Director of Public Prosecutions v Reynolds
[2015] VCC 1206
•27 July 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT LATROBE VALLEY
CRIMINAL JURISDICTION
(SITTING AT MORWELL)CR-15-00733
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JESSICA MAY REYNOLDS |
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| JUDGE: | HIS HONOUR JUDGE HOWARD |
| WHERE HELD: | Latrobe Valley |
| DATE OF HEARING: | 27 July 2015 |
| DATE OF SENTENCE: | 27 July 2015 |
| CASE MAY BE CITED AS: | DPP v REYNOLDS |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 1206 |
REASONS FOR SENTENCE
---Catchwords: CRIMINAL LAW – Sentence following plea of guilty to intentionally causing injury – CCO for 2 years with supervision, assessment and treatment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. O'Doherty | Office of Public Prosecutions |
| For the Offender | Ms T. Hartnett | Galbally & O’Bryan |
HIS HONOUR:
1Jessica May Reynolds, you have pleaded guilty to one charge of intentionally causing injury to James Morrison between 1 and 10 August 2012.
Background
2You were then 26. The background to the matter is that in 2008 when you were 17, you commenced a relationship with Dean Hamden who was very much your elder, aged 28. He already had been in a relationship and had children and he had a criminal background. Not surprisingly, your parents were very concerned for your general welfare. The relationship was a problematic one and ultimately you split up with Mr Hamden in May 2013. Of your relationship there were two children; a boy who is now six and a daughter who, sadly, died on 13 August 2012 when she was only four months of age, having succumbed to sudden infant death syndrome. I will say a little more about that in a moment. As well in the family there was your partner's son who was, at the relevant time, 13.
3Your partner's sister had a relationship with the victim in this case, James Morrison, and that broke up around about February 2012. Your partner's sister discovered that Mr Morrison had made a collection of cut-outs from supermarket catalogues of young children and warned you and your partner of her concern that he may be a risk to your children. It was also the fact that the victim had been found guilty of committing a sex offence against his own sister some time prior to 2012 and, among other things, he was placed on the sex offender's register, but you did not know that at the relevant time.
Circumstances of offending
4In early August 2012, you and your partner were residing at premises in Morwell with the two boys and your baby daughter. Mr Morrison was a regular visitor to your household and after his relationship with your partner's sister finished he still lived with you, first in Traralgon and then later in Morwell. Your partner, Mr Hamden, apparently formed the view that Mr Morrison was a paedophile and threatened that he would hunt him down and punish him. You were told by your partner that Morrison had sexually interfered with your then three-year-old son and you believed him.
5OFFENDER: Yes, that was um ‑ ‑ ‑
6HIS HONOUR: It's all right, you don't have to respond to me.
7OFFENDER: Yes, sir. That's correct.
8HIS HONOUR: You don't even have to say yes. Just listen quietly.
9OFFENDER: Yep.
10HIS HONOUR: If there's anything that needs to be sorted out Ms Hartnett will do that.
11MS HARTNETT: Thank you.
12OFFENDER: Thank you.
13HIS HONOUR: Eventually Mr Hamden made Mr Morrison come back to your place at Morwell. Mr Morrison unfortunately suffers from an intellectual disability and the evidence is that he had medical difficulties suffering from cerebral palsy as a child; a lack of ability to show any emotion or sympathy; and he was a person who was very easily led by others. When he was brought back to your place he was accused of having molested your son and Mr Hamden made him write out several notes, in effect confessing to having done that. You were present when that was happening and Mr Hamden was loudly proclaiming that he had actually seen him molesting your son. That was alleged against him in your presence and he agreed that he had done that. So, it seems to me, you had every reason to believe that he had sexually interfered with your son, which would have been a very disturbing thing to happen for you as a caring mother of a very young child aged three.
13Apparently Mr Morrison also made admissions of having sexually assaulted other children. Your stepson Jake, who was then 13, heard him saying this and Jake became emotionally distressed about hearing of his brother's sexual assault and he struck Morrison. Another man called Sean Newton arrived and also assaulted Morrison by striking him to the jaw very hard.
