Director of Public Prosecutions v Noel Mitchell

[2015] VCC 747

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-00148

DIRECTOR OF PUBLIC PROSECUTIONS

v

Noel Mitchell

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JUDGE:	HIS HONOUR JUDGE PILGRIM
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	19 May 2015
CASE MAY BE CITED AS:	DPP v Noel Mitchell
MEDIUM NEUTRAL CITATION:	[2015] VCC 747

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms T.N. Bolton
For the Offender	Ms A.E. Hurst

HIS HONOUR:

1Mr Mitchell, you have pleaded guilty to two counts of bestiality.  You have heard the learned prosecutor tell this court that the maximum sentence that can be imposed for each offence is that of five years' imprisonment.  For having pleaded guilty to these counts, I will impose a lesser sentence than I otherwise would have imposed.  In other words you will receive a discounted sentence for having pleaded guilty.

2I briefly quote from the opening that the prosecutor filed in court and it goes along these lines.  It was on Wednesday 15 January 2014 at 11.30 am that you were observed by a Mr Tardrew to be naked in the paddock in the Dereel area.  Mr Tardrew was performing road patrols in the area as part of his employment and he saw you from the road as he drove past.

3Mr Tardrew drove past again ten minutes later and saw you standing in the same paddock behind a small horse holding its tail up and engaging in sexual intercourse.  You became aware that you had been observed.  You then proceeded to crouch down behind the horse in order to hide from Mr Tardrew.  Tardrew then drove away and reported the incident I assume to the local police station.

4On 11 February, the police arrested and interviewed you.  At this time you denied the offending.  Approximately one month later, on Wednesday 12 March 2014, you were in the rear yard of your property when you were standing between two sheds on this property.  The horse was tethered to the smaller of those two sheds.  You were in clear view of anyone travelling along the adjacent road.  Mr Mitchell, you were seen by a witness, a Mr Weston, who was then travelling inside a vehicle along Stones Road, Dereel.  Due to your unnaturally high position and the movements you were making, Weston formed the view you were having sexual intercourse with a horse.  Weston moved to a better vantage point and observed you standing on a milk crate behind the horse engaging in sexual intercourse.

5As you now know, Mr Weston took a video camera with him and took pictures of this activity.  You were arrested by investigating police officers on 23 June 2014.  At this time you made no admissions to committing this offence which of course is your right.

6Mr Mitchell, you have one prior conviction.  You were convicted of bestiality before the Magistrates' Court at Ballarat on 29 May 2013.  At this court hearing, you were convicted and released on a community corrections order.  Among other conditions imposed by the Magistrates' Court when that community corrections order  was made was that you were to undergo offending behaviour programs as directed and any other treatment and rehabilitation programs as directed.

7The community corrections officer reports, and I quote from that report - I am not very impressed by it, I might say, but I am quoting from the report and you have heard what I have been discussing about, Corrections in Ballarat.  They reported this:

"Mr Mitchell has attended his CCO supervision appointments as directed.  Mr Mitchell presents during supervision as being shy in nature and is not forward with providing information.  When Mr Mitchell is required to speak about his offending, his eye contact is reduced, he often covers his mouth with his hand and his body language may indicate that he feels an embarrassment about his offending."

8Well, it is obvious.  It is the very thing that the psychiatrist later says, you have covered your mouth and you are embarrassed and have difficulty talking about these things.  Your counsel, in her eloquent plea to this court, indicated that you were intensely humiliated and embarrassed by your own behaviour.  Your community corrections officer and her supervisor, as I understand it, are both attractive young women and it is your instructions to counsel that you find it very difficult indeed to relate to these young women in these circumstances.

9Further, it is your instruction to counsel that Corrections have not made any direction to you to attend counselling or servicing of any kind.  Sure, you went off to one particular individual who reported that you were a low risk of re-offending, but no more, no less.  If this is correct, I am disappointed by the lack of rehabilitation programs that were not recommended.  Again I say if this is correct, I find the behaviour of Corrections to be deficient and an appalling lapse in not attending to your needs.

10To your credit, you have sought assistance from the informant and the local police officer at Rokewood to get help.  These police officers had referred you to Beyond Blue and through this referral and the help of these two officers, you are now attending counselling with Shubha Gokhale.

11I have reports from two psychologists, one from Warren Simmons dated 22 March 2013.  I will just pause there for a moment.  That was prepared for the Magistrates' Court.  And one from Dr Aaron Cunningham dated 11 November 2014 for this court.

