Mr Jones- possess child pornography case (refer “Writing Reports for Court”  (2015),  p37-50))

 

This is an interesting Australian case involving the crime of child pornography, taking into account the extent to which the defendant’s mental health should be considered a mitigating factor in sentencing. Mr Jones was facing charges of ‘Possession of Child pornography’ and ‘Using a Carriage Service to access Child Pornography’. He was referred by his defense lawyer for a psychological assessment.  The lawyer also asked for an opinion on whether Mr Jones was incompetent (or legally insane) at the time of the offending.

After the judge had determined the sentence, the defendant appealed the severity of the sentence. Subsequently a higher court judge ruled not to uphold the appeal, and the legal arguments were explained in his findings.

 

3.1.2 Background History

Personal history

Mr Jones stated that he was born in Fundon on 6 August 1969, and was now aged 42 years. Mr Jones said that his parents had separated in 1984 when he was aged 15 years and was uncertain as to whether or not his father was still alive. Mr Jones said that he was not distressed when his parents separated, as he believed they had only stayed together “to make me happy”.

Mr Jones indicated that he was largely raised by his maternal grandparents. He said his maternal grandmother died in 2005 and was “a very strong person”, with whom Mr Jones said he had “a very close” relationship. He said he was still dealing with the loss of his grandmother. Mr Jones stated that his grandfather died in 1978. He said his grandfather was “a very lovely and kind man”, whom he also felt “very close” to. He said he coped poorly with his grandfather's death.

Mr Jones stated that his mother was now aged 73 years and living in Fundon. He described her as “an evil and nasty person who was extremely manipulative”. He said his mother had been a very heavy drinker, and had never worked in paid employment. He said, “she has mental problems". Mr Jones stated that his relationship with his mother was “non-existent" and that he last had contact with her in 2005 (by telephone).

Mr Jones said that his mother had always told him that he “was a mistake and should have been a girl”.

Mr Jones said that his father was now aged 76 years, and was “a quiet, mean man”, who was living in Europe. Mr Jones said that the last time he had contact with his father was in 1984, when his parents separated. He said that even when his parents were together he rarely saw his father, who was often working nightshift in a factory.

Mr Jones said that his general childhood memories were happy, and he particularly enjoyed playing with the children next door. He said his favourite times were going on holidays with his grandmother, or working with his grandparents in the market garden. He said his saddest memory was associated with his grandfather's death.

Mr Jones said that prior to his birth, his mother had a daughter, who had died from blood poisoning aged around 2 months. Mr Jones said that although his mother did not speak about this, it had clearly had a significant impact upon her. Mr Jones said that he also had a maternal half-brother, John, who was now aged 57 years, and also living in Adelaide. He said his brother was divorced and worked in a landscape business. Mr Jones said that his relationship with his half-brother was “non-existent”.

Mr Jones indicated that he was currently married to Nadia, who was 15 years younger than he and with whom he had been in a relationship with since 2009. He said that they married on 19 October 2011. He described their relationship as “wonderful" and that his partner was “a very kind, generous and understanding person”, who worked as a personal carer and was trained as a nurse. He said that she gave him great support. Mr Jones said they did not have any children together.

Mr Jones said that he had previously been in a relationship with Pamela from 1997–2003. Mr Jones said that he had thought the relationship was “fine" but did not realize she had a significant gambling problem. He said his former partner was “a very sly and bitter person” and that the relationship ended after she had an affair. Mr Jones stated that they had one child together, a daughter Ann-Marie (born 12 July 1998). Mr Jones said that his 12-year-old daughter was “a very happy child”, who was living interstate with her mother. He said that she was currently in Year 8 at school and that he had regular contact with her by telephone twice a week. He said that his daughter also stayed with him during school holidays and that their relationship was “very close". He said he last spoke by telephone with his daughter two days previous, and last had contact with her face-to-face around Christmas 2010.

