Director of Public Prosecutions v AB

[2014] VCC 1725

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 11-01564

DIRECTOR OF PUBLIC PROSECUTIONS

v

A B

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	28 August 2014
CASE MAY BE CITED AS:	DPP v AB
MEDIUM NEUTRAL CITATION:	[2014] VCC 1725

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	Mr P. Holdenson QC	Office of Public Prosecutions
For the Offender	Mr M. De Young

HIS HONOUR:

1AB, you have pleaded guilty to five charges of breaching a condition of a supervision order.  That crime carries a maximum penalty of five years' imprisonment but because I am dealing with it in a summary way, I have a jurisdictional limit of two years. 

2First of all, I indicated that because of the succinct way in which the matter was conducted this morning, I do not propose to give detailed sentencing reasons.  I direct that these remarks be transcribed and I also direct that the hearing, having taken place over the last couple of years, also be transcribed and that the two be read in conjunction.  I think that the very helpful discussion that took place during the hearing displays the thought processes that largely go into this sentencing process.

3The circumstances of this offending are that on 30 January 2012, I placed you upon an extended supervision order.  I have this morning re-read the psychological material that related to that application simply to refresh my memory as to what the matter was about. 

4You at that time were in custody.  You were released between March of 2012 and July of 2013.  You breached that order in a number of ways.  There are five charges before me.  Very sensibly, three of them are in fact rolled up charges.  I annex the Crown opening in this matter to these, my sentencing remarks, as it explains the way in those charges have been rolled up and what the detail of them actually is.

5The most significant of those is what is now known as charge 13.  One charge related to having a phone, one charge related to being connected to internet and another to having a computer.  The one, as I indicated, Charge 13 that is of most significance is an actual breach by offending.  Obviously the supervision order was granted in relation to matters regarding child pornography inter alia.  When police raided you in July 2013 with a warrant, you were found to have in your possession pornographic material relating to children.  I have read the statement of a police officer, and compared that to the gradation, if that is that correct word, of that pornography.  It is not a situation where you had a few snapshots of children, it was serious pornography and the sort of pornography to which the community has an abhorrence.

6You were then held in custody for 293 days and were dealt with in the Magistrates' Court on 30 April 2014.  You were given 293 days imprisonment, which was declared as already having been served.  You were released, as I understand it, then went to Corella Place.  You have a significant history in relation to child pornography, and on any objective basis, you now at the age of 36 or 37, your prognosis does seem rather bleak.

7I am acutely aware that you have now completed that sentence, and have been not at liberty, but at large I suppose, for some months.  I have been made aware of the principles in regard to such sentencing and I have been handed some authority, which obviously I have been taken through.  I must be careful in respect of that matter not to subject you to double punishment.

8Your plea of guilty was at the earliest reasonable opportunity and you must get the utilitarian benefit of that.  I would have serious doubts about any remorse that may have been displayed by it, but the plea of guilty does indicate a desire to get this matter over with and to facilitate the course of justice. 

9It is the situation that these regimes are in place  to protect the community and to endeavour where possible to rehabilitate offenders.  It cannot be a situation where they can be breached with impunity, if it was a situation where the only punishment were to be for any breaching offence, then the system could not work.  As I have indicated to your counsel, one of these charges relates to simply staying in bed when you should have been at appointments.  However, the circumstances overall here are that you were clearly serious insofar as the computer was concerned, and the breaches taken in context and taken overall have to be regarded as serious, albeit as I have already indicated, I think the child pornography breach of condition by way of offending is the most serious by some distance.

10In your situation, you will undoubtedly undergo the sentence I am about to impose in protection.  What difference that is going to make to your everyday circumstances, I have no idea but I take it into account in a general way.  I assume you will go to Ararat.  I also take into account, and it is of significance, that you have now been free from prison for a period of some months.  I always find it a difficult task to send somebody back to prison who has been effectively released, especially when that is only for a short period of time.

11However, being now aware of that authorities, being aware of the sentencing practices and being aware in my view of the inevitability insofar as general deterrence is concerned of there having to be an active component, in your situation I propose to do so.

12You have lost the opportunity of concurrency with the sentence that imposed in the Magistrates' Court back in April this year, and that is probably the most significant factor in this sentencing process.  As I indicated to counsel, I am not going to impose a sentence just of a couple of months because I think that can on the record leave a situation where the sentence would appear to be grossly inappropriate for the nature of the offending.  What I am going to do in your situation is give an aggregate sentence, which I have discussed with counsel, and suspend in effect the bulk of that sentence.

13That will clearly indicate that I regard the offending as serious, but in your particular circumstances, having lost that opportunity for concurrency, that the amount to be served is the appropriate one.  As I have also indicated, I think you were probably lucky back in April insofar as the sentence received was concerned, but I do not allow that to in any way influence the sentence that I am about to impose.  The prospects of your rehabilitation, the risk of you re-offending are entirely up to you and the people who are charged with looking after you for the next period of time, whenever that may be.  In any event, in short compass, they are the matters that I have taken into account. 