12The report of Dr Simmons was prepared for your appearance, as I mentioned earlier, in the Ballarat Magistrates' Court for May of 2013.  Both Mr Simmons and Dr Cunningham give an extensive history as to your background.  Mr Mitchell, you are now aged 67, having been born on 7 May 1947 in Sydney, New South Wales.  Your parents are now deceased and you have one younger sister called Robyn.  Mr Simmons reports and I quote - he is speaking of you of course:

"Mr Mitchell described his childhood as okay, saying it was not spectacular and he had no relationship with his father whom he described as a distant man.  He was not around a great deal and even when Mr Mitchell went into the family business after he left school, they were never close, revealing his relationship with his mother was much closer.  Financially Mr Mitchell said that he felt he was slightly better than his peers."

13That is financially, and did not struggle but at the same time you were not well off.  Your family had a weekender at The Entrance where they would stay over Christmas.  You explained to Simmons that the house they  had in Mascot was rented and at some point your father decided to sell the property and build a house on land owned by the family at Miranda.

14Further on in the report of Dr Simmons, as to your education and employment history, Simmons says this:

Mr Mitchell attended Mascot Primary School where he stated that he was near the top of the class, although he was never the smartest.  He went on to say that he received the cane occasionally or detention but indicated no major issues with his teachers.  He had only one friend, indicating that he seemed to have difficulties making friends.  There was some bullying, although he said that this was not excessive.  Mr Mitchell subsequently attended Sydney Boys High School, indicating that it was a school where only one had to qualify academically to get in, that he added that he completed his intermediate form 3 and left at the age of 15.  He had two good friends at school but had no other difficulties, adding that he never truanted and his academic performance varied from average to good.  After leaving school, Mr Mitchell worked in the family business, a timber yard, where he would stack timber and load trucks,  He had a business also specialised in building garages and small buildings and at the age of 17 he was working on the machinery.  Mitchell went on to say he went out on jobs and assisted the carpenter, reporting that he did this for 17 years until his father shut down the business."

15You then explained that your father was a passenger in a taxi and was injured when it collided with another vehicle and from then on was unable to work.  You added that the viability of the business was decreasing at this time:

"During this period, Mr Mitchell had taken up coach building in his spare time, indicating he had enough work to do this on a full time basis in the family's old factory.  He did this for 25 years, moving around to follow the work."

16That is the end of the report and I stop there for a moment.  You heard Ms Hurst and I just discussing you are apparently a very talented man in terms of constructing horse drawn vehicles and painting horse drawn vehicles.

17Prior to you retiring to your country property, you had been managing an olive grove.  This position required 14 hours per day seven days per week, which is indeed hard and long labour.  Now in retirement you are involved in coach painting and restoration and odd jobs around your property.  As I am instructed, your wife has sold the pony horses from your stud.  This lady is in the process of disposing of the rest of the horse stock and I understand now they are all gone.

18It was in your early forties that you met your wife and you married in 1998.  Until very recently, as has been discussed here publicly this morning and probably to your distress, your wife was supporting you until recently when you separated and she has now withdrawn that support.

19Your general health at this time is of concern.  Mr Simmons reports and I quote, he says this:

"Approximately five years ago Mr Mitchell was diagnosed with type 2 diabetes and also has high cholesterol.  He also has problems with three crushed discs in his lower back which appear to have been the result of wear and tear during employment.  He explained he had problems at times when his left leg became numb and sought intervention.  It appears that there is no surgical intervention that can be undertaken.  About five years ago, Mr Mitchell had an enlarged prostate for which he had surgery.  It would appear that this solved his problems with urine retention but it did have an impact on his ability to obtain an erection.  Mr Mitchell currently takes Avandia, Glyade and Metformin, aspirin and medication for high cholesterol as well as magnesium supplement and vitamin B12 tablets."

20Dr Cunningham's report is consistent with the observations reported on by Mr Simmons.  Dr Cunningham says:

"In summary Mr Mitchell presents with a diagnosis of autism spectrum disorder.  Autism spectrum disorder is listed in DSM5 under the category of neuro-developmental disorders.  The neuro-development disorders are a group of conditions that typically manifest early in an individual's development.  The neuro-development disorders are characterised by developmental deficits that produce impairments of personal, social and academic or occupational functioning.  Autism spectrum disorder is characterised by persistent deficits in social communication and social interaction across multiple contexts including deficits in social reciprocity, non-verbal communication, behaviours used for social interaction and skills in developing, maintaining and understanding relationships.  This social and communicative impairment can lead to deficits in adaptive behaviour and social interaction.  Individuals with autism spectrum disorder have difficulty with emotional regulation and often exhibit depression, anxiety and angry outbursts. Individuals with autism spectrum disorder can display obsessiveness with regard to specific interests and often have difficulty adapting to changes in routine.  Further, individuals with autism spectrum disorder present with impairments in moral reasoning that lead to a different understanding of the appropriateness of certain behaviours."

