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[2017] ACTSC 67
Supreme Court of the ACT
2017-03-17
Penfold J
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - act of indecency - indecent exposure - no physical contact - actions intended to offend and discomfort observers - subsequent actions relevant in assessing offender's intentions - offender aware methamphetamine abuse might trigger psychotic attacks causing disinhibited or violent conduct - relevance of Verdins approach where offender knows likely impact of drug use on his mental stability and tendency to offend.
Crimes Act 1900 (ACT), ss 60, 309, 393
Magistrates Court Act 1930 (ACT), s 90B
Supreme Court Act 1933 (ACT), s 68D
DPP v Kao [2009] VSCA 273
R v Verdins [2007] VSCA 102; 16 VR 269
The Queen v Shafik-Eid [2009] VSCA 217
Legal Aid ACT (Offender)
SCC 17 of 2012; SCC 268 of 2016; SCC 269 of 2016
1. Jason Rogers has pleaded guilty to two offences as follows:
(a) an act of indecency without consent arising under s 60 of the Crimes Act 1900 (ACT) and carrying a maximum penalty including imprisonment for seven years; and
(b) indecent exposure arising under s 393 of the Crimes Act and carrying a maximum penalty including imprisonment for one year.
2. The first charge has been committed to this court for sentence, while the second has been transferred from the Magistrates Court for sentence under s 90B of the Magistrates Court Act 1930 (ACT) because it arose out of the same incident, and it can be dealt with in the Supreme Court under s 68D of the Supreme Court Act 1933 (ACT) if I am satisfied that it is in the interests of justice to do so. In this case I am satisfied to that effect.
3. The commission of these offences, which I shall refer to as the "new offences", on 17 October 2016 put Mr Rogers in breach of a two-year good behaviour order that I made in February 2016. That good behaviour order was made when I suspended the remaining 14 months of a sentence of imprisonment of 38 months that was originally imposed in April 2014 for three earlier offences, which I shall refer to as the "old offences", and I note that the February 2016 date was the date on which I amended that good behaviour order. As it happened, by that stage Mr Rogers had already been referred to the court for earlier breaches of that good behaviour order, relating to failing to attend to supervision appointments as directed. He had also breached the good behaviour order, apparently, by the commission of a number of offences in New South Wales during 2016.
4. The incident from which the two new charges arose is described in the Crown's statement of facts, which is not disputed by the defence, as follows:
5. The offences for which I sentenced Mr Rogers in April 2014 were one of forcible confinement and two of assault occasioning actual bodily harm, all of which were committed in the course of a single incident in November 2011.
6. The details of those earlier offences were set out in my sentencing remarks in 2014. It is enough for present purposes to record that they were unpleasant, violent offences committed against Mr Rogers' then partner and partly in the presence of her young son, and that the assault occasioning actual bodily harm offences in particular were serious examples of that offence.
7. Two other points about those old offences are relevant given the circumstances of the new offences.
(a) First, the old offences appear to be at least partly attributable to amphetamine use, but in circumstances where Mr Rogers had deliberately obtained prescription amphetamines, hoarded them, and then used them in large doses. The amphetamine abuse preceding those old offences involved that deliberate use of hoarded amphetamines despite Mr Rogers having been previously warned, by treating medical professionals, to avoid amphetamines, after he suffered an apparently amphetamine-induced psychosis during which he had to be restrained using handcuffs and capsicum spray in order to be taken to the Canberra Hospital for treatment. That is, when Mr Rogers took the amphetamines before committing the old offences, he knew that he was at risk of inducing a psychosis in which he was likely to be a danger both to himself and to others.
(b) Secondly, those old offences appear to be offences of violence rather than offences having any particular sexual aspect.
