STATE OF TASMANIA v DENNIS NORMAN JONES 30 JULY 2019
COMMENTS ON PASSING SENTENCE PORTER AJ
The defendant, Mr Jones, has pleaded guilty to two counts of stalking. The first crime was committed in early February 2017. The victim was a girl, S, then aged 15 years. At the time the defendant was 72 years old. On 9 February S was walking home from school in her uniform. The defendant stopped next to her in his car and asked her if she would like a lift. She said she would not get into a car with a stranger. The defendant persisted and told her that he could take her home. S refused. The next day, S was sitting on a bench in a park, and was again wearing her school uniform. It seems that the defendant saw her as he was driving past. He stopped his car, walked to the bench and sat down next to her. He then spoke to her for about 10 minutes. Among a number of inappropriate things, he said he wanted to lick her out and finger her, and that she could get in the car if she wanted to have sex. S became scared and upset. When he asked her if she would have sex with him, she told him that “she was not into that” and was too young. The defendant left when two younger girls came towards them. A woman sitting nearby saw what had happened. She noticed that S was obviously upset, and spoke to her. S told her what had happened and burst into tears. The woman suggested she call the police, which she did. The following day, 11 February 2017, the defendant was arrested and interviewed. He made limited admissions about speaking to the complainant but denied any conversation about sex. The defendant was charged and bailed on conditions which limited his movements. In March 2017, S moved to live with her sister. About one week after moving, the defendant was seen parked outside their house watching through the window. S became scared and her sister ran outside at which time the defendant drove away. The Crown alleges that from March until July the defendant regularly drove past the house, sometimes numerous times in a single day. Sometimes when S was in the front yard, he slowed down as he drove past. Elements of the crime of stalking under s 192 of the Criminal Code are pursuing the course of conduct with intention to cause another person mental harm or to be apprehensive or fearful. Section 192(3) provides that intention is made out if, at the relevant time, the accused knew or ought to have known that pursuing the course of conduct would, or would be likely to, cause those effects. The Crown accepts that the defendant did not specifically intend to cause mental harm or the complainant to be apprehensive or fearful, but asserts that he ought to have known that his course of conduct would have that effect. It is appropriate to proceed on that basis.
The second crime was committed between January 2017 and 3 May 2017. The complainant is a mature woman, V. On four occasions the defendant went to her house, spoke to her and asked her for sex. Each time V told him that she was not interested, and told him to go away. During the same period V noticed the defendant driving slowly past her house on four separate occasions. Over time she became upset that he would not leave her alone. On 3 May the defendant drove slowly past V while she was walking along the street. He again asked her for sex and was abusive. She did not respond and walked home. She reported the matter to police. Again, the Crown relies on s 192(3) of the Code in relation to the question of intention, and it is also appropriate to proceed on that basis in relation to this count.
I have victim impact statements from both S and V. The defendant’s conduct caused S great anxiety. She moved from where she was living to a youth shelter. She wanted to live with her sister so they had to obtain a property to enable them to live together. Her anxiety worsened when the defendant kept driving past the house. She sometimes saw him walking the street and became paranoid about his presence. She does not feel safe from anyone. She feels like people are following her. Eventually she consulted a psychologist, and in turn a psychiatrist. She was prescribed anti-anxiety and antidepressant medication. About two to three weeks of starting the medication she was hospitalised twice in relation to suicide attempts. She remains anxious and needs medication to assist her in sleeping. V says that the period in question was a very stressful time for her, and she became very anxious and felt very unsafe. She already suffered from anxiety, depression and post-traumatic stress disorder, and her symptoms were exacerbated, and she had periods in hospital because of her mental health. Ultimately she moved away from the area.
The defendant is now 75 years old. He has a recorded history of offending but nothing of a similar nature. The record consists mostly of traffic matters and the most prominent feature is that in March 2006, he was made the subject of a community service order on 11 charges of making a false statement in connection with a claim. He was born in England, and started work at an early age working backstage at a theatre. I am told that he was the subject of a number of what was described as “forceful sexual physical advances” by other employees during his time there. This was difficult for him to deal with and he felt vulnerable, ultimately terminating that employment. He worked in the building area for several years before emigrating to Australia in 1968 with his then wife and 4-month-old child. He settled in South Australia and worked in the fishing industry for some time before moving to northern Tasmania where he continued on in that industry. When that business was sold he worked in a woollen mill for 10 years. It follows that he has good industrial record. He has been married three times and has three children by two of those wives. He has been single for 15 years and lives alone with his two dogs. He had acquaintances in the area where he lived, but they moved away or died. I am told that he suffers from extreme period of loneliness. Significantly, he suffers from a number of serious medical conditions. He has asbestosis and emphysema, and is also presently being actively treated for prostate cancer. Earlier this year he had a heart attack. The situation with the complainant V, I am told, started when she was kind to him. He had some sort of medical episode outside her house, and she helped him in the short term, and then in the longer term by looking after his dogs for a time. That is said to have come after a lengthy period of him having no meaningful contact with another human being and when his feelings of loneliness were severe.
