R v NC
[2018] ACTSC 123
•12 April 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v NC |
Citation: | [2018] ACTSC 123 |
Hearing Dates: | 27 May, 11 July, 27 September, 18 October, 5 December 2017; 22 February, 12 April 2018. |
DecisionDate: | 12 April 2018 |
Before: | Penfold J |
Decision: | See [34] and [35] below. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – re-sentence after breach of good behaviour order – minor re-offending – failure to engage with Victorian sex offenders program – offender resistant to group therapy – breach found – offender re-sentenced – new good behaviour order requiring engagement with psychologist. |
Legislation Cited: | Sex Offenders Registration Act 2004 (Vic) Crimes (Sentence Administration) Act 2005 (ACT), s 110 |
Cases Cited: | R v NC [2016] ACTSC 111 |
Parties: | The Queen (Crown) NC (Offender) |
Representation: | Counsel Ms S McMurray (Crown) Mr R Davies (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 192 of 2015 |
Background
On 25 February 2016, I sentenced NC to a total sentence of 15 months imprisonment for two offences of committing an act of indecency on a person under the age of 16 years and one offence of act of indecency in the presence of a person under the age of 16 (R v NC [2016] ACTSC 111). That sentence was fully suspended, and I ordered NC to sign an 18-month good behaviour order, which would have expired on 24 August 2017.
By the time I sentenced him, NC was living in Victoria, and supervision under the good behaviour order was transferred to the Victorian corrections agency.
Alleged breach of good behaviour order
However, early in 2017, ACT Corrective Services reported that NC had contravened the good behaviour order by failing to accept supervision and failing to obey all reasonable directions, including directions given to him in accordance with the condition of his good behaviour order that he undertake counselling, courses, programs and treatments as directed.
On 12 April 2017, I signed a summons requiring NC to attend Court. In particular, ACT Corrective Services asserted that NC had refused to engage in the Better Lives program, which I understand is a Victorian version of an adult sex offenders program. This breach information relied on a summary of supervision attendance and engagement provided by Morwell Community Corrections, a regional office of Corrections Victoria.
An affidavit included in the breach documents also said that NC had been dealt with on 8 March 2017 for an offence under the Sex Offenders Registration Act 2004 (Vic) by way of a $250 fine and a non‑conviction order. NC's counsel was instructed that NC proposed to appeal that outcome, but I understand that since then NC has been refused legal aid to mount such an appeal, and it is unlikely that any such appeal will proceed.
The parties agree that the commission of that offence appears to have been a breach of the good behaviour order, although I do note that neither the date of the offence nor the specific provision of the Sex Offenders Registration Act that creates it and sets out the penalty is apparent from the version of NC's Victorian criminal history that is in evidence before me.
The affidavit also noted that in June 2016 NC had been charged with offences involving child pornography which were before the Latrobe Valley Magistrates’ Court. Those matters had been adjourned to 15 June 2017, and since then have apparently been adjourned again, this time to May 2018.
Court proceedings
NC first appeared before me in relation to the breach on 25 May last year, and I adjourned the matter until after the June 2017 mention in the Latrobe Valley court.
When the matter was mentioned again on 11 July 2017, counsel said that NC did not admit the breach constituted by failure to comply with Corrective Services' directions, and asked that the relevant case officers from Morwell Community Corrections be made available for cross‑examination. Those officers gave evidence by telephone on 27 September and 18 October 2017. The matter was then adjourned to 5 December 2017 when further evidence was heard and, for reasons that will be explained later, the matter was adjourned again to today.
10. Given NC's offence under the Sex Offenders Registration Act, his counsel conceded that NC had breached his good behaviour order; however the extent of the breach had remained in issue.
11. Other material to which I shall refer provides some explanation for the alleged breach constituted by NC's response to his Victorian case managers.
The offences
12. In summary, the three offences for which I sentenced NC in February 2016 were committed on a single day against his 11‑year‑old step-daughter. He touched her near her genitals, then rubbed her clitoris and around her vaginal opening, and then exposed his penis and invited her to touch it. NC volunteered a confession of his behaviour to the victim's mother, his then partner, later on the same day, and she apologised to the victim on his behalf. The victim reported the matter to police 14 years later.
13. In evidence on sentencing was a victim impact statement showing that the victim had suffered considerable psychological problems over many years. When sentencing NC I declined to find that his actions were the only or first cause of those problems, but noted that they had caused significant damage to the victim and had contributed in a significant way to her mental health and relationship problems.
Evidence
14. On the current breach proceedings, the following material was in evidence before me:
(a)breach paperwork, including:
(i)a summons to attend court for breach of good behaviour order signed 12 April 2017;
(i)a report setting out the alleged breach of good behaviour order with a cover page dated 27 March 2017; and
(ii)an affidavit affirmed by Shannon Bradbury on 27 March 2017 attaching an Engagement Commonwealth Order which included notes from officers of Morwell Community Corrections, being Andrea Foster and Tamara Jones;
(b)criminal histories from Victoria and the ACT; and
(c)my sentencing remarks from February 2016;
all of which were tendered by the prosecution.