8. After he was arrested subsequently to the commission of the new offences, Mr Rogers was referred to the Canberra Hospital for assessment of his mental state under s 309 of the Crimes Act, and remained in hospital for seven days. He was then released into police custody on 24 October 2016, and appeared in court again the next day when, it seems, he was granted bail. On 7 November 2016, he was brought before the Magistrates Court again, having been found by police in the early hours of the morning, and thus in breach of a curfew condition of his bail, in Glebe Park wearing only a bath towel.
9. On 8 November 2016, Mr Rogers appeared in the Magistrates Court, represented by a Legal Aid lawyer, and entered the pleas of guilty to the current offences. I accept these as early pleas of guilty.
10. The parties have agreed to a backdating date of 29 October 2016 to reflect the periods Mr Rogers has spent in custody in respect of the new offences.
11. As well as the statement of facts, the following material is in evidence before me:
(a) Mr Rogers' criminal history;
(b) the police statements of facts relating to several recent New South Wales offences;
(c) a victim impact statement from the victim of the act of indecency offence;
(d) a pre-sentence report;
(e) a CADAS report;
(f) a forensic psychiatric report from Dr Anthony Barker;
(g) the report of the assessment under s 309 of the Crimes Act (made after Mr Rogers was arrested on 17 October last year);
(h) my 2014 sentencing remarks; and
(i) a compendium of Alexander Maconochie Centre (AMC) programs, admitted over objection from defence counsel and subject to submissions about relevance (but I note that the material hasn't had any particular relevance in the final decision).
All those documents were tendered by the prosecution.
12. The defence tendered a letter from Dr Phil Jaksa of the AMC Mental Health Service to Housing ACT.
13. As well, oral evidence was given in the sentencing hearing by:
(a) Michael Steen, of Corrections ACT, about Mr Rogers' response to supervision, and about some aspects of the current pre-sentence report; and
(b) Catherine Garrington, a psychologist, about the significance of the Static 99 assessment tool, which is used for assessing the risk of sexual re-offending of a person charged with or convicted of a sexual offence.
14. In considering the objective seriousness of the new offences, I have had regard to the following matters.
15. First, the new offences are considerably less serious than those for which I last sentenced Mr Rogers.
16. The indecent exposure offence, involving walking near the Australian War Memorial naked, in broad daylight, and visible to a number of visitors to the area, would have been offensive and perhaps confronting to observers.
17. The act of indecency was somewhat more serious, especially since it is clear, having regard to Mr Rogers' behaviour after he was taken into custody, that his act was not a private act that was observed by chance, but a deliberately public act begun only after police had arrived and were trying to talk Mr Rogers down from the roof, and that it was intended to offend and discomfort observers, and Constable X in particular.
18. The Crown relied on Mr Rogers' conduct while on the house roof as the act of indecency, but relied on his subsequent behaviour as part of a "course of conduct". There was some inconclusive discussion at the hearing about the actual significance of relying on Mr Rogers' subsequent conduct in that way, but I have concluded that in this case I should take the subsequent conduct into account only in assessing Mr Rogers' intentions in relation to the conduct relied on as constituting the actual offence; that is the basis on which I have reached the conclusions earlier stated about the intentions behind Mr Rogers' act of indecency.
19. For that reason also, I have not treated Mr Rogers' failure to stop masturbating when ordered to do so as an aggravating factor.
20. On the other hand, I do not accept defence counsel's suggestion that any mitigation can be found in the absence of any details about the exact nature or progress of Mr Rogers' masturbation.
21. Constable X's victim impact statement indicated that she found Mr Rogers' actions quite disturbing and offensive. Among other things, this affected her relationship with her partner for some time afterwards, and more generally she is prone to re-living the incident, which leaves her uncomfortable and embarrassed.
22. I note defence counsel's submission that, as a police officer, Constable X has presumably had more shocking and discomforting experiences than many members of the community, but I am not convinced that it is a general expectation of police officers that they will be the object of offensive behaviour aimed at them personally rather than as a police officer, and especially not sexualised behaviour aimed squarely at them as an individual.
