Director of Public Prosecutions v Randall (a pseudonym)

[2017] VCC 1873

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

Jack Randall (a pseudonym)

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JUDGE:	JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	1 December 2017
CASE MAY BE CITED AS:	DPP v Randall (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2017] VCC 1873

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 J. Munster
For the Offender	Mr D. O'Doherty

Pages 1 - 10

 

 

1HER HONOUR: 

2Jack Irving Randall,[1] you have pleaded guilty before me to two charges of incest.  The facts underlying your offending are as follows.

[1] Jack Irving Randall is a pseudonym.

3The complainant in this matter is your sister, Megan Randall.[2]  She lived alone in supported accommodation.  Both you and she have an intellectual disability. 

[2] Megan Randall is a pseudonym.

4Up until the day of the offending, 12 January 2016, you and she had a good relationship. 

5On 12 January you caught a train to Warrnambool to visit her, arriving at around 11 am. 

6You walked to her home but she was not there so you waited at a neighbour's house with the complainant returning at about 2 pm.

7You and she then went into her unit and your niece and her boyfriend also arrived and then left a short time later to deliver pamphlets.

8At some point you began watching a pornographic movie, that you had brought with you on your sister's television.  You then grabbed your sister by the hand and took her into the bedroom, telling her, "We're going to have one". 

9Your sister lay on the bed.  You pulled down her pants and had vaginal/penis sex with her for a few moments.  You then rolled your sister over so she was lying on her stomach and proceeded to have anal penis sex with her. 

10Charge 1 relates to the vaginal/penis sex that you had with your sister and Charge 2 relates to the anal penis sex.

11You stopped having intercourse with the complainant when your niece and boyfriend came into the unit and went to the bathroom. 

12Both your niece and her boyfriend noticed the pornographic movie playing on the television and the bedroom door being open.  Your niece’s boyfriend saw you get out of the bed and run into the bathroom and that you were only wearing a t‑shirt but no other clothing on the bottom half of your body.

13Soon after, when you came out of the bedroom you were sweaty.  The fly on your pants was undone.  You removed the movie from the player and left the unit, going straight to the Warrnambool train station without saying anything.

14On 15 January 2016 you went to the Camperdown police station and told police that you had had sex with your sister and were there to report this matter to police. 

15At this stage no complaint had been made. 

16You gave police your sister's name and as a result she was identified and contacted by police by phone.

17At this stage she did not disclose any offending.

18Police then went to the address and spoke to your sister who did talk about what had happened on 12 January to that police member.

19At 4 pm on the same day, you went to the Warrnambool police station with your brother William[3] after police asked you to go there.  You were arrested and interviewed in the presence of an independent third person. 

[3] William is a pseudonym.

20You admitted in the record of interview that you had put your penis inside your sister's vagina and bottom.

21The matter resolved at a very early stage and a plea of guilty was entered at the earliest possible stage.

22A victim impact statement was received from Megan who said that her life had changed dramatically at your hands, that she was no longer able to visit her great nephews as they lived with you at the family home.  She no longer trusts men, dislikes going into the community because of a fear of men and that she constantly relived the assault.

23I now turn to your personal circumstances.

24You are now 56 years and were 54 at the time of this offending.

25You come from a very large and very supportive family where there is a widespread history of intellectual disability.  I received extremely helpful references from your brother William and your sister Florence,[4] both of whom, in my view, carry out a great deal of responsibility towards the less able members of the family.

[4] Florence is a pseudonym.

26You are one of ten children born to your parents.  Eight are still living.  One died at three months of age and another sister died recently of breast cancer.

27There is a history of hardship in the family.  Your father died of pancreatic cancer when you were only eight or nine.  Your mother never remarried but cared for the family on her own and this included two of your sisters, also suffering severe disabilities and requiring intensive help.  Your mother died of breast cancer 15 years ago.

28You have another sister who was diagnosed at a very young age with schizophrenia. 