14Obviously I have read the materials and the summary of offences is annexed and I have listened to what your counsel had to say on your behalf.  However, in the end, I think an active custodial sentence is the only appropriate sentence open.  Accordingly, on those charges you are sentenced to imprisonment for an aggregate of 12 months and I direct that nine months of that sentence be suspended for a period of 12 months, and I make it clear that the differential between those two figures is brought about essentially by the loss of opportunity for concurrency.

15Just so that you understand what the plea of guilty gained, and it may not be strictly speaking appropriate for a complete 6AAA declaration, I say to you that but for your plea of guilty and your cooperation in this matter, I would have sentenced you to be imprisoned for a period of 15 months and I would ordered that you serve six months of that 15 months in these overall circumstances.

16That is not really 6AAA because it only says "parole period" but that is the way I am referring to it just so he knows.  Any other orders I need to make, or anything wrong with that?

17MR HOLDENSON:  No, Your Honour.  As I understand it, it's a 12 months sentence of imprisonment with nine months of that sentence being suspended for 12 months?

18HIS HONOUR:  Yes.

19MR HOLDENSON:  And Your Honour's made the s.6AAA declaration.

20HIS HONOUR:  Yes, in the form I've made it, yes.

21MR HOLDENSON:  I've nothing further with respect to the criminal prosecution.  And that therefore would leave the directions hearing with respect to the application for the supervision order.  We're in Your Honour's hands in one sense as to when it is that that matter be listed.  I am not sure if Your Honour's sitting time's in December ‑ ‑ ‑ 

22HIS HONOUR:  I'm in Melbourne.  November, December ‑ ‑ ‑ 

23MR HOLDENSON:  If I could be so bold as to ask the question, "Is Your Honour sitting in Melbourne in the week beginning Monday 15 December" ‑ ‑ ‑ 

24HIS HONOUR:  As I understand it.

25MR HOLDENSON:  A date suitable to the parties and the expert witness is Wednesday 17 December?

26HIS HONOUR:  I'll make it that date.

27MR HOLDENSON:  In those circumstances, Your Honour, if I could - my friend and I have had a discussion while Your Honour was off the Bench.  We would have thought that this will take a comparatively short time so the matter could perhaps just be listed for one day.  The question arises as to the timetable.  My friend and I have had a discussion.  It's probably only appropriate that there really be one date, which I am just putting in now.  Are you going to file any submissions about conditions?

28MR DE YOUNG:  We may - we'll file submissions about conditions at some stage.

29MR HOLDENSON:  Yes, we'll make that 8 December.

30HIS HONOUR:  By then it should be in more of a position to indicate as to what the circumstances are about the release aspects of it, and accommodation and  the like ‑ ‑ ‑ 

31MR DE YOUNG:  Yes, Your Honour.  Depending on what happens in the Magistrates' Court. 

32MR HOLDENSON:  If anything.

33HIS HONOUR:  If anything. 

34MR HOLDENSON:  Which is not ‑ ‑ ‑ 

35HIS HONOUR:  Yes, because you've got ‑ ‑ ‑ 

36MR HOLDENSON:  Which is not a matter for which the secretary has any responsibility?

37HIS HONOUR:  No.

38MR HOLDENSON:  So. 

39HIS HONOUR:  He hasn’t been breached yet, has he?

40MR DE YOUNG:  No, Your Honour.  Because the offence which he was sentenced in - last offence he was sentenced for was in a search prior to the suspended sentence.  (indistinct) prosecuted last time was from the search in August, the previous August.

41HIS HONOUR:  But I've given an aggregate sentence, so does that breach it?  If one of the offences was outside the time?

42MR DE YOUNG:  We might try that one, Your Honour.

43HIS HONOUR:  Try.

44MR DE YOUNG:  Try it, Your Honour.

45HIS HONOUR:  Give it a go. 

46MR DE YOUNG:  And if we fail we'll appeal it to you, Your Honour.

47HIS HONOUR:  That can be done too.  I don't recommend that as a course of action but it can be done.

48MR HOLDENSON:  Could I hand up three copies of the timetable which we propose ‑ ‑ ‑ 

49HIS HONOUR:  Yes.

50MR HOLDENSON:  If I could just indicate, Your Honour, that - each of them's identical.  In paragraph one, we ask that the matter be set down for 17 December for one day.  The applicant - this is paragraph 2, "file and serve a list of suggested conditions by 21 November, namely for 3, 4 and 5."  Over the page, paragraph 6, "By 8 December, the respondent to file and serve any submissions with respect to the proposed - or list of suggested conditions."

51HIS HONOUR:  The only thing - would it be easier for your instructors if - if I've given him - he's got no PSD and he's got three months, so that's going to take us to 20 ‑ ‑ ‑ 

52MR HOLDENSON:  All of September, October, November, give or take a couple of days.

53HIS HONOUR:  Would you prefer - would it be easier for the parties if he was not in custody when these things were being examined, or is that going to be done in advance or do you need ‑ ‑ ‑ 

54MR HOLDENSON:  He'll be out of custody by the date for the hearing, 17 December.