23. On the other hand, given the personal distress suffered by Constable X, the side effect of Mr Rogers' pleas of guilty, namely that she has not been required to give evidence, has a particular significance in this case that may not always attach simply to the saving of the time of police officers in general.
24. Mr Rogers instructed his counsel that he had asked his AMC case worker if he could apologise to Constable X, but had been told that this was not possible because of the nature of his offences.
25. Although the Crown's case seems to have been overwhelming, I accept that Mr Rogers' early pleas of guilty are some indication of remorse. I also note Mr Rogers' claim to the pre-sentence report author that he was embarrassed by the offences, did not plan to offend, and accordingly did not want to read the statement of facts. I am not convinced, however, that this reflects genuine distress about the impact of his behaviour so much as personal embarrassment about it. Nor am I convinced that the remorse identified by Dr Ahlin during the s 309 assessment, nor Mr Rogers' apparent motivation at that point to stop using methamphetamine, is reliable, although Mr Rogers might have believed in that remorse and that motivation when he spoke to Dr Ahlin.
26. Noting that this act of indecency did not involve any physical contact, and did not apparently instil any fear into the victim (as distinct from intense discomfort), I consider it to be at the lower end of mid-range seriousness.
27. The prosecutor submitted that the indecent exposure offence was relatively serious because of the number of people likely to be offended; although there was no evidence about actual numbers, I accept that shortly before noon on a November morning there may well have been a reasonable number of people in the open public areas surrounding the War Memorial. The offence may be more serious than some similar offences because of the relatively large number of possible observers, but perhaps also less serious because, in such a situation, Mr Roger's actions were less likely to be seen as any kind of personal threat by any particular observer.
28. This offence is also at the lower end of mid-range seriousness.
29. I have also had regard in this sentencing to Mr Rogers' subjective circumstances.
31. His criminal history in the ACT consists of the offences for which I sentenced him in 2014 and the offences for which I am now to sentence him.
32. He has a fairly extensive history in New South Wales. When sentencing Mr Rogers in 2014 I noted that, after initial disagreement, the parties had agreed that the New South Wales record showed nine common assaults, one assault occasioning actual bodily harm, two breaches of domestic violence orders and one offence of stalking. There are also several damage property offences as well as, since 2014, one offence each of assaulting an officer and resisting an officer in the execution of his or her duty.
33. More directly relevant, however, is that since the 2014 sentencing Mr Rogers has in New South Wales, over seven different occasions, committed eight offences described as "wilful and obscene exposure", and two offences of behaving in an offensive manner. That is, over the last 18 months this kind of apparently sexual behaviour has emerged and has become disturbingly frequent.
34. Statements of facts for several of the recent New South Wales offences are before me. There are statements of facts recording incidents on the following dates:
(a) 7 November 2008;
(b) 27 April 2015;
(c) 15 June 2015;
(d) 12 October 2015;
(e) 28 December 2015;
(f) 31 December 2015;
(g) 26 June 2016;
(h) 8 August 2016; and
(i) 9 August 2016.
35. The exposure and offensive behaviour incidents are all very similar - in essence, Mr Rogers has been observed, entirely or effectively naked (in that, for instance, on one occasion he was described as wearing sneakers), in the vicinity of the road running past the property where he lives in Young, or in one case on that property. On some of the occasions, witnesses have had the impression that he was masturbating.
36. The more serious offences, being those of assaulting and resisting officers in the execution of their duties, were committed when police went to Mr Rogers' home in Young after several reports of him being seen naked in public. He refused to open his screen door when police sought to arrest him, then, when police entered his house, he hit a police officer who took hold of his arm. He was subjected to capsicum spray, but then continued to lash out at police until he was placed in the back of a police vehicle.
37. In my 2014 sentencing remarks, I went into some detail about Mr Rogers' background. Much of the information given then is consistent with what is recorded in the current pre-sentence report, and I see no need to go beyond a very brief summary, which notes that Mr Rogers had an unexceptional childhood until becoming involved in substance abuse after leaving school at 16. He has had two unsuccessful relationships, the first of which produced two children who are now teenagers; they live in Queensland with Mr Rogers' parents and he sees them very rarely.