14Eventually you were left alone in the house with Mr Morrison. You became overwhelmed by the situation and ordered that he lean against a table and pull down his pants, which he did. You told him that you were going to degrade him like he had degraded all the children whose life he had trashed, as you put it. You were angry and screaming at him and slashed the back of his legs and his buttocks with a knife causing multiple cuts that bled. The victim said that what you did to him was extremely distressing and that he felt like dying.
15Another friend arrived a short time later and saw this happening and noted that the victim was bleeding from the cuts. She said that you were at that time distraught and angry and she saw you cut the victim at least nine times.
16Some time later Mr Hamden returned home and castigated you for doing what you had done, but then he locked the victim up in the laundry. When you went to help him, he told you that he was contemplating whether he should just kill the victim there and then. Hamden disposed of the victim's bloodied clothing and kept him in the laundry overnight.
17The next day Hamden and several other people who had arrived cruelly mistreated the clearly injured victim by first, throwing darts into his body; by making him drink urine; then denigrating him by forcing him to expose his penis to the people who were there. You are not to be sentenced for involvement in any of that disgusting behaviour.
Police reports and later developments
18Later on 10 August 2012 you and Mr Hamden went to police and reported the alleged sexual assault against your son. The victim was later taken to police by you and he made admissions to having sexually assaulted the three-year-old boy and two other children who were then 12 or 13-year-old teenagers. In the light of those admissions it was not surprising that he was then charged by police. The charges were supported by the statement made by Mr Hamden that he had witnessed the sexual assault against the three-year-old and by your own statement that supported the handwritten “confession” he had made back at your place.
19Whilst he was being processed the informant noted the injuries to the complainant and took two photographs of him which I have now before me. They show the very distressing multiple slashes which you caused to his body. Apparently he was seen by a medical practitioner and the cuts were treated but otherwise he was then placed in custody.
20I should add that Mr Morrisson was questioned by police about the wounds that he had suffered and in accordance with what he was told by Mr Hamden, he said that he had been assaulted by a gang of Aboriginal people, which of course was not true.
21
In due course the other two teenage children were interviewed by police and they each specifically denied that they had been sexually interfered with by Mr Morrison. By this time police were obviously concerned about the truthfulness of the allegations. On 26 September 2012, the informant further interviewed
Mr Morrison at which time he disclosed the assaults by yourself and the other people that I have detailed. In due course, on 24 October 2012, Mr Morrison was released by police from custody having served 79 days in custody and the charges which were laid against him were ultimately withdrawn against him.
22You were interviewed about the assault in April 2013 and so was Mr Hamden. Both of you stuck to the stories that you had already provided to police. But in May 2013 you and Mr Hamden had a significant domestic dispute and your relationship came to an end. As I understand it, you went to live with your mother and father with your young child. Sadly, as I say, your daughter had died in the preceding August.
23On 31 January 2014, you were further interviewed by police and you made denials of any sexual offending by Mr Morrison against your son. You revealed all the truthful circumstances of what happened concerning Mr Morrison and gave an undertaking to give evidence against Mr Hamden and the other man, Newman, both having then been charged.
24At a committal mention in April this year your matter was resolved. You pleaded guilty to the charge and you gave a formal undertaking to give evidence in the way I have described. Hence, we are here today where you have pleaded guilty to the charge. In the meantime Mr Newton has been dealt with in the Magistrates' Court and pleaded guilty. Mr Hamden is awaiting trial, charged with a number of very serious offences and you have indicated that you will give evidence against him.
