Director of Public Prosecutions v McDonnell (a pseudonym)
[2018] VCC 1782
•31 October 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LILY MCDONNELL (a pseudonym) |
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JUDGE: | HIS HONOUR JUDGE TAFT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 August 2018, 7 September 2018 and 30 October 2018 | |
DATE OF SENTENCE: | 31 October 2018 | |
CASE MAY BE CITED AS: | DPP v McDonnell (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1782 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: Digital penetration of a child under 16 – victim 15 year old girl - stalking – persistent contravention of Family Violence Intervention Order (FVIO) - multiple breaches FVIO and Personal Safety Intervention Order – in-utero heroin exposure – fostered and then adopted – sexually abused by adoptive step-father - intellectual disability – Verdins considerations
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr G Slim | Solicitor for the Director of Public Prosecutions |
| For the Accused | Ms J Garner | Victoria Legal Aid |
HIS HONOUR:
1 Lily McDonnell,[1] you are 23 and have pleaded guilty to charges contained on three indictments.
[1] Lily McDonnell is a pseudonym.
2 In respect of the first indictment you have pleaded guilty to the sexual penetration of a girl under 16 and to an uplifted related summary charge of contravening a personal safety intervention order (PSIO). You have also pleaded guilty to five unrelated summary offences of breaching a PSIO.
3 In respect of the second indictment you have pleaded guilty to a charge of stalking and to uplifted summary charges of contravening a PSIO, to committing an indictable offence on bail and to contravening a conduct condition of bail.
4 In respect of a third indictment you have pleaded guilty to persistent contravention of a family violence intervention order (FVIO) and to stalking. Further you have pleaded guilty to two uplifted summary charges of supplying liquor to an underage child and to contravening a conduct condition of bail.
5 You have also admitted a criminal record involving appearances at the Ringwood Magistrates’ Court on 14 October 2016 and on 7 July 2017. On the first of those dates, you were placed on an adjourned undertaking with a condition that you comply with a justice plan for persistent contravention of a family violence intervention order. On the second date, the charge of persistent contravention of the intervention order and a further charge of stalking were adjourned without conviction with a requirement that you participate in a justice plan dated 3 July 2017. Your offending before this court breaches those orders.
6 Your entry of a plea of guilty to the charge of sexual penetration followed a finding by a jury that you were fit to stand trial. In the course of the fitness hearing, the jury heard evidence from two experts who proffered different opinions as to your fitness. Dr Linda Borg, clinical neuropsychologist, assessed your intellectual functioning as falling within the impaired range with a full scale IQ of 55 and literacy skills equivalent to grade 4.2 level. She expressed the opinion that you would not be able to follow the course of a trial or to understand the substantial effect of any evidence given in support of the prosecution and to provide adequate instructions to your legal practitioner.
7 In contrast, Dr Aleksandra Belofastov, clinical and forensic psychologist at Forensicare expressed the opinion that despite your deficits you possessed a basic understanding of the functions of a trial and with appropriate supports and explanations, you could follow the course of a trial and provide basic instructions to your lawyer.
First indictment
8 On 8 September 2017 you were placed on a PSIO in respect of a 15‑year-old girl who was living in a Department of Health and Human Services (DHHS) foster-care residence. You were living in a nearby residence managed by DHHS for cognitively-impaired women. At the time you were 22 years old. The PSIO was put in place because of concerns that you had an excessive interest in the 15‑year-old girl, “B”, with whom you had developed a friendship.
9 In breach of that order you arranged to meet B, and on 4 October 2017 you met up, purchased alcohol, and went to a park in Chadstone. In a concealed area of the park the two of you kissed, and you penetrated B’s vagina with your fingers. That conduct, which reflected mutual sexual interest in each other, founds the charge of digital penetration and the uplifted charge of breaching the PSIO.
10 On 10 October 2017 you volunteered to police that you had met up with B, and also volunteered that you had digitally penetrated her. Those admissions were repeated in a recorded police interview, and you were charged.
11 The five uplifted unrelated summary offences arise from your multiple breaches of the PSIO in September and October 2017.
