R v Derrick (No 2) - [2010] SADC 108

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DERRICK (No 2)
[2010] SADC 108
Reasons for the Order of His Honour Judge Lovell
17 August 2010
CRIMINAL LAW
Accused found mentally unfit to stand trial - previous trial found objective elements were established beyond reasonable doubt - medical evidence - defendant declared liable to supervision - limiting term of 12 years fixed - supervision order made releasing defendant on licence on conditions decided by the court and specified in the licence.
Criminal Law Consolidation Act 1935 (SA) s 49(1), s 56, s 58, s 58a(1)(b), s 269Q(1), s 269R(1), s 269T(2), Part 8A, referred to.
R v Cryan [2004] SADC 99; R v D (1997) 69 SASR 413, considered.

R v DERRICK (No 2)
[2010] SADC 108
Introduction

The defendant Peter Gerald Derrick was charged on an information in this court with three counts of Indecent Assault (s 56 of the Criminal Law Consolidation Act 1935), two counts of Unlawful Sexual Intercourse with a Person Under 12 (s 49(1) of the Criminal Law Consolidation Act), one count of Gross Indecency (s 58 of the Criminal Law Consolidation Act) and one count of Inducing a Child to Expose her Body (s 58a(1)(b) of the Criminal Law Consolidation Act).
The defendant was found to be unfit to stand trial. I presided over a Trial by Judge Alone to determine whether the objective elements of the offences charged had been established. In my reasons for the Verdicts, I concluded that the Crown had satisfied, beyond reasonable doubt, each objective element of Counts 1, 2, 3, 4, 6, and 7 on the information charged. I found the Crown had proved, beyond reasonable doubt, each objective element of the common law alternative to Count 5, namely indecent assault. I made those finding pursuant to s 269MB(2) and I declared the defendant liable to supervision under Part 8A of the Criminal Law Consolidation Act.
Having found the defendant liable to supervision, I am now required to impose a limiting term.
Offending
From the age of four, the victim E, attended Athelstone Primary School where she went to before and after-school care. The defendant, who worked as a staff member at the “Out of School Hours Care” (OSHC) Programme, sexually abused her from late 1992 until she left the school towards the end of 1998. The circumstances surrounding each of these offences have been discussed in detail in my earlier reasons and I do not intend to repeat them here.
The proceedings
The procedure for an investigation by the court into a defendant’s mental competence to commit an offence is contained within Part 8A – Mental Impairment of the Criminal Law Consolidation Act 1935.
In relation to the procedure I adopted in this matter I had regard to the judgment of his Honour Judge Muecke in R v Cryan.[1] I found his Honour’s distillation of the procedures to be adopted extremely helpful.
[1] [2004] SADC 99.
It was indicated by defence counsel at a directions hearing that the defence on mental incompetence was to be raised. On 3 February 2009 her Honour Judge McIntyre ordered reports be obtained pursuant to s 269K of the Criminal Law Consolidation Act. Reports were obtained from Dr Geoffrey Seidel dated 10 April 2009, Mr Richard Balfour dated 23 March 2010 and Mr Mark Reid dated 9 April 2009
The reports were received and on 28 May 2009 Judge Muecke ordered that this matter be listed for trial on the objective elements only after it was agreed by both parties that the defendant was unfit to stand trial. Pursuant to s 269MB the matter proceeded purely on the objective elements of the offences. The matter came before me on 19 January 2010 as a trial by Judge Alone.
On 18 March 2010 I delivered my verdicts. I found that the Crown had satisfied, beyond reasonable doubt, each objective element of Counts 1, 2, 3, 4, 6, and 7 on the information charged. I found the Crown had proved, beyond reasonable doubt, each objective element of the common law alternative to Count 5, namely indecent assault. I made those finding pursuant to s 269MB(2) and I declared the defendant liable to supervision under Part 8A of the Criminal Law Consolidation Act.
On 31 March 2010 at the request of Mr Dickson who appeared on behalf of the DPP, I ordered a report on the mental condition of Mr Derrick pursuant to s 269Q of the Criminal Law Consolidation Act (the s 269Q report) and a report from the victim and the next of kin pursuant to s 269R(1) of the Criminal Law Consolidation Act (the s 269R report). Mr Balfour wrote the s 269Q report dated 24 May 2010 and Ms D’Alessandro, a social worker from James Nash House prepared the s 269R report dated 18 May 2010.
