Sex Offenders Dr  Ian Freckelton
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Sex Offenders Dr Ian Freckelton

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This PowerPoint presentation was taken from Dr. Ian Freckelton which was located at www.crimbarvic.org.au.

This PowerPoint presentation was taken from Dr. Ian Freckelton which was located at www.crimbarvic.org.au.

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Sex Offenders Dr  Ian Freckelton Sex Offenders Dr Ian Freckelton Presentation Transcript

  • PLEAS IN SEX CASES: RISK, RECIDISM & RECALCITRANCE Dr Ian Freckelton SC
  • Dealing with the Harsh Environment
    • No point in seeking judicial sympathy, or
    • empathy, or much mercy
    • Need for caution in relation to tone
    • Important to treating the victim with respect
    • Realism and pragmatism required
  • Orthodox Approaches to Sentencing
    • Highly condemnatory
    • Strong emphasis on punishment/retribution, denunciation,
    • specific and general deterrence,
    • community protection.
    • R v D 1997) 69 SASR 413 at 423 : “[Sex offences] are offences that cause a feeling of outrage and revulsion in the community. The penalty must reflect that feeling. They involve a serious breach of trust.”
  • Specifics of Sex Offending
    • Lack of advantage in analysing detail
    • Concentrate on the offender
    • Be wary of suggestion of consent – may be offensive and/or wrong
    • Some offences cannot be the subject of consent
    • Be wary of hierarchies of penetration:
    • Digital/penile/oral; anal/vaginal etc
  • The Spectrum of Offending
    • DPP v Barnes [2007] VSCA 51 at [13] per Redlich JA: “The crime of rape is inherently serious. But the circumstances of its commission and the gravity of the offending will vary significantly.”
  • Child Pornography Possession Spectrum: R v Oliver [2003] 1 Cr App R 463
    • Level 1 covers "images depicting erotic posing with no sexual activity".
    • Level 2, "sexual activity between children, or solo masturbation by a child".
    • Level 3, "non-penetrative sexual activity between adults and children".
    • Level 4, "penetrative sexual activity between children and adults".
    • Level 5, "sadism or bestiality".
  • Punishment
    • Communication of STD
    • Age and health issues
    • Health of offender:
    • In R v Smith (1987) 44 SASR 587 at 589:
    • "ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender’s health."
  • General Deterrence
    • DPP v DL; DPP v CB [2006] VSCA 280 at [39] per Neave JA: “The principle of general deterrence requires strong condemnation of those who sexually penetrate children, whether they do so opportunistically, or as the result of premeditation.”
  • Stigma and Opprobrium
    • Ryan v The Queen [2001] HCA 21; (2001) 75 ALJR 815
    • Major debates: note Kirby and Callaway JJ
  • Impact on Family Members
    • R v Panuccio, Unreported, Victorian Court of Appeal, 4 May 1998:
    • “ Although the Court is not, both as a matter of compassion and common sense, impervious to the consequences of a sentence upon other members of the family of a person in prison, such factors will need to be ‘exceptional’ or ‘extreme’ before the Court will tailor its sentence in order to relieve the plight of those other family members. Such a principle is clearly an obvious one, because the Court’s primary function is to impose a sentence which meets the gravity of the crime committed by the person who is being sentenced. There will rarely be a case where a sentence of imprisonment imposed does not have consequential effects upon the spouse, children or other close family members who are dependent in one form or another upon the person imprisoned.”
    • For an example of extension of mercy in the context of a
    • spouse with MS, see R v Lane [2007] VSCA 222
  • Delay in Prosecution
    • Largely irrelevant
    • Sometimes can have adverse impact on
    • offender
    • Can have deterrent/punitive effect
  • Plea of Guilty
    • R v DW [2006] VSCA 196 at [19]:
    • "It is one thing to plead guilty at the door of the court when it looks like the game may be up. The law takes the view that that is worth a discount. But it is quite another to plead guilty immediately and thereby save the victims and the community any further burden. That is likely to attract a much larger discount and a good deal more respect."
  • Serious Sex Offender Status
    • Prima facie cumulation if:
    • Convicted of 2 or more sexual offences for each of which he or she has been sentenced to a term of imprisonment or detention in a YTC; or
    • Convicted of at least one sexual offence and at least one violent offence arising out of the one course of conduct for each of which he or she has been sentenced to a term of imprisonment or detention in a YTC.
  • Sex Offender Monitoring
    • Administrative mechanism
    • Not punitive
    • However, may give confidence in relation to community protection
    • An aspect of the stigma accompanying conviction
  • Sexual Abuse of Offender
    • R v AWF (2000) 2 VR 1 at 4:
    • "Clearly evidence of this kind is relevant, certainly where there is no dispute as to the existence of the abuse and there is some expert evidence which would connect that abuse with the offender's subsequent misbehaviour. One should be careful, however, not to assume that abuse of that kind will automatically lead to some reduction of sentence. Otherwise there might be a plethora of unfortunate experiences put forward as the basis for similar reductions. In general it is not so much the cause that is important: rather it is the consequences which flow from those earlier events. If there is evidence to link them to a condition or state of mind which is a proper basis for viewing the criminality of an offender as less serious and for saying that specific or general deterrence (or both) should have a smaller part to play in the overall   sentencing   process, then that condition will have a greater relevance and significance."