29You were diagnosed very early with an intellectual disability.  You were described by both your siblings Florence and William as being an amiable, good natured person, who had, despite requiring particular care, always been an easy person to deal with.  The way your sister described you was: 

He has been able to live quietly and productively amongst extended family in Camperdown who love and support him.  He doesn't like to think of himself as disabled.

30Your brother, William, who now lives with you in the family home, which was left to himself and a younger sister by your mother on condition that you live there for the rest of your life.  He described you as: 

'A much loved brother and is well‑known and liked in our local community".

31Other difficulties faced by the family were that, understandably following the death of your father, your mother experienced severe depression for a number of years and was admitted for psychiatric treatment to hospital on a number of occasions. 

32The complainant in this matter unfortunately does not enjoy the same level of relationship with other members in the family as you do.  Your sister, Florence, is one of the major persons who have contact with her. 

33Your brother William stated:

I have never had cause to be concerned about their relationship (that is referring to the relationship between you and Megan) and what Jack did to her seems completely out of character.  Jack went to the police in Camperdown to tell them what he'd done before he spoke to anyone else in the family.  He didn't tell me what he'd done until sometime later when he was charged and I know that he feels very ashamed about it.  Jack knows there is now an order that he can't see or have contact with Megan.

34I should add here that an intervention order was taken out as a result of this offending and you have not seen your sister since.

35Your brother described you as a very honest person "who would always tell me the truth about things".  He said you had a small collection of pornography, mostly videos which you have had for a very long time and which you have always been very open about.

36Your brother William also went on to say: 

The one thing I've noticed since he was charged with this offence against Megan is that his videos have disappeared.  Jack told me that he chucked them all into his wood heater and burned them.

37You have been a client of Intellectual Disability Services for a very long time and I received a client overview report dated 1 December 2017. 

38You have never presented with any problems with drugs or alcohol.  It is noted in the report that you were transferred over to Kwinda special school at Terang at the later stages of your primary school education where you stayed and you have continued to have contact with Kwinda where you are involved in a wide range of daily programs including education and learning, living and life schools and so forth. 

39It was stated: 

Currently Mr Randall plays a leading role in Kwinda's recycling and green waste programs around Camperdown and Terang.  Additionally in his private times on weekends, Mr Randall supplements his income folding and delivering pamphlets and collecting aluminium cans in the townships of Camperdown and Terang.

40It was said that you were interviewed by disability services again on 27 September 2017 for the preparation of the Justice plan where it was noted that when interviewed you:

... had a fairly modest understanding of the gravity of this current offences and the legal processes.

41But you consented to engaging with services to "assist in addressing his offending behaviour".

42Overall, the current circumstances as were described in this report were that you continued to play a leading role in daily community services offered by Kwinda.  You regularly go to local football matches and trotting meetings in Terang.  You have an array of social interactions that you regularly attend with peers and staff at Kwinda in addition to social events.  You enjoy gardening and you watch television.

43It was stated by your brother William, as I have already noted, that this was offending that was very much out of character for you and given that you have no prior or subsequent criminal history. I agree with that.

44Of importance was the psycho‑neurological report which I received which found that you had an overall IQ of 62 which was described as being in the extremely low range and in the bottom one per cent of the population of your age.

45In terms of a comment that was made in that report, which was by neuropsychologist Louise Boyne and tendered on the plea:

In my opinion Jack has sufficient cognitive capacity to know that sex with his sister is wrong.  He also has capacity to understand that forcing her, rape, would be wrong.  He would be unlikely, however, to have sufficient control of his own behaviour to cease sexual behaviour once sexually aroused and/or if coerced or if mixed messages were given to him.

46The fact scenario seems to be one where this offending occurred subsequent and immediately to you becoming aroused by watching pornographic material.  This has never happened before.

47I am prepared to accept that your intellectual disability had much to do with you being, unable to control your sexual arousal once you had watched the pornographic films.  Indeed it would seem, upon what you have told your brother William, you recognise the link between what you did and the pornographic material that you owned and have since got rid of.

48You are an otherwise kindly and amiable person, well supported and well loved by your family.  You live in appropriate, well supported accommodation.  Your days are gainfully occupied.  Apart from this one aberrant piece of offending, you have never before in your life presented any difficulty. 

