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ELIZABETH:

From Schwartz Media, I’m Elizabeth Kulas, this is 7am.

The judge who sentenced Jaymes Todd for the rape and murder of Eurydice Dixon was asked to consider mitigating factors that included Todd’s age, his autism diagnosis and his early guilty plea. Sarah Krasnostein on the legal argument that preceded his sentence.

This is the second instalment in a two-part series.

A warning that this episode contains discussion of sexual assault and pornography.

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Archival tape -- Unidentified Woman 1:

“The man who raped and murdered Melbourne woman Eurydice Dixon, twenty year old Jaymes Todd, pleaded guilty to following, attacking and strangling Ms. Dixon as she walked home in June last year.”

Archival tape -- Unidentified man 1:

“Her death sparked an outpouring of emotion; anger, grief and vigils protesting violence against women. The judge said that he posed an unacceptable risk to the community.”

ELIZABETH:

So Sarah, Jaymes Todd pleaded guilty to the murder and rape of Eurydice Dixon at the end of that first police interview at Broadmeadows Police Station, and as such, there was no criminal trial. What happened in the courtroom when he was sentenced?

SARAH:

So there was a sentencing hearing which took place over two and a half days in the Victorian Supreme Court. And the purpose of that hearing was to inform Justice Stephen Kaye, who was sitting, about the circumstances of the offender and his offending. And so those two considerations, together with the legislation and sentencing principles, provided the basis on which he imposed sentence.

ELIZABETH:

Sarah Krasnostein is a writer and an expert in sentencing law. She wrote about this case in the latest issue of The Monthly.

SARAH:

So the purpose was not to determine Todd's guilt which was not an issue but rather to determine what sentence he should be receiving

In a trial, you're trying to prove beyond reasonable doubt, guilt or innocence. The sentencing hearing is different. It's a little bit more pragmatic to reflect the fact that factors in aggravation and factors in mitigation aren't so clearly cut. Sometimes the same consideration can point in two ways. And so it's really about informing the judge about all of these circumstances so that she or he can get a clear picture of the offender before the court. And what would best serve the interests of justice and the safety of the community.

ELIZABETH:

So what were the mitigating factors that were presented and conceded in Todd's case?

SARAH:

Well the strongest considerations in favour of Todd were his age, his very early guilty plea, his lack of prior convictions and perhaps his diagnosis of autism spectrum disorder. First amongst those considerations was his youth. Youth is strongly mitigating, both at common law and under our statutory scheme, we define a young offender as anyone under 21 years at the time of sentence and the presumption that kicks in, in those circumstances, is that their rehabilitation should be the primary consideration over deterring them from acting in that way again by being very punitive. However, where the degree of criminality is very high, so the seriousness of the harm that they caused and their responsibility for it is so great, that presumption can be displaced and the youth can actually take a backseat to other considerations that need to be prioritised.

ELIZABETH:

Let's talk a little bit about the psychological evidence that was given at that sentencing hearing.

SARAH:

Todd was assessed by experts for the defense and for the crown, and they were both experienced clinicians. So Dr. David Thomas was the defense expert. He's a consultant psychiatrist with the Victorian Institute for Forensic Mental Health. And Professor James Ogloff was the Crown's expert. He's a forensic psychologist and the director of psychological services and research at the Victorian Institute for Forensic Mental Health.

So they both agreed that Todd suffers from sexual sadism disorder and that that drove his offending. They disagreed on the extent to which his other diagnosis of autism spectrum disorder, which included some impairment of his functional language, also impacted the offending. Both agreed from the outset, and were very clear, that there's no causal link per se between autism and offending. The vast majority of individuals with autism do not offend. But Thomas's assessment was that Todd's autism interacted with the sexual sadism disorder to result in the offending because it made him more rigid in pursuing these dark fantasies and less likely to desist from them.

On the other hand, Ogloff, for the crown, concluded that Todd was sufficiently high functioning, that it was really the sexual sadism disorder and not his autism that was a relevant consideration. And they both differed too on his prospects of rehabilitation. So there were subtle points of difference, but there were very important.

ELIZABETH:

What is a sexual sadism disorder?

