Director of Public Prosecutions v AB

[2020] VCC 1442

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
 Suitable for Publication

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 20-00569

DIRECTOR OF PUBLIC PROSECUTIONS

v

AB

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	8 September 2020
DATE OF SENTENCE:	10 September 2020
CASE MAY BE CITED AS:	DPP v AB
MEDIUM NEUTRAL CITATION:	[2020] VCC 1442

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E. Hill	Office of Public Prosecutions
For the Accused	Mr J. Van Arkadie	Victoria Legal Aid

HIS HONOUR: 

1AB, you have pleaded guilty on an indictment to fail to comply with reporting conditions and the summary matters of contravening a condition of the sex offenders register.  There are two charges of each; the first carries five years, the second carries two. 

2You are now 43 years of age. You pleaded guilty at an early opportunity.  In your situation, bearing in mind your mental difficulties, I do not take it on notice whether remorse exists or not, obviously you must get the utilitarian benefit of that plea of guilty. 

3You do have a significant criminal history in relation to offending ‑ ‑ ‑

4MS HILL:  Your Honour, I'm reluctant to interrupt Your Honour's sentence.

5HIS HONOUR:  That's all right.

6MS HILL:  I'm finding it very difficult to hear you and I suspect it might just be the position of the microphone.

7HIS HONOUR:  I think you're right, I think you're right. 

8MS HILL:  Now I can't hear you at all, but I'm not sure if that's my connection.

9HIS HONOUR:  No, no, it's just I'm not talking.  It is an actual problem Mr Hanko's trying to remedy.  Can you hear me clearly when I talk this loudly.

10MS HILL:  Yes, thank you.

11HIS HONOUR:  All right, what I might do, I'll just have to shout.  Yes, yes.  All right, thanks for that.  I'll keep going.

12You have a significant criminal history.  You have been offending this way now since around about the age of 27 and your history speaks for itself.  I note from the outset that I have dealt with you on a number of previous occasions for similar-type offending and unfortunately it is the situation I have had to impose a custodial sentence.  Your problems all seem to really arise from the age of 16, when it was determined that you had schizophrenia and that has just dominated your life ever since. 

13The offending chronology is that in 2004 you were found with a significant number of images of child pornography.  You were sentenced to a 12-month intensive corrections order by the County Court in April 2009.  After a trial you were again convicted of possessing child pornography and received three years with a non-parole period of 18 months.  It was at that time you were required to report for life under the sex offenders registration offending and that's where the offending occurs here.

14You breached an ICO and were sentenced to that in 2009 and served the unexpired portion.  In 2012 the supervision order was made for a duration of four years and that order was still in place.  In October 2012 at Melbourne Magistrates' Court you received 180 days' imprisonment which was partially suspended.  In April 2014 you were convicted and sentenced in the Melbourne Magistrates' Court to 293 days for child pornography.  In August 2014 again 12 months' imprisonment, which was me, as I recall, and I suspended nine months of that.

15That regarded breaches of supervision order and including buy/possessing child pornography as well as having a phone, a computer and connecting to the internet.  When I imposed that suspended sentence back in 2014 I remember your representative Mr de Young telling me I was setting you up to fail and, as I have pointed out, he was quite right. 

16In March 2016 you were again convicted and sentenced to 18 months' imprisonment regarding seven charges of breaching a supervision order, one charge of possess child pornography and fail to comply with reporting obligations.  That 18 months incorporated the nine months of the breached suspended sentence and it is a situation where at that time no minimum term was imposed because you were on a supervision order and it just would have been a pointless exercise.

17That situation continues to exist.  The supervision order where you are now at Corella Place effectively is up for review in November of this year.  We will just have to see what happens from there.  In a situation such as this in the normal course of events general and specific deterrence have to play a very significant role.  In yours I am concerned about that because of the nature of your prolonged mental illness and I do not intend to go into the great details of it.

18You have now served 275 days.  I accept the Crown's submission that an active custodial sentence has to be imposed to cover general and specific deterrence, but in this particular situation I think you have done enough.  There is no pornography involved.  One of the items that you had in your possession, or one of the breaches, was having a phone upon which you rang the TAB, so the offending in this situation is not as serious as previously, but again the difficulty is that your priors continue to mount up.

19Insofar as the custodial sentence is concerned you completed 275 days back in May.  You were then at that point in time bailed.  You were then bailed into a quarantine situation at Corella Place and effectively the only time you were going to be allowed out was to see a psychiatrist every now and again.  That is a form of detention and a significant one.  That form of detention, no matter what I do, is going to continue for an indefinite period of time and I take all that into account.

20The prospects of your rehabilitation are remote.  The risk of you reoffending in this way is probably quite high.  I point out very clearly I am not going to go through all your previous history.  There is no point in doing that, but I do point out in your particular situation that at no stage in all of the psychiatric material and psychological material that has been presented to me over the last decade in relation to you has been the slightest suggestion that you would actively, physically, offend against a child.  The difficulty is of course that child pornography has many, many, many young victims and the watching of it enhances that.  How deeply you understand that I really have no idea and you do tend to be in denial about it. 

21But taking all those matters into account as best I can, in this somewhat sad, if I might say so, sentencing process:  on Charges on the indictment 1 and 2, 275 days aggregate.  On the summary offences, 50 days aggregate concurrent with the 275 days.  That leaves a total effective sentence imposed this day of 275 days.  I direct 275 days be reckoned as having been served under this sentence and, pursuant to s.6AAA, which is utterly meaningless in these circumstances but I have to do it anyway, but for your pleas of guilty I would have sentenced you to 400 days.

22Now, if there are no other orders I have to make, just so there is never a mistake about this, my understanding is those offences do not make him a serious sex offender.  I do not have to sentence on that basis.

23MS HILL:  I don't have instructions to that effect, Your Honour.

24HIS HONOUR:  I'm pretty sure.  I'm talking about s.6.  I'm sure it doesn't.  I just say that because it's not going to make any difference in this situation where he's in detention anyway.  So I am conscious of that and I believe it's not to be - the sentence would be the same even if he was.  And also in this situation I make no note on the file about the sex offenders register either, I don't think.  I don't think any of those is an offence which gives rise to that.  And he's on it for life anyway, so it's all ridiculous.

25MS HILL:  Yes, Your Honour.

26HIS HONOUR:  All right.  So there's nothing else I need to do?

27MS HILL:  Your Honour already made the disposal order on ‑ ‑ ‑

28HIS HONOUR:  I did, yes.

29MS HILL:  ‑ ‑ ‑ the plea date on Tuesday, so to confirm that there's no further orders are required of Your Honour.

30HIS HONOUR:  No.  No, I think that's it.  Nothing, Mr Van Arkadie?  Nothing you need done or want to do?

31MR VAN ARKADIE:  No, nothing from me, Your Honour.

32HIS HONOUR:  All right.  Do you want to have a quick yarn with him if I leave the Bench?

33MR VAN ARKADIE:  Your Honour, I have his mobile number, so I'll give him a call as soon as the court's convened.

34HIS HONOUR:  Very well.  Give him a ring, but I wouldn't try - anyway, all right, thanks, for that.  Thanks, Ms Hill.  Thanks, Mr Van Arkadie.

35MS HILL:  As the court pleases.

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