Mr Jones stated that he was currently living in a rented two bedroomed unit in Adelaide with his wife. He said he had been living there for the past 4 months and was relatively happy there, although he was concerned that it was “very noisy”.

 

Education

Mr Jones stated that he had completed his education to Year 12 level. He said that he attended Market Junior Primary School (Reception – Year 3) and Frankston Primary School (Year 4 – Year 7).  He said he was “unhappy” as a student at primary school, and had few friends. Mr Jones indicated that he then attended Mansfield Agricultural High School (Year 8 – Year 12).

Mr Jones said that academically in primary school his performance was “below average” and had repeated Year 4.   He said that his mother told him at the time, “I was stupid, slow and an idiot like my father". He said that he was never in trouble at primary school. He said he was “very happy” as a student at secondary school, and had many friends. Mr Jones said that academically in secondary school his performance was “average” and his favourite subjects were Horticulture and Business Mathematics.   He said that he was never in trouble at secondary school. He brought in an old school report which confirmed this account. Mr Jones said that he was 18 years old when he left school.

 

Vocational History

Mr Jones indicated after leaving school he worked in horticulture for himself, Jones’ Market Gardening (1988–1992). He said this involved growing salad onions, spinach, and celery. Mr Jones said that he then worked for a celery grower (R. M. Williams & Sons) working as a general farmhand. He said he then moved inter-state to care for his grandmother (2001) before returning to Fundon and commencing a new business, which was largely a landscaping business. He said the business ran for approximately 11 months before a back injury forced him to stop working. He said he had not worked since 2003, and had been on Disability Pension since 2005.

 

Health

Mr Jones indicated that his physical health was “stable" and stated that he had a major injury in 2001 when he was hit by a post planting machine, which resulted in him breaking ribs, his hip and knee, and being knocked out. He said that at the time he spent seven days in hospital. He said he did not make a full recovery from the injuries, with 30% residual disability determined.

Mr Jones indicated that he currently saw a regular doctor, Dr Duong and was currently taking a number of prescribed medications that included:  Naprosyn SR 1000 (for arthritis), Seroquel (bipolar /depressive disorder), Cymbalta (antidepressant), Inderal (migraine headache), Nitrolingual Spray (Heart), Zydol SR 200 (pain), Stilnox (sleep), and Ventolin (breathing). Dr Duong was contacted and confirmed that this was true. Mr Jones rated his current physical health at 4/10. He said that in the past the best it had been was 8/10, the worst 2/10 (in 2001).

 

Mental Health

Mr Jones indicated that his mental health was “not good". He said his main stressors were associated with his Court matters, and the realization of the seriousness of his charges. Mr Jones said that in the past he had been diagnosed with depression and bipolar disorder, and that he had also experienced psychotic symptoms. He said he was seeing a psychiatrist, Dr Knighton (2004-2005), and a report prepared by Dr Knighton (21 February 2005) stated: 

 

“In my opinion, Mr Jones has been suffering from double depression, that is having a super imposing major depressive disorder on top of a long-standing background of dysthymia (moderate severe depression)" (p.1).

 

Mr Jones indicated that he had never been happy in his life, but that his mood was now stable and that he did not have problems with anger. Mr Jones said that in the past he had been a victim of emotional abuse (from his mother) and sexual abuse (aged 14 years) from his half-brother, who Mr Jones said was aged 29 years at the time. Mr Jones said that his half-brother had taken him fishing and had raped him during the outing. Mr Jones said that he reported the incident to his family doctor, Dr Gerome Shinks, who apparently said, “These things can cause a lot of trouble and it is best to forget about it". Mr Jones said that he also told his grandmother (who believed him and said, “it did not surprise her") and his mother who said that she did not believe him and called him “a poisonous liar”.

Mr Jones stated that he had attempted to take his own life on two occasions in 2003 when he took an overdose of pills, and on another occasion with a plastic bag around his head. Mr Jones said that he currently rated his mental health at 4/10. He said that in the past the best had been was 8/10, the worst 1/10.