12 The first charge arises from your breach of a condition of the order that you not be within 5 metres of B. You contravened that requirement on 24 September 2017. Secondly, on 8 October, you contravened the order by being within 200 metres of B’s residence. Thirdly, on 11 October 2017 you again contravened the condition that you not be within 5 metres of B. Fourthly, on 31 October 2017 you breached the order by being in the company of B. Fifthly, between 11 October and 16 October you sent 459 text messages and 53 voice messages to B in breach of the order.
Second Indictment
13 On 10 January 2018 a final PSIO was issued at the Ringwood Magistrates’ Court. The PSIO prevented you from contacting or stalking B.
14 On 22 June 2018, MacKillop Family Services, who managed the foster-care residence in which B lived, purchased a phone for her.
15 Between 24 June 2018 and 3 July 2018 you contacted and attempted to contact B on numerous occasions via telephone calls and text messages. Between those dates you called B 29 times, and on 13 occasions your calls were answered by B. You also sent 205 text messages to B between 24 June 2018 and 3 July 2018. That conduct founds the charge of stalking on the second indictment.
16 The three uplifted summary offences arise from breaching a final PSIO by texting B 15 times on 24 June 2018, by stalking B whilst on bail and by contacting B when subject to a bail condition that you not contact any witness for the prosecution.
17 You entered a plea of guilty to the stalking charge at the earliest opportunity, being the first listing of the committal mention in the Melbourne Magistrates’ Court.
Third Indictment
18 The third indictment contains two discrete charges.
19 The first charge concerns your persistent contravention of a FVIO protecting “M”. A final FVIO was made at Ringwood Magistrates' Court on 20 February 2017 in order to prevent you from harassing and stalking M, with whom you had had a relationship which ended around June 2016.
20 In contravention of the FVIO, on five occasions between 23 August 2017 and 25 November 2017 you sent messages to M using Whatsapp, Facebook or Messenger. On one of those occasions you sent the message via a friend of M’s. The message to M’s friend on 20 November said in part, ‘I know u hate my guts but I'm very sorry for all your friends who I took away from u”.
21 On 29 November 2017 M, who was 29 years old, reported the matter to police. When interviewed on 27 December 2017 you made full admissions to the offending.
22 The second charge concerns your stalking B between 15 January 2018 and 23 February 2018 and after you had been charged with digital penetration of her.
23 On 15 January 2018, and in contravention of the PSIO made on 10 January 2018, you called B on a blocked number and asked whether she wanted some alcoholic drinks. You said it would be better to meet up at night in order to avoid detection. The two of you agreed to meet at a train station. B met you with a 15 year old friend and you purchased alcoholic drinks for B and her friend.
24 On 29 January 2018 and 18 February 2018 you sent a number of text messages to B. For her part B repeatedly told you to leave her alone. The flavour of the interaction is represented by a message thread of 29 January 2018. It reads:
Accused’s Messages Victim’s Messages [B] there’s storms around I need u
Theres lighting
[B]
Please I want contact please… there’s lighting around
We both know that we hate thunderstorms
Please ok
Fine
It looks like u love storms
Goodbye. Sorry I thought u wanted me.
Leave me alone ok plz fuck off
Fuck off now plz leave me alone ok
25 Upon a reading of your communications with B, one can observe that they have a somewhat childlike quality, albeit persistent and manipulative. They are to be contrasted to messages which convey threats of death or violence.
26 On 23 February 2018 you were arrested after B had attended the Glen Waverley Police Station with her worker and reported the text messages you sent on 29 January 2018 and 18 February 2018. You participated in a record of interview in the presence of an Independent Third Person and made full admissions. You were remanded in custody before being bailed on 2 March 2018.
27 The first uplifted related summary charge concerns your supply of liquor to an underage child on 15 January 2018. The second concerns you contravening a conduct condition of your bail when you failed to return to your residential care facility by the curfew time of 8pm on 23 February 2018.
28 After further offending represented on the second indictment you were remanded in custody on 13 July 2018 and have been held there since. An application for bail on 18 July 2018 was unsuccessful.