SARAH:

Sexual sadism disorder is a paraphilia and paraphilias are conditions in which sexual pleasure depends on fantasising about and engaging in extreme sexual behaviour. Sexual sadism disorder is characterised by deriving sexual pleasure through causing, witnessing or fantasising about a non-consenting individual’s pain. So both experts agree that it's not possible to treat the paraphilic interest underlying the disorder. It wasn't like a mental illness in it wasn't something that had a lot of grey area like the autism spectrum disorder as it manifested in Todd.

ELIZABETH:

So part of the defence also concerns what is called a Theory of Mind deficit. Are you able to talk us through what a Theory of Mind deficit is?

SARAH:

So there was a lot of discussion about this concept of Theory of Mind generally and how Todd experienced it specifically. Theory of mind is basically the concept that not everybody is experiencing the same circumstances in the same way. We have different access to information and we have different feelings and reactions. So it's the ability to understand that someone else might be having a different emotional experience to the same shared reality. And the defence was interested in asking Dr. Thomas whether Todd had any theory of mind deficits, whether he was able to have this empathetic imagination that could allow him to both know and to care about other people having different experiences rather than some kind of inherent inability to see that and to concentrate instead only on his own experience. Again, both experts had different takes on his ability in that respect.

The expert for the defense found that he was very limited in that empathetic imagination, whereas Professor Ogloff found that no, he really did have the ability to understand differences. There might have been some functional impairment but it was quite subtle. He had relationships with his girlfriend and his friends. He had genuine love for his family. And so he was able to appreciate other people having different experiences. The greater argument in relation to Theory of Mind was that his inability to kind of appreciate others experience made him somehow less morally culpable in his offending because he couldn't appreciate the impact of what he was doing on Dixon as the victim.

Ultimately Justice Kaye found that was not the case because the inflicting of emotional and physical harm was was key to this fantasy that he had been developing over a long period of time and his own emotional investment in that fantasy. It was a fantasy in which he was always in control and it would always end with the rape and murder of a female victim. So that was the porn that he was watching. He was watching what is called snuff porn where the victim is murdered at the end. Rape porn, murder porn and all of those scenarios, the distress of the victim is key. It's not something that happens without his knowledge.

ELIZABETH:

So in other words, because his paraphilia relied on his understanding the pain that somebody else was experiencing, there must be some empathetic element to it because the arousal is predicated on the understanding of somebody else's pain.

SARAH:

Exactly. It's key to it.

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In many ways, his way of thinking, his obsessions, the readiness, the ease with which he could find videos to satisfy those particular obsessions is not unusual in terms of the way he presents in the courtroom. You know, you wouldn't find him particularly threatening. He's not the kind of man who would stand out in a tram or at the pub or, you know, walking down the street and you go to enough of these hearings and you see that many of these men have that kind of normalness in common. And I find that to be particularly terrifying, that there's nothing that makes them stand out in our social settings.

ELIZABETH:

We'll be right back.

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ELIZABETH:

Sarah, what did the psychiatrist assessing Todd for the prosecution find about the severity of his autism spectrum disorder and how that related to the crime?

SARAH:

Professor Ogloff found that Todd had very high functioning autism, and that while he did suffer from certain impairments, that would have been very difficult for most people to detect. He said there were many areas which led him to that conclusion. He engaged well in the clinical interview that he had with Ogloff as well as with the police. And there were statements from people that knew Todd saying that he had very normal relationships with them, normal sense of humour, he was someone they came to for advice. There were no red flags in those kind of social relationships that let them know that there was something wrong.

There was evidence that in childhood he had more rigidity around certain behaviours. But it looked like over time they had either ameliorated or he had become more proficient at being able to control them.

ELIZABETH:

There were several mitigating factors in Jaymes Todd’s defence including his age, including the lack of prior offences and his early guilt plea. Can you speak to his background and his family life and how that was argued as mitigating factor?

SARAH:

There are two things that were emphasised in relation to the Todd family home. There was a video of the police walk through that had been filmed when they executed the search warrant. And that wasn't shown to the media but it was seen by the court and it was described by Todd's counsel on the play in mitigation, and what he described was circumstances of extreme squalor, extreme neglect. So there was a physical environment from very early childhood of chaos and real dirt and very distressing and destabilising for any child, let alone a child with autism. On top of that and perhaps even more important was the emotional environment of the home. There was evidence given from Dr. Thomas that Todd’s mother said it had gotten that bad when she became depressed, and Todd had replied, no, it's always been like this. As to the causes of that home life, we’re really left to speculation. There was not much information given about either the parents or the circumstances there.

