Director of Public Prosecutions v Sawyer
[2022] VCC 1784
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Suitable for Publication |
CR-20-01471
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL SAWYER |
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JUDGE: | HIS HONOUR JUDGE GUCCIARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 April 2022 | |
DATE OF SENTENCE: | 17 October 2022 | |
CASE MAY BE CITED AS: | DPP v Sawyer | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1784 | |
REASONS FOR SENTENCE
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Subject:Criminal Law.
Catchwords: Child abuse material - CMIA Special Hearing – Jury verdict – Evidence of
permanent intellectual disability - Low to moderate risk of reoffending – Good
prospects of rehabilitation
Legislation Cited: Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.
Cases Cited:
Sentence: Non-Custodial Supervision Order for 5 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms N. Sheridan-Smith | Ms M. Koufidis |
| For the Accused | Mr J. Lavery |
HIS HONOUR:
1On 13 April 2022, a jury and a special hearing held pursuant to the provisions of Division 2 Part 3 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 found that Daniel Sawyer committed the offences charges on Indictment K10257167.
2Mr Sawyer had been found to be unfit to be tried and, as a result, a special hearing had been ordered. Her Honour Judge Marich, on 27 January 2022, has made such a finding because Mr Sawyer's mental process are disordered or impaired and would have been unable to satisfy five of the six criteria outlined, as required for fitness to stand trial.
3This unfitness was not disputed, as based on the two reports of Dr Matt Treeby, also a report of Dr Amanda Nielsen from Forensicare, which came to similar conclusions, as well as viva voce evidence by Dr Nielsen.
4Her Honour found Mr Sawyer was not likely to become fit within the next 12 months and ordered a special hearing be conduct before a judge and jury. It proceeded, as I noted, before me in April of this year.
5Upon the jury's finding, pursuant to s7(1)(c) of the Act, I ordered that Mr Sawyer be released on bail until further order and ordered that under s19(1)(d) he undergoes an examination via registered psychologist and that the results be put before the court. That pursuant s40(2) and s41, a report be prepared and filed by the Secretary of the Department of Health and Human Services, as it then was, and provide the court with a certificate of available services.
6The finding by the jury constitutes a qualified finding of guilt under s18(3)(a) and under s18(4) a judge must declare that the person is liable to supervision under Part 5 of the Act, which declaration I made after the jury's finding.
7Under s19(1)(a) I then granted Mr Sawyer bail. Having declared Mr Sawyer liable to supervision, having received the certificate of available services and the report of Dr Jessica Griffith, clinical and forensic psychologist, senior clinician at Complex Psychology, I now propose to set out the conditions of the supervision order to which Mr Sawyer will be subject.
8
Mr Sawyer was referred to Dr Griffith by Mrs Radema, team leader,
Disability Justice Coordination, state-wide disability service, at the
Department of Family, Fairness and Housing for the purposes of the report as per s40(1) and (2) and s41 of the Act. Dr Griffith's is a very helpful and comprehensive report, writes of each of the matters which the court must have regard to, that is, the nature of the person's mental impairment or other condition or disability and the relationship between impairment condition and disability and the offending conduct and whether the person is or would, if released, be likely to endanger themselves, another person or other people generally because of his mental impairment and the need to protect people from such danger and whether there are adequate resources available for the treatment and support of the person in the community and any other matter the court thinks relevant under s40.
9Under s41 the court must have regard to a diagnosis and prognosis of the condition and the person's response to treatment, therapy and counselling and suggested treatment and other plans for managing the condition, amongst other relevant matters. The author was additionally requested to undertake a risk assessment.
10In this matter, Mr Sawyer was found to have committed two offences on the indictment, namely, possession of child abuse material. The offences carry a maximum of 10 years' imprisonment. Briefly stated, the offences were committed by Mr Sawyer in these circumstances.
11On 7 November 2018, police went to the accused's unit with a search warrant, pursuant to which they seized a DVD and a mobile phone. These two items contained child abuse material. Mr Sawyer's support worker could not attend at that time and became angry and crushed another DVD and attempted to smash his phone. The DVD had 1258 images of adult pornography but also 13 images of child abuse material Category 1 (non-sexual activity).
