Director of Public Prosecutions v Smith
[2016] VCC 2069
•14 December 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No.CR-15-02199
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOEL SMITH |
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JUDGE: | Her Honour Judge Hampel | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 - 21 April 2016; 4 May 2016; 1 – 5 August 2016; 23 September 2016; 2 November 2016 | |
DATE OF ORDER: | 14 December 2016 | |
CASE MAY BE CITED AS: | DPP v Smith | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 2069 | |
REASONS FOR ORDER
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M. Hennessey | Office of Public Prosecutions |
| For the Accused | Ms R. Sleeth | Victoria Legal Aid |
HER HONOUR:
1 I have decided that it is appropriate to make a non-custodial supervision order in respect of Mr Smith. I thought I should announce that first and I will now read my reasons.
2 Joel Smith, you were charged with two charges of committing an indecent act with or in the presence of a six year old child - the daughter of a neighbour of yours - on 23 January 2015. You were then 21 years old.
3 Following a fitness hearing under the Crimes (Mental Impairment and Unfitness to Be Tried) Act1997 you were found unfit to be tried due to a combination of cognitive impairment and autism spectrum disorder.
4 You have a long diagnosed cognitive disability with IQ testing placing you in the moderate range of the intellectually disabled. You have also attracted diagnoses, by reason of behavioural matters that have been seen in you over a long period, of attention deficit hyperactivity disorder and autism spectrum disorder.
5 After a special hearing conducted under the Crimes (Mental Impairment and Unfitness to Be Tried) Act1997 a jury found that you had committed the acts charged. Those findings mean that the jury was satisfied that one afternoon when the daughter of one of your neighbours had been given permission to play with you at your home you exposed your penis to her and asked her to touch it and put your hand inside her underwear and poked her vagina.
6 These acts occurred on an occasion when the child had been given permission by her mother and your mother to play a game with you on your computer. The computer was in your bedroom, and your mother gave evidence that the door was open and she was nearby supervising the two of you for most of the time.
7 The child complained immediately after she went home to her parents. Her father confronted you and your mother. You denied having engaged in any wrongdoing and your mother supported you and asserted that nothing could have happened as the two of you were under her supervision but for a very short time when she went next door to the child's home to ask her mother if she could stay for a little longer.
8 You have maintained your denials of wrongdoing and your parents have been steadfast in their support of you and their belief in your innocence.
9 Following the jury finding that you committed these acts I must determine, pursuant to s 18(4) of the Act, whether to release you unconditionally or to declare you liable to supervision.
10 In deciding whether to make a Supervision Order, s 39 of the Act requires me to apply 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.
11 Section 40(1) requires me to take into account the following matters: The nature of your mental impairment or other condition or disability, so that is your cognitive disability and your autism spectrum disorder specifically; the relationship between the impairment, condition or disability and the offending conduct - it would appear clear on all the materials before me that there is a connection or a relationship between your cognitive impairment and the offending conduct and that is by reason essentially of your inability to understand the boundaries of appropriate behaviour; whether you are or would, if released, be likely to endanger yourself another person or other people generally because of your mental impairment - I will come back to the risk issue later; the need to protect people from such danger - I will come back to that later; whether there are adequate resources available for treatment and support of you in the community - I will come back to that later; and any other matters that the court thinks relevant.
12 I cannot order unconditional release unless I have taken into account the matters set out in s 40(2) (a) – (e). That is, that I have obtained and considered the report of at least one registered medical practitioner or registered psychologist who has personally examined you on your mental condition and the possible effect of the proposed order on your behaviour.
13 I have considered the report submitted to the court under s 41(1). Having been satisfied that your family members and the victims of the offence with which you are charged have been given reasonable notice of the hearing at which the release is proposed to be ordered, I have considered the report of any family members or victims made under s 42; and have obtained and considered any other reports the court considers necessary.
14 I have received reports from your family members and from the family members of the victim. I have received a number of very helpful reports, in particular, the most recent report of Professor Ogloff dated 27 July 2016 which was provided in the course of the proceedings, and the report of Dr Shanker Pragnaratne which was commissioned under the Act following the jury's finding that you had committed the acts. I have also received a certificate of available services under s 47 of the Act.