21That may well apply to your behaviour in this instance.  And again further and later in his report, Dr Cunningham says this:

"In my opinion, Mr Mitchell's autism spectrum disorder would have impaired his judgment with respect to the wrongfulness of his behaviour and their consequences.  Mr Mitchell appears to have several current protective factors that may reduce his risk factors, stabilise him within the community and improve his psychological functioning.  Mr Mitchell presents with stable accommodation."

22And at the time the report was written Mr Cunningham said you had the support of your partner which now no longer is the case. 

23As I mentioned earlier, the two police officers, Leading Senior Constable Brian Vincent and Detective Senior Constable Corey Page, have referred you to Beyond Blue and that in turn led you into contact with Mrs Shubha Gokhale.  Mrs Gokhale reports that you attend counselling and that you should benefit from further counselling.

24

Mr Mitchell, you have attended upon a consultant psychiatrist, Dr Leon Turnbull, who provides a report to this court dated 15 May, just dated a few days ago.  Dr Turnbull says between the first set and second set of offences, Mr Mitchell said he had attended his community corrections order with Ms Prudence Rayner on a weekly basis.  He said he did not receive ongoing therapy for the bestiality other than attending two sessions with

Dr Danny Sullivan at Forensicare who referred him back to initial referring service.  All that service did there was to say you are a low risk of re-offending. That was not counselling to assist you.  It is a disgrace.

25He also said he was not aware that he could seek help should the thoughts of bestiality return.  He said he was too embarrassed to tell Ms Prudence Rayner or any other community corrections officer that the thoughts had returned a fortnight prior to the re-offending.  He said since his most recent offences, he has removed the horses from his property and this has provided great relief to his psychological wellbeing as bestial temptations have abated.  He said he has found the whole process humiliating and separated from his wife approximately four weeks ago.

26Not surprisingly you are wanting to repair that relationship but you are aware that his may be unlikely due to her distress.  You have indicated to this doctor that the embarrassment and humiliation have in the past been an obstacle to seeking services or help or indeed counselling.  You are now adamant that you will be more engaged with any service that may be able to help.

27Dr Turnbull, in his report, discusses the reports of the community corrections officer, Prudence Rayner.  We have spoken about Prudence Rayner and his distress, that is you did not receive services and I have expressed that numerous times this morning.  Dr Turnbull agrees with the observations made by the two psychologists, that is Mr Warren Simmons and Dr Cunningham.  Dr Turnbull quotes, and I read this quote from his report:

:"He may have some mild features of the diagnosis of autism spectrum disorder as offered by Dr Cunningham.  These being narrow interests, impaired social interaction and lack of emotional reciprocity, though in my view he is not a clear suffered of this disorder."

28Dr Cunningham's suggestions regarding the way the interventions are shaped to help Mr Mitchell are largely appropriate.  I support them being integrated into any community management program so I am going to make sure that corrections officers get both Cunningham's report and Dr Turnbull's report and I am going to emphasise that they read it and act upon it.  Dr Turnbull goes on to say:

"In my opinion he is a shy man, perhaps eccentric but not burdened by a significant psychiatric illness.  While his social inhibition and muted sexual life may have contributed to him seeking sexual excitement through bestiality, I have not found clear association between psychiatric disturbance and the offending."

29Then later in that same report he says this:

"At this stage Mr Mitchell is still embarrassed and has difficulty talking at length about the charges and the horses.  However, he expressed awareness of this to me.  He also expressed regret that he did not previously remove the horses from his property.  He has been described as untruthful and unwilling by his community corrections officer."

30Well, I am at odds with that because there was no understanding, you were so embarrassed you just were not communicating and that is the interpretation Rayner put upon the lack of communication.  Dr Turnbull goes on to say:

"I am of the opinion that his embarrassment is so great that he has struggled to engage meaningfully over the past two years.  He hoped the thoughts of bestiality would simply go away.  They did not and he did not know what to do."

31Turnbull says, "He said to me", of course that is you:

"He said to me he did not know whom to approach to seek help if the thoughts of bestiality occurred.  I have not seen where such a strategy has been made clear to him and only offer it as a basic common sense strategy that should be made exclusive to him in the future."