15. As well, the defence tendered:
(a)a Good Behaviour Order Direction to Report issued by ACT Corrective Services dated 26 June 2017;
(b)a preliminary report dated 11 May 2017 from John Redman, a psychologist in Victoria, reporting to the referring general practitioner that he had seen NC that day;
(c)a letter from a staff member of Mr Redman's practice dated 24 November 2017 advising that NC had attended seven sessions with Mr Redman, the last on 9 November 2017, but that Mr Redman had fallen ill and would not be able to give any information to the court before 2018;
(d)a report from Mr Redman dated 15 March 2018;
(e)an email from NC's counsel, Mr Davies, outlining the questions he had asked Mr Redman in seeking a report; and
(f)a letter from Mr Redman dated 10 April this year providing very short answers to Mr Davies' questions.
As already noted, oral evidence was given by Ms Foster and Ms Jones, the caseworkers at Corrections Victoria, and on 5 December 2017 NC gave evidence.
Subjective circumstances
17. NC is now 60 years old. His criminal history in the ACT consists of convictions for possession of child pornography and using a carriage service for child pornography material, as well as for the acts of indecency in respect of which I made the good behaviour order he has now allegedly breached. I have already mentioned the criminal matters that have arisen in Victoria since NC moved there.
18. When I sentenced NC in 2016, I noted that he had a somewhat difficult childhood which included suffering sexual assault in a public toilet when he was around 13, and that as an adult he has had minimal contact with parents and siblings. He has undertaken tertiary studies in the general area of information and communications technology and has mostly had stable employment. NC's personal life had involved two marriages, the second of which has apparently ended since 2015, but he maintains positive relationships with the two sons of his first marriage.
19. NC has suffered a variety of physical ailments and also has a history of depressive illness and possibly bipolar disorder. In 2016, a psychologist assessed NC as meeting the diagnostic criteria for mixed personality disorder and possibly obsessive compulsive disorder, and noted that these disorders might have resulted in impaired social and occupational functioning. There has also been mention from time to time of the possibility that NC is on the autism spectrum, but there is no formal diagnosis to that effect of which I am aware.
Supervision in Morwell
20. After NC was sentenced by me, the ACT orders were transferred to Victoria and NC was inducted by Morwell Community Corrections several days later. He was assessed as at “Moderate to High Risk of Sexual Recidivism” and was waitlisted for the Better Lives Program. Corrections Victoria authorities summarised his attitude as being "resistant to discussion … when asked about anything in regards to his life and the offending” to which the ACT order relates.
The case managers’ evidence
21. In oral evidence, NC's initial case manager described him as "very closed off" and said that he resisted discussing anything during his appointments with her.
22. Several months later, NC was assigned a different case manager. NC's new case manager also described him as reluctant to engage and as tending to separate himself from the group undertaking the Better Lives Program. She said he had complained that the program was a waste of time and that the facilitators were very inexperienced. He had threatened to kill himself if Corrections did not remove him from the program, although it seemed that this threat might have been made, at least in part, in an attempt to get out of the program.
23. NC had also raised questions about Corrections Victoria's power to require him to take part in the Better Lives Program, because he had not found any legislation that he saw as an adequate basis for his case manager's requirements. NC's main concern, however, seemed to be that he did not consider that group-based therapy would be effective for him.
24. The new case manager said that NC was unwilling to take part in discussing his offending behaviour and looking at strategies to address it, and on one occasion had abused her, although she noted that at his next appointment he had apologised for that abuse.
NC’s evidence
25. NC, in his oral evidence, provided a slightly different perspective on his dealings with Corrections Victoria. In explaining the circumstances of the breach, NC gave evidence that in recent discussions with his psychologist, he had realised that his approach to the case managers and other people could easily be misinterpreted. He accepted, in effect, that people might have thought he was being obstructive in his insistence that he was not likely to provide the right answer unless his questioner asked the right question, and also said that he had only recently become aware how his frequent crossing of his arms might be perceived.
26. NC explained some of the difficulties he had found with the group‑based program. He said:
[I]n groups, I struggle to be a chatty person. I don’t trust other people within the group and if there's other people within the group who all have done what I went through years ago I wouldn't know how to process, deal with, what to do with that information so I become very panicky and I started to get very concerned about the process which was your life history, how you got to the offending bit, what happened around the offending and then the last bit was how you're going to stop re-offending and it was the middle bit that really had me troubled … Not because I didn't want to say anything but because of who was involved and what actually was going on.
27. What NC had been particularly concerned about, what he referred to as "the middle bit", were the issues of what caused the offending and what was happening around it. NC, in the course of answering a question about his understanding of the effect of child pornography on the child victims used in its production, explained that he did not really understand emotions and that, as a young child, he had been yelled at by his parents for a failure to show positive emotions.