 

Substance Use

Mr Jones said that he first drank alcohol at age 17 years. Mr Jones said that he was “a heavy” drinker, and predominantly drank beer. He said he would binge drink in order to help himself relax and sleep. He said his drinking was usually after he had finished work, and that he last drank heavily 2 weeks previous. Mr Jones said that he first abused benzodiazepine (Valium) in 2001. He said he continued to use it up until 2009. He said he would often take a week’s supply of Valium in 2 nights. Mr Jones denied abusing other substances including Cannabis, Methamphetamine, Ecstasy, Cocaine, Heroin, Hallucinogenic drugs (e.g., LSD), Morphine and Methadone.

 

Gambling

Mr Jones said he had a gambling problem, which first started when he was aged 35 years, playing the pokies. He reported that the frequency of his gambling was 2-3 times a week. He said that he last gambled around December 2005 and would lose around $5000 over a 2-month period.

 

Current Criminal Charges

Mr Jones indicated that he had no prior history of offending. It was indicated that Mr Jones was facing charges of:  Possession of Child Pornography and Using a Carriage Service to access Child Pornography. He said that at the time he was living alone and was “mentally unwell”. He said he felt abandoned by his psychiatrist, and was trying to manage his medication. He said he was also drinking heavily. Mr Jones said at the time he did not know why he was looking at the child pornography, but acknowledged that he got some sexual gratification from seeing it. He said he was mainly interested in “normal" pornography, and found that it was a challenge to look for more extreme examples of pornography. He said that searching the internet for pornography became “a way of filling in time”. Mr Jones said that when he saw images of children he “did not see it as a child”. He said that at the time he did not appreciate its illegality. He said, “I was alone in a dark room with the door locked". He said “I did not care about most things …  I was sick of life". Mr Jones said that over time his intensity for looking at extreme material increased (“it was free”) and that he got excited finding it.

Mr Jones said that at the time he was also having difficulty with his community housing group and experienced conflict with a mentally disturbed patient who was his neighbor.

 

Rehabilitation History

Mr Jones stated that he had attended a community sex offender treatment program from November 2008 through to 2009. Program staff were able to corroborate this, reporting that he left the program prematurely without successfully completing all of the core content. He said that during the treatment he felt frustrated, because he was a voluntary patient, and they did not make a distinction between “hands-on offenders” and those who accessed child pornography. Mr Jones said that at the time he felt sick about the hands-on offender issues, and finally found it too difficult to write about himself in the context of a hands-on offender.

 

Assessment

Behavior During Assessment

Mr Jones presented as a 42 year-old Caucasian male of average height and build. He had a fair complexion and was clean-shaven.  He had a balding head and wore dark rimmed prescription glasses. He wore a white pin-striped business shirt and dark trousers. He did not wear any jewelry nor did he have visible tattoos or piercings on his person.

Mr Jones was polite and cooperative throughout the assessment and did not appear to have any difficulty understanding the questions asked.  The assessment took place at Black and Associates offices on the 25th November 2011, between 11.30am and 2.30pm.

 

Cognitive Functioning

The Complex Figure Test was administered in order to assess Mr Jones’ ability to organize and plan visual spatial information. This test also provides an indication of the person’s higher order processing. Despite producing an accurate copy ,  Mr Jones’ strategy score of 1/6 with this task indicated a limited planning strategy, and a possibility of brain impairment.

The Kaufman Brief Intelligence Test (K-BIT) is a well-developed psychological test that provides an indication of both a person’s verbal and non-verbal intelligence, and provides an overall measure of global intelligence.  The instrument is well-standardized, based on extensive sampling in the United States and Australia, and has been adapted for an Australian population. The results indicated that Mr Jones was in the ‘Low Average’ (80<IQ<90) range of intelligence and around the 19th percentile of the age equivalent population. Mr Jones’ verbal IQ was around the 27th percentile while his non-verbal IQ was around the 18th percentile. There was no significant difference between his verbal and nonverbal abilities.

