R v Watkins

Mental Health

1. The Balance Springwood Family Practice patient health summary confirms that the Offender had a past active history of Asperger's syndrome and depression.
2. The pre-sentence report also records that the diagnosis of Asperger's syndrome was confirmed with the Offender's mother. It also noted that he reported being diagnosed with depression, anxiety and post-traumatic stress disorder as a teenager and previously engaged with counselling and psychiatrists.
3. Ms Hopkins reports that at age 16 the Offender engaged in one suicide attempt when he reportedly cut one of his wrists in a distressed state, which adequately healed. He stated that he subsequently attended on a psychologist in Springwood. The Offender indicated that his anxiety related to schooling and that the treatment he received was helpful.
4. In 2012 when the Offender was 20 years of age, he was seen by Dr Paul Thiering psychiatrist. In his report, Dr Thiering reported that the Offender was experiencing daily panic attacks at that time. It noted that that the source of his panic attacks is being alone, not social anxieties. Dr Thiering noted that the Offender's parents separated when he was 4 and this was experienced by him as his father abandoning him. Separation anxiety and abandonment issues were seen as the key to the Offender's anxiety and Dr Thiering felt this should be amenable with psychotherapy. It was noted that the Offender was diagnosed with depression since his parents' separation when he was 4. He was treated with CBT which was not effective. The Offender was noted to be socially isolated and withdrawn for most of his adolescence. The report notes that he was unemployed and virtually housebound. He was prescribed medication and psychotherapy.
5. Ms Hopkins obtained a history that the Offender had sessions with a psychiatrist and that the medication assisted his symptomology and recovery. Her analysis was that this occurred around a period that the Offender became abstinent from substances and it may have been that the anxiety symptoms he was self-medicating re-emerged when he maintained abstinence.
6. Ms Hopkins reported at [31]:- "Mr Watkins said that he was diagnosed with Asperger's disorder when he was 18 years of age. He explained that his mother took him to be assessed by a community mental health team after presented with panic attacks and anxiety during social situations. However, it is noted that throughout the current assessment Mr Watkins was anxious, socially appropriate and. Incredibly reasonably and politely come is conversational style was called (regarding turning taking) and is late, will non-verbal communication such as when he made a joke and not in long questions whilst they were being asked. There were no obvious indications of symptoms consistent with spectrum disorder (ASD). It may be that seven years ago when he was darkness, his segments were more consistent with this diagnosis. The psychiatric assessment to investigating continues to meet criteria of ASD would be useful for treatment planning."
7. In conclusion, Ms Hopkins stated:- "… there is no doubt that Mr Watkins has a complex history of anxiety, panic attacks and social problems reports and, according to provided medical information. He explained that he is fearful and nervous in new situations, especially when conversing with others. Reportedly, he has significant fears of being alone and prefers to always be in the company of others. He said that he experiences ruminative anxious thoughts that he will "say stupid stuff and be awkward." Apparently, his fears of social interactions "worry me a lot and I feel defective." Mr Watkins outlined that he felt his social anxiety affected his confidence, his ability to engage consistent and be within crowd places such as shopping centres. Indeed, he offered that his use of drugs and alcohol from early adolescence provided him with a pseudo confidence to engage with others, which reinforced and maintained his use in a self-medicated manner. Therefore, Mr Watkins meets the criteria for a diagnosis of Social Anxiety Disorder [300.23] (DSM5, 2013)."
8. I accept Ms Hopkins' opinion in this regard which is consistent with my own review of the evidence.

