Re Sorensen

[2016] QMHC 6

MENTAL HEALTH COURT

CITATION:

Re Sorensen  [2016] QMHC 6

PARTIES:

REFERENCE BY DEFENDANT’S LEGAL RESPRESENTATIVE IN RESPECT OF WAYDE JOHN SORENSEN

FILE NO/S:

No 0060 of 2015

DELIVERED ON:

13 June 2016

DELIVERED AT:

Brisbane

HEARING DATE:

26 May 2016

JUDGE:

Boddice J

ASSISTING PSYCHIATRISTS:

Dr C Gray
Dr S Harden

ORDERS:

1.   At the time of the alleged offence the subject of the reference the defendant was not of unsound mind within the meaning to the Schedule to the Mental Health Act 2000 (Qld).

2.   In respect of the alleged offence the defendant is fit for trial. 

3.   The alleged offence is to proceed according to law. 

4.   Copies of the reports and of the transcript are to be released to the parties for use in the criminal proceedings. 

COUNSEL:

J Briggs for the defendant
J Tate for the Director of Mental Health

M Lehane for the Director of Public Prosecutions

SOLICITORS:

Legal Aid Queensland for the defendant
Crown Law for the Director of Mental Health

Director of Public Prosecutions

1. By notice of reference, filed 5 March 2015, Legal Aid Queensland referred to this Court the mental condition of Wayde John Sorensen at the time of an alleged offence of possessing child exploitation material on 25 June 2013. 

2. It is not in dispute that the defendant, with appropriate modifications to any Court processes, is currently fit for trial.  At issue is whether he was of unsound mind at the time of the alleged offence. 

   Background

3. The defendant was born on 30 January 1987.  He has been diagnosed with Noonan Syndrome.  He suffers from a significant intellectual impairment as a consequence of that syndrome.  He has learning and communication difficulties.  He is also partially deaf in one ear and has some loss of sight in one eye. 

4. The defendant grew up in tragic circumstances.  After his parents separated in 1992, the defendant lived with his mother.  However, in 1997 he moved with his younger brother to live with his father.  The defendant reports persistent sexual and physical abuse at the hands of his father and new partner from that time until 2005 when the defendant and his brother were removed by the Department of Child Safety. 

5. The defendant now lives alone.  He has significant impairments in day-to-day functions.  He receives support pursuant to community funding.  On 19 September 2013, the Adult Guardian was appointed as his guardian for specified personal matters.  On 8 September 2015, the Public Guardian was appointed as the defendant’s guardian for the provision of services and legal matters not relating to his financial or property affairs. 

   Alleged offence

6. On 25 June 2013, police officers executed a warrant authorising a search of the defendant’s premises.  That search was recorded by police officers.  At its commencement, the defendant was advised police had a warrant to search his premises in relation to an offence of “unlawfully possess child exploitation material”.  The defendant was advised of his rights.  He acknowledged he understood those rights, although when asked what it meant, he replied “I don’t know”. 

7. Early in the search the defendant was asked whether there were any computers in the house.  After the defendant replied that there were, the defendant said:

   “I admit there is, I admit I, I did, sometimes, like in the past and that, I do get sometimes like, I might go, I did have a thing at the time [indistinct] there might be some old photos on there from in the past and all that sort of stuff …  Cause as I was growing up, I got taken out of home and, and I was taken out of home and over so many years, because I was going through a bad state with child abuse and all that sort of stuff, I had [indistinct] and all that sort of stuff.  There might be some old photos on there and all that sort of stuff”. 

8. The defendant was asked what the old photos depicted and he answered “children”.  He denied there were any photos of children nude and said he did not think there were any photos of children in any sexualised activity.  Later the defendant advised police that his mobile phone may have some photographs on it, including photographs of young boys’ and girls’ faces.  The defendant said he had “just a thing back then for it”.  He said as he was growing up he liked to watch children and all that sort of stuff.  He admitted he had pictures of himself masturbating but denied sending that image to any other person. 

9. During the course of the search, the defendant acknowledged that police “might find a few photographs that are not appropriate”.  He acknowledged that some of the photographs located by police on the computer showed young girls posing like a model in g-string type underwear.  He said it was taken off a family nudism park site.  He admitted he had copied and pasted some of the photographs.  Later the defendant was recorded as saying:

   “No-one else has access to the laptop.  I I I admit what I done in the past, absolutely wrong.”

