R v Chrisanthopoulos
[2016] VCC 509
•29 April 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-15-00519
| THE QUEEN |
| v |
| THOMAS CHRISANTHOPOULOS |
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JUDGE: | HIS HONOUR JUDGE PUNSHON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 February and 18 April 2016 | |
DATE OF SENTENCE: | 29 April 2016 | |
CASE MAY BE CITED AS: | R v Chrisanthopoulos | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 509 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J. Dickie | Commonwealth DPP |
| For the Accused | Mr N. Goodfellow | VALS |
HIS HONOUR:
1 Thomas Chrisanthopoulos, on 2 February 2016, you pleaded guilty to one charge of possessing child pornography on 5 June 2014.
2 The maximum penalty for this offence was five years' imprisonment at the relevant time although it has been subsequently increased to ten years. Of course, the maximum penalty in your case remains at five years.
3 Mr Dickie, on behalf of the prosecution, summarised the circumstances of the offending by reading from a written, "Prosecution opening for plea hearing."
4 The child pornography consisted of 665 images on a PlayStation console found in your bedroom. Most of the images (618 images) depicted female children in sexually explicit poses with no sexual activity. There were five images depicting non penetrative images of female children engaged in kissing and genital touching. There were five images of penetrative images of children and adults, involving female children engaging in oral sex on adult males. There were four images in the most serious category, including female children in sexual activity with dogs and a girl bound with a rope. There were an additional 33 images also in the most serious category involving anime, comics and drawings.
5 You were arrested and exercised your right not answer questions when interviewed.
6 The matter was initially listed before me as an investigation into your fitness to stand trial after you had been committed for trial on the charge of possessing child pornography under the Victorian Crimes Act 1958. You were also charged with the Commonwealth crime of Using a Carriage Service to access Child Pornography under the Criminal Code. This charge had been transferred to the County Court because the question of your fitness had been raised at committal and therefore the question of your fitness to stand trial related to both charges.
7 Initially, this issue of your fitness was in dispute, the prosecution relying on an opinion from Dr Adam Deacon, consultant psychiatrist from Forensicare; the defence relying upon an opinion from Mr Martin Jackson, consultant clinical neuropsychologist. In the end the issue was ultimately resolved and you pleaded guilty to the charge of possession of child pornography, alone.
8 Nevertheless, despite you being able to enter a plea of guilty to the current charge, you suffer significant mental state problems which are highly pertinent to the appropriate penalty. The prosecution made it clear from the outset of your plea hearing that although imprisonment would ordinarily be appropriate for offending such as yours, particularly considering your prior criminal history, the principles of general deterrence have little application and accordingly no resistance to the defence submission that you should be released on a community correction order was offered. The prosecution conceded that the Verdins principles had application. In particular, that I was entitled to draw a link between your mental health and your offending.
9 There is no suggestion that the imagery was for distribution. The prosecution urged me to not accept your claim that you downloaded the images because you had been labelled a paedophile and were curious as to what paedophiles actually do. On the basis of the material before me, I do not accept this explanation.
10 You are to be sentenced as a serious sex offender given your prior history and the fact that the current offence is a relevant offence, however, it is accepted that a disproportionate sentence is not required. Your status as a serious sexual offender is to be noted in the court records.
11 Furthermore, despite the fact that you are already registered under the Sex Offender Registration Act for life, I accept that it is appropriate to note that the current offending also warrants registration.
12 Your counsel tendered a folder of material consisting of an, "Outline of submissions on behalf of accused"; a report from Dr N. Zimmerman dated 26 November 2014; a copy of your Community Treatment Order which was operative from 21 January 2015 until 22 July 2015; a report dated 14 May 2012 from Ms Viojo, psychologist and Dr Singh, psychiatrist, both of Mercy Mental Health; a letter dated 3 February 2016 from Sadie Oon, registered psychiatric nurse, addressed to Dr Ian Calcutt, Saltwater Clinic, Mercy Mental Health; a letter from Dr Ian Calcutt dated 2 February 2016; reports from Dr Adam Deacon dated 26 August 2015 and 2 December 2015 and reports from Mr M Jackson dated 23 March 2015 and 25 October 2015.