Victim impact
25The victim made a victim impact statement on 17 July 2015. I have read it in light of the fact that there are a number of offenders concerning him. I do not hold against you any consequence as a result of him being assaulted to the face, nor the other activity that I have already described, other than concerning yourself. Nevertheless, and not surprisingly, he was traumatised by his experience which is continuing to trouble him psychologically. He has suffered cuts on the backs of both of his thighs from the buttocks down to just below the knee. I do not take account of the alleged permanent damage to the tendons behind each of his knees because there is no medical evidence of that happening. He also has a scar on his back from where he was cut during the assault with the knife. He says he cannot wear shorts because he does not want other people to see his scars. He has suffered difficulties with concentration and he worries about being out in public and being pursued by other people.
26You should feel a great deal of shame and remorse for what you did to that young person.
27OFFENDER: I certainly do, Your Honour.
28HIS HONOUR: Particularly as he was a vulnerable person, having regard to his intellectual disability.
Background and personal circumstances
29I will turn briefly to your background and personal circumstances. They have been explained to me in a comprehensive and very helpful written submission and oral plea made by Ms Hartnett on your behalf.
30You are an only child. You left school, Wonthaggi High School, partway through year 9 and have had no employment history as such. You are currently receiving a disability support pension.
31
You have one set of prior convictions that date from March 2007 when you were found guilty and convicted of assault with a weapon, assault and traffic offences, for all of which you were placed on a community based order for
12 months, which order you kept. Other than that you have no prior convictions and, significantly, since that time have had no problems with the law. So apart from that one matter which has not really been explained to me, you are to be treated as a young lady of good character.
32You have had a number of significant difficulties in your life concerning both psychological and medical issues, as to which I have received a number of reports. The first of those is from your GP who has been looking after you since 2003. He says you have been suffering from obsessive compulsive behaviour since 1992, depression in 2000, chronic fatigue in 2003 and ongoing anxiety. More recently, in April of last year, you were diagnosed with idiopathic intracranial hypertension which is pressure on the brain. He says it is quite likely that this condition has been present for some years and was likely to have been a contributing factor to, or an underlying cause of, many of your previous diagnoses.
33As a result of medication you have received, you have developed dystonia which is a neurological disorder causing muscle contractions. You have also experienced a lot of headaches, nausea and tinnitus, which is a noise or ringing in the ears. These symptoms particularly increase in times of emotional stress, which could affect your ability to think rationally and which could also have affected your behaviour, and they could have been doing this, according to the GP, for several years before your diagnosis.
34A treating psychologist indicates that you have significant symptoms of post-traumatic stress disorder, anxiety and depression. He has been treating you now for something like 30 sessions between January last year and February this year. He says that with further therapeutic support you should make a full recovery of all of your psychological problems.
35Mr Newton, a very experienced forensic psychologist, has indicated that you have reported severe symptoms of psychological disturbance. His diagnosis is that you clearly suffer from a personality disorder with prominent borderline dependant and histrionic traits. Particularly, he says that if you were sent to prison that would create significant difficulties for you and be so extremely burdensome it would make your mental health issues a lot worse than they are at the present time.
36Next, you were assessed as to whether or not you were suffering from Asperger's condition. A recent report from Jason Crestani, a Psychologist, indicates that “Jess has a history of impairments in social interaction, communication, restricted interests. Many of the difficulties she has had in life have been due to her lack of understanding of social norms. Based on her IQ results, developmental history and interviews I conclude Jessica Reynolds has intelligence in the low-average to average range and has Asperger's Syndrome in the moderate range, consistent with diagnostic criteria [which he sets out there, and he continues] The main features of this disorder for Jess include social difficulties, inflexibility, restricted interested and difficulties in emotional responsiveness”.
37The final report is from Professor Curry who indicates that he is treating you now for chronic neurological headaches which have been troubling you a lot.
38Your mother, who is present in court supporting you, is your primary carer and I have been told that you are suffering from such significant chronic fatigue that you have to spend a lot of your day lying down. I accept that you are a devoted mother to your child and care very much for him. You have very supportive parents even though they are separated living under the one roof, so you have contact with both your mother and your father.
