Director of Public Prosecutions v Walsh (a pseudonym)

[2020] VCC 1740

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-00226

DIRECTOR OF PUBLIC PROSECUTIONS

v

HAROLD WALSH (a pseudonym)

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JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Melbourne
DATE OF HEARING:	30 October 2020
DATE OF SENTENCE:	30 October 2020
CASE MAY BE CITED AS:	DPP v Walsh (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2020] VCC 1740

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 P. Thorp	Office of Public Prosecutions
For the Accused	Mr J. Lowy	Criminal Lawyers Geelong

HER HONOUR:

1Harold Walsh,[1] a jury has found you guilty of one charge of indecent act with a child of 16 or 17 under your care, supervision or authority and one charge of sexual assault by compelling sexual touching.  The same jury found you not guilty of one charge of incest.  All three charges concern your stepdaughter.   The charges cover the period 2012 to 2016.

[1]A pseudonym.

2By its verdict on Charge 1, the jury must have been satisfied beyond reasonable doubt that your stepdaughter applied powder to your anus and genital area and put a nappy, an adult incontinence aid, on you, at your direction, after you had experienced an episode of faecal incontinence.

3It must also have been satisfied that she did so in circumstances of indecency, that is, the acts that you directed her to perform had a sexual connotation, thereby excluding the reasonable possibility you enlisted her assistance in good faith for a medical or hygienic purpose.

4I am satisfied beyond reasonable doubt, consistently with the jury verdict, that you became sexually aroused in the process.  Consent or absence of consent was not an issue in respect of this charge as it was admitted by you that your stepdaughter was 17 at the time, and under your care, supervision and authority.  Care, supervision and authority was established, not only by reason of the stepfather/stepdaughter relationship, but because she was living in a family home with you, her mother and a young child who you had fathered with her mother.  Because her mother was the sole breadwinner of the family and worked long hours, she also trusted you with the care and supervision of her daughter while she was at work.

5By its verdict on Charge 2, the jury must have been satisfied beyond reasonable doubt that you directed, that is, caused your stepdaughter to engage in the conduct of rubbing cream and powder around your anus and genital area.  The conduct you caused her to engage in was sexual and not requested by you in good faith for a medical or hygienic purpose.

6It must also have been satisfied beyond reasonable doubt that she did not freely agree to touch you, that she was directed by you to do so, and that you did not reasonably believe that she was consenting. There was evidence your stepdaughter told her mother that she had been asked by you to apply powder or cream, but that she did not disclose that you had had an erection.  There was also evidence your wife had told you it was inappropriate and had asked you not to ask for assistance from her daughter again, but you had done so nonetheless.

7Your defence was conducted on the basis you suffered from: episodes of faecal incontinence, which was emotionally distressing and embarrassing, a skin rash in your anal and genital area, which was painful, and anal fissures, which became infected and were excruciatingly painful.  You required help cleaning yourself for all three conditions, for baby powder and/or cream to be applied to the skin around your anus and genital area and then to have an adult nappy put on you.  It was your case that each of your first and second wives had frequently provided this assistance, your first wife, in relation to incontinence episodes, your second, for all three conditions.  You denied ever having become aroused in such circumstances and maintained that embarrassment or pain precluded arousal.

8So far as Charge 1 was concerned, you acknowledge that you had sought your stepdaughter's assistance after an episode of faecal incontinence, but said all she did was turn on the shower taps at your request.  You denied directing her to remove and wash the soiled bedsheet, apply powder to your anogenital area and put a nappy on you after you had showered.  You denied becoming sexually aroused when she did so.  You acknowledged your wife, having been told by her daughter that she had put powder on your anogenital area and put a nappy on you, told you that evening it was inappropriate and that you were not to ask her for assistance again.

9You also admitted your stepdaughter had, at your direction, applied cream and powder to your anus and genital area and put a nappy on you to treat a rash on the two occasions that she alleged; the first of which was relied on to constitute Charge 2, the second of which was relied on as surrounding circumstance evidence.  You admitted using a video camera to film her applying the cream and powder to you.  You denied having become sexually aroused on either occasion.  You maintained that all requests for assistance were made for medical or hygienic purposes, in good faith.  You again admitted telling your wife on that day that you had asked your stepdaughter for assistance and again being told not to.