13 Your criminal history includes causing injury recklessly in 2001, breaching an intervention order, stalking, failing to answer bail and careless driving in 2005, damaging property in 2011.
14 More significantly, in 2006 you were sentenced by Judge Douglas, of this court, for sexual penetration of a child under 16 (nine charges), production of child pornography and possessing child pornography, to a term of 13 months imprisonment, wholly suspended for 13 months and a community based order. The CBO was breached but confirmed. I was provided with a copy of Judge Douglas’ reasons as well as other associated material. The charges of sexual penetration arose out of a nine month relationship you formed with girl aged between 14 and 15 at the time when you were aged between 20 and 21. The charges of production and possession of child pornography relate to images taken by you and the young girl of each of your genitals, including penetration.
15 The fact that you have a prior criminal record is relevant and the offending for which you were sentenced by Judge Douglas is particularly relevant. Nevertheless, I accept the submission of your counsel given that the offending occurred in 2004, the changes in your mental health, the identification of your severe cognitive limitations and the particular circumstances of the past offending, it is less relevant than might seem at first blush.
16 I also note that you have pending charges for assault and resist police as well as failing to comply with a reporting condition pursuant to the Sex Offender Registration Act.
17 Your counsel summarised your personal history. You will turn 33 next May.
18 You were born and raised in Mildura and moved with your family to Melbourne when aged about nine.
19 You are the youngest of four children. Your oldest sister, Melissa, is the only member of the family who is not unwell. She lives independently. Your father, who has not worked for a number of years due to ill health, does not live with the family because he does not feel safe in your presence. He lives in a flat with another sister of yours, Georgina, who is unwell, has suffered a heart attack recently and is awaiting a kidney transplant.
20 You live at home with your mother and a brother, Nicholas, who is also very unwell. He has had lap band surgery, suffered a heart attack and organ failure. He is awaiting a kidney transplant. You are completely reliant on your mother, who is aboriginal, for your day to day functioning.
21 You struggled academically and behaviourally at school. You did not complete High School. You have had little employment and spend much time playing video games at home.
22 You have used drugs but the major concern at the moment is your cannabis use.
23 You have suffered from psychosis and mood difficulties, consequent upon bipolar disorder, schizophrenia and schizoaffective disorder.
24 You have little or no insight into your mental health problems.
25 You have had contact with and have been admitted to a number of mental health facilities. In January 2015, you were placed on a Community Treatment Order for 6 months. Subsequent to this order, you have maintained voluntary treatment with Dr Singh from the Saltwater Clinic as well as being overseen by your long-term general practitioner, Dr Ian Calcutt in Altona. You are prescribed anti-psychotic medication.
26 Currently, it seems you are mentally stable.
27 Neuropsychological testing by Mr Jackson found you, "Have severe cognitive impairment, especially your frontal lobes, most likely due to brain damage from meningococcal meningitis as an adolescent." Your mother noticed significant changes in your behaviour and memory after this illness when you were 18.
28 You must plead guilty from your plea of guilty. I also acknowledge the relevance of delay over the last two years.
29 Although you are currently stable and receiving ongoing voluntary care for your mental state problems, have the support of your family and have remained offence free since mid-2014, I indicated, during discussion, that I considered it essential that if released on a CCO, which is the only sensible sentencing option at this stage, that you and your family, your mother in particular, be as supported as much as possible.
30 For this reason, although I had a considerable amount of material concerning your mental state problems, I sought a further full pre-sentence assessment and a further up-to-date assessment from Forensicare.