Drug and Alcohol

1. Ms Hopkins' report also notes that as the Offender entered High School, he was able to source illicit substances through someone known to his father and led him to be popular with other adolescents. He said that he maintained associations with other drug using individuals because he used to party a lot.
2. The presentence report records that the Offender described an extensive history of poly-substance abuse commencing with experimentation of pills containing ecstasy, MDMA, speed and heroin at the age of 14. This continued along with the use of other drugs including LSD, hallucinogens, amphetamines, cannabis and methamphetamines until the birth of his first child where he claims to have had a break from drug use however he recommences use shortly after at approximately age 22. In the 12 months prior to him coming into custody, the Offender reported that he used ecstasy, MSMA, speed and heroin pills 3 to 4 times per week, half a gram of ice daily, smoking half a gram of cannabis per week, injecting one patch of fentanyl every few days and using barbiturate pills one a month.
3. Ms Hopkins stated the Offender presents predominately with methamphetamine and alcohol misuse concerns and diagnostically he endorsed with substance abuse disorder.
4. The presentence report also records a history of alcohol abuse commencing at the age of 14. It notes that the Offender was at the height, consuming a 750mm bottle of Jack Daniels on a daily basis as well as consuming spirits of a weekend.
5. At the age of 19, the pre-sentence report notes that the Offender previously completed rehabilitation. In this regard, Ms Hopkins obtains a report that the treatment was for several months.
6. From the age of 23 until entering custody it was reported that the Offender drank three 750mm bottles of bourbon over a period of a week.
7. Since 2015 when the Offender was subject to the supervised bond, I have noted that case management was focused on domestic violence and emotional/personal factors. There is no evidence that it sought to address the Offender's drug and alcohol issues.
8. On 7 April 2016 when the Offender came into custody, the Justice and Forensic Health records confirm that the Offender requested:- "I would like to get on methadone or Beup please. I was using heroin and I'm now unable to sleep. I'm tired of always looking and chasing the problems it causes and I've been getting angry for no reason other than my lack of meds and need for drugs. Also I need my proper meds."
9. The Offender's custodial record confirms that since coming into custody he has had 3 institutional misconduct charges being 28 July 2017 and 18 December 2017 for failing a prescribed drug test and 9 November 2017 for possess a drug implement.
10. So far as sexual offending is concerned he has no previous convictions. The Corrective Services psychologists' report notes that the Static 99R preliminary assessment tool found him to be in the above average category for recidivism. However that report notes that it is not a complete risk assessment as only historical factors that are static in nature have been used to inform the risk rating and dynamic factors have not been assessed. I have noted that the Corrective Services psychologists' report indicates that to access treatment in custody he requires a minimum of two years post-sentencing. I accept that it is desirable that the Offender participate in a custodial sex-offender programme and note the need to participate in a post release community maintenance group to ensure the gains made in treatment are supported and reinforced.
11. Ms Hopkins in her report gives a detailed analysis of Static 99. She cautions the use of them noting several important limitations. Specifically, Ms Hopkins identifies protective factors that would reduce the future risk of the offending behaviour. In summary, noting the static and dynamic factor she opines that the Offender is at moderate risk of reoffending across the sexual domain without treatment. This assessment is drawn mostly based on what she describes as the Offender's problematic lifestyle issues and that specific treatment to gain insight into precise factors that led to his offending behaviour would be useful.
12. The presentence report notes that the Offender has verbalised that he is willing to engage in programmes for domestic violence, sex offending and drugs and alcohol. However it questions his motivation to remain abstinent from drugs given continued use during his incarceration.
13. Overall the report assessed the Offender as medium to high risk of reoffending and identifies the criminogenic needs as financial, family/marital, leisure/recreation, companions, alcohol/drugs, emotional/personal and attitude/orientation.
14. The Corrective Services psychologists' report states that preliminary treatment targets were deficits in social communication skills particularly as they related to interpretation of cues about consent or non-consent; substance abuse and potential links to post traumatic stress disorder related to childhood trauma and domestic abuse and the use of violence in intimate relationships.
15. Whilst I noted the need for caution in accepting untested statements, I accept the Offender is motivated to address his offending behaviour and partake in programmes for domestic violence, sex offending and alcohol and drugs. He has previously sought to do so in relation to substance abuse and at least for a period, it appears he succeeded however not without difficulty.
16. I have noted that whilst the offences for which he is to be sentenced before me relate to two former partners there is also some evidence of past relationships in which he was involved of some duration, which do not disclose similar offending.
17. The Offender appears to have family support at least of his mother and to some extent his sister. He has aspirations of working in IT. He has exhibited some remorse and insight into his offending. I accept that subject to obtaining relevant treatment and programmes, he has reasonable prospects of rehabilitation although I would assess the likelihood of reoffending and medium to high.