10So far as the incest charge, of which the jury found you not guilty, it was alleged that you had directed your stepdaughter to apply cream to your anus and to penetrate your anus with her finger for that purpose and you had become sexually aroused as she did so.  You admitted she had, at your request, applied cream around your anus to treat anal fissures on the occasion relied on for Charge 3, but denied there was any penetration or giving any direction to do so.  Again, you denied becoming aroused.  There was no alternative charge alleging non-penetrative acts involving the application of cream to your anal area.

11By its verdict on Charge 3, the jury could not have been satisfied beyond reasonable doubt either that penetration occurred or, if it did, that it was sexual.  I do not consider this not guilty verdict is inconsistent with the verdicts on Charges 1 and 2 and I my reasons for that are contained in Annexure A.

12Eight months have passed since verdicts were delivered over two days in late February of 2020. The delay of the hearing of your plea has been largely of your making.  Your bail was revoked after the guilty verdicts were delivered.  Since your remand, you have not communicated by speaking with anyone other than your partner, Ms McMahon, and, in her presence, the psychologist, Ms Carla Lechner.  Ms Lechner was retained by your lawyer after verdict to assist you for the purposes of the plea.

13You had other charges pending relating to allegations of sexual assault and incest, between 2001 and 2003, in respect of two children of your first marriage.  The second trial was listed to commence at the conclusion of the first trial.  That did not occur, as a result of your response to the verdicts in the first trial. 

14Those children were much younger at the time of the acts alleged than your stepdaughter and the acts themselves, and the circumstances in which they occurred, are different. Your response to the verdicts raised serious concerns about your mental state generally and, specifically, whether you were fit to give instructions to your lawyers for the purposes of the plea in respect of the charges of which the jury found you guilty and in respect of the trial on the outstanding indictment. 

15I requested an assessment be conducted as to your fitness to stand trial by Forensicare. You thwarted two attempts by Dr Best, on behalf of Forensicare, to assess you by refusing to communicate with her verbally or in writing. You were in (written) communication with your lawyers during this time. You instructed them to make a bail application. You also gave them instructions in relation to your preparedness to communicate with Ms Lechner for the purposes of an assessment.

16The Justice Health notes, which were subpoenaed by your lawyers and to which reference has been made in various post-verdict hearings, reveal that you communicate, extensively, fluently and congruently in writing.

17The content of the extensive Justice Health file and the other engagements I have just detailed, meant that it eventually became clear your mutism was what has been described as selective or by choice.  There is no evidence of disordered or impaired mental processes which raises the question about your fitness to stand trial.  By the time this had become clear, jury trials had been suspended by reason of COVID-19.  It followed that it was no longer just or feasible to delay sentencing for these offences until the second trial was concluded. 

18Your lawyers have been assiduous in their attempts to act in your best interests.  Although you refused to communicate with Dr Best for the purposes of a fitness assessment, made allegations, unsubstantiated by the Justice Health records they subpoenaed, that you were denied treatment for your physical and mental health, and refused to communicate with Ms Lechner during her first assessment after I had refused bail and made it clear that the plea hearing would proceed before your second trial, they made a further application for adjournment, to allow for a further opportunity to have you assessed.

19Given the circumstances of the offending, your behaviour after verdict and what I had already been told of a history of trauma and past engagement in counselling, I considered that, if you were prepared to engage, a psychological assessment could be of assistance in sentencing. I allowed the further adjournment.

20Ms Lechner was able to assess you on her second attempt. You stipulated that Ms McMahon would have to be present if you were to speak to Ms Lechner. Ms Lechner agreed to that condition and the assessment took place. You communicated with her verbally and gave responsive answers to her questions.

21This narrative explains the reasons for delay between verdict and sentence and the basis for my conclusion the delay is largely of your own making.  Both your stepdaughter and her mother, your former wife, have made victim impact statements.  Each of them speaks eloquently of the significant and ongoing impact the offending has had on your stepdaughter and on her family.  You have grossly breached your stepdaughter's trust and that of her mother.

22The maximum sentence for Charge 1 of indecent act with a child of 16 or 17 under your care, supervision or authority is five years' imprisonment.  The maximum sentence for Charge 2, compelling sexual touching, is 10 years' imprisonment.  These maximum sentences are one measure of the seriousness of such offences.

23The prosecution submitted the offending constitutes serious examples of these charges.  I agree.  In both of the charges there was a breach of trust because of your role and identity as your victim's stepfather.  You had lived as a family with her, her mother and the child you and her mother had together, for many years.  You assumed the role of a parent.  The offending conduct took place in the family home when your wife was at work.  Home should have been a safe place for your victim and she and her mother should have been able to trust you not to violate that trust as you did.