49It is my view that your moral culpability is much reduced by your intellectual disability.  It is also noteworthy that this matter may never have come to the attention of anyone had you not self-reported to police.

50I regard your prospects of rehabilitation to be excellent. 

51You have been assessed and found suitable for a Justice plan. 

52I also had you assessed for a community corrections order.  It is my view that the circumstances attaching to you personally and to this offending are such that you are not, as I said, a suitable vehicle for either general or specific deterrence and certainly that gaol would not be an appropriate response to this offending, the level of your disability not only playing crucially, in my view, as a causative factor into the commission of this offence at all, but making service of a term of imprisonment almost impossible.

53Corrections found you unsuitable for placement on an order precisely because you have this intellectual disability.  I must say I was somewhat puzzled by the assessment.  It is entirely common for persons with intellectual disabilities to be placed on community corrections orders with a condition that they attend a Justice plan.  It may be that the level of your intellectual disability is such that Corrections felt this normally quite usual order is not appropriate in your case.

54I have spoken to the Intellectual Disability Services officer in your area, Mr Gault, who made the assessment.  There were concerns, understandably, expressed by the prosecution as to the need for you to receive some counselling and education in relation to your sexual behaviour. 

55I agree with this and Mr Gault said it would be the intention, under the Justice plan, that you in fact receive this psychological assistance.

56In all the circumstances therefore it is my view that the defence submission that you be placed on an adjournment to be of good behaviour with a condition attached that you undertake a Justice plan is appropriate.

57I am satisfied that to the extent you are capable, you are extremely remorseful for your offending.  You have expressed this to your brother but most notably, as I have said, no‑one may ever have known about this had you not voluntarily taken yourself to police and reported the matter.

58You have also taken steps to attend to the issues that you yourself saw as contributing to this offending, that is you got rid of your pornographic collection.  You have no prior or subsequent convictions, as I have said.  There are many protective factors in your life, primarily your attendance at the Kwinda special school which has been ongoing since you were a little boy.  Your daily participation in the programs and most importantly the continuing and unstinting support of your brothers and sisters in appropriate accommodation.

59In all the circumstances, therefore, I am going to place you on an adjourned undertaking to be of good behaviour for a period of three years with a condition that you participate in a Justice plan. 

60Pursuant to s.6AAA I declare that had you not pleaded guilty I would have placed you on a community corrections order with varying conditions.

61The only difficulty we have is that Mr Randall needs to sign it. 

62My extraordinarily efficient associate has already spoken to the registrar at Warrnambool court.  She will email down the appropriate form.  So if the family could attend to the registrar's desk and wait until the form arrives and then Mr Randall can sign it and then it will be sent back to me for signature. 

63I note that a Justice plan can only operate for two years but in the circumstances I do not find that inappropriate. 

64Thank you very much.  I thank everyone very much for their assistance. 

65Is there anything else that I need to attend to, Mr O'Doherty.

66MR DOHERTY:  No, Your Honour.

67HIS HONOUR:  Thank you very much.  Now, Mr Randall probably wouldn't understand this.  Mr Randall, can you hear me all right? 

68OFFENDER:  Yeah, yeah, I can hear you.

69HER HONOUR:  What I've said is that you really did the right thing here.  After what you did to your sister, which was really wrong, you obviously thought about it and you went and told police about it and I think you're very sorry and I don't think it's going to happen again and ‑ ‑ ‑

70OFFENDER:  No.

71HER HONOUR:  ‑ ‑ ‑ so I'm not sending you to gaol but what you're going to be doing is you're going to be doing a Justice plan with Mr Gault and you're going to be having a bit of counselling.  You're going to have someone talking to you about what happens, you know, when you're feeling a bit sexually excited and how to manage that so this doesn't ever happen again, okay? 

72OFFENDER:  No worries. 

73HER HONOUR:  Good on you, Mr Randall.  Thank you very much.  Have a seat.  Thank you.  We'll just send that down now. 

74I thank everybody for their assistance and counsel are now excused.  Thank you.

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