Director of Public Prosecutions v Naga
[2022] VCC 1297
•16 August 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-02281
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SAMY NAGA |
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JUDGE: | HER HONOUR JUDGE MARICH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 July 2021, 28 July 2021, 15 November 2021, 14 February 2021, 10 June 2022 & 28 July 2022 | |
DATE OF RULING: | 16 August 2022 | |
CASE MAY BE CITED AS: | DPP v Naga | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1297 | |
RULING
DISPOSITION FOLLOWING SPECIAL HEARING
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Subject:CRIMINAL LAW – UNFITNESS TO BE TRIED
Catchwords: Disposition following Special Hearing by Judge Alone pursuant to s 101(1) of the Crimes (Mental Impairment & Unfitness to be Tried) Act 1997 (Vic) – Offender suffers deficits from severe psychological disorders, generalised anxiety and delusional disorders – Moderate to high risk of reoffending without suitable supports – Extraordinary engagement of various departments will provide adequate support for offender in the community.
Legislation Cited: Crimes (Mental Impairment & Unfitness to be Tried) Act 1997 (Vic); Sex Offenders Registration Act 2004 (Vic)
Ruling: Non-Custodial Supervision Order imposed for an indefinite term with a nominal period of five years
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Malik | Office of Public Prosecutions |
| For the Accused | Mr D. Langton for CMIA Plea Mr S. Collins for Ruling | Victoria Legal Aid |
HER HONOUR:
Introduction
1The accused man, Samy Naga, was charged on indictment with two charges of sexual assault committed on 6 August 2018 against the complainant, Chantelle Coyle[1].
[1]A pseudonym.
2On 16 June 2020, following a short hearing, I found that pursuant to s 94 of the Crimes (Mental Impairment & Unfitness to be Tried) Act 1997 (Vic) (“the Act”), he was not fit to stand trial. I ordered that a special hearing proceed by judge alone, and the special hearing ensued before me.
3Pursuant to s 15 of the Act, at the conclusion of the hearing, I determined that on the evidence available, he committed the two offences charged.
4The facts of offending were that, on the evening of 6 August 2018, Ms Coyle left her office around 5.30pm and entered Flagstaff Station and caught a train on the Dandenong line shortly thereafter. Whilst she was on her journey, she was speaking with her friend on her mobile phone with earphones in her ears. She stood behind the seats on the train as there was no sitting room.
5Later, she observed Mr Naga enter the train, which she believed to be at South Yarra Station.
6He stood directly in front of her, extremely close, while she was talking on the phone, and his right hand was cupped and pressed against her upper left thigh near her groin area. He rested his hand there for a prolonged period, for what to her felt like several minutes. This is the behaviour referable to Charge 1, sexual assault.
7Eventually, she turned around to just try and get away.
8During the touching she was talking on the phone to her friend, but was also feeling very uncomfortable. She was in shock. She froze and did not know what to do, and did not know how to react.
9After she turned away, within moments he pressed himself and his erect penis on what she described as her “right glute, … lower back region.” This continued for a period exceeding four minutes, during which she could feel his erect penis against her buttocks. He did not break contact. This is the offending referable to Charge 2, sexual assault.
10Another person on the train observed his physical closeness to Ms Coyle, and asked her, “do you have enough space?”. At this point, Ms Coyle became aware that there was space behind Mr Naga. Ms Coyle then told her friend by phone, “I’ve got to go, I’ve just been sexually assaulted on the train”.
11She confronted Mr Naga, and he turned around and distanced himself from her, walking towards the end of the carriage. She took three photographs of him, and said, “you sexually assaulted me, I can take photos of you”.
12Ultimately, she got off the train at Huntingdale Station and made a report to police.
13Following my determination that Mr Naga committed the two offences charged, on 18 November 2020, I directed Forensicare to provide a certificate pursuant to s 41 of the Act, and to provide a report pursuant to s 47. The hearing was adjourned in the meantime.
14On 15 September 2021, the certificate and report indicated that there were no appropriate treatments or services which could be provided by Forensicare.
15At the request of the prosecution, with the concurrence of the defence, on 26 November 2021, I ordered that the Department of Families, Fairness and Housing complete a certificate pursuant to s 41 of the Act, and a report pursuant to s 47, for my enquiry into suggested treatment or other plans for managing Mr Naga’s condition.
16On 17 March 2022, I then made an order for Corrections to undertake an assessment of Mr Naga and prepare a report.