38. The other party to the second relationship was the victim of the offences dealt with in 2014. I note that, in contrast to the position in 2014 when Mr Rogers expressed remorse about those offences while claiming not to remember them, Mr Rogers told the current pre-sentence report author that those earlier charges, relating to those old offences, had been invented by the complainant and that he was innocent. He also told the CADAS assessor that he "has never hurt anyone".
39. Considerable attention was devoted in the sentencing hearing to Mr Rogers' high risk of sexual re-offending as assessed by the Static 99 (at [13(b]) above). It is unnecessary to recite the detailed evidence given about the Static 99, but I note that it assesses the risk of re-offending, of male offenders or alleged offenders, by scoring the person on a series of factors which have over the years been shown to be relevant to the likelihood of re-offending. Those factors range from obvious factors such as the number of previous charges and convictions for sexual offences to perhaps less obvious ones such as whether the person has lived with a "lover" or partner for at least two years (a factor which has been found to reduce the likelihood of sexual re-offending) or whether the person has had any male victims of his sexual offending (a factor that apparently increases the likelihood of sexual re-offending). Mr Rogers scored 8 out of a possible score of 12 when he was assessed, which puts him in the high risk category (that category includes any score from 6 to 12).
40. Mr Rogers' mental health and substance abuse are however, in my view, the significant matters in this sentencing.
41. As to his mental health, I note first that in early 2016 Mr Rogers was admitted to the psychiatric unit at Wagga Wagga Base Hospital, but it is not clear why, or how long he stayed there.
42. Mr Rogers was, as mentioned, assessed by the Adult Mental Health Unit shortly after being arrested for the new offences. The report of that assessment mentions an earlier diagnosis of bi-polar disorder (apparently made in 2012 when he was in custody in the AMC), and notes that he has a history of unpredictable and disinhibited behaviour, including in particular assaultive behaviour, associated with amphetamine use. Dr Ahlin concluded that the risk of relapse into methamphetamine use creates a "chronic high risk of aggressive behaviour".
43. Dr Barker assessed Mr Rogers on 20 January this year, after he had been in custody and receiving medication for a couple of months. Dr Barker said that by then Mr Rogers seemed "stable", but concluded that:
... at the time of the [new] offences Mr Rogers was experiencing a psychotic episode which had occurred in the context of amphetamine use and an underlying vulnerability to experiencing psychotic episodes (in the form of bi-polar disorder or possibly schizophrenia/schizoaffective disorder). It is not possible to disentangle the relative contributions of his substance abuse and his underlying mental illness with regard to the psychotic episode that he experienced other than to say that both of these factors likely played a significant role in contributing to Mr Rogers' alleged behaviour.
It is my opinion that, on balance, the psychotic episode experienced by Mr Rogers is likely to have contributed to the alleged offences in several ways including: impairing his ability to exercise appropriate judgement; impairing his ability to make calm and rational choices and think clearly; making him disinhibited; and impairing his ability to appreciate the wrongfulness of his conduct.
44. Dr Barker also said that in custody Mr Rogers was at an elevated risk of suicide compared to the general population; this risk level seems largely to reflect that detainees are generally at a significantly greater risk of suicide than the general population, but Dr Barker notes that Mr Rogers' "serious mental illness" also increases his suicide risk, and recommends ongoing treatment including medication with anti-psychotics.
45. Dr Jaksa's letter was written in support of Mr Rogers' application for housing to be provided in an independent living arrangement rather than in the Ainslie Village. It refers to Mr Rogers' mental illness, but does not identify that illness - I presume, however, that this is a reference to the bi-polar disorder or schizophrenia diagnosis.