29 B has been advised of her right to complete a victim impact statement, and has indicated that she does not wish to provide a statement. M has also declined to make a statement.
Personal Circumstances
30 I turn to your personal circumstances, which are detailed in a neuropsychological report authored by Dr Linda Borg and dated 27 February 2018, and canvassed in a recent report authored by Elise Baird, Disability Justice Coordinator at Disability Client Services East Division of the DHHS.
31 You were born at the Chemical Dependency Unit of Sunshine Hospital, where you remained for two months. Your biological mother was a heroin addict. You were then placed in foster care before being adopted at the age of two. You experienced significant developmental delays, and were not able to walk, speak, or complete tasks requiring the use of fine motor skills.
32 You attended a special developmental school in the eastern suburbs of Melbourne, and were part of an Early Intervention Program from 1998 to 2000. In 2001 you commenced your primary schooling with a part time integration aide. In 2003 you transferred to a special school, where it was reported that you displayed disruptive behaviours, demonstrated poor social skills and had difficulty concentrating. You completed your schooling at a school in Donvale and were supported to transition to employment in 2015 but had difficulties maintaining employment.
33 In 2010 you disclosed that your adoptive father had sexually abused you repeatedly over many years. He was subsequently charged with multiple criminal offences and sentenced to a term of imprisonment. Your adoptive parents divorced following your disclosure, and you remained living with your mother until June 2015. However, that arrangement broke down due to your behaviour and conflict with your mother. You then resided at an adult respite service before being placed in a supervised accommodation facility in April 2017.
34 Your adoptive mother initiated contact with Disability Services at DHHS in 2001. An assessment of eligibility was completed at that time confirming that you were eligible to receive services. Supports provided at that time included behaviour intervention, counselling, respite support, vocational and recreational services. In June 2015, case management support was provided due to the breakdown of your living arrangements and the need for alternative accommodation.
35 In October 2018, you commenced support from the Disability Forensic and Treatment Service (DFATS). This treatment includes individual support from a psycho-educational trainer and you have participated in three sessions whilst on remand at Dame Phyllis Frost Centre. It is anticipated this treatment will continue in the community following your release.
36 At previously noted, Dr Borg assessed your full scale IQ at 55. She considered that your cognitive and behavioural difficulties are reflective of a neuro-developmental disorder secondary to in-utero heroin exposure. As a consequence of this exposure, your performance reflects a mild intellectual disability in accordance with the DSM-5 criteria. Your reasoning capacity is impaired in both verbal and non-verbal domains and your attention span and cognitive processing speed are significantly slowed.
37 In addition to intellectual disability, Ms Baird notes that you have been diagnosed with depression, anxiety, Attention Deficit Hyperactivity Disorder, obsessive-compulsive disorder and Post-Traumatic Stress Disorder. It is reported that in October 2017, Mr Nathan Olson, clinical consultant, stated that a combination of intellectual disability, mental health needs and complex developmental trauma have left you neuro-biologically ill-equipped to function adaptively.
38 You are able to function reasonably independently within the community but require additional support in a number of areas and you are assisted by State Trustees in managing your disability support pension, on which you are dependent. You do not currently receive support from a psychiatrist, however, your care team believe that a psychiatric review would be beneficial to ensure that your mental health needs are met.
39 Prior to being placed on remand, you were supported by staff to attend weekly counselling sessions at Drummond Street Clinic. Your attendance at those appointments was reported to be consistent and you have been supported by staff to maintain contact with your mother and stepbrother. Whilst at Dame Phyllis Frost, you have maintained phone contact with your mother.
40 Prior to more recent remand you attended at a DHHS group home in Melbourne. This accommodation arrangement is no longer suitable for you and the Department undertook a feasibility study to find suitable safe and secure housing for you. It is proposed that you will be accommodated in a five bedroom group home, where you will be supported by 1:1 levels of staffing from 8.00am to 8.00pm. You will be assisted by dedicated staff, many of whom already know you. Although the group home is occupied by four men who have significant levels of disability, the Court was told that you will be offered ample opportunities to interact with people of your own age. Initially you will be unable to access social media and be restricted to using a landline. When in the community you will always be accompanied by a support worker. You will be subject to a curfew between 8.00pm and 8.00am.