24On the first occasion, she was still a schoolgirl.  On the second, although over 18, she was living at home, attending university and was still in many ways a dependent.  As your evidence at trial confirmed, you were still exercising parental authority over her.  You took advantage of her mother's absence, your authority as her stepfather and of her compassionate nature.  You had been told by her mother after the first occasion not to ask her to provide any assistance to you of that sort again, but you did so.

25The circumstances of both offences were degrading.  On each occasion, you lay on the bed with your legs up and your genitals and anus exposed, making no effort at modesty.  You made her put on your nappy and fasten it.  You could easily have applied powder or cream and put on and fastened the nappy yourself.  On the first occasion, you made her clean up your faeces first.  On the second occasion, you filmed her.

26You acknowledged in your own evidence at trial that asking your stepdaughter to touch your genital area was inappropriate.  You said, 'There is no way I would have allowed her to touch me, [that is, on the scrotum and the base of a penis].  Like, that would have been just not appropriate.'  You maintained, however, that there was nothing inappropriate or sexual in exposing yourself in the manner you acknowledged you did, asking your stepdaughter to apply powder or cream to your anogenital area or putting a nappy on you and fastening it.

27In her report, Ms Lechner reported you as saying, 'This whole thing came out of vulnerability.  We had a standard of nakedness and help.  My stepdaughter didn't see me naked until she was 19 years old.'  This last statement is clearly a reference to the circumstances of Charge 2.  Having quoted you, Ms Lechner then said:

He lacked insight as to the inappropriate nature of such nakedness and his request of her to assist with his medical needs.  I suspect that if indeed he did experience any attraction to her, he would find this shameful and would therefore deny any such feelings.

28Ms Lechner did not address in her report the various pieces of evidence referred to in the prosecution opening, with which she was provided and which was adduced at trial, which were relied on to demonstrate a sexual interest in your stepdaughter.

29Ms Lechner also expressed the view, when assessing your risk of sexual recidivism, that there was an apparent lack of sexual deviance. That is a surprising observation given the unusual circumstances of behaviour here.  In particular: lying on your back on the bed with your legs up, your knees towards your shoulders, exposing your genitals and asking for them to be rubbed with cream, ointment or powder and then to have a nappy put on you, becoming sexually aroused in the process.

30However, as Mr Lowy submitted when I raised this with him, the observation by Ms Lechner was based upon your self-report when responding to the questions posted in the RSVP, one of the assessment tools used by Ms Lechner when assessing your risk of committing further sexual offences.  She herself did not express a view about whether the conduct of which the jury found you guilty was sexually deviant.

31In any event, in my view, whatever diagnostic label might be used to describe the conduct the jury found you had committed, for the reasons I have expressed, I am satisfied the offences are serious examples of that type.  It follows that, subject to considerations personal to you, denunciation, deterrence, both general and specific, and just punishment loom large in the sentencing mix.

32Turning then to your personal circumstances.  You are now 55 years of age.  You have been married twice.  You have not seen the three children of your first marriage, which ended in 2003, since then.  As already noted, you are awaiting trial on charges of sexual offences against the two oldest of them, alleged to have been committed between 2001 and 2003, when they were aged between five and seven, and three and four respectively.

33By your second marriage, you became a stepfather to the complainant in this case and fathered another child, who is now ten.  You separated from your second wife in 2017 and have not seen your child from that marriage since being charged.

34Your relationship with your current partner, Ms McMahon, has continued since the guilty verdict and your remand in custody. 

35You have no criminal convictions.  You report a childhood blighted by the behaviour of your father.  In Ms Lechner's opinion, based on the account you gave her, your childhood was characterised by complex developmental trauma as a result of exposure to your father's chronic sexual, physical, verbal and emotional abuse.

36You reported to her that, throughout your adult life, you have suffered unremitting symptoms of post-traumatic stress disorder, including periods of dissociation, in addition to major depressive disorder and that, as a result of protracted sexual abuse, you have sustained irritable bowel syndrome and anal fissures that lead to extreme pain and episodes of uncontrolled bowel movement.  You told her that, on account of your high levels of psychological distress, you have found it hard to maintain employment and long-term social relationships and have been involved in counselling and support throughout your life.