12
Also on the DVD, 1302 non-illegal but connected images of young females in scant clothing and naked but in non-sexual poses. The phone contained six images of child abuse material in Category 1 (non-sexual activity) and 65 non-illegal but connected images of young females in gym clothes or bikinis or naked in
non-sexual poses.
13When interviewed, Mr Sawyer asserted he had never seen the disc's contents, that he broke the other DVD because he was angry the police were in his house and he tried to break the phone because he could not get through to his support worker and he was upset at police trying to take the phone off him.
14The chronology on this matter explains the delay which has taken place in this matter. The search warrant was executed in November 2018. The analysis of the DVD took place on 12 November. On 26 November, a record of interview was conducted. There was a delay between statements dated 8 August 2019 and November 2019 and although Mr Sawyer was committed in November 2020, there were subsequent delays in 2020-21, probably due to COVID pandemic, with directions hearings in December 2020 and then, on a number of occasions, throughout 2021.
15In June 2021, the matter was part-heard before me and then in January 2022, it was adjourned part-heard by Judge Marich to the end of January in relation to a fitness ruling which was made in March 2022 and then the jury finding before me was in April 2022.
16The certificate of available services provided to the court by Dr Matt Frize was dated 15 August 2022 and the report by Jessica Griffith was dated 29 June 2022. Other relevant documents were reports by Dr Matt Treeby dated August 2019 and February 2020 and Dr Nielsen dated May 2021.
17I note that Dr Griffith had numerous sources of information for her extensive report which she listed at p3 of her report. Those included the psychological assessments that I just mentioned. She also referred to a NDIS plan report by Dr Patricia Reed dated September 2021, a Barwon Health Hospital admission risk progress by Mr Lobbert of 22 February 2022, as well as discussions with Dr Reed mentioned above, clinical psychologist, in June 2022, and with Ms Nichole Sawyer, Mr Sawyer's sister and guardian, in June 2022.
18Dr Griffith also utilised four separate structured assessment instruments from paragraph 6(c). She provided, first, a detailed personal history focused on family and developmental history, educational and vocational history, social history, mental health and physical health history, and a substance abuse history, as well as a summary of the forensic history which were discussed this morning and are contained in the exhibit of this morning, Exhibit C, and other challenging behaviours.
19
Dr Griffith comprehensively reviewed the collateral information and summarised it in paragraphs 21-26. In particular, the findings and opinions of occupational therapists who undertook a functional assessment in 2021 (paragraph 22), the NDIS review report of Dr Reed (paragraph 23), the Treeby reports
(paragraphs 24-25) and Dr Nielsen's report (paragraph 26). Dr Griffith outlined discussions with Dr Reed in June 2022 (paragraph 30) and with Mr Sawyer's sister (paragraph 29). She held discussions also with Ms Linehan, a support coordinator of NDIS services and Mr Solomon, disability justice coordinator at
Geelong Department of Family, Fairness on 14-15 June 2022.
20
Dr Griffith conduct a mental status examination, including in clinical interview. Firstly, she administered the Paulhus Deception Scale Assessment as to validity of responses. She then obtained responses to the questionnaire attitudes consistent with sexual offences, then conduct the ASX Assessment of
Sexual Knowledge and then the Structured Risk Management Guideline Assessment and Risk Management of individuals who offend sexually, intended for use with intellectually disabled, developmentally delayed or learning disabled individuals where there are concerns relating to violent or sexual behaviour (Armidilos) with a special note regarding actuarial measures for child exploitation material (paragraphs 53-83). The risk scenario was summarised at paragraphs 85-86 as to potential for reoffending.
21
In a summary of her report, Dr Griffith, from paragraph 87 onwards, concluded
Mr Sawyer is a 37-year-old man with a mild to moderate intellectual disability with an IQ of 55 who presents with several pre-disposing vulnerabilities, including intellectual disability and impoverished childhood. He was separated from family and resided in a series of group homes, including a period at Tarana. He was unable to form prosocial peer friendships, attain educational success or gainful employment.
22He committed early adolescent offending. As an adult, he was socially isolated, had no intimate relationships, demonstrated a poor understanding of social and sexual acceptable mores. His offending, opines Dr Griffith, appears to have been precipitated by a general curiosity and desire for sexual gratification, coupled with a poor understanding of the consequences and harm of accessing child abuse material. Currently, Dr Griffith noted, had shown no further offending, is well supported by NDIS funded programs and is compliant with bail requirements. He presents as a low to moderate risk future non-contact sexual offending and a low risk of contact offending.