 

Personality Profile

The revised NEO Personality Inventory (Form S) was used to measure Mr Jones’ personality using a dimensional approach. The instrument is a standardized self-report measure, which allows the clinician to measure personality traits that characterize the individual and provide information, which can assist the assessment of likely responsiveness to treatment and prognosis prediction.

Mr Jones’ ‘personality’ profile indicated that he was within the high range for the ‘Neuroticism’ (N) factor score;  within the  average range for the ‘Openness’ (O)  and  ‘Agreeableness’ (A) factor scores ;  and within the low range for the ‘Extraversion’ (E)  and ‘Conscientiousness’ (C) factor scores. Such a personality profile indicates that Mr Jones is a person who is emotionally unstable and experiences high levels of anxiety, self-consciousness, and depression. He presents as a generally a distant and cold person who prefers the company of a few rather than many. Mr Jones is open about his feelings and conservative with his ideas. He has limited trust in other people and tends to be stubborn and set in his ways. Mr Jones does not see himself as particularly competent or achievement driven, and is inclined not to be deliberate in completing tasks.  He nevertheless sees himself as disciplined, organized, and dutiful.

 

Clinical Profile

The Personality Assessment Inventory (PAI) was used to objectively assess aspects of Mr Jones’ mental health. The PAI is a standardized self-report questionnaire that provides a profile of a person based on his or her responses to items that examine aspects of a person’s behavior and thinking. The measure includes four primary sets of scales: validity scales, clinical scales, treatment scales, and interpersonal scales.  The instrument has been normed with a census–matched standardization sample (N=1,000), college sample (N=1051), clinical sample (N=1,246) and public safety sample group (N=17,757).

Mr Jones’ responses were generally consistent, and suggest that he did adopt an overly positive or overly negative response set to the questions. Mr Jones’ clinical profile indicated he was elevated on measures of: Conversion Symptoms, Somatization, Anxiety (all scales), Traumatic Stress, Cognitive-Depression, Affective-Depression, Hyper-vigilance, Resentment, Schizophrenia (all scales), Identity Problems, Negative Relationships, Antisocial Behavior, and Alcohol Problems.

Mr Jones’ generally elevated clinical profile suggests he experiences considerable psychological dysfunction. He is a person with significant thinking and concentration problems, accompanied by prominent agitation and distress. He is likely to be withdrawn and isolated, with few, if any, close interpersonal relationships, and may become quite anxious and threatened by such relationships. His social judgment is very poor, and he tends to have marked difficulty making decisions, even about matters of little significance.

Mr Jones reported having a significant history of alcohol problems and was unhappy and pessimistic. His drinking may have led to severe impairment in his ability to maintain his social role expectations, and his drinking behavior had alienated him from many of the people who were once central to his life. He is likely to have experienced setbacks which had led him to feel significant guilt. He also tends to ruminate negatively about his life circumstances. Such ruminations create more anxiety, which he felt leads him to drink more. When under the influence of alcohol, Mr Jones is likely to be significantly impaired in his judgment.

Mr Jones’ PAI treatment profile was significantly elevated on the ‘Suicidal ideation’ and ‘Non-support’ scales. As Mr Jones’ scores on the suicide ideation scale was elevated, the PAI Suicide Potential Index’ (SPI) scale was applied to assess the level of acute risk.  This measure included 20 independent, statistically derived measures which are normed against both a community and clinical sample. Mr Jones’ score (SPI=15 /20) indicates that compared with the community sample he is in the high-risk group (T score > 80); and for the clinical norm sample is in the moderate risk band (60<T score <73). The treatment profile thus indicates that Mr Jones experiences significant thoughts of suicide, and presents a high risk for engaging in suicidal behavior. He also perceived that he had limited support from family and friends.