37I was also provided with a psychiatric report prepared by Dr Paul Kornan in 2003, for use in Family Court proceedings where you were seeking contact with your children from your first marriage.  The account in that report of your childhood trauma and abuse and the cause, nature and impact of your bowel problems and childhood abuse in your adult life differs markedly in degree from what was put to the court in the course of the trial, and on the plea.  Unfortunately, although she was provided with a copy of Dr Kornan's report, Ms Lechner's report does not address those differences.

38You report a long history of engagement in counselling.  How long and for what purpose is again unclear to me.  In consultation with Dr Kornan in 2003, you told him that you had "on occasions" been to psychiatrists and counsellors. You told him that you and your first wife had been seeing a counsellor for the previous two and half years in relation to sexual problems. Save to say you did not attribute those sexual problems to childhood sexual abuse, it is not necessary to detail here what you told Dr Kornan those problems were.

39There is evidence that you had sought and participated in counselling at various periods after this assessment by Dr Kornan, including the period in the lead up to your second marriage, and at times during the marriage.  I do not have evidence as to the frequency or content of counselling, or of any diagnoses made between 2003 and 2017. There are satisfactory reasons, unnecessary to detail here, to explain the absence of reports from your previous counsellors in the time before you were charged. No adverse inference can be drawn from the absence of counselling reports, but I am left with an absence of evidence about your presentation during that period, which makes evaluation of your current state and the causes of it more difficult.

40I was provided with a letter from One Care Geelong, which reported you had engaged with counselling with that organisation between July 2017 (that is after the breakup of your second marriage) and May 2019. The report advised that you had discussed "his complex childhood trauma, grief and loss, impact of being separated from his children, issues related to family legal matters and allegations against him." That does not assist in evaluating the weight to be given to the difference in account given to Dr Kornan and to Ms Lechner.

41You reported to Dr Kornan in 2003 what appears to be a reasonable history of regular employment or engagement in study, up until the time of the breakdown of your marriage. It would appear that, from the time at least of your second marriage, you have not engaged in paid employment or study. You told the jury you have been on a disability pension since 2004. There was also evidence at the trial that you were the primary carer, or stay-at-home parent to the child of that marriage until separation.

42This contrasts with the reports you gave to Ms Lechner of unremitting symptoms of post-traumatic stress disorder, high levels of psychological distress, an inability to maintain employment and long-term social relationships and an involvement with counselling throughout your life.

43Your presentation, as recorded by Dr Kornan, as revealed by the evidence of your family life at trial, and at court up to the time of verdict, is largely consistent.  It is that of a man who had experienced a traumatic childhood and who accessed counselling when necessary.  It is also of someone who, although not engaged in paid work since apparently the end of his first marriage, had been able to form a new, long term 10 year-plus intimate relationship and assume the role of stay at home parent for a teenage stepdaughter and his own child from birth until the end of the relationship, when that child was nine or 10.  Finally, it is that of someone who was able to engage in pleasurable recreational activities, such as surfing and to form and maintain a new intimate relationship after the end of the second marriage.  In other words, despite the continued impact in adult life of childhood trauma, it appeared to be a normal life.

44Your post-verdict presentation and the history you gave Ms Lechner of your adult life presented a stark contrast.  In 2003, Dr Kornan described you as a man of handsome, immaculate appearance, very elegantly dressed in a suit.  He noted you took particular pride in your appearance.  In February 2020, throughout the trial, you were casually but neatly dressed and well groomed.  You stood and sat upright and carried yourself well.  You responded verbally in court when required to do so, including during arraignment and empanelment and when reminded of your bail conditions. You gave sworn evidence, providing responsive answers to all questions.

45Since verdict, you have been dishevelled and unkempt.  You stoop, sit with your head down, walk with a shambling gait and, apart from speaking to Ms McMahon or for the purposes of the assessment to Ms Lechner in her presence, you have been mute. 

46When assessed by Dr Kornan in 2003, he reported he gained the impression you were someone who had a rather complex personality presentation. He considered there was some presentation of depression when talking about the breakup of your marriage, but with no psychotic features, no delusions or hallucinations, adequate mental faculties and an intelligence level well above average. Interestingly, in light of the evidence at trial, he noted an enormous disparity between your first wife's version of events and matters as you saw them from your point of view. Dr Kornan's opinion about your prognosis was expressed in these terms:

he will always be someone who has some personality problems due to the permanent effect of his early dysfunctional upbringing. He is likely to be someone who tends to be too intense at times, and who has marked feelings of inferiority and insecurity. He is likely to be someone who was emotionally labile, and who has a certain rigidity in his thinking. He is someone who tends to be rather inflexible in his ideas, and views. I see these personality characteristics act as being with him permanently. With regards to his depression, this is a temporary situation, which should lift as he accepts the outcome of his marriage situation.