Custodial Circumstances

1. Ms Hopkins reports the Offender telling her that after coming into custody he experienced drug induced psychotic symptoms including auditory hallucinations however a few weeks of withdrawal and medication these symptoms abated.
2. The Justice Health and Forensic Mental Health Network clinical notes record the Offender on 14 February 2016:- "expressing suicidal ideas and intent; appears upset, not coping well, isolative/withdrawn behaviour, giving away possession, may seem inappropriately happy, mood swings, inappropriate talking and laughing, isolative or overfamiliar behaviour, decrease or over attention to self-care, mood swings, agitation."
3. The clinical notes further record that on 4 October 2016 the Offender was treated for a laceration to the bridge of his nose, contusion to the forehead and to the back of the head and bruising to the left eye after being assaulted from behind.
4. The clinical notes also record that the Offender presented on 25 September 2017 with a deep laceration to the left eyebrow, haematoma to the left side of the head behind the left ear following a fight.
5. In Ms Hopkins' report the Offender reportedly stated that he was assaulted in mid-2017 when he was "stabbed in the head" and required stitches but otherwise recovered adequately. Later in the report, Ms Hopkins records that the Offender reported that he was assaulted when another inmate reportedly discovered his sexual offence charge.
6. The Offender entered Parklea Correctional Centre on 14 February 2016. The presentence report notes that the Offender is classified as A2 unsentenced inmate and housed within a Special Management Placement Area Placement (SMAP- protection) unit due to him having fears for his safety. The presentence report notes that he is quiet in the unit and avoids officers but generally adheres to Correctional Centre routine. He was previously employed in the cabinet shop and textiles but was dismissed due to numerous days off. The presentence report states that contact with Justice Health indicates that he is being treated for panic disorder and psychosis and remains compliant with medication.
7. Overall the Offender presents with a complex mental health history marked by panic, a prior suicide attempt, social anxiety disorder, psychotic symptoms possible ADD and dysregulated anger and aggressive behaviour more recently.
8. I am satisfied that incarceration will impact on him more harshly than would otherwise be the case. I take this into account in fixing the appropriate sentence bearing in mind however the manifold purposes of sentencing otherwise being met.

SPECIAL CIRCUMSTANCES

1. The Crown submitted that a finding of special circumstances was supportable based on the need for an extended period on parole. The Defence concurred to this end. This is the Offender's first period in custody. I am satisfied that by reason of his health needs and the need for a longer period under supervision, a finding of special circumstances is justified.

COMMENCEMENT DATE

1. The Offender came into custody on 13 February 2016 and has been in custody from that time. In these circumstances, I propose to commence the sentence from that date pursuant to s 47(1)(a) of the 1999 Act, as I will indicate below.