23As to s40(1)(a), Mr Sawyer has a lifelong global developmental delay, characterised by mild to moderate intellectual disability, a condition which is permanent, affecting his ability to problem solve, process information, organise and plan, which profoundly impacts on his adoptive functioning in everyday living.
24As to s40(1)(b), Mr Sawyer has reduced capacity to understand interpersonal relationships, intimacy, social expectations and appreciate the significance of his offending and the impact on victims. His impairments, particularly those related to social isolation and few opportunities to experience consensual adult intimacy contribute to his offending behaviour.
25As to s40(1)(c), he presents as being at low risk of endangering himself, apart from through alcohol abuse. He is at a low to moderate risk of further online offending through accessing child abuse material. There is a low risk of other offending in the community. As in Dr Griffith's opinion, these charges are isolated in nature.
26There remains an ongoing moderate to high risk of behavioural disturbance and verbal aggression. As to s41(d), Mr Sawyer's challenging behaviour is limited to verbal aggression to support staff, not a danger to the broader public and remains a low to moderate risk of reoffending by way of non-contact possession of child abuse material.
27As to s40(1)(e), as to the resources available for treatment and support in the community, he is supported through NDIS for home support, access to the community, Allied Health support and behavioural support. Additional support would benefit Mr Sawyer. The current resources have been adequate for several years to assist him to remain successful in the community without further offending.
28As to s41(f), suggest a treatment and therapy, Dr Griffith notes his frequent use of alcohol and interpersonal difficulties, unresolved grief relating to loss of his mother and would benefit from resumption of supportive psychological therapy.
29As to s40(2) and Mr Sawyer's mental condition, Dr Griffith reports that he has a moderate intellectual disability and substance abuse disorder.
30
As to the possible effect of the proposed order on Mr Sawyer's behaviour,
Dr Griffith notes that if he should be made subject to a custodial supervision order, he would experience the conditions as more onerous than a person without his level of disability, vulnerability and naivety. He would be vulnerable to others. A non-custodial order would result in his behaviour being unlikely substantially to be affected. He has, I note, remained offence free for several years. Unconditional release is also unlikely to change his behaviour. He has attended voluntarily to psychological counselling, refrained from further offending, as well as engaging with NDIS supports, however, marked by some interpersonal conflict with workers.
31As to s41(1)(a) regarding a diagnosis and prognosis, Mr Sawyer has a permanent intellectual disability which is not amenable to change. He has shown some engagement with therapeutic supports and has remained offence free. His prospects of rehabilitation are considered good by Dr Griffith.
32
As to his response to treatment (sub-paragraph (b)), no specific offence treatment has been provided by Dr Reed reported that he engaged well and attended routinely for about a year. As to paragraph (c), a suggested plan for managing his condition, Dr Griffith recommended matters set out in paragraph 103 of her report. Salient aspects of these 10 measures are a review of NDIS funding for increased formal supports, consideration of supported disability accommodation, psychoeducational relationship program participation, alcohol abuse counselling, grief counselling, community re-engagement and employment through
Disability Employment Services.
33The doctor notes a behaviour practitioner was appointed under a behaviour support plan to conduct a functional analysis. NDIS funding for such assistance is warranted. Dr Griffith urges all support teams to improve communication as between agencies for better outcomes and management.
34In seeking to apply the principles outlined in s39, principles on which the court is to act, I note primarily the principle that restrictions on a person's freedom and personal autonomy should be kept to the minimum, consistent with the safety of the community. In my view, the matters outlined in the very comprehensive report of Dr Griffith indicate that the court should make supervision order in this case that is non-custodial (s26(2)(b)) with conditions decided by the court and specified in the order.
35A supervision order must be accompanied by nominal term under s28 of the Act. The table attached to that section indicates a period equivalent to half the maximum term of imprisonment available for the offence. In this case, s51G (1) of the Crimes Act provides for a penalty of level 5, 10 years' imprisonment. Accordingly, the term of the order will be for five years.