I have a report from Community Corrections dated 13 May 2019. That report confirms much of what I was told about the defendant’s personal circumstances. He spends the majority of the time at home with his dogs and has no close friends or family with whom he socialises. He stated to the Community Corrections officer that he is a friendly and helpful kind of person, happy to talk to anyone who wants to talk. The officer was not able to assess his attitude in response towards his offending behaviour, as he denied in the interview, the conduct the subject of the charges. The defendant was considered eligible for a home detention order and a period of supervision was recommended for further assessment and treatment with regard to his offending. He is not suitable for community service. However, in an addendum report dated 16 May 2019, Community Corrections recommended a full psychological assessment. That was done, and I have a comprehensive report from Dr Clear of Forensic Mental Health Services dated 24 July 2019. The defendant repeated to Dr Clear his denials and benign explanations for his conduct. If anything, his explanations were a little more fanciful than those earlier offered. As will become clear, this seems to be a symptom of his difficulties. Psychometric assessment was carried out to investigate possible early dementia. The assessment was not fully completed due to physical and concentration difficulties experienced by the defendant. It was concluded that extended cognitive assessments would be very difficult for him. The assessment that was done suggests that it is highly likely he is experiencing an early dementia process. Dr Clear says that the nature of dementia is such that the defendant is unaware of his behaviour and the impact it has on others, and he would not subjectively have realised the consequences of his behaviour. That behaviour is likely to be a direct result of dementia-related changes, rather than, as Dr Clear put it, “a concerted effort to flout the law”. Dr Clear notes the absence of prior convictions for sex offending of any kind and no history of significance violence. The defendant has very few of the factors present, she says, that would indicate an increased risk of stalking behaviours, and there is little evidence to suggest an escalation to a significant sexual offence or significant violence. In Dr Clear’s opinion, the defendant does not have a major mental illness that requires treatment in an inpatient facility, and there is no evidence to suggest that he poses a level of risk to himself or the public that would warrant detention in a secure mental health facility or be placed on a supervision order. She says that legal sanctions are not necessarily going to alter the behavioural and psychological changes of an individual with dementia. Community Corrections now note serious concerns about the defendant’s ability to understand and comply with strict conditions, and confirm that he is not suitable for home detention; such an order would be essentially setting him up to fail.
Objectively, these crimes must be regarded as serious, particularly the charge against S given her vulnerability because of her age and her circumstances, and the effects she has suffered. It is an aggravating factor that the defendant was on bail for the first crime at the time of committing some of the conduct making up the second. I take into account his pleas of guilty to the extent that they have utilitarian value. That value is of some significance in the case of S, who was particularly concerned about having to give evidence. More particularly, I must have regard to the defendant’s age and mental state as described in the reports. There is also the poor state of his physical health, and his general personal circumstances. The unchallenged evidence of Dr Clear establishes impaired mental functioning which, in my view, considerably reduces the defendant’s moral culpability. Additionally, the fact of the impaired mental function must significantly moderate general deterrence as a factor in this case. Specific deterrence also needs to be moderated given that the defendant seems to have no real insight into his impairment. I note he has been the subject of strict bail conditions for some time. They related to non-contact measures and restrictions on his movements. He seems to have been compliant. In short, the case calls for a high degree of individualisation and a penalty which would not be appropriate for someone without the defendant’s difficulties. In this respect, I note that Dr Clear says it is unfortunate that the defendant has little social support as the changes in his behaviour may have been noted earlier and directed through appropriate health channels rather than resulting in contact with the criminal justice system. In all of the circumstances, I do not believe imprisonment is warranted at this stage, even though suspension of the full term may well have resulted.
Mr Jones, I have outlined what I see to be the relevant facts and the features of your case. You are convicted of the crimes. I make a community corrections order for a period of 18 months from today. The core conditions of that order are those contained in s 42AO of the Sentencing Act and will be set out in the written order given to you. For the purposes of this order, I specify that you must report to a probation officer at 57-59 Oldaker Street, Devonport by 5pm on Thursday, 1 August 2019. Special conditions of the community corrections order are:
(a) You submit to the supervision of a probation officer as required by that officer.
(b) You must submit to such medical, psychological or psychiatric assessment or treatment as directed by a probation officer.
(c) You must not be in or present at any premises, place, or places as may be notified to you by a probation officer, at all or contrary to such terms and conditions as may be specified.
(d) You must not, directly or indirectly, communicate with, or be in the presence of, a person, or a member of a class of persons as may be notified to you by a probation officer, at all or contrary to such terms and conditions as may be specified.
Lastly, I am required to order that your name be placed on the Register under the Community Protection (Offender Reporting) Act, unless I am satisfied that you do not pose a risk within the meaning of that Act. I cannot be satisfied that there is no risk. Your name will be placed on the Register and you will have to comply with the reporting obligations for a period of three years.