10. The defendant agreed some of the photographs depicted girls as young as 2 or 3 years old but denied that he understood the images of the children naked were exploitation material.  He also said:

    “… I know it’s wrong what I done there in the past.  It’s wrong.  I admit I am wrong, but I, I do, inside of me I feel guilty for what I’ve done.  …  I understand what I, I understand what you say is, and I understand it, but in, what I done, I admit to myself what I have done is wrong and, and I feel guilty on the inside.  I understand.  I do feel guilty on the inside.”

11. The defendant was asked why the images were wrong and replied:

    “Cause in the past I, in the past, I don’t know, ‘cause as I, as I was growing up, I had this thing and I had this thing and … I had this thing where I needed to have this thing for children.  It’s like, because, because, because I was, because I felt like I was different and et cetera, et cetera, as like, but, but now, now we’re in a completely, it’s 2013 and I realised that what I, what those, what I did back then was, why I’ve still got those photos from back then, it feels like why have, why have I done it for?  Why? What’s the good out of it?  There’s no good out of it.  Why am I, why do I have them for?  Why, I don’t, and I say to myself, why do I need them for?  I don’t need them, and like I, and that.  I dunno.  I say to myself why, why am I doing this for?  I’m only gonna get myself into trouble, you know, um and that’s why …I said no … I’m not going there.  I wanna go and delete them but then my body [indistinct] then I get an urge saying, should I, should I not?  And I said [indistinct] totally forget about [indistinct].  I just totally forget.  I don’t even bother looking at them.  I haven’t looked at them for ages.”

    The defendant acknowledged there was new material as well as the old photos. 

12. Following the interview the defendant was arrested in relation to the offence of possession of child exploitation material. 

    Reporting psychiatrists

13. Dr Mark Schramm assessed the defendant on 28 July 2014.  He had, in addition to police material, a report from Dr Luke Hatzipetrou from which he was able to obtain a detailed personal history.  That history confirmed sustained sexual and physical abuse and torture and otherwise extremely cruel treatment at the hands of his father for a number of his formative years.  As a consequence, there was confusion in relation to emotions and fractured education.  There were also issues concerning sexual identity. 

14. Having considered that background history, the police material and the defendant’s account, both to the police and to Dr Schramm, including his explanation for possession of the offending material, Dr Schramm opined the defendant suffered from a significant intellectual impairment together with significant adapted functioning deficits, although the defendant lived reasonably independently with some regular support.  The defendant had also been reared in extremely toxic circumstances which dramatically impacted on his psycho-social development. 

15. Dr Schramm opined that the defendant did not seem to have a predilection to paedophilia although he deferred to the opinion of Dr Hatzipetrou in relation to that matter.  Dr Schramm noted that whilst Dr Hatzipetrou assumed the defendant had possession of this material for some sexual gratification, Dr Schramm did not gain that impression from his assessment of the defendant. 

16. In Dr Schramm’s opinion, the defendant’s intellectual impairment is a natural mental infirmity.  That natural mental infirmity, in the context of his horrific upbringing, gave support for the defendant’s account, which Dr Schramm accepted as genuine, that possession of naked pictures of children had special significance to his own aberrant experiences.  Dr Schramm opinion that the defendant’s statements to police that he knew his behaviour was wrong needed to be understood in context.  Those comments revealed an appreciation, in hindsight, of the inappropriateness of his behaviour, in the context of police involvement. 

17. In Dr Schramm’s opinion, the defendant did not truly appreciate what was wrong about his behaviour and lacked the capacity to appreciate that possession of those images was morally wrong.  The defendant was unable to reason with a moderate sense of composure as to the wrongness of his actions.  Accordingly, Dr Schramm supported a finding that the defendant was of unsound mind at the time of the alleged offence. 

18. Dr Schramm maintained that opinion in subsequent addendum reports and in evidence.  In his opinion, the defendant’s acknowledgement of wrongness to police was framed by an appreciation that the involvement of the police suggested wrongness in his conduct.  Such an acknowledgement of wrongness did not mean the defendant could reason with a moderate degree of sense and composure as to the wrongness of his actions.  The defendant’s innocent explanation for possession of the images in the first place and at the time he was interviewed by police was entirely consistent with the unsophisticated thinking of an intellectually impaired man with his background of being exposed at a young age to persistent aberrant sexual conduct. 