15 In N O M v DPP [2012] VSCA 198 the court held at [47]:
"Section 37 requires a value judgment informed by the competing considerations stated in the provision. Section 40(1) requires an evaluation of the appellant's mental condition and progress and an assessment of risk against discrete but interrelated criteria. These assessments call for value judgments in respect of which there is room for reasonable differences of opinion. No particular opinion being uniquely right, the making of the order involves the exercise of a judicial discretion. The discretionary character of the decision is not displaced by the mandatory requirements that the judge ‘must apply’ the principle under s 39 or ‘have regard to’ the factors in s 40."
16 And significantly, at [68] the court said this:
"A supervision order is not a sentence or punishment but treatment. A person subject to such treatment, such as the appellant, is found ‘not guilty’ of any crime on account of his mental impairment and on that basis there is no justification or imposition of any punishment."
17 I interpolate here to say that the observations in [47] and also in [68] apply in my view equally to a case where a person has been found to have committed the act, having been found unfit to be tried. The court went on to say this:
“However, in another sense, the logical structure of the principle of parsimony has some resonance in this case. A supervision order, be in custodial or non-custodial, must only be imposed if necessary for balancing the safety of the community with the person's freedom and autonomy.”
18 Professor Ogloff's report dated 27 July 2016 detailed the contact that he had had with you following his initial assessment of your unfitness to be tried. He had agreed to see you at Forensicare to evaluate your level of risk of re‑offending and to provide you with psychoeducation regarding appropriate sexual behaviour. He noted that as a result of your intellectual disability and autism you have a limited awareness and understanding of sexuality.
19 As at July he noted you appeared to have a degree of curiosity about women, body parts and sex generally and he was of the opinion that you would benefit from ongoing discussions within the family or with professionals regarding these matters. Dr Ogloff provided your father with information about how to access the Family Planning Victoria website which provides information and support for talking to children with cognitive disabilities about sex and he noted that your father said that he would work on this with you.
20 Professor Ogloff assessed your level of risk of re-offending sexually by use of three assessment tools. Two of those, the RSVP and the Static-99, are not specifically tailored to the needs and capabilities of people with an intellectual disability but the third, the ARMADILO is a specifically designed tool for assessing the level of risk of intellectually disabled offenders who offend.
21 Using those tools and his clinical judgment Professor Ogloff concluded the following:
“Joel Smith is a 22 year old man with a diagnosis of autism spectrum disorder with accompanying intellectual disability. His level of intellectual disability is in the moderate range. As with other people with such an intellectual disability the development of Mr Smith's conceptual skills has lagged markedly behind those of similar aged peers. As a young adult, his academic skill development remains at primary school level and supports are required for all skills requiring an academic understanding in work and personal life. Ongoing assistance on a daily basis is required to complete conceptual tasks of day to day life and, in some areas, he will require others to take responsibility for those tasks (for example, financial management and any complex decision making).
With respect to his social functioning, Mr Smith again shows marked differences from peers both with respect to his social and communicative behaviour. While he communicates well, his level of understanding of language is significantly limited. He certainly has the capacity for relationships, as is evident in his ties to family and friends. It is also common for some people with intellectual disability at the moderate level to have successful romantic relationships in adulthood. However, both as a result of intellectual disability and symptoms of autism spectrum disorder, Mr Smith does not appear to perceive or interpret social cues as well as ome without those disorders might. He demonstrates a degree of limitation in social judgment and decision making abilities and will be dependent on others, including his parents, to assist him in navigating social relationships. The nature of his friendships, as he described them to me, generally involved social activities such as video gaming. He is likely unable to develop significant employment skills, but is able to work in situations with a high level of social and communicative support, for example, in a sheltered workshop or volunteer work aimed at people with intellectual disabilities.
Despite his level of intellectual disability Mr Smith has a number of strengths and can care for personal needs including eating, dressing, elimination and hygiene as an adult, although he requires an extended period of teaching and time to become independent in those areas, and even then reminders may still be needed. Similarly, Mr Smith can do tasks, even including driving a car and navigating transportation, particularly when he is provided with information and practice about the travel route.
Mr Smith's diagnosis of autism spectrum disorder impairs his capacity in reciprocal social relationships. However, in the time I have now been able to know Mr Smith, while he has some limitations in social relationships, he is able to maintain conversation, displays a sense of humour, and presents as a respectful young man.