31 A major concern I had relates to comments and admissions you had made to mental health practitioners and to Dr Zimmerman in his interview in late 2014, in particular. For example, you stated you were a bully at school and would assault other children. You said Your father was violent and you took over the role of violent male in the family. You said you felt like your life was over when you were placed on the Sex Offender Register. You said you had thoughts of killing yourself and wanted to do something that would give the police a reason to lock you up for a long time. You said you would rather kill the young girl with whom you had underage sex rather than kill yourself and that you had no hope for the future. You became enraged in Dr Zimmerman’s presence when your mother noted the change in your behaviour after you contracted meningococcal meningitis. You said you had lost consciousness from binge drinking; you said you smoked large quantities of cannabis daily from the age 18. You said you wished you had never been born and wished you were dead but you would not kill yourself, rather you would kill or cause to be addicted to ice those you saw as responsible for your situation.
32 Dr Zimmerman described your language as misogynist, racist and offensive, demonstrating a striking level of sexual disinhibition and an apparent inability to censor your speech.
33 Clearly, much of what you said and did at interview with Dr Zimmerman is bizarre, irrational and unfocussed; the product of your mental state limitations. You displayed mood swings and demonstrated aggression. Dr Zimmerman thought you had a hostile-dependent relationship with your mother. He thought you had a deeply felt disadvantage associated with being a young indigenous male in Australia.
34 Additionally, the pending charges of assault and resist police arose out of a confrontation when police were called to your home after you were alleged to have assaulted your father. When police arrived, it seems the situation was volatile with police repeatedly hitting you in the chest to prevent you walking up to your father in a threatening manner. Concerning this assault on police you said you tried to control yourself but could not. You claim self-defence.
35 Of course, I am conscious of the fact that the interview with Dr Zimmerman was conducted in late 2014.
36 When assessed by Dr Singh on 3 February 2016 you, “Presented as pleasant and cooperative with a stable mental state, and minimal risk to yourself and others.” In a letter dated 2 February 2016, Dr Calcutt also stated that for several years you had been untreated and regular reports from your family indicated that they felt terrorised by your behaviour but since treatment your behaviour has been markedly different. Dr Calcutt said you have been, “Consistently calm, polite and able to engage in a reasonable conversation and seems to lack the personality you had as a teenager.”
37 I have received a report from Forensicare, prepared by Dr Adam Deacon and dated 13 April 2016. During the assessment you became abusive and angry when questioned about the matters for which Judge Douglas sentenced you. In particular, your anger was directed towards the complainant, labelling her, “A little slut." Although Dr Deacon was not directly threatened, he was uncomfortable and the interview was terminated. Dr Deacon thought your mental state consistent with his previous assessment. You remain insightless, refuting any suggestion that you have a mental illness. You have fleeting thoughts of suicide but have never self-harmed. Summarising your mental state condition, Dr Deacon said you have a, “Confirmed diagnosis of schizoaffective disorder on the background of a low IQ and a chronic cannabis dependency.”
38 You require indefinite treatment. You do not require involuntary treatment whilst you remain medication compliant. Clearly, those administering the CCO will need to require you to continue with your medication.
39 I am concerned about what if any risk you pose to the complainant in the 2004 offending, however, I agree with Dr Deacon, that given the passage of time and the absence of any evidence of you pursuing the complainant, it is reasonable to conclude that you are unlikely to seek retribution. Nevertheless, the police and prosecuting authorities and those administering the CCO should note this outburst and take steps to mitigate any risk. Dr Deacon opined that your remark that you would rather kill the complainant than kill yourself, whilst clearly alarming is, “Perhaps more a reflection of your sense of hopelessness and despair rather than a reflection of your desire to plan and kill the victim." Dr Deacon thought this matter required further evaluation at a time when you might be more cooperative to interview. Those supervising you should address this matter. Dr Deacon expected that you will continue to express hostility and aggression when matters relating to your status on the Sex Offender Register are raised and suggested that counselling should target this matter.
40 Your inability to control your angry emotions is reduced when you are on medication but Dr Deacon thought your, “Personality type, low intelligence and executive dysfunction”, played a part in your lack of control and that these features will contribute to your ongoing aggression and violence risk for the foreseeable future. On the other hand, Dr Deacon noted your limited history for interpersonal violence suggests you have been able to control your emotions.
