 years. One understands, of course, that the Sex Offences Register is a valuable tool in overseeing persons who prey upon children sexually and has been put in place to ensure the safety of children generally. However, the mandatory nature of the provisions relating to this Act result in many persons, such as yourself, being placed on this register who do not need to be. It is an enormous waste of time and resources and as I have said, it carries obligations which could be particularly difficult for someone like yourself who suffers from a serious psychiatric illness, that is schizophrenia.
90I understand that this legislation has been revisited by government. One would have thought that the obvious difficulties of the mandatory nature of these provisions would have been evident by now and the waste of resources evident, but no action has been taken.
91In any event, I have made my comment in relation to this. It is a view that I hold as to this legislation and as do many other judges of this court and it is to be hoped that one day common sense will prevail in what is otherwise a praiseworthy attempt to ensure the safety of children in the community.
92In any event, you have a prior criminal history of some length, but it does not involve any prior or subsequent sexual offending. It relates, essentially, to drug use and given your circumstances, it is to your credit that, in fact, the offending that is covered by that history, which is confined, essentially as far as I can see, to 2005 and 2006, that it is not more extensive.
93In all of the circumstances, it is clear that the following powerful mitigatory factors exist in this case. Firstly, this charge has essentially been able to be pursued by the Office of Public Prosecutions because of your confession to police in 2020, notwithstanding that it was not relied upon by the prosecution in proof of the charge. At the end of the day, however, as a result of what you told police, you have been charged, you have pleaded guilty. I am satisfied you are remorseful for your offending.
94Secondly, I am satisfied that you are not a person with a sexual interest in children. You are not paedophilic, and you do not, according to the evidence, present as a danger to children in the community.
95Third, you suffer from a serious psychiatric illness which was not present at the time of this offending, which now more than 10 years old in any event and in my view Verdins v The Queen [2007] VSCA 102, has application to your case, in that you would find gaol more difficult than the normal prisoner.
96Fourth, I am satisfied that plans have been made such that you can be safely released into the community. Fortunately, the NDIS has become involved. Your counsel has tendered an NDIS plan which indicates that around $60,000 has been applied to your case so that the sorts of supports that you require in the community can in fact be achieved and long running problems such as accommodation and psychiatric support will be able to be delivered to you under the current plan.
97I am satisfied, as I have said, that you do not present a danger to the community, either to children in terms of any untoward sexual proclivity but also because you do not have a particularly serious prior criminal history.
98The main problem for you is the management of your psychiatric illness and your accommodation. Arrangements have been made so that you can be placed in accommodation in Ballarat where you will be collected by a representative from BADAC. You can then be placed in motel accommodation for two weeks and thereafter, I am satisfied that you will be properly taken care of pursuant to the provisions of the NDIS plan.
99In my view the mitigatory factors I have outlined mean that I need only deal with you by way of the imposition of a term of imprisonment which amounts to the time that you have already spent in gaol.
100In relation to the charges, I am going to sentence you on an aggregate basis. You are sentenced to 703 days imprisonment, which time has already been served by way of pre-sentence detention.
101Pursuant to s6AAA I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of three years and order that you serve a minimum term of two years.
102You are placed on the Sex Offenders Register for a period of 15 years.
103Is that everything I need to deal with?
104MR BROWN: Yes, Your Honour.
105MS MILLAR: Yes, Your Honour.
106HER HONOUR: Thank you very much. I think that's everything. Good luck, Mr McCarthy. I hope everything goes well for you in your future.
107OFFENDER: Thank you, Your Honour.
108HER HONOUR: Thank you very much, Ms Millar and Mr Brown for your assistance in this case. It was very helpful and particularly, you and Mr McLennan from the Legal Aid Office have gone above and beyond with Mr McCarthy and meant that he was a much more simple sentencing proposition than would otherwise have been the case. So, I thank you.
109MS MILLAR: Thank you, Your Honour. Thank you.
110HER HONOUR: I wish everyone a happy Christmas, I know it's a bit early in the piece but it is only three weeks away. Thank you very much.
111MR BROWN: If Your Honour pleases.
112HER HONOUR: Thank you. Yes, that's it.
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