47Ms Lechner, based on the history you gave her and your presentation, reported you presented with:

symptoms of chronic PTSD and major depressive disorder, arising from a history of exposure to complex developmental trauma that undermined the subsequent development of his personality, vocational, social and emotional development.

48Ms Lechner noted you reported you had long-term problems establishing and maintaining intimate relationships and struggled with your sexuality.  She also reported that your self-esteem was chronically low and your engagement with the workplace intermittent.  She noted your report that you had no social networks, were estranged from your family of origin and children and had no support, apart from your partner.  This contrasts not only with Dr Kornan’s report, but also with the evidence in the trial.  That suggested you had led a functioning life up to the time of the trial, although without a return to paid employment or completion of the tertiary studies you were undertaking at the time of the 2003 assessment by Dr Kornan.

49As noted, you were the primary carer for the child born of your marriage to your second wife.  The trial evidence indicated you were actively engaged in parenting with your stepdaughter as well and in family life generally.  There were passing references to your surfing and the groin rash, which resulted from your being in the water in a wetsuit surfing for hours on end.  There were also gaps in the accounts, or stark differences between them, of your bowel problem and skin condition and their impact on you

50Dr Kornan's report does not refer to faecal incontinence as related to the physical or psychological consequences of the sexual abuse you suffered as a child. Ms Lechner noted you told her you had suffered bowel problems throughout your life, which you attributed to the sexual abuse you suffered as a child. She recommended a relevant medical report be obtained.

51The GP clinic notes in the depositions record nothing more than presentations from time to time for treatment for anal fissures and a rash in the genital area, reports by you of episodes of faecal incontinence, what appears to be concerns about inappropriate requests for assistance with cleaning yourself after episodes of incontinence and referrals for colonoscopies which did not reveal any abnormalities.

52The Justice Health notes report that you have been unwilling to provide the details of diagnoses or treating doctors in respect of your bowel problems.

53No specialist or treating doctor reports were provided to me.

54The descriptions given in evidence by you and Ms McMahon about the level of pain associated with the anal fissures, and the evidence given by you about the level of pain associated with the groin rash, was more extreme than the evidence of the observations of your wife and stepdaughter, and what can be gleaned from the clinical notes.

55This lengthy analysis shows significant differences in your self-report of the nature and extent of your childhood trauma and of its impact on you, emotionally, psychologically, socially and vocationally, before and after verdict.  It also showed significant differences in your self-report of the nature, extent and cause of the bowel problems and skin conditions before and after verdict.

56I proceed, therefore, on the basis that you were exposed in childhood to physical, sexual, emotional and verbal abuse and that it has had a lifelong impact on you.  I am not, however, able to make an assessment of the nature and extent of the sexual abuse.  It is simply impossible for me to determine whether, as time has gone on, you have recalled more, or been able to recount in greater detail, the childhood trauma to which you were exposed and its impact on you; whether, as time has gone on, you have been more psychologically impaired by the impact of that childhood trauma; or whether you are, consciously or unconsciously, exaggerating.

57I also accept that you have suffered episodes of faecal incontinence throughout your adult life.  I can, however, draw no conclusions as to whether it is connected to childhood abuse by reason of physical or psychological injuries suffered as a result.

58I accept also that you have, at times, developed anal fissures and have experienced pain associated with them and, similarly, that at times, you have suffered from a rash in your groin area, which was itchy and painful.  However, there is no reliable evidence as to the origin or cause of the fissures and the rash, or the connection with the faecal incontinence. 

59The evidence does not permit me to conclude that there is any causal connection between the offending and any of these conditions so as to reduce your moral culpability and reduce the weight to be given to deterrence.  Nor does the evidence permit me to find the pain from the fissures is as extreme as your evidence at trial suggested.

60Dealing then with whether any of these conditions, or the state you are in now, operate to reduce the sentence, because they will make the burden of imprisonment greater, I accept as a starting point the following.  First, you have clearly suffered a significant and distressing change in your mental state since verdict.  Second, imprisonment is likely to exacerbate that fragile mental state.  Third, that faecal incontinence is, of itself, likely to make imprisonment more onerous. And fourth, that imprisonment is likely to exacerbate your proneness to faecal incontinence.  There is no evidence, however, that imprisonment will exacerbate the likelihood of further occurrence of anal fissures or groin rash or that Justice Health cannot or will not provide adequate and appropriate treatment for them.