55HIS HONOUR:  Yes, but all I'm asking is - I'm not trying to buy into it, you guys do what you like but in terms of conditions and that sort of thing, is it easier to do that - I keep going to use the word "at liberty" and then mentally withdrawing it.

56MR HOLDENSON:  I think it's easy this way.

57HIS HONOUR:  Is it all right?

58MR HOLDENSON:  Yes. 

59HIS HONOUR:  No one's got any trouble with that.  All right.

60MR DE YOUNG:  So it - I'm agreeable to the applicant not serving the usual affidavit material on the understanding that if we request any material referred to by Ms Ranbit in her report ‑ ‑ ‑ 

61HIS HONOUR:  What - it ‑ ‑ ‑ 

62MR DE YOUNG:  They'll provide us with access to it.

63HIS HONOUR:  It really - and I don't want to be seen to be pre-judging you but it really determines upon what I'm going to be asked to do.  It may well be that in this situation after discussion, it's agreed between the parties as to what should take place.  I don't know what sort of affidavit material from him is necessarily going to assist in this scenario.

64MR DE YOUNG:  It's just the usual material, you know Your Honour, when you get the books - the volumes of material, everybody gets served with those.

65HIS HONOUR:  As I understand it, I've got the original file.  Which gives me his background and those sorts of things.  I would assume that there'll simply be an updated report.

66MR DE YOUNG:  Yes, Your Honour.

67HIS HONOUR:  What else am I going to need ‑ ‑ ‑ 

68MR DE YOUNG:  It's usually - there usually was a detailed affidavit of the material.  What our position is - we don't require that from proceedings as long as any material referred to in the assessment report - or the progress report ‑ ‑ ‑ 

69HIS HONOUR:  Is available ‑ ‑ ‑ 

70MR DE YOUNG:  Is made available on request.

71HIS HONOUR:  Yes, unless there's a problem with it, I've got no trouble with that.

72MR DE YOUNG:  The issue will be Your Honour - my client wants access to some sort of technology to play games and stuff.  We know there was agreement on that, but that's sort of what the issue will be.  We'll be arguing he's better off not bored, and they may say, "You can have this thing, you can't have that and that's what it's going to be about."

73HIS HONOUR:  I don't know we're supposed to resolve something like that.  I mean - anyway, we'll worry about that when the time comes.  I mean I can understand what you're saying to me, but I can understand what they'll say too.  "Look what happened last time."  But that's ‑ ‑ ‑ 

74MR DE YOUNG:  But those were ‑ ‑ ‑ 

75HIS HONOUR:  We don't need affidavit material about all that do we, isn't that ‑ ‑ ‑ 

76MR DE YOUNG:  No, Your Honour. 

77HIS HONOUR:  It's a matter of compromise isn't it?  Or not compromise, one of the two, I would have thought.

78MR HOLDENSON:  It'll end up being, I respectfully suggest, like it was last time. 

79HIS HONOUR:  I'm deeply suspecting that that'll occur too ‑ ‑ ‑ 

80MR HOLDENSON:  And the order will expire in March whatever it is, four years after March 2012.  So there'll be no review period within it.  There will be a list of mandatory conditions in respect of which the court has no discretion, just as there was last time.  There'll be a list of discretionary or non-core conditions in respect of which the court does have a discretion, and I imagine that they would be similar in content to those the subject of the order made by Your Honour in January 2012.

81HIS HONOUR:  That would be my preliminary, yet uninformed view.

82MR HOLDENSON:  And all the affidavit material in the world won't make any difference to that.  But I could just tell Your Honour what is ordinarily, indeed invariably the practice.  Every piece of paper referred to by the psychologist who prepares the assessment report or the progress report is exhibited to an affidavit.  And the other material to which the psychologist had access but has not specifically identified within the assessment report or progress report is put in some folders and made available.

83HIS HONOUR:  Yes.

84MR HOLDENSON:  When we run the cases in court, I refer to the affidavit material or some of the exhibits if they assume a significance with respect to that, which is in dispute and the rest of it never sees the light of day.  What gets referred to in court, and read by a judge is generally, with respect, only a fraction of the material in existence, because generally there is little in dispute when the case is run.  There'll be a dispute as to whether or not an order should be made, or there'll be a dispute about one or two or three conditions.  That does not require the judge to have regard to folders and folders of stuff.

85So with respect to those draft orders I've handed up, the three of them are identical.  I'd respectfully ask Your Honour to ‑ ‑ ‑ 

86HIS HONOUR:  Do you want me to sign those now?

87MR HOLDENSON:  Yes sign each.  One for the court file, one for the applicant, one for the respondent.

88HIS HONOUR:  Yes.  What's the date today, does anyone ‑ ‑ ‑ 

89MR HOLDENSON:  Today's the 28th. 

90HIS HONOUR:  All right, that order's made and handed down.  All right, nothing else we need to do?

91MR HOLDENSON:  No, Your Honour.

92HIS HONOUR:  All right, thank you gentlemen, I appreciate it.  Thank you very much.  Ten o'clock tomorrow?

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