Mitigating circumstances
39The mitigating circumstances in your favour are that you have a significant background of dysfunctional psychological and medical problems, which I have outlined. You have continuing mental health problems of a significant kind. I am satisfied that the Verdins principles apply to you so that there should be a significant moderation of the principles of specific and general deterrence. I accept that you have reduced moral culpability and that a prison term would be very much more burdensome for you given all your conditions than for someone who does not suffer your problems.
40You have pleaded guilty for which alone there should be a significant discount in penalty, that being of utilitarian benefit to the community, saving the cost, time and expense of having a trial. I accept you are also remorseful for your offending and that you now show insight into the terrible thing that you did to this gentleman. That remorse and insight has been all the greater since you have accepted that the victim actually did not sexually interfere with your child after all, or for that matter, anybody else.
41You are making good progress in your counselling sessions and should in due course make a full recovery.
42I accept that your motivation in committing the crime was a genuine belief that Mr Morrison had sexually interfered with your child and note that the prosecution concedes that you were overborne by Mr Hamden and misled as to whether your son was actually sexually interfered with by Mr Morrison. That happened in the context of your partner being very controlling and jealous, putting you down and making you feel like you had a mental illness, all of which has been part of his control of you during the course of the relationship. It is very pleasing in all those circumstances to hear that you have now left his influence and have not gone back to him.
Other important sentencing considerations
43There are, of course, other important sentencing considerations. One is the fact that you have committed an offence that carries with it a maximum penalty of ten years' imprisonment. So that gives you some idea of what a serious offence it is to intentionally cause injury to another person.
44You are fortunate that the victim has not suffered more than he did. The use of a knife in attacking another person is a very serious act. You are lucky that you are not facing a charge of manslaughter or murder, because it is not very difficult to kill someone using a knife once, let alone a number of times.
45The description of your counsel that you engaged in a “vicious and cruel attack” is quite correct, and it was designed to punish, degrade and humiliate that innocent person. So I do take account of the fact that it was a serious offence on your part, although I have mentioned a lot of mitigating circumstances that I think put your case into a different category. But you did engage in vigilante behaviour and our community cannot allow people to take the law into their own hands. If you truly believed that your child had been sexually interfered with then you should have gone straight to the police, end of story.
Explanation of CCO
46Your counsel submitted that the appropriate penalty was to release you on a community correction order. The prosecution conceded that such a penalty would be within range. I have received a helpful oral report from Mr Black this afternoon. You are deemed to be suitable for release on such an order and I do propose to release you on a community correction order.
47Before I do that I need to explain to you what a community correction order is. I know that you have already spoken to Mr Black about that, but I have to explain it to you so that you can give informed consent. If you do not say yes to it then I will have to sentence you in a different way. Do you understand?
48OFFENDER: Yes, Your Honour.
49HIS HONOUR: All right. I have had regard to all of what Mr Black has said. A community correction order is a community based sentence that addresses your particular offending and your personal circumstances. It is designed to punish you and also to assist with your rehabilitation. So they are the two aspects of importance. It serves both your interests and those of the community. If you engage with it appropriately then it will improve your life and help those around you. So this really is a golden opportunity to get your life even further on track. As Mr Black has said, the Community Corrections Office will work in with your current treatment providers so that all that is going well for you at the moment will continue.
50I propose to release you on the CCO as I have said. One thing I want to ask you is, do you understand that you have signed a form acknowledging that you may be called upon by Corrections Victoria to fund yourself some of the rehabilitation programs that have been recommended for you.
51OFFENDER: Yes I do, Your Honour.
52HIS HONOUR: You do know that. All right.
53The order will be as follows: It will last for two years from today. There are mandatory terms, that means compulsory ones, and then there are some special ones for you. So first I am going to deal with the compulsory, mandatory, terms. First, during the term of the order you must not commit whether in Victoria or outside Victoria, any offence punishable by imprisonment. There are many such offences, including driving offences. Secondly, you must comply with any obligation or requirement prescribed by the Sentencing Regulations, particularly regulation 17. Thirdly, you must report to and receive visits from the Secretary of the Department of Justice or delegate during the period of the order. When I refer to the Secretary or delegate, for practical purposes, I mean the Community Corrections Office.