  • Paedophilia
    • DSM-IV-TR:
    • A. Over a period of at least 6 months, recurrent, intense sexually arousing fantasies, sexual urges, or behaviors involving sexual activity with a prepubescent child or children (generally age 13 years or younger).
    • B. The person has acted on these sexual urges, or the sexual urges or fantasies cause marked distress or interpersonal difficulty.
    • C. The person is at least age 16 years and at least 5 years older than the child or children in Criterion A.
  • Sentencing Effect of Paedophilia
    • R v Stuckles (1998) 17 CR (5th) 330 at 347 [54]:
    • "Pedophilia is an explanation, not a defence. Society is entitled to protection no less from pedophiles than from those who sexually abuse children without this tendency. General deterrence is a concept which seeks, in part, to protect the public by signalling, through imprisonment, a potential consequence to others of the condemned conduct. There is no basis for concluding that it has, or ought to have, a reduced role in the sentencing of pedophiles."
  • Channon v The Queen (1978) 20 ALR 1 at 4 "An abnormality may reduce the moral culpability of the offender and the deliberation which attended his criminal conduct; yet it may mark him as a more intractable subject for reform than one who is not so affected, or even as one who is so likely to offend again that he should be removed from society for a lengthy or indeterminate period."
  • Verdins, Buckley & Vo [2007] VSCA 102; (2007) 169 A Crim R 581
    • The important consideration for
    • sentencing is not the diagnosis or the
    • diagnostic label.
  • Where a diagnostic label is applied to an offender, as usually occurs in reports from psychiatrists and psychologists, this should be treated as the beginning, not the end, of the enquiry. As we have sought to emphasise, the sentencing court needs to direct its attention to how the particular condition (is likely to have) affected the mental functioning of the particular offender in the particular circumstances – that is, at the time of the offending or in the lead-up to it – or is likely to affect him/her in the future
  • MI may reduce moral culpability if it had the effect of: (a) impairing the offender’s ability to exercise appropriate judgment; (b) impairing the offender’s ability to make calm and rational choices, or to think clearly; (c) making the offender disinhibited; (d) impairing the offender’s ability to appreciate the wrongfulness of the conduct;
  • New Statement of Principles
    • 1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
  • 2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. 3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
  • 4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
  • 5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health. 6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment
  • (e) obscuring the intent to commit the offence; (f) contributing (causally) to the commission of the offence.
  • Anti-Libidinal Therapy
    • Controversial
    • Not wholly efficacious
    • Many unpleasant side-effects
    • But suggestive of insight & preparedness to change
  • Insight
    • Into causes of offending
    • Into nature of offending; ie why the behaviour is wrong
    • Into effects of offending on victim
    • Into relapse signature
    • Into need for prophylactic strategies to
    • reduce likelihood of recurrence
  • Contrition
    • Words come cheap
    • Need for actions
    • Entry into therapy
    • Letter of apology
    • S85B Sentencing Act amends by offer
    • during sentencing hearing of compensation payment
    • Need for evidence
  • Actuarial Predictions of Risk
    • Important proiliferation of instruments used by prosecution assessors but with potential sometimes to be used to advantage by assessors for the offender
    • The STATIC-99 and the STATIC-AS;
    • The VRAG (Violence Risk Appraisal Guide);
    • The SVR-20 (Sexual Violence Risk 20);
    • The Stable-2000;
    • The SORAG;
    • The Risk Matrix 2000;
    • The SONAR (Sex Offender Need Assessment Rating);
    • The RoC*RoI (risk of conviction times risk of imprisonment;
    • The RSVP (the Risk For Sexual Violence Protocol);
    • The Structured Professional Judgment (SPJ);
    • The PCL-R (Hare Psychopathy Checklist Revised);
    • The RRASOR (Rapid Risk Assessment of Sex Offender Recidivism);
    • The SACJ- Min (Structured Anchored Clinical Judgement – Minimum);
    • The HCL-20 (the Historical Check List 20)
  • “ As well as having difficulties with accuracy, predictions of risk may be seen as providing a veil of science over what is essentially a social and moral decision about the kind of offender who creates the greatest fear within the community. Asking mental health professionals to assess the risk of future harm shifts the burden of deciding what to do with such offenders from the community to clinicians whose primary role lies within the medical model of treatment, rather than within the criminal justice model of punishment and community protection.” TSL v Secretary to the Department of Justice (2006) 14 VR 109 at [41]-[42].
  • Suggestions
    • Sensitivity & tact in language & approach
    • Realism & pragmatism
    • Early decision-making about plea &
    • strategy
    • Procuring of expert or at least corroborative evidence