Secretary to the Department of Health and Human Services v Durham
[2018] VCC 1300
•15 August 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-16-01458
| IN THE MATTER OF AN APPLICATION BY THE SECRETARY TO THE DEPARTMENT OF HEALTH AND HUMAN SERVICES | |
| Applicant | |
| v | |
| LUKE DURHAM | Respondent |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 19 & 20 June 2018 and 15 August 2018 | |
DATE OF DECISION: | 15 August 2018 | |
CASE MAY BE CITED AS: | Secretary to the Department of Health and Human Services v Durham | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1300 | |
REASONS FOR DECISION
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Catchwords: Criminal law – Application to Revoke a Residential Treatment Order – s82A(1)(c) of the Sentencing Act 1991 (Vic) – Application Granted
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms J Davidson Ms Z Broughton | Legal Services Branch, Department of Health and Human Services Victoria Legal Aid |
| For the Respondent | Mr G Heavey (19 & 20/6/18) Mr P Pickering (15/8/18) | John Cain, Solicitor, Public Prosecutions |
HER HONOUR:
1 On 7 November 2016, following a plea hearing, orders were made by the Court placing Luke Durham on a Residential Treatment Order (“RTO”) for a period of 5 years in respect to charges of rape and sexual assault.
2 The offending occurred on 27 March 2016. Mr Durham pleaded guilty to both charges.
3 The factual matrix upon which Mr Durham was sentenced is outlined in the revised sentencing remarks dated 7 November 2016.
4 Prior to the imposition of the RTO, reports were obtained from the Department of Health and Human Services including a Plan of Available Services dated 23 October 2016, a Certificate of Eligibility dated 17 May 1994 and a report of Ms Nina Stevanovic, Disability Forensic Assessment and Treatment Service (“DFATS”), psychologist, dated 13 October 2016.
5 Mr Durham has an intellectual disability within the meaning of the Disability Act 2006. Specifically, he has been assessed as having a moderate intellectual disability according to an Assessment of Service Level Report authored by Ms Kylie Bowden, psychologist.
6 He presented as a high risk of reoffending.
7 The Court was satisfied that the RTO would enable the provision of suitable services for Mr Durham to meet his complex individual needs and to provide him with opportunity to engage in appropriately directed treatment, educational and vocational activities, as well as providing an opportunity for community integration with appropriate support and monitoring and the development of individualised plans to assist Mr Durham with his behavioural issues.
8 Mr Durham was deemed suitable for such order after being assessed according to the criteria in s152 of the Disability Act 2006.
9 By way of Application dated 8 June 2018, the Secretary to the Department of Health and Human Services, has sought an order revoking Mr Durham’s RTO pursuant to s82A of the Sentencing Act 1991 (Vic).
10 The Application is brought on the basis that the order is no longer appropriate – s82A(1)(c).
11 At the conclusion of the hearing of this matter, I announced the order to cancel Mr Durham’s RTO and confirmed that written reasons would be provided at a later stage. These are my reasons.
12 The Application to revoke the order was ultimately not opposed. Previously, Ms Broughton, who represented Mr Durham on the 19 and 20 June 2018, opposed such an order. However, Mr McLaughlin, who appeared on behalf of Mr Durham on 15 August 2018, advised the Court that Mr Durham no longer wished to oppose the Application.
13 Mr McLaughlin indicated his instructions were clear and unequivocal. He confirmed that Mr Durham was not able to cope with the treatment that had been provided under the terms of the RTO and that he sought a return to prison.
14 I have had regard to the evidence led in support of the application and the material exhibited by the Applicant including the following documents -:
(1)Affidavit of Yvonne Maxwell, sworn 8 June 2018, together with exhibits;
(2)Affidavit of Tiffany Carroll, sworn 8 June 2018, together with exhibits;
(3)Report of Dr Joseph Allan E. Sakdaln, consultant clinical psychologist/ neuropsychologist dated and signed 24 February 2018;
(4)Further Affidavit of Tiffany Carroll, sworn 13 August 2018, together with exhibits;
(5)Further Affidavit of Ms Yvonne Maxwell, sworn 3 August 2018, together with exhibits;
(6)Affidavit of Jayne Dennis sworn 13 August 2018; and
(7)Supplementary report of Dr Joseph Allan E. Sakdaln dated 24 February 2018.
15 It is evident from all the materials filed in support of the Application that Mr Durham presents as a person who has very complex needs. He has now been diagnosed with Sexual Sadism Disorder, emotionally unstable personality disorder, epilepsy and moderate intellectual disability.
16 He therefore has a dual diagnosis of a serious sexual disorder together with his documented intellectual disability.
17 He is a most complex and challenging individual who has demonstrated his resistance to all forms of treatment and management that have been provided under the auspices of the RTO.