19. In Dr Schramm’s opinion there was a risk, in listening to and reading the defendant’s interactions with police, of misinterpretating his acknowledgement of wrongness.  His responses were consistent with a very primitive immature fantasy of trying to undo what he had done, in circumstances where he became aware it was inappropriate by reason of the police presence.  His responses were consistent with wishing he had not done it, in an effort to wind back the clock.  It was most likely the defendant, at the point the police arrived at his residence, surmised he had done something wrong.  Such a scenario was still consistent with a lack of the capacity to reason with a moderate degree of sense and composure about the wrongness of the actions. 

20. Dr Hatzipetrou, who first assessed the defendant in 2014, also opined that the defendant had an intellectual impairment in the context of a pervasive history of learning, social and communication impairments associated with Noonan Syndrome.  The defendant’s exposure to a highly prejudicial and aversive upbringing affected his interpretation of sexual activities.  In that context, the defendant’s actions in respect of the alleged offence reflected the onset of sexually abnormal thoughts and urges at a time when the defendant had very few social supports, experienced intimacy deficits and was isolated and detached from his peer groups. 

21. Dr Hatzipetrou noted that the defendant considered both adult pornography and child exploitation materials provided reminders of previous pleasant social experiences in his childhood, without any appreciation or understanding of the associated deviancy.  The defendant utilised sex as a form of relief from negative emotions, including feelings of hopelessness, sadness and a low tolerance of frustration.  Against that background, the defendant was likely to consider his behaviour as acceptable because there was no contact offending and the children did not appear to be harmed.

22. Dr Hatzipetrou did not consider the defendant had a diagnosable paraphilia or paedophilia although there may have been a non-specific paraphilia developing in the context of his abuse with psychological trauma.  His intellectual and development disabilities resulted in impoverished social experiences, abnormal development and limited relationships.  He had deficits in his understanding of social relationships, in information processing and in problem solving. 

23. Having considered all of those surrounding circumstances, Dr Hatzipetrou opined that the defendant was deprived of the capacity to understand the consequence and nature of his actions.  That deprivation of capacity was due to the defendant’s natural mental infirmity.  There was also sufficient evidence he did not know he ought not do the act in question.  It was likely his expressed understanding of the act being unlawful, during the search, was triggered by the police involvement. 

24. Dr Hatzipetrou maintained that opinion in evidence.  In his opinion, the combination of the defendant’s intellectual impairment and his very prejudicial upbringing, in the context of an underdeveloped understanding of sexuality, meant he lacked the capacity to know what was appropriate and inappropriate.  Whilst his intellectual capacity did not prevent him from being able to pick and choose the images he wanted to download, he lacked the capacity to understand that it was morally wrong for him to have those images. 

25. Dr Hatzipetrou agreed that the defendant’s account indicated that he knew it was wrong for him to have possession of the material and that he understood the concept of child abuse.  However, that knowledge was consistent with the development much later of an understanding of the wrongness of his actions, including an awareness caused by the presence of two police officers at his residence.  This acknowledgement was not inconsistent with a deprivation of the capacity to reason with a moderate degree of sense and composure about the wrongness of his actions.  A consideration of the defendant’s responses to police raised a concern the defendant was stating things without elaborating on what they mean or indicating his understanding of those concepts. 

26. Dr Hatzipetrou explained it thus:

    “…  You can know something is wrong, but if you don’t appreciate and understand the consequences of those actions to the point that Mr Sorensen has demonstrated and what we found, I think that’s where your deprivation is.  Like, other people, whether they have a acquired brain injury or other disabilities, they can know it’s wrong to hit someone but they don’t understand why it’s wrong to hit someone or what the consequences are to society, to them, to the other person.  So there’s no – there’s a deprivation of capacity there.  The thing – the difficulty about this is you just have this young man who’s got, you know, an interest in these images.  And he has developed awareness over time through whatever mechanisms – whether it’s through media or other means or his own recognition, which is hard, because that didn’t come out in the interviews that – you know, that he had developed all of a sudden this moral robustness that he identified – he understood why it was wrong.  So I think the deprivation is really around the fact that he had these things happen to him, he identified with them, he developed an interest, he looks at them and as time goes on he – from what I gather [indistinct] is he recognises or has an awareness it’s wrong but doesn’t really appreciate why it’s wrong and how it impacts on him, others or society.”[1]

    [1]     T1-22/25-40.

27. Dr Jonathan Mann assessed the defendant on 2 July 2015.  Dr Mann had, in addition to the police material, the initial reports of Dr Schramm and Dr Hatzipetrou.  In Dr Mann’s opinion, the defendant suffered from a natural mental infirmity by reason of his intellectual disability associated with Noonan Syndrome.  That intellectual disability impaired the defendant’s capacity to know he ought not do the act in question.  However, at the time of the alleged offence the defendant was not deprived of that capacity by reason of his natural mental infirmity.  The defendant was also not deprived of either of the other relevant capacities. 