61You gave evidence that you suffered from irritable bowel syndrome.  I was not taken to any evidence of a formal diagnosis.  No submissions were put that imprisonment would exacerbate that or that you would be unable to access an appropriate diet or timely and appropriate treatment.

62The change in your demeanour after the jury read the first verdict was immediate and dramatic.  You remained seated in the dock and began to rock then shake. You fell or dropped to the floor and shook, as if convulsing. An ambulance was called and, although it appeared you could understand what was being said to you, you did not give any verbal responses. You were taken from court to hospital by ambulance. The hospital records were attached to the Justice Health records which were produced in the course of post-verdict hearings. They record that neurological or physiological causes for your presentation were excluded. Your symptoms were assessed as being signs of emotional distress. You were not assessed as in need of admission or unfit to return to court the following day and were discharged.

63You came to court the following day, dishevelled, unkempt and showing visible signs of distress.  After the final verdict and on remand into custody, you again began to shake, tried to bang your head on the wall and again dropped to the floor. Again, although apparently able to understand what was being said to you, you did not give any verbal response.

64Ms Lechner expressed the view your decline in functioning appears in part to be due to a resurgence of post-trauma symptoms.  Although she did not suggest that a resurgence of post-trauma symptoms was the sole reason for the change in you, unfortunately, and unhelpfully from my perspective, she did not directly address the role of the verdicts or your response to them in the dramatic change occurring in you immediately upon verdict and which has continued unabated since then.

65I have reviewed the entries in the Justice Health records made by the psychiatrists who have regularly assessed and reviewed you since your remand.  The Justice health psychiatric notes record the following:

24/2: Dr Kinnane initial assessment MAP

Imp: stress reaction

10/3: Dr Bell MAP

OE: neatly groomed middle-aged man good self-care, goatee beard … Intense dramatic quality for much of the content of his writing

assessment: deeply traumatised and socially isolated man with history of serious developmental trauma … Distressed +++ by his physical problems i.e. the faecal incontinence and feeling that he is not being listened to or help for this … Some depressive features but not showing indication of a major depression

17/3: Dr Bell MAP

assessment: formulation as before. Deeply traumatised and socially isolated man with history of serious developmental trauma. Symptoms consistent with PTSD but there is also an element of dramatic testifies in office situation, along with rumination around themes of loss and abandonment suggestive of a personality disorder of mixed dependent and borderline traits … Seems very reluctant to accept any specific suggestions regarding any thing that I potentially assist him bring him any relief

24/3; Dr Bell MAP

the assessment of 17/3 confirmed

30/3: Dr Bell MAP

I have noted his reluctance to engage in reviews by nursing staff over the last week … As noted in my previous assessment on 24/3 he has not shown any indication of wanting to avail himself of any specific therapeutic options that have been offered to him. He is not psychotic and does not have a major depressive illness.

28/5: Dr Rodrigo (initial assessment, Ravenhall)

summary of notes provided by patient

he is wrongly accused of his charges and he is completely innocent. He is aggrieved and traumatised by this … He reports low mood, anxiety, irritability, disturbed sleep, poor appetite and negative thoughts. He gives a history of prolonged and repeated sexual abuse in his childhood. He gives following diagnoses for himself - PTSD, continuous traumatic stress disorder, clinical reactive depression, anxiety disorder, anthrophobia [fear of people] and pedophobia [fear of children].

He does not believe medication will help, but is open to trauma -related therapy by psychiatrist, psychologist or psychotherapist or trauma related counsellor.

66Dr Rodrigo continued:

when I explained to him that we can offer ICM he declined the offer because case managers are nurses. I further explained to him it will be rather difficult to find clinicians he is specifically requesting for ongoing therapy at RCC [Ravenhall]. He appreciated that but maintained his stance.

Obs: male who appears older than his stated age, poor self-care - untidy hair …

Impression - adjustment disorder with depressive and anxiety symptoms…

67I note that these notes were also made available to Ms Lechner.  Unfortunately, her report does not specifically address them, or seek to explain, why, where there is a difference in account or opinion, she holds to the opinions that she has expressed.