SENTENCE

1. In R v Hamid Johnson J observed:- [86] In sentencing a domestic violence Offender, and in particular a repeat domestic violence Offender, specific and general deterrence are important factors, together with the requirement of powerful denunciation by the community of such conduct and the need for protection of the community. Recognition of the harm done to the victim and the community as a result of crimes of domestic violence is important. [14]
2. The offending needs to be denounced, the Offender made accountable and the harm to the victims recognised. I accept there is a strong need for specific and general deterrence although somewhat lessened by reason of the Offender's mental health issues. As serious as the matters before me are, the Offender has no antecedents beyond those. He is a young man and rehabilitation if it can be achieved is important to ensuring that he returns to the community so that as far as possible so it is safeguarded from a reoccurrence of such events.
3. In sentencing the Offender, I have regard to the principles of accumulation concurrency and totality. There are special considerations that come into play in such matters. [15] The agreed facts and the Crown submissions acknowledged that criminality in the offending overlapped. Here the offences did occur over a relatively narrow time period. Counts 6, 7 and 8 occurred on the same day shortly after each other. Two victims were involved and the level of concurrency to be provided needs to ensure that that feature is not glossed over. [16] I also bear in mind the nature of the offending.
4. I call up the bond of 23 July 2015.
5. For the offences the subject of the bond:- 1. Use of offensive weapon with intent to commit indictable offend namely intimidation you are sentenced to 12 months imprisonment; 2. Intimidate with intention of causing fear of physical or mental harm you are sentence to 12 months imprisonment; 3. Common assault you are sentenced to 12 months imprisonment.
6. Those sentences will be served concurrently and commence on 13 February 2016 and expire on 12 February 2017. In light of the further sentences, I am to impose, I decline to specify a non-parole period but will account for the length of time in custody in fixing the appropriate ratio of non-parole to parole.
7. In relation to the matters for which the Offender is to be sentenced before me I impose an aggregate sentence pursuant to s 53A of the 1999 Act to commence from 13 February 2017. In relation to Count 8, I have regard to the statutory guideposts of the standard non-parole period of 7 years imprisonment for an offence in the middle of the range and the maximum term of 14 years imprisonment as statutory guideposts. In regard to the offences under s 59(1) and s 61l of the 1900 Act, I note the maximum penalty of 5 years and 2 years imprisonment respectively.
8. On each of Counts 1 to 9, the Offender is convicted. The indicative terms that I would impose are as follows:- 1. Count 1 (Assault Occasioning Actual Bodily Harm) but for the plea of Guilty I would have imposed a sentence of 2 years imprisonment. In light of the plea I would have imposed a sentence 1 year and 8 months 2. Count 2 (Assault Occasioning Actual Bodily Harm) but for the plea of Guilty I would have imposed a sentence of 2 years and 6 months imprisonment. In light of the plea I would have impose a sentence of 2 year and 1 month (taking into account the matter on the Form1) 3. Count 3 (Common Assault) but for the plea of Guilty I would have imposed a sentence of 15 months imprisonment but in light of the plea I would have imposed a sentence of 12 months. 4. Count 4 (Common Assault) but for the plea of Guilty I would have imposed a sentence of 15 months imprisonment but in light of the plea I would have imposed a sentence of 12 months imprisonment. 5. Count 5 (Common Assault) but for the plea of Guilty I would have impose a sentence of 12 months imprisonment but in light of the plea I would have imposed a sentence of 10 months imprisonment. 6. Count 6 (Assault Occasioning Actual Bodily Harm) but for the plea of Guilty I would have imposed a sentence of 2 years imprisonment however in light of the plea I would have imposed a sentence of 1years and 8 months imprisonment 7. Count 7 (Common Assault) but for the plea I would have imposed a sentence of 15 months imprisonment but in light of the plea I would have imposed a sentence of 12 months imprisonment. 8. Count 8 (Sexual Assault without Consent) but for the plea I would have imposed a sentence of 6 years imprisonment but in light of the plea I would have imposed a sentence of 5 years and 1 month imprisonment. The non-parole period I would have set is 3 years and 6 months. [17] 9. Count 9 (Common Assault) but for the plea of Guilty I would have imposed a sentence of 18 months imprisonment however in light of the plea I would have imposed a sentence of 15 months imprisonment.
9. Having regard to the principles of accumulation, concurrency and totality, I would impose an aggregate sentence of 9 years imprisonment.
10. I would propose to commence this sentence from 13 February 2017, however in finding of special circumstances, I also have regard to the overall length of the custodial term to be served so as to ensure an extended period on parole. To this end, I would set a non-parole period of 5 years from 13 February 2017 to expire on 12 February 2022. Thereafter, the Offender shall be eligible to be released to parole from 13 February 2022 to 12 February 2026. The Offender's earliest release date is 12 February 2026.

Endnotes

1. Hereinafter referred to as the "1999 Act"
2. Yates v Commissioner for Corrective Services of NSW [2014] NSWSC 653
3. Director of Public Prosecutions v Cooke (2007) 168 A Crim R 379; [2007] NSWCA 2
4. s 98(3) of the 1999 Act
5. Exhibit C; Exhibit D
6. Georgopoulos v R [2010] NSWCA 246 246 at [30]-[32]
7. [2009] NSWCCA 20 at [56]
8. R v Baines 2016] NSWCCA 132 Basten JA at [5]-[7] (with whom, Rothman J at [57] and Fagan J at [127] agreed)
9. Frigiani v R [2007] NSWCCA 81 at [24] (Howie J with Simpson and Barr JJ agreeing)
10. Exhibit A, Tab 4
11. Exhibit 1
12. Exhibit 2
13. Exhibit 3
14. (2006) 164 A Crim R 179; [2006] NSWCCA 302
15. R v Gommerson (2014) A Crim R 534 at [108]-[109], [2014] NSWCCA 159
16. R v Hamid (2006) 164 A Crim R 179 at [133]
17. Added pursuant to sentence clarification on 29 March 2018. See transcript of same date.

Amendments 16 July 2018 - Endnote citing sentence clarification of 29 March 2018 in relation to Count 8. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 July 2018