As indicated in the report, Mr Smith has a delayed level of sexual awareness and understanding. In this regard he is developing a curiosity about sexuality and while he displays a good understanding of privacy, physical boundaries and sexual boundaries he would benefit from ongoing discussion within the family and perhaps with professionals regarding sexuality. I am satisfied at this time that he has an appropriate level of understanding which appears to be much better developed than it was at the time of the offending. According to the report prepared by Dr Zimmerman, referenced in my original report, Mr Smith was not provided with any discussion about human sexuality outside of that which he learned at school in sexual education.
Based on the risk assessment conducted, it is my opinion that Mr Smith presents a low level of risk of further sexual offending. His level of risk can be managed by ensuring he has an ongoing awareness of sexual boundaries. He does not display any degree of sexual deviance nor is there any indication of any hypersexuality. Therefore he should be able to manage any sexual impulses that he has or develops over time.
As indicated Mr Smith would benefit from ongoing discussions, particularly with his father, about sex and sexuality and I have alerted Mr Smith and his father to resources available from Family Planning Victoria.”
22 The report by Dr Pragnaratne provided under ss 41 and 42 and dated 25 October 2016 has been very helpful. His report was supplemented with oral evidence when the matter was last before me.
23 He saw you on three occasions over an extended period and also conducted assessments of your sexual knowledge using the ASK (2004), an assessment tool developed by researchers at the Centre for Developmental Disability Health Victoria, Monash University, and the Department of Human Services to assist in the assessment of sexual knowledge and underlying attitudes of people with intellectual disability over the age of 16 years. Again it appears to be a peer reviewed, validated and reliable tool.
24 Your contacts with Dr Pragnaratne all occurred after the time of the writing of the report by Professor Ogloff from which I have quoted extensively. You told Dr Pragnaratne that you had only had some sex education whilst at school and even so, you were not interested in it.
25 Based on what you told him, Dr Pragnaratne concluded that you appeared to wish to indicate a strong sense of aversion to any sexual imagery or content that you might accidentally be exposed to as well as a general disinterest in sex or sexual relationships.
26 He concluded:
"The results of the ASK assessment conducted, while indicating some learnt knowledge of ‘right’ and ‘wrong’ which Mr Smith seems to possess, point more critically to impairment and difficulties in judgment in relation to social situations and relationships. Of course the difficulties in judgment related to issues of consent being of significant concern and consistent with his diagnosis of ASD primarily (where limitations in social judgment, understanding social cues and reciprocal relationships are key features), but also likely related to his cognitive limitations.
Of concern also, is the significant interest he shows in children which although at times may be inappropriate from all reports does not seem to have any underlying sexual motive but rather reinforced by his belief that he is “great with kids”. This issue too is likely related to features of his ASD (where misinterpretation of social cues or messages may have formed his fixed ideation and interests), and compounded by his cognitive limitations and presents some critical risks for future behaviour and social outcomes. That is, he seems to have a reduced capacity for judging risks and controlling his compulsion to engage with children when he is in situations where children may be present.
To his credit, however, Mr Smith has responded well to advice and guidance, at least in relation to his employment interests and accepted that work in the automotive industry would be far more appropriate for him than in child related employment.
In relation to the level of risk Mr Smith presents, I do concur with Professor Ogloff's findings (of July 2016), that Mr Smith presents a low level risk of re-offending and that he does not display any degree of sexual deviance. He conveys an understanding of concepts related to socially appropriate behaviour, boundaries, personal risk and safety issues, although his capacity for application of these in real life situations may be limited due to deficits in cognitive abilities and social functioning. Therefore, I make the following recommendations in relation to risk management:
1. Mr Smith would benefit from a course of counselling and psychoeducation through an appropriately qualified clinician with expertise in working with people with intellectual disability and autism focusing on personal development, social and sexual relationships and social behaviour (including appropriate / inappropriate behaviour, personal and community risk and safety issues, law and personal responsibilities).
2. Along with 1:1 counselling, his vocational support staff, particularly at Bridge Works, should be provided with support and guidance to reinforce concepts addressed in counselling and support Mr Smith to develop better adaptive and more responsible social behaviour.
3. Bridge Works have advised that Mr Smith is now ready for job placement, however, due to his legal issues and pending court matter they have been uncertain about pursuing placement options; Mr Smith needs to be supported to gain and maintain suitable employment, preferably in the automotive industry where he may be meaningfully occupied.