On the interpersonal scales (which assess the way a person relates to others), Mr Jones scored high on the ‘Dominance’ scale and very low on the ‘Warmth’ scale. Mr Jones’ interpersonal style is best characterized as remote and egocentric. Mr Jones is not likely to be interested or invested in social relationships and, as a result, his relationships are likely to be pragmatic and viewed in terms of their potential benefits rather than as sources of enjoyment. Others were likely to view Mr Jones as harsh and punitive and he tended to be sceptical of close relationships and he is likely to avoid commitment if possible.

 

Problem Gambling

The Maroondah Assessment Profile for Problem Gambling was used to examine the nature of Mr Jones’ gambling problem.  This instrument was developed in Australia and comprises measures of the individual’s beliefs, feelings, situations, self-attitudes and social orientation towards gambling. The gambling profile indicates that Mr Jones is a person for whom gambling greatly influences his feelings. Generally gambling lifts his mood, and he gains some level of relaxation from it, and believes it helps him to control stress levels. Mr Jones also perceived that gambling alleviated his boredom and provided an escape from the perceived demands of other people in his life. At times, Mr Jones experiences a sense of desperation about his financial circumstances and a feeling of being rebellious when gambling.

 

Opinion

What is Mr Jones’ psychological status?

Mr Jones’ indicated that his parents separated when he was aged around 15 years, and that his relationship with his mother was extremely poor. He said that he was largely raised by his maternal grandparents, with whom he had a positive relationship and he was deeply distressed when his maternal grandfather died when he was aged around 9 years. At the age of 14 Mr Jones reported that he was sexually abused by his 29-year-old half-brother, and was left feeling frustrated and angry when he was not believed by his mother.

Mr Jones said that he completed his education to Year 12 level, and subsequently worked as a market gardener until he was injured in a work accident in 2001, when a stump planter malfunctioned, breaking his ribs and hips. He said the accident put him in hospital for 7 days. He said that he did not recover fully from the injuries, and today had significant arthritis as well as ongoing pain related to the injuries.

Mr Jones said that he had always been an unhappy child, and had been diagnosed with depression/bipolar disorder in adulthood. He said that he had been treated by a psychiatrist with medication, and also experienced psychotic symptoms (auditory hallucinations). Mr Jones stated that in 2003 following the breakup of a long-term relationship he attempted to commit suicide, and again in 2007 he was highly suicidal. Mr Jones indicated that he is currently in a very positive relationship, and has been in that relationship since 2009. He said that he had married his 27-year-old partner one-week previous and that she was extremely supportive and caring towards him. Mr Jones said that he had a history of abusing alcohol from the age of 17 years, and also a history of gambling addiction. Mr Jones stated that he had attended a sex offender rehabilitation program in 2008/2009 as a voluntary client, but that he withdrew from that program when they insisted on treating him the same way that they treated “hands-on" offenders.

The psychological profile indicated that Mr Jones was a person of low average intelligence, who functions around the 19th percentile of the age equivalent population. Preliminary neuropsychological data suggested possible problems with his planning processes and his personality profile indicates that he is generally emotionally unstable, introverted, lacking trust in others, non-compliant and lacking conscientiousness. The clinical profile indicates Mr Jones experiences a range of mental health symptoms. He is interpersonally dominant and low in warmth.

Based on the background history provided by Mr Jones and the psychological testing, a range of DSM-5 (Diagnostic and Statistical Manual of Mental Disorders 5th Edition) diagnoses were advanced that included:

• Alcohol Use Disorder (refer DSM-5, pp. 490-497)

• Generalized Anxiety Disorder (refer DSM-5, pp. 189-264)

• Post Traumatic Stress Disorder (refer DSM-5, pp. 271-280)

• Adjustment Disorder with mixed Depressed mood (refer DSM-5, pp. 286-289)

• Schizophrenia (refer DSM-5, pp. 99-105)

• Borderline Personality Disorder (refer DSM-5, pp. 663-666)

 

What is the relationship between his psychological condition and the offending?