36In accordance to s27 of the Act, I direct that the matter be brought back to the court for review at the end of 12 months, at which point the court, whether to confirm, vary or revoke on its own direction or for variation or revocation is sought under s31, by one of the parties, outlined (a)-(d).
37At that review, the court, I repeat, has available to it various orders, as outlined by s33. Pursuant to s28(4), I declare today as the day from which the nominal term runs.
38The court has received a certificate of available services dated 15 August 2022 from Dr Matt Frize, a delegate of the Secretary of the Department of Family, Fairness and Housing. The certificate outlines that Mr Sawyer, when placed on a non-custodial supervision order, will be able to access services provided by the forensic disability program of the Department. The Disability Justice Coordination will provide case coordination and supervision to Mr Sawyer for the duration of the order, including collaboration with NDIS funded services and other agencies, support networks and family. It will also provide referrals for therapeutic and behavioural support programs to address health, relationship, substance use, grief and emotional regulation, as per the recommendation of Dr Griffith's report and her risk assessment.
39Participation and attendance in such programs are, as directed, to address these matters are the conditions which I will impose in the supervision order.
40Mr Sawyer should be advised by his legal representatives that under s28(a) he has a right to appeal to the Court of Appeal against the supervision order. Also, he should be advised on the provisions of s29 which cover non-compliance with the order and the powers of the court to issue a warrant of arrest if he does not attend court and the powers of the court to confirm or vary the order, including the power to vary the order to a custodial supervision order.
41I am making this order having considered at length the objective gravity of the offence which, in my view, is low and the low level of moral culpability involved in it, as well as the delay which has occurred in this matter. However, the contents of the reports mentioned in relation to Mr Sawyer's unfitness to plead and the jury determination, in my view, disclose a need for the court to take an active therapeutic approach to its disposition.
42
A supervision order aims to provide Mr Sawyer with the kind of assistance which, in the long-term, will benefit not only him, but also the community. Rehabilitation in this context is perhaps too narrow or undefined a concept but captures the desire of the court to protect the community by encouraging whatever possible advancement and education and reclamation is able to be provided to assist
Mr Sawyer to be a contributing member of the community, while requiring of him a modicum of cooperation for his own benefit. So the intention, clearly, of the order is to follow the conditions pursuant to paragraphs 103 of Dr Griffith's report.
43I do not intend to enumerate those matters beyond what I have just recited. I think the matters are pretty clear in relation to the contents of that report and that particular paragraph which outlines what is required in the order.
44Are there any other matters, Mr Lavery, in relation to that? I hope that you'll get an opportunity to speak to your client in relation to the conditions and endeavour to explain to him what it means for him.
45MR LAVERY: Yes, Your Honour. I think the best approach there is probably if I try and have a conference booked through my instructors.
46HIS HONOUR: Yes. Yes, I think that that would be best and you'll be armed with Dr Griffith's report and you'll be able to go through those matters and hopefully there'll be an ability to explain also consequences for non-compliance which he should be aware of.
47MR LAVERY: Yes, Your Honour.
48HIS HONOUR: Yes, Ms Sheridan-Smith.
49MS SHERIDAN-SMITH: Briefly, one point of clarification, if I may, Your Honour. In terms of the nominal term, when I was checking the provisions yesterday, I got to the point where it seemed to me, in my submission, that it was in fact a serious offence and that therefore it's subject to the maximum - sorry, that the nominal term then becomes equivalent to the maximum penalty. So I'd gone through the Sentencing Act Schedule 1(1) at paragraph xvihc, I think it is, refers to s51G being the subject offending here, making it a serious offence, was my understanding. But I'll be corrected by Your Honour if I've mistakenly tracked back through those provisions.
50HIS HONOUR: Well, I wasn't informed about it being a serious offence on the earlier occasion and I looked at the summary of the prosecution opening which refers to s51G(1) and then to the schedule that's attached by reference to half of that maximum term, but I'm not sure. Mr Lavery, have you had an opportunity to look at that particular aspect?
51MR LAVERY: No, I haven't, Your Honour. I wasn't aware that that is an issue.
52MS SHERIDAN-SMITH: That's the only point of clarification from my perspective, Your Honour.