17The hearing has continued in the meantime. I have received into evidence as exhibits the following documents, relevant to this ruling:
· Report of Dr Sobia Khan from Forensicare dated 2 June 2021 (Exhibit A);
· Supplementary report of Dr Sobia Khan attaching neuropsychological report dated 13 September 2021 (Exhibit B);
· Court records, comprising Mr Naga’s prior criminal history and Reasons for Sentence from 2012 (Exhibit C);
· Bundle of Certificates as to available services (Exhibit D)
· An outline of prosecution submissions on disposition under the Act dated 8 June 2022 (not previously exhibited, which I’ll now receive and mark as Exhibit E);
· CCS Assessment Outcome Report dated 24 May 2022 (Exhibit F);
· Summary and recommendations for Samy Naga dated 17 May 2022 (Exhibit G);
· Addendum pre-sentence clinical assessment by Dr Alana Haridge dated 16 May 2022 (Exhibit H);
· Pre-sentence clinical assessment by Dr Alana Haridge dated 13 May 2022 (Exhibit I);
· Addendum Assessment Outcome Report from the Department of Justice and Community Safety dated 22 July 2022 (previously erroneously marked as Exhibit I, now Exhibit J);
18Since the conclusion of oral argument, I have received from the defence, a Brief Outline of Submissions on Disposition following Special Hearing dated 8 August 2022, which I will now receive and mark into evidence as Exhibit 1.
19I have taken all of the exhibits into account, as well as the oral submissions, and the cases helpfully provided to me, in my decision today.
Application of the law to the facts of the case
20Following my finding that the accused committed the offences charged, I am obliged either to declare that the person is liable to supervision under Part 5 of the Act, or order that the person is to be released unconditionally. I have ordered that he is liable to supervision and, pursuant to s 19 of the Act, have granted bail while the process of inquiring into available and suitable services has occurred.
21Mr Naga is now 71 and was born in Egypt, but has been living in Australia for nearly 40 years. He served in the Egyptian Army for eight to nine years, and was involved in an explosion which led to dismemberment of his hands. He also worked in Kuwait and Greece before arriving in Australia. Upon arrival in Australia, he worked as a forklift and taxi driver, but I understand that police took away his driver’s licence and he has not been able to work meaningfully since that time.
22His first marriage ended in divorce. He has one daughter and two grandchildren.
23He married his second wife in Jordan in 2016. His wife has been denied a spousal visa and remains there.
24He lives in a Housing Commission home, but has told Forensicare assessors that he would like to move out of this house as he has no space left for his belongings. He receives the aged pension.
25Mr Naga has a complex psychiatric history, which has been reviewed carefully in the exhibited reports. He was diagnosed with moderate to severe depression in 1996, and a delusional disorder in 1998. He came into contact with prison and forensic mental health services at Thomas Embling Hospital in 2010, and that diagnosis was confirmed. In 2015, Forensicare considered a further diagnosis of paranoid schizophrenia.
26He was treated under Dandenong AMHS from August 2010 to June 2013, and was receiving case management and a depot antipsychotic medication. During a period of incarceration in 2014, he was treated with the antipsychotic, Olanzapine. A seven-day period of care was provided through Dandenong AMHS in April 2015.
27A neuropsychological assessment in 1999 revealed that he was performing in the low range, with significant cognitive deficits, including severe memory deficits, both verbal and non-verbal, immediate and delayed recall, severely impaired ability to learn and recall visual information over time, very slow speed of information processing, poor visuospatial coordination and construction skills, greatly reduced planning and organisation abilities, diminished attention to detail, and difficulty forming, manipulating and retaining abstract concepts. The author of that report, Dr Lorraine Elsass, opined that the deficits were stemming from Mr Naga’s severe psychological disorders, generalised anxiety and delusional disorders.
28Mr Naga reports that he last took medication in 2010.
29Mr Naga has appeared before the courts on two previous occasions. In June 2012, he was sentenced in the County Court to a suspended sentence of imprisonment for three charges of indecent assault. In June 2015, four charges of indecent assault were proven in the County Court and he was released unconditionally pursuant to s 18(4)(b) of the Act. I understand that the 2012 conviction related to incidents occurring between 2007 and 2010. The conviction in 2015 involved offences occurring in May and October 2013, and September 2014, involving three female commuters on a train and tram, and involved sexual touching of victims without their consent. I observe the similarities between those offences and this matter.
30The authors of reports provided to me under the certificates of available services expressed the view that supervision by Forensicare would be of limited benefit, given Mr Naga’s denial of offences, his emotional arousal related to his legal and criminal matters, and degree of hostility and irritability towards figures of authority. Those authors also expressed challenges in linking him up with an area mental health service, as Mr Naga refuses to voluntarily engage with a treating service. Community Correctional Services initially recommended that Mr Naga was not suitable for supervision by that service.
31Subsequently though, in collaboration, the Department of Families, Fairness and Housing and the Department of Health, along with relevant service providers, have had multiple case consultations about Mr Naga’s needs, in light of my persisting consideration of imposing a Non-Custodial Supervision Order under the supervision of Community Correctional Services. The outcome of those discussions is the proposal of a coordinated service response whereby both the Australian Community Support Organisation and the Department of Families, Fairness and Housing have proposed to be in a position to provide certain services should Mr Naga consent and voluntarily accept the support.