32It is a common sense observation and it must be done.  Dr Turnbull in this report observes that targeted therapeutic intervention has been lacking and then later says he is of the opinion that Dr Cunningham's suggestions may assist in servicing or tailoring interventions on your behalf.

33Would you stand up please.  Mr Mitchell, I assure you that I have taken into account everything that has been said on your behalf by your counsel, Ms Hurst.  I take into account your plea.  Your plea of guilty is an indication of your remorse and Dr Turnbull notes your regret in this unhappy set of circumstances.

34As I mentioned earlier, you have attended counselling with Shubha Gokhale, counsellor with the Ballarat Community Health Services and you continue to do so and I would implore Corrections at Ballarat to continue that service.  Ms Gokhale among other things says this:

"Mr Mitchell has shown a capacity for insight and I believe that it would benefit him to continue with counselling sessions."

35This type of offending is particularly repugnant to society.  Such behaviour is to be denounced in the strongest of terms.  You so well understand that it has brought upon you the great embarrassment and shame that it has that you have lapsed into such behaviour.  In future I hope you have now learned to go to at least Gokhale if not others when you are struggling and they will support you in dealing with your problems.  You have been with us for 67 years and only offending very late in life, it is most unusual.

36On both Counts 1 and 2, you are convicted and released on a community corrections order for a period of 18 months. Pursuant to s.48C, you are to perform 100 hours of community work. Pursuant to 48D(3)(e), you are to attend for treatment and rehabilitation in regards to mental health. Pursuant to 48D(3)(f), you are to attend for treatment and if required rehabilitation for sexual offending programs if required. And pursuant to s.48 sub-s.(1) of the Corrections Act, you are prohibited from having charge of or providing care for horses. Thank you, take a seat and my associate will give you a form to sign in a moment.

37MS BOLTON:  Your Honour, there is one thing that perhaps if your associate might need to check, the charge of the breach for the first lot of offences should be filed and was supposed to be transferred.  No, she is shaking her head.

38HIS HONOUR:  I don't know that I can deal with breach, can I, anyway?

39MS BOLTON:  Well, if it had have been filed dealt with, it's just not in the system, it can't be done anyway.  I just wanted to check for the sake of completeness.

40MS HURST:  I was advised that it had been uplifted and that it would be listed today in front of Your Honour to be dealt with all at once.

41HIS HONOUR:  I haven't got it.

42MS HURST:  I just raise that if we can find it, it may well come back in the future then it really should be before the court today.  Your Honour, there is just one thing I wanted to correct, if I may be so bold.  They were married, I understand, in 1988, not 98.  I think Your Honour said 98.

43HIS HONOUR:  Might be my writing.

44MS HURST:  That's all right.  I can't read mine either but from my reading of it, I thought it was 1988 and that's a long - I don't want to lose that ten years, it's a long time.  Another thing too, Your Honour, being prohibited from being in charge of the care of horses, is that for the duration of the order?

45HIS HONOUR:  Yes.  We have got nothing.

46MS BOLTON:  We will make some enquiries, Your Honour.  I have got it here, a copy of it here.  It says that it's transferred.  However, if it's not in the system, it's not in the system.

47HIS HONOUR:  Well, Lisa will work on it.  Are you both in chambers today.  Where can we find you?  We have got this other case, there are all sitting out there waiting to go.  I will tack it into when we break for lunch just to get it finished if we can get it done.  Yes, supervision, 48E, there's supervision as well.

48MS BOLTON:  Thank you, and Your Honour, there are the 6AAA provisions as well.

49HIS HONOUR:  Had it not been for the plea of guilty, I would have imposed I believe a sentence of two years' imprisonment with a minimum of 12 months.  We will just adjourn temporarily, I will go down and get those other things, you can get them in.  I have got a case that's running now for quite a long time so I will fit it in when we break for lunch if I can, if we have got all the material together.

50MS HURST:  The only thing I can raise, sir, is we don't have someone from the Office of Corrections either so it may have to be on another day.

51HIS HONOUR:  All right.  We will get it together and you let us know when you are in Melbourne, because I can excuse Ms Bolton but I can't excuse you.

52MS HURST:  No.

53HIS HONOUR:  Let your client know that we are working on getting it together.

54MS HURST:  Thank you, much appreciated.  As Your Honour pleases.

55HIS HONOUR:  We will just adjourn temporarily and when you are ready let us know.

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