53HIS HONOUR: Well, as I say, I haven't had an opportunity to look at whether - - -
54MS SHERIDAN-SMITH: Yes.
55HIS HONOUR: - - - the offence is actually a serious - classified as a serious offence. Where's that classification to be found?
56
MS SHERIDAN-SMITH: In s28 - sorry. In terms of the Crimes (Mental Impairment) Act, s28(1)(b) refers to a serious offence. That's the little table that Your Honour referred to a second ago. That then directs you to the Sentencing Act Schedule 1(1) and then paragraph xvihc, is where I'd found the reference in Schedule 1 to s51G being a part of that schedule. Well, it took a little while to work my way through those different provisions but that's my understanding of them; the nominal term would become equivalent to the maximum penalty which is
10 years.
57HIS HONOUR: Yes.
58MS SHERIDAN-SMITH: But if I'm wrong, I'm happy to be corrected. The only other matter arising, Your Honour, is concerning the Sex Offenders Registration Act. My understanding is, that Your Honour's finding under s18(4)(a) an order that is in need of supervision triggers the Sex Offenders Registration Act. In s3 of that Act is the definition section referring to what is a sentence and that includes, at sub-paragraph (ab), a declaration under that s18(4)(a).
59And then in terms of calculating the amount of time and so forth relevant to that, because we've got two offences on the indictment but they're committed on the same day, I assume and I understand that would be treated as the same incident. So a Class 2 offence but because they're committed on the same day, it's my understanding it would be treated as, essentially, a single Class 2 offence and, therefore, subject to eight years registration period pursuant to s34 - sorry, I've just missed my sub-paragraph note.
60So the reference to the same incident is in s34(3). To be honest, it's a little vague in terms of paragraph 34 where it's listing Class 1 plus Class 2 equals all of these different lengths of time.
61HIS HONOUR: Yes.
62MS SHERIDAN-SMITH: But my reading of s34, in addition to paragraph 34(3) which refers to the incidents occurring in the same incident - - -
63HIS HONOUR: Same incident.
64MS SHERIDAN-SMITH: - - - then there's a definition, also in s5, that it be offences occur within a 24-hour period of each other, there it's a single incident essentially. So ultimately, that gets me to an eight-year period of registration, is my submission, Your Honour.
65HIS HONOUR: Yes.
66MS SHERIDAN-SMITH: Again, happy to be corrected if I'm wrong. It took a while to backtrack through all those provisions yesterday.
67HIS HONOUR: Mr Lavery, I take it that you haven't had an opportunity to look at that particular aspect either. Look, what I'll do I think, rather than take time now, is go through those provisions, both in relation to the nominal term and in relation to the SORA registration. Both of you can have a look at the order when it's signed and, if there are any matters, I can have the matters mentioned and it can be adjusted. Mr Kornhauser.
68MR KORNHAUSER: Sorry, Your Honour, could I just seek clarification on one matter in terms of the form of the conditions.
69HIS HONOUR: Yes.
70MR KORNHAUSER: Your Honour's referred to paragraph 103 of Dr Griffith's report. What I'd like to seek clarification on, Your Honour, is whether Your Honour had proposed to set out those relevant services or, alternatively, to include a global condition, something to the effect of, that Mr Sawyer complies with directions in relation to treatment and services, as is more commonly used in these types of orders.
71HIS HONOUR: No, that's the way that I was going to style the order; that is, that he abides by all lawful directions of the Secretary of the Department - - -
72MR KORNHAUSER: As Your Honour pleases.
73HIS HONOUR: - - - which would be in compliance with the recommendations contained in that paragraph.
74MR KORNHAUSER: As Your Honour pleases. Thank you.
75HIS HONOUR: Yes. Well, have a look at the order when it's ready and if there's any issues that arise, you can communicate with my associate in relation to it. If there's any issues in relation to any of those matters, we can have the matters mentioned again, although, I'll be on leave until 5 November. But I can - if things seem astray in the next couple of days, I'm here till Friday. All right, any other matters that counsel wish to raise with me?
76MR KORNHAUSER: No, Your Honour.
77MS SHERIDAN-SMITH: No.
78MR LAVERY: No.
79HIS HONOUR: Thank you all. Thank you, Dr Griffith, for making yourself available this morning. All right, I'll stand down.
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