46. As to Mr Rogers' substance abuse, the evidence sourced from him is that over the last 12 to 18 months he has been injecting up to half a gram of methamphetamine a day, and that he explained this as a reaction to what are described in the CADAS report as "insurmountable Corrective Services conditions imposed on him by both ACT and NSW Corrections". Whatever the cause of this sustained substance abuse, it seems likely that there is a connection between it and the pattern of offending over the last 18 months.
47. I am satisfied that these offences were committed by Mr Rogers as a result of his regular methamphetamine use in the period leading up to the offences, use which apparently began with prescription dexamphetamine when Mr Rogers was in his early 20s. Whether the effect of the methamphetamine is increased or otherwise affected by Mr Rogers' bi-polar disorder does not seem to be particularly significant at this stage, because I am also satisfied that the contribution of amphetamine use to his offending behaviour has been well known to, and indeed repeatedly relied on by, Mr Rogers since 2012. Mr Rogers' knowledge of the dangers of amphetamine use has not stopped him abusing amphetamines and it has not induced him to make any particularly serious efforts to stop that abuse.
48. In the course of the current processes, Mr Rogers has indicated a willingness to participate in community-based rehabilitation programs, not apparently including residential rehabilitation, but an unwillingness to be subject to Corrective Services supervision.
49. Mr Steen from Corrective Services gave evidence that, during his most recent period of supervision, Mr Rogers had engaged in harassing or intimidating behaviour towards Corrections staff during supervision appointments.
50. Mr Rogers has been refused admission to one residential rehabilitation program because of his criminal record, but has expressed a willingness to participate in community-based programs providing support to people overcoming substance abuse problems. The pre-sentence report author considers that residential rehabilitation is likely to be more appropriate for Mr Rogers, while the CADAS assessor suggests that treatment in a group setting such as SMART recovery meetings, under Corrections supervision, may be best.
51. The pre-sentence report author, however, assessed Mr Rogers as unwilling to take responsibility for his offending and unwilling to accept any long-term treatment aimed at addressing his substance abuse. Mr Rogers' view seems to be that if everyone left him alone, his problems would disappear, but it is not clear whether he believes that he could address his substance abuse and consequential offending on his own or simply that he would not need to try to deal with these issues.
52. Putting Mr Rogers' expressed inclinations about rehabilitation together with the evidence I have already mentioned of his recent behaviour while on supervised orders, and Mr Rogers' refusal to take responsibility for his actions, even to the point of denying previous offences to which he has pleaded guilty, I have no faith in Mr Rogers' capacity to comply with a supervised good behaviour order, and no faith in his capacity to organise and implement his own rehabilitation.
53. Indeed I am not convinced that Mr Rogers has any wish to rehabilitate himself, at least to the extent that that would require abandoning his methamphetamine abuse, although no doubt he would like to avoid further contact with police and other authorities.
54. Furthermore, as long as Mr Rogers continues his amphetamine abuse, I see no reason to expect that his current pattern of offending will change, except, possibly, by escalating into more serious sexual offences.
55. General deterrence may be of moderate significance given that the new offences are of a kind that may not often be considered in advance and may not be a result of a rational weighing of pros and cons. On the other hand, Mr Rogers clearly needs personal deterrence, and in particular deterrence that persuades him away from continued methamphetamine use; I do not expect that to be achieved by any kind of lenient sentence, but it is not clear that even a severe sentence would do anything but defer, or at least moderate, Mr Rogers' resumption of amphetamine abuse.
56. Defence counsel submitted that Mr Rogers' underlying mental condition, bi-polar disorder, should be taken into account under the Verdins principles (R v Verdins [2007] VSCA 102; 16 VR 269) as possibly reducing Mr Rogers' moral culpability. However, as already mentioned, Mr Rogers has long been aware that methamphetamine abuse may trigger psychotic attacks that can cause disinhibited and violent conduct; his continuing deliberate use of methamphetamine resulting in recent offending, both in the ACT and New South Wales, does not in my view provide a basis for finding that Mr Rogers' culpability is diminished by any resulting psychosis.