18 Since residing at the intensive residential treatment program at the DFATS facility on the RTO Mr Durham’s overall progress has not been successful. There has been limited evidence of any improvement in his behaviours and presentations and in particular, he has not improved following the implementation of additional strategies and supports that were put in place following the initial court hearing on 19 and 20 June 2018.
19 On the contrary, risk monitoring showed a slight increase in sexually aggressive behaviours and a significant (two-fold) increase in verbal aggression. Consequently, Mr Durham’s risk behaviours have negatively impacted on the safety and wellbeing of all of the other residents and staff at the Residential Treatment Facility (RTF).
20 Dr Joseph Sakdalan states in his opinion Mr Durham would continue to pose serious risk towards residents and staff at the RTF should he remain at the facility.
21 Further, Dr Sakdalan states that there is limited evidence to suggest that Mr Durham is motivated to address his risk behaviours in individual or group treatment. On the contrary, there is good evidence that Mr Durham’s intense sexual preoccupation and strong desire to have an intimate partner relationship, which he believes he would not be able to achieve if he stayed at the RTF, has impeded his ability to engage meaningfully in treatment.
22 It is therefore, Dr Sakdalan’s opinion, highly likely that Mr Durham’s risk behaviours would further escalate if he continued to reside at the RTF. He states that Mr Durham’s complex clinical presentation and behaviours (example: intense fixation, poor insight into his risk and sexual issues, high sexual drive and preoccupation that has not responded to anti-libidinal drugs, emotional and sexual dysregulation, poor impulse control, problems with empathy, sexual deviance et cetera) have contributed to his risk issues and poor treatment responsivity.
23 Mr Durham requires resource-intensive long-term rehabilitation to stabilise his behaviour and hopefully, in time, he might become more receptive to offence-specific and offence-related treatment.
24 Dr Sakdalan was emphatic that there was limited therapeutic benefit for Mr Durham if he continued to reside at the RTF. He stated that he would be likely to engage in self-sabotaging behaviours (escalate verbal and physical aggression, sexually aggressive behaviours, continue to refuse treatment and attend to any activities et cetera) as he is fixated with the thought that he would not benefit from staying at the RTF and that he would likely do anything to get transferred to prison.
25 He states that Mr Durham’s quality of life has continually deteriorated such that he remains largely isolated.
26 At the time of the Application, Mr Durham was being cared for alone in a unit away from all other members of the RTF with intensive day to day supports. Such arrangements were not sustainable long term and severely jeopardised the effective operations of the RTF.
27 I am satisfied that Mr Durham has not been motivated to engage in any meaningful activity and that it is unlikely his attitude and behaviour would improve at any time in the foreseeable future.
28 Dr Sakdaln acknowledged that by transferring Mr Durham to prison it would come with its own challenges and that he remains vulnerable within the prison setting. In particular, he remains at risk of physical and sexual assault in prison and is very vulnerable in the prison setting.
29 Notwithstanding that Dr Sakdaln states that it is likely Mr Durham would positively respond to a highly structured and supervised environment within the prison setting. This is because Mr Durham appears to have the mindset that he has to be compliant with prison staff; hence, his interactions with staff in general would likely improve.
30 Dr Sakdaln expressed the hope that Mr Durham might also become more open in receiving individual treatment if he gets transferred to prison.
31 Dr Sakdalan is of the opinion he is not suitable to attend group treatment.
32 The comprehensive and extensive affidavit material filed in support of the Application from Yvonne Margaret Maxwell, clinician, DFATS, and Jayne Louise Dennis, manager of Intensive Residential Treatment Services at DFATS, and the affidavits of Tiffany Lea Carroll, general manager DFATS, sets out the clinical history, treatment and many modifications undertaken at the facility in order to address the very complex needs of Mr Durham.
33 I accept on the basis of the exhibited material that DFATS has continuously reviewed Mr Durham’s management and employed various strategies in order to address his particular complex needs.
34 However, his behaviour remains of very real concern with there being little likelihood of him modifying or adapting his behaviour such that he can participate in a meaningful way with the programs offered.
35 Whilst every effort has been made through DFATS to address his underlying and complex needs those steps have not been successful. I consider that Mr Durham is resistant to treatment in the DFATS setting. Even being more restrained and in a restricted environment at the facility has not led to any improvement.
36 Therefore, I consider that the Residential Treatment Order is no longer appropriate for Mr Durham and the order will be cancelled and Mr Durham is to be returned to prison.
37 Previously Mr Durham spent 222 days in pre‑sentence detention. That remains to be declared in respect of any sentence to be passed.
38 The further plea and sentence of Mr Durham has been adjourned for a period of 3 months to enable Mr Durham’s return to prison with the objective of having him assessed as to his progress within the correctional setting and to enable the Court to obtain a report as to his progress whilst in the prison. This will enable the Court to formulate an appropriate sentence in accordance with s82A(5) of the Sentencing Act 1991 (Vic).
39 Given the complexity of Mr Durham’s particular needs all relevant material has been provided to the correctional authorities together with transitional support from DFATS.
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