68On the evidence, I consider it is more likely the decline in your state is, in large part, due to your response to the verdict and to the jury's acceptance, in respect of Charges 1 and 2, of the truthfulness of the complainant's account.  As Ms Lechner observed, you failed to understand the inappropriateness of your admitted conduct in exposing your genitals, having your stepdaughter apply powder and cream to the area and put a nappy on you. More powerfully, Ms Lechner also observed that, if you were sexually attracted to your stepdaughter, you would find it shameful and deny it.

69Having regard to the Justice Health records, I am not sure whether you are currently suffering from a major depressive disorder.  I am satisfied that you have suffered and continue to suffer from the consequences of the abuse to which you were subjected as a child.  I am satisfied you are deeply distressed by the circumstances in which you find yourself.  I am satisfied that situation is unlikely to change whilst you continue to maintain your innocence and reject the jury verdict and whilst you continue to reject the range of therapies and interventions, both pharmacological and counselling-based, which have been offered to you since your remand.

70Ultimately, the labels or diagnoses which attach to such symptoms or conditions are not determinative of their relevance for sentencing purposes. However labelled, you are, as Dr Bell repeatedly observed, a deeply traumatised and socially isolated man with a history of serious developmental trauma.

71It follows from that that I accept Ms Lechner's evidence that a lengthy period of incarceration is likely to be associated with a further decline in your mental health and that you are not well-equipped to manage your stress adaptively or, to use the language used by Dr Bell, that there is an element of dramatic catastrophising of your situation and that you are reluctant to avail yourself of any specific therapeutic options that have been offered to you and might potentially assist you or bring you relief.

72The sentence otherwise appropriate should therefore be reduced, because you are mentally fragile, in part due to the abuse you suffered as a child, and imprisonment may impact adversely on your mental state.  You are, however, not entitled to a reduction by reason of distress and decline in mental health resulting from dismay at, or refusal to accept, the jury verdict or because you maintain you are innocent.

73You have a number of factors counting in your favour when assessing your prospects for rehabilitation.  You have no other convictions. You are 55 and of at least average intelligence.  Despite the trauma of your childhood, you have shown a capacity to establish and maintain intimate relationships.  Even with these charges hanging over your head, you established and maintained a relationship with Ms McMahon.  You have her love and support still and a future with her to look forward to.  You have shown yourself amenable to seeking out counselling in the past and benefitting from it.  If you are open to seeking and accepting the help that Justice Health can offer, you have shown a resilience which bodes well for a recovery from the state you are in.

74The impact of COVID-19 on custody is well recognised.  You have experienced it.  COVID-19 restrictions make imprisonment more onerous and any sentence is to be reduced accordingly.  Personal visits and face to face courses are suspended.  Online visits and courses are available, but are more limited and are not a full substitute.  Time out of cells and time mixing with others, although something you do not want at present, is more limited and transfers involve quarantine or isolation and further restriction.  Offsite medical treatment is also affected, should you need access to that for your bowel condition or mental health.

75Finally, there is the loss of the ability to make your own decisions about keeping safe and the fear, despite the efforts of Corrections to date to keep the prisons COVID-safe and COVID-free, that it will come and could sweep through a closed environment.  I take all of these matters into account.

76Mr Lowy submitted the sentence should be structured to allow for your release on a community correction order.  As discussed with him in the plea, I consider that is not an appropriate sentence in the circumstances.  In my view, no sentence other than one involving a minimum term of imprisonment longer than that available as part of a combination sentence is appropriate and I have no confidence that you will engage with or cooperate with a community correction order.

77In coming to that conclusion, I have taken into account the weight to be given to your risk of reoffending, the overall assessment of your prospects for rehabilitation and how that is best factored into the sentence, so as to reflect specific deterrence and encourage rehabilitation.  Given what I am about to say about those matters, I have expressed my conclusion about the type of sentence first.

78I accept Ms Lechner's evidence, based on the two well regarded assessment tools she used and having regard to the charges of which the jury found you guilty, that they score your risk of sexual reoffending as low.  However, that is not the only matter to be taken into account when assessing risk.  Her assessment is based on those two assessment tools, the RSVP and the Static-99 only.  She expressed no opinion of her own, based on her own expertise, as to whether the conduct you were convicted of was evidence of sexual deviance.