41 You have been subject to a Supervised Treatment Order (STO) made on 21 March 2018 at VCAT pursuant to the Disability Act 2006. On 26 October 2018 VCAT made a further STO of six months duration which will come into effect upon your release from custody. An updated treatment plan is required by 9 November 2018.
42 The restrictions imposed on you by the STO are made necessary by your inability to regulate your behaviour and to adhere to less restrictive conditions.
43 You have now been held in custody on remand on two occasions. The first was between 23 February and 2 March 2018 and you were again remanded on 13 July 2018. As a result, you have been in custody for a total of about 4 months and I take that factor into account when sentencing you today.
44 Your significant level of intellectual disability enlivens Verdins considerations and reduces your moral culpability and the application of both specific and general deterrence. It also makes your time in custody more burdensome than for a person without your disability.
45 This Court adjourned your plea on 7 September 2018 in order that you could be assessed for a Justice Plan and a Community Correction Order.
46 A statement of intellectual disability has been received which confirms that you have an intellectual disability within the meaning of the Disability Act and a Justice Plan recommends that you engage with a disability justice coordinator and agree to any supports and treatment that are identified by the disability justice coordinator.
47 In a separate assessment for a Community Correction Order it is recommended that you be placed on an order with conditions including assessment and treatment for your mental health, and to undertake programs to reduce your prospect of reoffending. It is also recommended that you be subject to supervision.
48 In respect of all charges before this Court, you are convicted and placed on a Community Correction Order for 18 months. You will be required to be assessed and treated in respect of your mental health, to undertake programs to reduce reoffending, to be subject to supervision for the duration of the order and to be placed on a Justice Plan as recommended by Elise Baird.
49 I have included a condition that you engage in programs to reduce your risk of reoffending. While a Specialised Offender Assessment and Treatment Service (SOATS) program is recommended, consideration should be given to whether it may be more appropriate to have you assessed for participation in an individualised program undertaken by the DFATS or Forensicare rather than group programs.
50 I make a forfeiture order in the terms sought and I make an order for the taking of a forensic sample by way of a buccal swab. I must inform you that the police may use reasonable force to carry out that procedure.
51 Does anything arise from those remarks?
52 MR SLIM: Nothing from my perspective, Your Honour.
53 HIS HONOUR: Anything arise from those remarks, Ms Garner?
54 MR SLIM: There is, there is one thing, sorry, Your Honour. The Sex Offender Registration Order does apply for the sexual penetration of a child indictment, so the first indictment and it is mandatory for 15 years. I think that was raised in the first opening.
55 HIS HONOUR: I make an order pursuant to the Sex Offender Registration Act 2004 that requires that Ms McDonnell be a registered sex offender for 15 years. I express the opinion, which I have expressed in other cases, that some accommodation needs to be provided to enable a person with mental illness or disability to be treated with a level of flexibility that would not extend to offenders who are not mentally ill or intellectually disabled. Anything else?
56 MS GARNER: No, Your Honour. I have nothing arising.
57 HIS HONOUR: I will have that order prepared. I will have my associate provide the details of the Sex Offender Registration Order and if you would assist Ms McDonnell in taking her through it and her obligations. I will also ask your assistance, Ms Garner, in having Ms McDonnell sign the Community Correction Order.
58 MS GARNER: Yes, Your Honour. Your Honour, in relation to the Sex Offender Registration documents, if I may have Ms McDonnell sign them, but I will then go downstairs after court and go through the documents with her?
59 HIS HONOUR: Yes.
60 MS GARNER: If you would permit that?
61 HIS HONOUR: How someone with Ms McDonnell's level of cognitive functioning can comply with the onerous conditions of that order for 15 years, beggars belief. Thank you. Ms McDonnell, you will be released through the cells downstairs. Do you understand that?
62 ACCUSED: (Indistinct). Yes, yes.
63 HIS HONOUR: Good. Thank you.
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