4. Mr Smith's parents are concerned and supportive of him; they actively monitor his moods, well-being and activities and are a significant source of support. They may be better supported to provide active support and guidance to him through the clinician involved, particularly to reinforce behavioural, social and personal development concepts from counselling within the home and community settings.
5. I don't believe a referral for intervention through a program such as Disability Forensic Assessment and Treatment Service (DFATS) is warranted at this stage and I feel he could be overwhelmed with the requirement to undergo too many clinical appointments and struggle to meet with certain conditions of the supervision order if the conditions were too onerous or beyond his capacity."
27 In his oral evidence Dr Pragnaratne said that your level of risk of re‑offending in the same manner as the current offending was very low to minimal. However, he expressed concern with the possibility of another type of risk, such as interacting with a child in an innocent manner that may come across to those observing as inappropriate. In other words, something more subtle than the current offending.
28 The Certificate of Available Services under s 47 confirms that you are eligible for general disability support services by reason of your intellectual disability. However, the level of general disability support services were a non-custodial supervision not made would be different and significantly less than those available were a supervision order made. The specific services that would be available to the court under a non-custodial supervision order are these:
“Case management in order to coordinate, facilitate and monitor participation in services aimed at reducing the likelihood of re-offending, including: coordination of service delivery and facilitation of regular care team meetings; assistance to link into prosocial, recreational, educational and vocational activities; support with attending required appointments and support to reinforce behavioural and social concepts from counselling within the home and community services.
Vocational services to provide support and guidance to reinforce concepts addressed in counselling and support you in keeping you meaningfully occupied.
Therapeutic treatment, namely psychoeducational counselling focusing on personal development, sexual knowledge and relationships, social relationships and social behaviour to be provided by an appropriately qualified clinician with expertise in working with people with an intellectual disability and autism.”
29 Ms Sleeth submitted that I should order an unconditional discharge. Mr Hennessy, on behalf of the Director of Public Prosecutions submitted that you should be declared liable for supervision. Ms Sleeth relied on the following matters: Your family support; your well established vocational and recreational routine; the assessed low level of risk of further sexual re-offending; the absence of symptoms of sexual deviance or hypersexuality; the absence of other like allegations before or after these events; and the provision, since these charges have been laid and whilst these proceedings have been pending, of sex education.
30 The prosecution submitted that notwithstanding the significant protective factors in your favour, the absence of evidence of sexual deviance or hypersexuality, and of any evidence of like offending, that the combination of your intellectual disability and your autism spectrum disorder, your interest in children and belief that you are good with them, meant that there was a significant risk that you could still not, at this stage, satisfactorily differentiate between what are and are not appropriate responses and behaviours with children.
31 Whilst I accept the evidence of Professor Ogloff and Dr Pragnaratne that your risk may be more related to what may, from your perspective, be inadvertent or innocent touching, but from a child's perspective and from the law's perspective, may be a sexual assault rather than deliberate offending on your part, it is still my view a significant risk and one which is compounded by your continued denials of your offending behaviour and the support, in those denials, that you have received from your parents.
32
Your parents are clearly very supportive of you and devoted to your care but
I have some concerns that their love for you and trust in you means that they may not be as alert or vigilant to the risks that you may pose. This, in my view, is borne out to some extent by their responses to the allegations from the time they were made by the child's father.
33 It is a matter of some concern that the families still live in the immediate vicinity of each other and that your family's belief that you have engaged in no wrong doing, demonstrates a lack of insight of the risk of harm or perception of harm to the child and her family. I am not satisfied that despite your parent's devotion to you, that the support and supervision from them and the services voluntarily available to you from DHHS and elsewhere are sufficient to contain your risk at present.
34
I accept Dr Pragnaratne's opinion that a supervision order may assist by providing an external structure, which can protect against the risk of inadvertent touching or inadequate understanding of boundaries of what is appropriate behaviour with children. I want to reinforce as the court said in
N O M, that a supervision order is not a sentence or a punishment but treatment, in my view, that the balance between the safety of the community with your freedom and autonomy, tips very clearly in favour of the making of a supervision order.
35 I therefore declare that you be liable to supervision under Part 5 of the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997. The nominal term of that order is a period of five years.