28. Dr Mann opined that a consideration of the defendant’s responses to police at the time of execution of the search warrant supported a conclusion that the defendant had some understanding as to why the police arrived at his house.  Further, the defendant was able to demonstrate a reasonable understanding he should not access child exploitation material.  He was able to appreciate the difference between adult pornography and what would be classed as child exploitation material.  Whilst it would appear the defendant did not fully appreciate the exploitation aspect of possession of that material, his actions and words to police supported a conclusion he had some capacity to know he ought not do the act or make the omission.  In short, he knew at some level that what he was doing was wrong, although he may not have appreciated the seriousness of his actions.  Accordingly, Dr Mann did not support a finding of unsound mind. 

29. Dr Mann maintained that opinion in evidence.  He noted that the defendant’s intellectual disability was not extremely severe.  He was able to live independently and was able to understand some complex concepts.  He had an appreciation that what he had done was wrong.  The fact the defendant could not articulate what the warning as to his right to silence meant did not mean you could not place any reliability on the answers given in the course of the search of his premises.  The defendant’s response was consistent with an inability to articulate rather than a lack of understanding. 

30. Dr Mann noted the defendant “seemed to fairly early on appreciate and was able to identify” the types of material the police were searching for at his residence.[2]  Whilst the police specifically told him the alleged offence was possession of child exploitation material, the defendant had an understanding of the types of material the police were looking for, did not seem perplexed or confused and volunteered he had photographs.  His answers displayed an understanding to some extent that other people would think he should not have those images, consistent with some capacity to reason with a moderate degree of sense and composure about the reasons why reasonable people would think his behaviour wrong. 

    [2]     T1-40/21-22. 

31. Dr Mann accepted it was likely the defendant’s intellectual disability made it difficult for him to articulate those reasons in great detail.  However, it did not prevent him from having some level of the capacity to reason as to the wrongness of his actions.  In short, the defendant had a capacity to reason with a moderate degree of sense and composure about the wrongness of his actions, although that capacity was impaired by his intellectual disability and the consequences of his prejudicial upbringing:

    “…  I think he did understand that what he did and the images he possessed were bad and that other people would think it was wrong and that’s what the police were interested in.  …  I think he understood that the children would have suffered, because he related it to his own suffering right from the very start.  …  he tried to distance himself from the offence by saying that was old.  I don’t do that any more.  But he also tried to minimise it and – or justify it by linking it to I did that because I was abused and this is abuse  …  I think it was sort of a justification there and a link to his own sort of traumatic experiences.”[3]

    [3]     T1-43/24-36. 

    Submissions

32. The defendant submits the Court ought to accept and prefer the opinions expressed by Dr Schramm and Dr Hatzipetrou.  The difference in the opinions of the reporting psychiatrists derived from their assessment of the defendant’s understanding of the significance of the images and the proper interpretation of his responses to police.  The opinions of Dr Schramm and Dr Hatzipetrou were in accord with all of the material which supported the conclusion that the defendant, by reason of his intellectual impairment, was unable to properly assimilate his aberrant experiences and appreciate that those experiences were wrong in that the acts that had been perpetrated on him were wrong.  That inability was supported by the defendant’s inability to articulate his appreciation of what was meant by the right to silence, when asked by police at the time of the search. 

1. The Director of Public Prosecutions submits the Court ought to accept and prefer the opinion expressed by Dr Mann.  There is no clear and convincing evidence the defendant lacked any of the requisite capacities.  The best evidence as to the defendant’s state of mind was his responses to police during the search.  Those responses indicated the defendant did have a capacity to know he ought not do the acts in question.  He expressed an awareness of the wrongness of his actions.  He described feelings of guilt.  He spoke of previously contemplating deleting the material but chose not to do so. 

   Assisting psychiatrists

2. Dr Harden advised the defendant was a young man with a natural mental infirmity.  He had intellectual difficulties, including probable executive function problems.  Whilst those difficulties would impair his capacity to know he ought not do the act in question, a consideration of the whole of the material supported acceptance of Dr Mann’s opinion that the defendant was not deprived of that capacity, or of any of the other relevant capacities, by reason of his natural mental infirmity at the time of the alleged offence.  The defendant had an appreciation of the wrongness of his actions, albeit a limited appreciation. 