41 Dr Deacon emphasised that you need more intensive case management and support to enhance your psychosocial functioning. Saltwater Clinic should be contacted to see if they can provide this level of service. If not, I expect those supervising you to seek other avenues to provide this.
42 Dr Deacon recommended that you attend a suitably tailored sexual offending program that caters to your intellectual deficits and is specific to your offending history.
43 Finally, Dr Deacon addressed the obvious need to address your cannabis abuse, noting that cannabis use adds to the risk of triggering psychotic symptoms but also withdrawal can provoke frustration and anger. Thus cannabis use and cannabis withdrawal can aggravate your violence risk.
44 Dr Deacon was not persuaded about any direct association between your mental disorder, schizoaffective disorder and your offending. He thought your, “Intellectual limitations could possibly be construed as germane, but again an obvious link is lacking.” Given the prosecution concession that the Verdins principles have application, I am prepared to act on the basis that your intellectual limitations are pertinent to the offending. In any event, it is obvious that you would find prison very difficult because of your mental state problems and intellectual limitations.
45 I need to keep firmly in mind that my function is to sentence you for the offence of possession of child pornography and that the options are very limited. I could only send you to prison as a measure of last resort and there is no suggestion that this position has been reached. That really only leaves open release on a CCO. I have attempted to obtain as much information as possible to assist those who will manage you on this order to be as well-equipped and informed as possible to perform their task. However, this will not be easy. Your case is special and will require special attention.
46 Before beginning my sentencing remarks today, I attempted to make this clear to the two officers from Werribee Correctional Services.
47 I received a pre-sentence from Correctional Services (Department of Justice and Regulation) dated 4 March 2016. This report made no reference to Dr Deacon’s most helpful report. I had my Associate contact Corrections seeking any comment that might be required concerning Dr Deacon’s opinions and recommendations and whether there might be a need for an addendum report. Corrections advised that a copy of Dr Deacon’s report dated 13 April 2016 was on file and that nothing in the report of Dr Deacon changed the recommendations or outcome of the pre-sentence report. The officers from Corrections on screen today confirmed, before I began these sentencing remarks, that they are able to address the issues raised by Dr Deacon as part of your supervision. Accordingly, I'll act on the assumption that Corrections can attend to and address the various matters raised by Dr Deacon.
48 You were assessed as suitable for release on a CCO despite having breached such orders in the past. You have been assessed as having borderline to low-average intellectual abilities. You have not had any engagement with Disability Client Services although you do receive a disability pension.
49 Corrections noted that you are currently being appropriately medicated, this medication being monitored by your family doctor and Mercy Mental Health. It is anticipated that your Corrections case manager, Mercy Mental Health and your family will, "work closely to monitor any deterioration in your mental health’, which in turn may increase your risk of re-offending. Corrections will require you to engage in programs to address your offending behaviour, including assessment to determine your suitability for the Sex Offender Program. You have expressed a high level of respect for your family and a desire to do anything to maintain their positive relationship.
50 I will follow the recommendations of Corrections. In all the circumstances, I can see no alternative. You will be convicted of the charge of possessing child pornography and released on a CCO for 3 years.
51 You will be required to perform 120 hours of unpaid community work, undergo assessment, treatment and rehabilitation for drug abuse or dependency, including testing, assessment and treatment for mental health including psychological, neuropsychological and psychiatric treatment in a hospital or residential facility. You are to undergo assessment and treatment to address factors relating to your offending behaviour. In addition, you are to be under supervision and to return for judicial monitoring by me on Friday 29 July 2016 at 10.30.
52 You will need to report to Werribee Community Correctional Centre, 87 Synnot Street, Werribee. This must be done within 2 working days.
53 As I have already noted, officers from Werribee Community Correctional Services are present today albeit via video link.
54 I will provide a copy of my reasons to Werribee Correctional Services.
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