79Ms Lechner's report did not include, as is so often seen in risk assessments for sex offenders, an interview-based structured clinical assessment.  I am not critical of her confining the assessment to the tools she used.  She was operating under significant constraint by reason of your insistence Ms McMahon be present.  Whilst that was at your request and to provide support, her presence had the capacity to constrain a frank account or a challenging of your accounts or belief in a structured clinical interview. In addition, although the assessment was properly conducted by reference to the jury verdicts only, there is another trial pending involving allegations of offending against two other children.

80If findings of guilt are made in respect of those charges, the risk assessment could be materially different.  In those circumstances, I am not confident I have sufficient information to make an overall assessment of risk. That will be better done by trained clinicians responsible for assessing your suitability to participate in sex offender treatment programs and responsible for assessing the time and conditions on which you should be released into the community.

81In my view, your interests and those of the community will be best served if you are released on parole and supervised on your return into the community.  I am structuring the sentence so as to allow adequate time for assessment and, if appropriate, participation in treatment and programs to improve your mental health and a sex offender treatment program in custody and upon release.

82Harold Walsh, on the two charges with which the jury found you guilty, you are convicted.  On Charge 1, you are sentenced to be imprisoned for a period of two years and six months.  On Charge 2, you are sentenced to be imprisoned for a period of three years and six months. 

83I direct that six months of the sentence on Charge 1 be served cumulatively upon the sentence on Charge 2.  That makes a total effective sentence of four years and I fix the period of two years as the time that you must serve before being eligible for parole. 

84I declare that you have spent 252 days in presentence detention and direct that that be counted and reckoned as part of the sentence already served. 

85You are required to be on the sex offender register for a period of eight years[2] and I have already made arrangements for those conditions to be provided to you, and I will make the forfeiture order in respect of any device that was used to record or store the video footage of your stepdaughter that was shown at the trial. 

[2]By orders dated 20 November 2020, this was amended to provide that the accused was required to be on the sex offender register for a period of 15 years pursuant to ss 34(1)(b)(ii) and 4 of the Sex Offenders Registration Act 2004 (Vic).

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ANNEXURE A

1       Charge 1 was a charge where the jury was confronted with two conflicting accounts. Your stepdaughter said you had directed her to perform certain acts and you had become aroused. You denied the acts occurred. There was evidence of timely disclosure by each of you and the complainant to her mother which was capable of supporting the complainant’s credibility about the occurrence of the acts themselves (although not of attendant sexual arousal). There was also evidence from your wife, the complainant’s mother, that she had provided similar assistance to you to that which your stepdaughter said she had been asked to perform, and that you had, on occasions, become aroused. It was accepted this was capable of being relied on as establishing a tendency to request such assistance and derive sexual gratification.

2       There was also evidence which, it was accepted, was capable of showing you had a sexual interest in the complainant and a preparedness to act on it.

3       Similarly, in respect of Charge 2, there was evidence capable of supporting the complainant’s account. So far as the conduct itself was concerned, by contrast to Charge 1, you admitted the conduct. You also acknowledged your wife had told you not to request assistance from your stepdaughter again, after the first occasion. On your own account, you had told your wife immediately after the event that you had sought assistance. And again, there was evidence, capable of supporting tendency reasoning (this time from the complainant’s mother only) in relation to requesting and deriving sexual gratification from such assistance. There was also the tendency evidence in respect of the sexual interest in the complainant.

4       By contrast, with Charge 3, there was no evidence of contemporaneous disclosure by you or the complainant to her mother.  There was no evidence capable of being used for tendency purposes in respect of sexual arousal in the course of applying cream to anal fissures

5       You gave graphic evidence of the extreme painfulness of the fissure condition, which was confirmed by the evidence of a recent incident given by your new partner, Ms McMahon. Ms McMahon gave evidence that she had applied cream, at your request, externally only. You, on the other hand, gave evidence about how you had, on other occasions when experiencing pain from the fissures, penetrated your own anus in an attempt to obtain relief.

6       In those circumstances, it is not inconsistent for the jury to have entertained a reasonable doubt about one or other of the two matters in issue for Charge 3. It does not follow that the jury must have rejected the complainant’s account. Rather, that, absent the type of supporting evidence for the complainant’s account which existed for Charges 1 and 2, and in light of evidence from Ms McMahon which supported part of your account in respect of Charge 3, the jury was left with a reasonable doubt.

7       Far from indicating inconsistency, in my view, the verdicts demonstrate the jury’s careful application of the requirement to consider each charge separately, by reference to the evidence in respect of that charge.