54Fourth, you must report to the Community Corrections Centre specified in the order within two clear working days. An appointment has been made this evening for you to go and see Mr Black and that will be compliance with that part of the order. Fifthly, you have to let the Secretary or delegate, that is the community corrections officer, know within two clear working days if you start a job or you move to a different job or where you are living, even if those changes are only temporary. Sixthly, you must not leave Victoria without first getting permission to do so from the Secretary, that is the Community Corrections Office, either generally or in relation to a particular case. So you are not allowed to leave Victoria unless they say so.
55OFFENDER: Yes, Your Honour.
56HIS HONOUR: Finally, you have to comply with any directions given by Corrections, whether oral or written, which are necessarily given to make sure that you comply with the order.
57So do you understand all of those mandatory, compulsory terms?
58OFFENDER: I do understand and I would like to say I'm very thankful for that order being made.
59HIS HONOUR: All right. Do you have any questions about them?
60OFFENDER: No I don't, Your Honour.
61HIS HONOUR: All right. There are going to be certain special conditions. I am not going to give you a work component because Mr Black has indicated that he does not consider you to be suitable for group work, and you would have problems travelling for work where you are living down at Cowes. I am going to order that you undergo medical assessment and treatment that may include general or specialist medical treatment or treatment in a hospital or residential facility and also mental health assessment and treatment.
62I am also going to order that you be under the supervision of a community correction officer. You should rely heavily on that sort of person because that will be somebody outside your family or friendship base who can give you advice about the best way to lead your life and how to deal with your problems. Do not let your problems bank up so that you do not feel like you can cope with them. In other words, use that person to speak with about how you are feeling on a monthly or weekly basis, whenever it is that you are going to go and see them, all right?
63OFFENDER: Thank you, Your Honour.
64HIS HONOUR: The last thing I have to do is to tell you of the consequences if you breach the community correction order. You can do that in two ways. You can either breach it in what is called an administrative way by not turning up for meetings, supervision, assessment, those sort of things. That could be a breach. The other way you can breach it is if you break the law by an offence which is punishable by imprisonment over the next two years. So there is a lot of responsibility on your shoulders. Normally people who commit this type of offence with a knife go to gaol. It is as simple as that. So you are avoiding going to gaol by undergoing this order. But it is not an easy order. It means you have to work at it. There will be a lot of people around you to give you support so there is no reason why you cannot comply with it. But if you do break the order in the way that I have said then you should expect to be brought back to this court. In fact you would come back to me.
65OFFENDER: Yes.
66HIS HONOUR: If that happens and you do not have a reasonable excuse for breaking the order then I would consider sending you to gaol.
67OFFENDER: I understand that, Your Honour.
68HIS HONOUR: Good. I am glad you understand it because I mean it.
69OFFENDER: I know you do.
70HIS HONOUR: So if that happens the court can vary the order, confirm the order made or cancel it and deal with you for the original offence for which the order was made, as I say, which may involve a sentence of imprisonment, or the court could take no further action. So do you understand the serious consequences if you were to breach the community correction order?
71OFFENDER: Yes, 100 per cent, Your Honour. Yes.
72HIS HONOUR: All right. Do you understand you could be sent to gaol if you were to breach the community correction order?
73OFFENDER: Yes I do, Your Honour.
74HIS HONOUR: Good. So with all that in mind, do you consent to the proposed community correction order as I have explained it to you?
75OFFENDER: Yes, Your Honour.
76HIS HONOUR: You do. All right, thank you.
77OFFENDER: Thank you.
Sentence
78
HIS HONOUR: The formal order will be that you are convicted of the offence and released on a community correction order for two years commencing today, ending on 26 July 2017, on the terms and conditions that I have set out. What I am going to do is ask your counsel to have you sign this form.