These reports were received and the matter came back on before me on 26 May 2010. On that date I ordered further reports pursuant to s 269T of the Criminal Law Consolidation Act (the s 269T reports). I received a report from Mr Mark Reid a Neuropsychologist dated 7 July 2010, a report from Dr Geoffrey Seidel a psychiatrist dated 22 June 2010, and an addendum report from psychologist Mr Richard Balfour dated 17 June 2010.
Medical evidence
There was little or no dispute between the experts as to the condition of Mr Derrick.
Mr Reid again interviewed Mr Derrick on 5 July 2010. Mr Derrick was accompanied by his long term friend Ms Judith Mullins. Mr Reid had access to the 269T report of Mr Balfour dated 24 May 2010 in addition to his own previous reports. Mr Reid noted that while Mr Derrick had deteriorated since their last meeting, Mr Derrick told Mr Reid that he had no recollection of having seen him previously. Mr Reid’s diagnosis was that Mr Derrick was suffering from a form of dementia related to underlying neurovascular causes. The most prominent feature of his condition was his extremely poor short term memory. While Mr Derrick had some limited insight into his current cognitive difficulties, he lacked any insight into his need for assistance.
Mr Reid noted that although Mr Derrick continued to live at home on his own, he thought it likely that as Mr Derrick’s illness progressed there would be an increasing need to access support services. Mr Reid was of the opinion that Mr Derrick was now only semi-independent with regard to his living needs and could not cope independently without the assistance and direction he receive from Ms Mullins.
In relation to any conditions imposed by the licence, it was Mr Reid’s opinion that Mr Derrick would be passively accepting of any conditions imposed on him. However as he would not be capable of fully understanding or directing his own behaviour with regard to the conditions of a licence, he would require direction from a third party.
Mr Reid considered there to be adequate resources available to meet Mr Derrick’s treatment needs and noted the involvement of the Mental Health Services for Older People and the Forensic Mental Health Services. Mr Reid was of the opinion that he would be a low risk to the community with regard to future potential offending behaviour.
Dr Seidel interviewed Mr Derrick on 16 June 2010. Again Mr Derrick was accompanied by Ms Mullins. In providing his report Dr Seidel had considered the s 269Q report of Mr Balfour and the s 269R report of Ms D’Alessandro. Dr Seidel diagnosed Mr Derrick with a progressive Dementia most likely due to Cerebro Vascular Disease. Dr Seidel noted there was no evidence of continuing sexual drive or sexual behaviour and believed there was insufficient evidence to make a clinical diagnosis of any psychosexual disorder.
Dr Seidel tested Mr Derrick’s cognition and found that he was partially oriented in time and space but did poorly on testing of short term recall, attention and visuo-spatial functioning.
Dr Seidel agreed with Mr Balfour that there was a possibility that as a result of his dementia disinhibited sexual behaviour might occur. However Dr Seidel noted that this complication usually occurs in the presence of frontal lobe impairment, and this aspect of Mr Derrick’s functioning is still moderately preserved. If this were to occur in the future then Dr Seidel believes sedating medications or hormonal treatments would be required.
Dr Seidel was of the opinion that release of Dr Derrick under licence and subject to certain conditions would not greatly alter his behaviour. Dr Seidel did not believe that Mr Derrick required specific services of an aged care mental health team but thought that he should be reviewed on a six monthly basis by a psycho-geriatrician to determine the rate of progress of his dementia.
Mr Balfour provided an addendum report to his earlier report dated 24 May 2010 after reading the s 269R report of Ms D’Alessandro. He noted that E now suffered from Body Dysmorphia and is generally mistrustful of males as a result of the childhood sexual abuse perpetrated upon her by the defendant. Like Dr Seidel and Mr Reid, Mr Balfour noted Mr Derrick’s reliance on the support he received from Ms Mullins.
Mr Balfour was of the opinion that Mr Derrick required assistance of the Mental Health Services to the Elderly. He was also of the opinion that he be assessed by Aged Care Assessment Team for any future accommodation requirements. Mr Balfour shared Dr Seidel’s opinion that Mr Derrick should be reviewed by a psycho-geriatrician.
The medical evidence supported that Mr Derrick be released on licence.