57. I rely in reaching that conclusion on two cases provided by the DPP (DPP v Kao [2009] VSCA 273 at [35] and [42] and The Queen v Shafik-Eid [2009] VSCA 217 at [29] and [30]) which are Victorian cases generally to the effect that the Verdins approach may have little relevance to a drug-user who is well aware of the effects of drug use on his mental stability and his tendency to offend.
58. Defence counsel also suggested that Mr Rogers might fit within the sixth category identified in Verdins, as a person for whom imprisonment might have a significant adverse effect on his mental health.
59. I accept that Mr Rogers does not enjoy having to manage multiple obligations, and may find the prison regime in one sense oppressive. On the other hand, he will be subject to fewer competing demands than in the community, and one can only hope that at least any access to methylamphetamine will be less reliable than the access he seems to have had in the community.
60. Accepting Dr Barker's assessment that, due to his severe mental illness, Mr Rogers is at a slightly higher risk of suicide even than the prison population generally, I nevertheless see no reason to believe that Mr Rogers' mental health will deteriorate in custody, and some reason to expect that it might actually improve, in particular given that the presentence report says that his mental state has already improved since he was remanded in custody late last year.
61. As noted, Mr Rogers entered early pleas of guilty to these offences, and this will be reflected in the sentences I shall impose. As I have also already noted, it is significant that these pleas of guilty did spare the victim the need to appear in court and tell her story.
62. Mr Rogers, please stand. I record convictions on one charge each of act of indecency without consent and indecent exposure.
63. Those convictions put you in breach of the good behaviour order made in 2014 and amended in 2016 in respect of the earlier offences. I now cancel that good behaviour order, and impose the total 38-month sentence imposed in 2014, which will be backdated to 29 October 2014 to reflect the part of those sentences that you had already served in full-time or periodic custody, and the time you have now spent in custody since your arrest in November last year. I am working on 29 October last year to reflect the time that Mr Rogers has been in custody since he was first arrested on these offences. Now, he was actually arrested a little bit earlier, but of course he was then on bail for a period. So 29 October takes account of everything he spent in custody, including the time in Canberra Hospital.
64. That total sentence will, accordingly, expire on 28 December this year. The backdating means that the unlawful confinement sentence and the first assault occasioning actual bodily harm sentence have both already been completed, so from that earlier sentencing, you are now serving only the second assault occasioning actual bodily harm sentence. As I have said, that will be finished in December this year.
65. For the new offences, I now sentence you to 22 months imprisonment for the act of indecency, reduced from 30 months for your plea of guilty, and to 3 months imprisonment, reduced from 4 months, for the indecent exposure. The two new sentences will run concurrently from 29 May this year, giving you the benefit of seven months concurrency between the old sentences and the new sentences. By the time you complete the last of the old sentences in December this year, the new indecent exposure sentence will also have been completed.
66. I now set the non-parole period to run from the notional start date of the sentences imposed today, being 29 October 2014, and to expire on 28 April 2018, by which stage the only remaining sentence will be that for the act of indecency. This may appear to be a long non-parole period when compared with the total of the sentences involved in today's proceedings, but it is a far more standard, or indeed even lenient, non-parole period when compared with either the length of the current period in custody, or the length of the sentence imposed for the new offences.
67. I am satisfied that a further reason for the long period in fulltime custody is appropriate, and that a parole period of up to 11 months under parole supervision will give the authorities an opportunity to provide you with appropriate support to re-enter the community before your sentence finally expires.
68. In short, you will be eligible for release on parole in about 13 months, being 28 April 2018, and after that you would have a further 11 months to serve on parole.
69. Having cancelled the earlier good behaviour order as a result of the new offences, I dismiss the information alleging breaches of the supervision conditions of the earlier good behaviour order.
I certify that the preceding seventy [70] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold.
R
Rogers [2017] ACTSC 67