28. He then went on, in an apparent stream of consciousness, to describe a memory of what could have been child sexual abuse, not apparently within his family, when he was only three or four years old, and to describe what can perhaps be summarised as an inability to process experiences, good or bad, and to deal with the feelings generated, which has left him struggling both with his own experiences and with the expectations of others about normal ways of communicating.
As mentioned, NC had hoped to have a report from his psychologist, Mr Redman, available in December 2017, but after Mr Redman fell ill it was not clear when he would be able to provide the report. After hearing NC's own evidence in December last year however, the parties and I considered that it was even more important to obtain the psychologist's report, so the matter was adjourned again. There was then a further adjournment when NC's counsel was ill and the matter finally resumed today, 12 April 2018.
Psychologist’s report
30. A report from NC's psychologist was available today, although it was not the most helpful report. It referred to a lot of material that Mr Redman had assembled from earlier psychological assessments of NC. It did not provide any clear diagnosis, but it did seem to emerge from Mr Redman's comments that NC suffered low self-esteem, anxiety, depression, loneliness and psychological distress generally, and that he struggled to form satisfying and positive relationships.
31. As already noted, Mr Redman's responses to counsel's specific questions were very brief and his report was not particularly helpful.
32. I am satisfied that NC needs ongoing psychological help, but that he will not be helped by being required to pursue rehabilitation in a group setting. I agree with the prosecutor's submission that NC would be particularly vulnerable in being required to address his own sexual offending in a group of people who might have been perpetrators of the kinds of abuse that he suffered as a child.
Re-sentence
33. NC, please stand. Are you okay or are you struggling to stand up?
NC: I had to move house (indistinct).
HER HONOUR: Sit down, that's fine. It's normal for people to stand, but I don’t think it's any less effective if you're sitting down when I sentence you.
I find that the good behaviour order made on 25 February 2016 has been breached and under s 110 of the Crimes (Sentence Administration) Act 2005 (ACT), I cancel the good behaviour order and I resentence you as follows:
(a)for the first act of indecency, to 14 months imprisonment (12 April 2018 to 11 June 2019);
(b)for the second act of indecency, to 14 months imprisonment served to add one month to the total sentence (starting 12 May 2018 and ending on 11 July 2019); and
(c)for the third act of indecency, to 6 months imprisonment to be served concurrently with the second sentence (starting 12 May 2018 and ending on 11 November 2018).
35. The sentences, which total 15 months imprisonment, are again suspended, and I now order you to sign an undertaking to comply with your good behaviour obligations under the Crimes (Sentence Administration) Act for 16 months. The good behaviour order is subject to the following conditions:
(a)that you give security in the amount of $1,000 for your compliance with this good behaviour order;
(b)that during the term of that good behaviour order, so that is during the next 16 months, you see a psychologist on referral from your general practitioner at least 12 times;
(c)that for such period not exceeding 16 months as Corrective Services considers necessary, you accept the supervision of ACT Corrective Services in relation to the obligation to see a psychologist, and notify your supervisor as required about your attendance at appointments with the psychologist; and
(d)that on or before the end of tomorrow, Friday 13 April, you attend Corrective Services at 249 London Circuit to arrange that supervision.
36. You'll need to take the good behaviour order with you and show the Corrective Services people the nature of the order and talk to them about how they want you to notify when you go to the psychologist.
37. So as we've discussed, you will get a written copy of the good behaviour order. You'll have to sign it anyway and then you'll get a copy of that, and the court officials will read it to you. In short, what it means, as I think you understand now, is that for the next 16 months you need to keep out of trouble, you need to see – and ideally, NC, you will engage with – a psychologist at least 12 times, and you will need to notify ACT Corrective Services of that as they direct you to do so, that is, in the manner that they want you to do so.
38. If you commit another offence during the next 16 months, or if you otherwise breach your undertaking, you could find yourself back before the ACT Supreme Court yet again to be re-sentenced for the original offences, as well as possibly losing your $1,000 security and, depending on exactly how you've breached your undertaking, you could still find yourself serving some or all of the outstanding 15‑month sentence in full‑time custody.
39. Mr Davies, if you get a few minutes, you might also encourage NC to really make the most of the psychological assistance that he's getting. He does seem willing to do that, but he does need to realise that there's clearly some problems, some child sexual abuse problems, in his history and that's obviously not helping him cope with life or behave in appropriate ways now.[1]
| I certify that the preceding thirty-nine [39] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold. Acting Associate: Date: 15 May 2018 |
[1] The transcript of this hearing records a discussion about the fact that when NC was originally sentenced in 2016, the notification of court costs and levies that he was required to pay had apparently been sent to an incorrect address (not the address that he had most recently notified to ACT Corrective Services), and by the time the notification reached him he had also become liable to a late fee, which was not remitted. If NC is by this re-sentence exposed to another set of costs and/or levies, regard should be had to the previous, possibly inappropriate, charging of a late fee.
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