Other reports
I have taken into account the s 269R report for victims and next of kin. I note that the victim E has requested that a number of conditions be imposed in the licence restricting the defendant from frequenting particular locations. Ms Mullins was also interviewed and requested assistance with caring for Mr Derrick through the Forensic Community Team.
I am satisfied that the defendant’s next of kin and the victim have been given reasonable notice of the proceedings before me.
Under s 269O of the Criminal Law Consolidation Act I may release the defendant unconditionally or make an order committing the defendant to detention or release the defendant on licence on conditions to be decided by me. I note the principle set out in s 269S that in deciding whether to release the defendant under this division of the Act or the conditions of a licence I must apply the principle that restrictions on the defendant’s freedom and personal autonomy should be kept to a minimum consistent with the safety of the community.
The DPP did not suggest that I should commit the defendant to detention under this Part. It was agreed by both the DPP and Mr Stewart on behalf of Mr Derrick that he be released on licence on the conditions suggested by the psychiatrists in this matter. Taking into account the medical evidence, the report from the victim and her family and the submissions by counsel, I am of the view that it would be appropriate to release Mr Derrick subject to a supervision order.
Orders
Under s 269O I therefore have to set a limiting term equivalent to the period of imprisonment that would in my opinion have been appropriate if the defendant had been convicted of the offences of which the objective elements have been established. I note that the maximum penalty for the offences of unlawful sexual intercourse with a person under 12 at the time of these offences is life imprisonment; for indecent assault it was 10 years imprisonment; for a first offence of gross indecency at the time of the offence the maximum penalty was 3 years imprisonment and for a first offence of inciting a child to expose her body the maximum penalty was 2 years imprisonment.
I now turn to consider the question of what limiting term I should fix. I have also had regard to the remarks of the Court of Criminal Appeal in R v D[2] and I have also had regard to matters set out in s 269T of the Criminal Law Consolidation Act.
[2] (1997) 69 SASR 413.
Viewed objectively the offending is extremely serious. Mr Derrick was in a position of trust and the abuse occurred over a number of years. The victim remains affected by his actions and is likely to suffer ongoing problems.
I would have used s 18A and imposed one penalty.
I start with a limiting term taking into account the seriousness of the offending. I note that Mr Derrick is 79 years old and that he has an otherwise unblemished record. The history is set out in the medical reports and I do not intend to repeat it. This must be seen of course in the light that the offending was of an ongoing nature. I therefore impose a limiting term of 12 years in all of the circumstances.
As mentioned before I consider it would be appropriate to release Mr Derrick on licence on certain conditions:
1That the defendant be under the care and direction of the Clinical Director, Forensic Mental Health Service (“The Director”), or a consultant psychiatrist nominated by him or her (“the nominee”), and obey any directions given to him from time to time with regard to medical and psychiatric treatment and medication.
2That the defendant be under the supervision of a Community Corrections Officer employed by the Department for Correctional Services and assigned by the Parole Board of South Australia and obey the lawful directions of that officer or the Board with respect to non-medical matters.
3The defendant is to make initial contact with the Adelaide Office of the Department for Correctional Services within two working days of signing this order.
4That the defendant continue to receive his medication current at the date of this order, and further that any alteration or reduction in such medication not occur without the approval of the Director or the nominee.
5That the defendant not use, possess or administer any drug which is not medically prescribed by a legally qualified medical practitioner, and further that any drugs which are prescribed to the defendant by a medically qualified practitioner be possessed or administered by the defendant only at prescribed or recommended dosages.
6That the defendant’s case be managed by the Forensic Community Team and that the defendant comply with all the lawful directions of that team, particularly with respect to attendances at all appointments nominated by that team.
7That, at the discretion of the Director or nominee and at such time when the Director or nominee sees fit, the defendant’s case management be transferred to a local Community Mental Health Team and that the defendant comply with all directions from that team.
8That the defendant shall submit himself for breath and or urine testing as directed by his Community Corrections Officer, for the purpose of determining whether there is present in his body any illicit or non-prescribed drug.
9That the defendant reside as directed by his Community Corrections Officer.
10That the defendant not depart or attempt to depart from the State of South Australia without the prior written permission of the Parole Board.
11That the defendant is restricted from approaching E and her family within 500 metres.
12That the defendant is restricted from entering or attending Kildaire College.