32This is extraordinary and needs to be specially commended. It represents those departments’ efforts to assist me to respond to the complex considerations created in this case.
33Following a consultation meeting with Community Correctional Services and Mr Naga, the Australian Community Support Organisation has sought to develop a person-centred transition plan, aiming to address Mr Naga’s criminogenic needs, cultural supports, mental health and wellbeing-related supports.
34I have been told that the primary focus of this plan is to structure support and interactions with him, with the goal to be encouraging and promoting his engagement with supports within the community. This may include, for instance, supporting him to maintain positive cultural connections, including attendance at his local mosque, supporting him to maintain positive family relationships and community connections, and assisting him with attending mental health or health-related appointments via Monash Health Service.
35The outreach model which is proposed be used in the circumstances of this case will be predominantly face to face in the community, but it may include regular phone contact and check-ins to ascertain that he is safe and well and he is engaging in prosocial activities in the community.
36Given Mr Naga’s complex needs, I understand that the Australian Community Support Organisation will regularly attend and participate in multidisciplinary case conferences to assist him with his needs.
37Returning to the circumstances that I am obliged to consider under the Act, in deciding whether to make the supervision order in this case, I must apply the principle in s 39 of the Act that restrictions on a person’s freedom and personal autonomy should be kept to a minimum, consistent with the safety of the community, and I must have regard to the factors set out in s 40(1) of the Act.
38To be explicitly clear, I have had regard to the nature of Mr Naga’s mental condition and disability, and I consider that it may be open to me to find that his cognitive deficits may impact upon his capacity to make careful decisions as to his behaviour, and may perhaps leave him vulnerable to the impulses that he acted upon in this case and in his earlier cases. I must also have regard to the risk of future misbehaviour and the need to protect people from such danger. I note the expert opinion of Dr Sobia Khan that Mr Naga is placed in a moderate to high risk range relative to other sexual offenders, and I am concerned about the risk of future offending, if suitable supports are not provided to him.
39I am satisfied, given the extraordinary engagement of the various departments which I have summarised, that there are adequate resources available for Mr Naga’s treatment and support in the community.
40In all of the circumstances of the case, for the reasons relied upon by the prosecution and accepted by the defence, on both offences I will impose a Non-Custodial Supervision Order upon Mr Naga for the period prescribed in the Act of an indefinite term with a nominal period of five years, subject to the following conditions, as recommended by the Department of Justice and Community Safety:
· Supervision: be under the supervision of the Secretary to the Department of Justice and Community Safety or her delegate;
· Treatment and rehabilitation: comply with testing, treatment and attend appointments as directed by the Secretary to the Department of Justice and Community Safety or her delegate;
· Treatment and rehabilitation: participate in programs and/or courses relating to treatment and rehabilitation and/or addressing factors relating to the offending as directed by the Secretary to the Department of Justice and Community Safety or her delegate.
41The order will contain the following general conditions:
· Attend Community Correctional Services within two clear working days after the commencement of the order;
· Obey all lawful instructions and directions, whether written or verbal, of the Secretary to the Department of Justice and Community Safety or her delegate;
· Report to, and receive visits from, the Secretary to the Department of Justice and Community Safety or her delegate;
· Notify the Secretary to the Department of Justice and Community Safety or her delegate of any changes of address or employment within two clear working days after the change occurring;
· Not attend Dandenong Community Correctional Services, or any other service he is directed to attend, under the influence of alcohol or non-prescribed drugs;
· Comply with any direction given by the Secretary to the Department of Justice and Community Safety or her delegate that is necessary for the Secretary or her delegate to give to ensure that he complies with the order;
· Not leave the State of Victoria without written permission of the Secretary to the Department of Justice and Community Safety or her delegate;
· Not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment.
42I will set the initial review period for six months pursuant to s 27(2) of the Act.
43I turn to the issue of whether I exercise my discretion to make a Sex Offender Registration Order pursuant to the Sex Offenders Registration Act 2004 (Vic). I accept the submissions of Mr Naga’s legal representative that whilst the pre-conditions for the order are present, including my satisfaction that Mr Naga poses a risk to the sexual safety of one or more persons or of the community, I do not consider it appropriate to make a Sex Offender Registration Order, in that given Mr Naga’s age and considerable cognitive deficits, the onerous nature of the reporting conditions is an inappropriate fit to the circumstances of the case.
44I give considerable emphasis to the broad terms of the supervision order that I have imposed in making this determination, and I accept the defence submission that the proposed supervision order is onerous, it is based on treatment plans, and it is unclear how adding onerous reporting conditions would provide any additional security to the community in the circumstances of the case.
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