ELIZABETH:

How is Todd eventually sentenced in light of all that?

SARAH:

So what he ended up finding was that the seriousness of this offending, that is specifically, the harm that Todd caused (which is the greatest in our criminal calendar, murder) and his moral culpability for that harm was so egregious, being motivated by his sexual desire, a sexual desire that fed off someone's fear and his own violence, that he couldn't make enough of an allowance for those mitigating considerations not to impose a life sentence on this 20 year old offender.

Archival tape -- Justice Kaye:

“The offending by you was totally and categorically evil. Your conduct and your intentions and motivation struck at the very heart of the most basic values of a decent, civilised society.”

SARAH:

He did find that Todd's autism played some role in mitigating his moral culpability. He said that the autism was responsible for the obsessional level of attachment to these fantasies of rape and murder. He found that Todd had spared the secondary victims, the family, friends, the trauma of having to go through a trial by virtue of his guilty plea. He found that his home life did have some impact. Kaye said that, you're not to be sentenced as a person who had the advantages of a normal stable home life. And he found that while he couldn't express remorse in an emotionally thick, rich way, he did feel it even if it was only mostly intellectual, that there was some remorse there. But on balance, it really wasn't enough to result in the type of sentence where it could have been anything less than a life sentence.

ELIZABETH:

And what was Todd like as he was receiving the Justice’s sentence, to hear from Justice Kaye?

SARAH:

He remained the same throughout all of his hearings. I mean, he largely sat there with his eyes shut, or kind of at half-mast. He didn't look directly around the courtroom. He very rarely looked towards the bench and that was largely unchanged when he was receiving the sentence. So he was cooperative. There wasn't any kind of aggression emanating from him. And if anything, he was just very quiet and almost like he was sucking himself into himself so as to not be there.

ELIZABETH:

And Sara, for you in the courtroom, was there any conflict in your feelings between you as the sentencing law expert and you as an individual?

SARAH:

For me, there was less of a tension here than I otherwise would have expected. Less for punitive or emotive reasons, although of course I feel those very strongly as well, I feel a great identification with Dixon's circumstances.

On the other hand I felt at times really startling compassion for this now grown autistic child growing up in those circumstances who went on to commit this crime and throw away his life and throw away her life.

So you have all of those conflicting emotional reactions in the courtroom. For me, the predominant consideration was all of the evidence about his risk of reoffending. The evidence here was that if this is the first offence that we see from an offender this young, it speaks only to their dangerousness. And so, being realistic about how the sexual sadism disorder can be treated, if at all, it's more about a sentence that can guarantee, to the best of the justice systems’ ability, the safety of women going forward.

ELIZABETH:

What was the response from Eurydice Dixon’s family after the sentence was handed down?

SARAH:

Her father Jeremy made a brief statement outside of court, he was surrounded by his other children and their family and family friends, and he said that he was never going to comment on the sentence, whatever it was, but that he hoped that Todd gets better and realises what he has done. And he expressed his sorrow for the people that love Todd.

Archival tape -- Jeremy Dixon:

“What I’d wish for Jaymes Todd and what I believe Eurydice would wish is that he gets better, and realises what he’s done. I extend my sympathies, my sincere sympathies, to those who love him. It’s a terrible tragedy all round.”

SARAH:

And then he's made a point of saying that Dixon should be remembered for her wit and our humour and her kindness and not her death. And it was such a dignified and beautiful moment from a place of unimaginable pain

ELIZABETH:

Sarah, thank you.

SARAH:

Thank you for having me.

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ELIZABETH:

Elsewhere in the news:

Lawyers for the Murdoch newspapers have lodged a case in the High Court, saying the police raid on journalist Annika Smethurst's home was unconstitutional. The case argues that the raid contradicted an implied freedom of political communication. The submission says that the laws which triggered the raid apply to material that is, quote "merely embarrassing to the government”.

And Scott Morrison has defended the appointment of Deborah Ralston to his retirement income inquiry review. Ralston heads the Alliance for a Fairer Retirement System, has previously backed the idea of making superannuation voluntary and campaigned against Labor’s franking credit reforms.

This is 7am, I’m Elizabeth Kulas. See you Wednesday.

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