Mr Jones is facing charges of:  ‘Possession of Child pornography’ and ‘Using a Carriage Service to access Child Pornography’. At the time he was living alone and reported being “mentally unwell”. He said he felt abandoned by his psychiatrist, and was trying to manage his medication. He said he was also drinking heavily. Mr Jones said that at the time he did not know why he was looking at the child pornography, but acknowledged that he got some sexual gratification from seeing it. He said searching the internet for pornography became “a way of filling in time”. Mr Jones said that when he saw images of children he “did not see it as ‘a child’” and did not appreciate its illegality. Mr Jones said that over time his intensity for looking at extreme material increased (“it was free”) and that he got excited finding it. Mr Jones said that during 2007–2008 he was also having difficulty with his community housing group and experienced conflict with a mentally disturbed patient, who was his neighbor.

From a psychological perspective, there is good evidence to suggest that individuals who experience significant depressive symptoms can readily find themselves absorbed in pornography as a means of mood distraction and short-term pleasure. This activity soon becomes highly addictive, where the challenge becomes focused on finding more and more extreme material. In my opinion, Mr Jones was using the internet in this way. He reported closing himself away in a darkened, locked room, and became immersed in pornography, some of which was child pornography.  He became more focused on finding extreme pornographic images. By accessing such a large amount of material he became conditioned to their features and only by searching for more and more extreme material did he find gratification. His highly addictive nature was also reflected in his past abuse of alcohol (1986–present) and gambling (2005).

 

Does Mr Jones satisfy the mental impairment criteria?

To examine this question, it first necessary to determine whether or not your client has a mental impairment as defined in the legislation. According to Section 269a of the legislation this would include:

a.            A mental illness

b.            An intellectual disability, or

c.            A disability or impairment of the mind resulting from senility.

 

The assessment indicated that Mr Jones satisfied these criteria for a) Mental illness as he experienced strong depressive feelings and emotional negativity.  In relation to the question of ‘competency’ as defined by the legislation (Section 269c) the person is considered to be mentally incompetent if, as a result of his or her mental impairment, the person either:

 

• Commits an offense and does not understand the nature of the offense, or

• Commits an offense, and does not understand the offense was wrong, or

• Commits an offense and was unable to control the conduct because of the mental impairment.

 

On the basis of Mr Jones’ reporting, it is apparent he understands the nature of his behavior and understands it to be something of questionable legality (as indicated by his secretive nature, locking the doors etc.).  Similarly, it would appear that Mr Jones had the capacity to understand that what he was doing was probably morally wrong, but may not necessarily have understood the full extent of its illegality. Mr Jones struggled with controlling his behavior with addictions to gambling, alcohol, and pornography. It is unlikely however that this level of control would meet the necessary threshold of “unable to control the conduct because of his mental health state”. In short, Mr Jones is unlikely to fit the criteria for mental incompetence. 

 

What rehabilitation is recommended to reduce the risk of re-offending?

The assessment indicated Mr Jones had psychological problems in areas of pain management, anxiety, traumatic stress, depression, paranoia and schizophrenic symptoms.  It is therefore recommended that Mr Jones be referred to an appropriate mental health professional (psychiatrist) to address these issues.   It is also noted that Mr Jones experiences significant suicidal thoughts, and his risk of potential suicide was judged to be high. Were he to be incarcerated appropriate management strategies would likely need to be put into place to manage this risk.

The assessment indicated that Mr Jones has addiction problems with alcohol, gambling and pornography usage.  It is likely that there is a common theme involving Mr Jones’ responses to heightened emotional states and his use of addictive behaviors. In my opinion, Mr Jones would benefit from seeing an experienced clinical and forensic psychologist to address these problems in a structured logical way. Given his past experience with the community sex offender treatment program, it is unlikely that he would benefit from this program.