Ms Hartnett, would you just go through it with her and make sure she understands.
79MS HARTNETT: Yes, Your Honour. Thank you, sir.
80HIS HONOUR: All right. I have signed that order. Copies can be made.
Forensic sample order
81The prosecution has also applied for an order for a forensic sample. You consent to that order being made.
82OFFENDER: Yes.
83HIS HONOUR: I am satisfied that I should make that order having regard to the seriousness of the offending, that the order is by consent and that it is in the public interest that I should make that order. So pursuant to s.464ZF(2) of the Crimes Act 1958, Jessica May Reynolds, I order that you undergo a forensic procedure for the taking of a scraping from the mouth and/or a blood sample in accordance with subdivision 30A of part 3 of the Crimes Act 1958 until a sample of sufficient standard is obtained for placement on the database. Pursuant to s.464ZF for the purposes of undergoing the said procedure you have to report to the officer in charge of the Cowes Police Station - 92 Chapel Street, Cowes - during the next four weeks, so commencing 28 days after the date of sentence, or once any instituted conviction appeal is finally determined and the conviction for the forensic sample offence is upheld, whichever is the later.
84I should warn you that if at the time of the request - even though you have consented to this - you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, that the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted. The procedure is very simple; they put a swab in your mouth and rub it around and that is it, so it is painless. So I am going to make that order.
85Mr O'Doherty, there is just one here that I received so you can make copies of that as you require.
86MR O'DOHERTY: Yes, thank you very much, Your Honour.
87HIS HONOUR: I will hand that down as well.
Undertaking to give evidence
88MS HARTNETT: Your Honour, there is just one final matter, and perhaps just out of an abundance of caution, but Your Honour mentioned Ms Reynolds had given an undertaking to give evidence in relation to this matter but did not mention the sentencing discount that that would attract.
89HIS HONOUR: No I did not and I meant to do that because I have got it on the page that I was looking for before but got lost in amongst all the pages.
90I do indicate to you, Ms Reynolds, that I have also taken into account significantly in your favour the fact that you made the undertaking and I declare that the sentence that I have imposed was less than what I might otherwise have imposed by reason of that giving of the undertaking. I think it is s.4, is it not, Ms Hartnett?
91MS HARTNETT: I think that's right, Your Honour. That's right, sir.
92HIS HONOUR: Yes. I also take into account the fact that you have given that undertaking in the context of where you may be subject to pressure or threats from your former partner for agreeing to do that and particularly as he is the father of the child that you are caring for.
Section 6AAA
93Is there anything else, Mr O'Doherty?
94MR O'DOHERTY: 6AAA, Your Honour.
95HIS HONOUR: Yes. Thank you for reminding me of that. Is it a discretionary order?
96MR O'DOHERTY: If you don't sentence to a term of imprisonment it is, Your Honour, yes.
97HIS HONOUR: Yes. That's what I thought. I think it is such an artificial exercise in a case like this.
98MR O'DOHERTY: Yes. I just mention it.
99HIS HONOUR: Because it may be that I would have sentenced the offender to prison but it might be that I wouldn't have, even if she hadn't have pleaded, given the special circumstances.
100MR O'DOHERTY: That's right, yes.
101HIS HONOUR: I am not going to give an indication, given that I have not sentenced her to imprisonment.
102MR O'DOHERTY: Thank you, yes.
103HIS HONOUR: Because as I say I think it's a very superficial, artificial exercise that in this particular case is almost impossible to be sure about.
104Thank you all. Sorry to keep everybody late. Mr Black, sorry that you have been kept late.
105MR BLACK: No problem at all, Your Honour.
106MS HARTNETT: Thank you again, sir.
107HIS HONOUR: Seeing as the trial is starting tomorrow it just seemed to me better to get the thing out of the way. All right, thank you.
108MS HARTNETT: Thank you, sir.
109HIS HONOUR: Adjourn till 10 o'clock.
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