36 I declare that on 5 August 2016 at the Special Hearing pursuant to Part 3 of the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 a jury found you committed the offences charged. Today, 14 December 2016, I declare you to be a person liable to supervision. I declare that I have received a Certificate of Available Services dated 25 October 2016 pursuant to s 47 of the Act. And I declare that I have received a report from Dr Pragnaratne dated 25 October 2015 pursuant to s 41 of the Act.
37 I order that you be subject to a non-custodial supervision on the following terms:
A) To be provided with case management services to co-ordinate, facilitate and monitor participation in services aimed at reducing the likelihood of re-offending, including: co-ordination of service delivery and facilitation of regular care team meetings; assistance to link into pro-social, recreational, educational and vocational activities; support with attending required appointments; and support to reinforce behavioural and social concepts from counselling within the home and community services.
B) To be provided with vocational services from a vocational service provider to provide support and guidance to reinforce concepts addressed in counselling and to support you to keeping you meaningfully occupied; and
C) To be provided with therapeutic treatment, mainly psycho-educational counselling, focusing on personal development, sexual knowledge and relationships, social relationships and social behaviour, to be provided by an appropriately qualified clinician with expertise in working with people with an intellectual disability and autism.
38 I set the nominal term of the supervision order as five years. And pursuant to s 28(4) of the Act and in accordance with s 28(5), the nominal term runs from 14 December 2016. I direct that the Secretary of Department of Health and Human Services arrange for the preparation and filing with the court at intervals of not more than 12 months' duration from the date of this order containing the matters required by s 41(3) of the Act. I direct that a copy of this order and a transcript of today's proceedings be made available to the Secretary of the Department of Health and Human Services. And I direct pursuant to s 27(2) of the Act that the matter be brought back before the court for review no later than two years from today's date.
39 HER HONOUR: Are any further orders required? I have to make the order don't I pursuant to the Sex Offenders Registration Act?
40 MR HENNESSY: Yes.
41 MS SLEETH: Yes Your Honour.
42 HER HONOUR: Yes. And the term for that, Ms Sleeth, is it eight years?
43 MS SLEETH: Eight years is my understanding, do you agree with that?
44 HER HONOUR: Mr Hennessy?
45 MR HENNESSY: (Indistinct words).
46 MS SLEETH: Because that was one, one instance.
47 HER HONOUR: They're Class 2 Offences?
48 MS SLEETH: Yes Your Honour.
49 MR HENNESSY: Yes single Class 2 Offence.
50 HER HONOUR: It's two but committed in the same - - -
51 MS SLEETH: Twenty-four hour period.
52 HER HONOUR: - - - sequence, yes.
53 MS SLEETH: Yes.
54 HER HONOUR: All right I declare pursuant to s 34 of the Sex Offenders Registration Act that you are liable to supervision under that Act for a period of eight years. A jury having found that you have committed two Class 2 Offences committed within a period of 24 hours. Ms Sleeth, you'll no doubt explain to Mr Smith that the matter will then come back before me for review, no later than two years from now. And that I will get yearly reports. If Mr Smith makes progress within that two year period so that he progresses in understanding boundaries and the risk of the lack of knowledge, lack of understanding about appropriate boundaries, has been significantly addressed by reason of the counselling or other engagements, then of course there is the power to apply to vary or cancel the supervision order. So although the nominal term is five years, the Act makes very clear provision for the cancelling of the order before that time, if the risk factors that I have indicated, have persuaded me and that it is appropriate to make the order, have been appropriately addressed through the supports that are provided under the conditions of the order.
55 MS SLEETH: Yes Your Honour. I'll explain that again to Mr Smith. Your Honour will there be a transcript of today's - - -
56 HER HONOUR: I direct that - well there'll be - - -
57 MR HENNESSY: Your Honour did direct it.
58 HER HONOUR: - - - yes it's reasons so that'll be produced and provided.
59 MS SLEETH: As Your Honour pleases. Thank you Your Honour.
60 HER HONOUR: And you've got transcript of every other day's proceedings in any event already haven't you?
61 MS SLEETH: I do Your Honour yes.
62 HER HONOUR: Yes all right, thank you.
63 MR HENNESSY: Thanks Your Honour.
64 HER HONOUR: All right, no further orders required to be made?
65 MR HENNESSY: No there's not Your Honour.
66 HER HONOUR: All right thank you. Adjourn.
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