3. Dr Gray advised that the defendant had a natural mental infirmity, together with significant deficits as a consequence of severe psycho-sexual abuse.  However, a consideration of the whole of the material and, in particular, the defendant’s responses to police during the search, supported acceptance of Dr Mann’s opinion that the defendant was not deprived of the capacity to know he ought not do the act in question.  The defendant’s responses expressed some knowledge that possession of the material was wrong, and that he had considered deleting some of the material in the past.  Those responses supported a conclusion that the defendant had an understanding he ought not possess that material. 

   Discussion

4. There is no doubt the defendant is a young man with significant intellectual and developmental impairments, consequent upon his natural mental infirmity and the effects of sustained physical and sexual abuse throughout his adolescence.  His prejudicial upbringing has significantly impacted on his social development and his interactions with others.  It has also impacted on his understanding of his sexuality and awareness of appropriate sexual behaviour. 

5. Whilst those conditions and consequences have undoubtedly impaired the defendant’s capacity to reason with a moderate degree of sense and composure about the rightness or wrongness of possessing child exploitation material, a consideration of the defendant’s responses to police in the course of the search of his premises supports the conclusion the defendant was not deprived of that capacity at the time of the alleged offence. 

6. Dr Mann provided a cogent and persuasive explanation as to why the defendant’s responses during the police interview supported a finding he had some capacity to reason with a moderate degree of sense and composure as to the rightness and wrongness of his actions. 

7. By contrast, I found Dr Schramm’s and Dr Hatzipetrou’s explanations unpersuasive.  They both opined that the defendant’s statements to police as to his knowledge of the wrongness of his actions were properly to be seen as having occurred upon the appearance of the police.  The defendant already had an understanding of the wrongness of possession of the particular images.  That is evidenced by his admissions that he was in possession of photographs and that he had considering deleting those photographs in the past.  Both admissions were contrary to the notion that it was only upon the arrival of police the defendant acquired a knowledge it was wrong to possess these images. 

8. The defendant’s responses to police also do not support a conclusion the defendant was expressing an awareness of the wrongness of his actions, which had developed as a consequence of the presence of police at his unit.  The defendant, having been informed that the offence the subject of the search was unlawful possession of child exploitation material, admitted he had inappropriate photographs on his computer.  Further, the defendant stated he was aware it was wrong, that he had feelings of guilt, and that he had considered deleting the images in the past but that due to urgings in his body he did not do so.  He also agreed there was new material contained on the computer.  These answers indicated an awareness by the defendant of the inappropriateness of the possession of those photographs. 

9. A consideration of the defendant’s responses to police, even allowing for the circumstances, the defendant’s natural mental infirmity and the consequences of his upbringing, support an acceptance of Dr Mann’s opinion that the defendant was not deprived of the capacity to reason with a moderate degree of sense and composure about the rightness or wrongness of his actions in possessing the child exploitation material. 

10. I accept Dr Mann’s opinion that the defendant was not deprived of the capacity to know he ought not do the act.  I do not accept the opinions of Dr Schramm and Dr Hatzipetrou that the defendant was deprived of that capacity as a consequence of his natural mental infirmity.  There is no suggestion the defendant was, as a consequence of his natural mental infirmity, deprived of either of the other requisite capacities. 

    Conclusion

11. The defendant was not deprived of any of the requisite capacities at the time of the alleged offence, by his natural mental infirmity or mental disease.  The defendant was not of unsound mind at the time of the alleged offence. 

12. The preponderance of evidence is that the defendant is currently fit for trial.  It is accepted that the defendant, due to his natural mental infirmity and the consequences of his compromised upbringing, will need modifications in the trial process to ensure he is able to meaningfully participate in any trial.  The assisting psychiatrists advise I ought to accept the defendant is fit for trial, subject to the appropriate adaptations taking place at any trial.  I accept the defendant is fit for trial. 

13. It will be important for any Court conducting a trial of the alleged offence to have due regard to the need for the Court processes to be adapted to address the potential difficulties that may be experienced by the defendant in the course of any trial. 

    Orders

    1.At the time of the alleged offence the subject of the reference the defendant was not of unsound mind within the meaning to the Schedule to the Mental Health Act 2000 (Qld).

    2.In respect of the alleged offence the defendant is fit for trial.

    3.The alleged offence is to proceed according to law.

    4.Copies of the reports and of the transcript are to be released to the parties for use in the criminal proceedings.