Director of Public Prosecutions v Carmody-Coyle

[2019] VCC 199

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-00166

DIRECTOR OF PUBLIC PROSECUTIONS

v

SEAN CARMODY-COYLE

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JUDGE:	HIS HONOUR JUDGE RYAN
WHERE HELD:	Melbourne
DATE OF HEARING:	12 February 2019
DATE OF SENTENCE:	22 February 2019
CASE MAY BE CITED AS:	DPP v Carmody-Coyle
MEDIUM NEUTRAL CITATION:	[2019] VCC 199

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – Contravene a condition of a supervision order – Plea of guilty.

Legislation Cited: Serious Sex Offenders (Detention and Supervision) Act 2009; Drugs, Poisons and Controlled Substances Act 1981; Sentencing Act 1991.

Sentence:3 months’ imprisonment; 32 days pre-sentence detention; 6AAA declaration: 6 months’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Lee	Office of Public Prosecutions
For the Accused	Mr J. McLoughlin	Victoria Legal Aid

HIS HONOUR:

1Mr Carmody-Coyle, on 12 February you appeared before me charged with three charges of contravening a condition of a supervision order contrary to the provisions of the Serious Offenders Act 2018.

2Mr McLoughlin, public defender, who appeared on your behalf, applied for summary jurisdiction which was consented to by the Crown.

3On the basis of you pleading guilty to Charge 2, Charges 1 and 3 were struck out.  Charge 2 reads,

"The accused at Ararat on 21 January 2019, whilst being the subject of supervision order pursuant to the Serious Offenders Act 2018 which was made on 7 June 2018, did contravene a condition of his order, namely Condition 7.6 by possessing a prohibited drug, namely cannabis."

4The condition referred to is a restrictive condition and accordingly, the penalties for this offence are a maximum term of imprisonment of five years but as this is a summary matter, that maximum penalty is reduced to two years. Further, as you have breached a restrictive condition of the supervision order pursuant to s.10A of the Sentencing Act 1991, unless you can demonstrate special reasons, the mandatory minimum sentence that can be imposed on you is 12 months' imprisonment.

5The Crown quite properly in the circumstances of your case conceded that you made out special circumstances pursuant to s.10A(2)(c)(i) and (ii) in that you have impaired mental functioning that would result in you being subject to substantially and materially greater than the ordinary burden of risks of imprisonment. Accordingly, the mandatory minimum sentence of 12 months imprisonment has no application to you.

6I add at this point that taking into account your personal history and in particular the report of Professor Simon Crowe dated 25 February 2017, I would have in any event found that you had made out substantial and compelling circumstances that are exceptional and rare and that justify finding special reasons for not imposing the minimum term of 12 months - see s.10A(2)(e).

7Tendered as Exhibit A was the summary of prosecution opening.  The prosecutor's oral opening was delivered in summary form.  However, Exhibit A sets out the history of the supervision orders that you have been subject to, your history of breaching those orders and a summary of your offending.

8In short, on 21 January this year, you were escorted by Corella Place staff on a supervised outing to Dandenong.  Whilst it was not plain, it appears the purpose of this outing was for you to meet your mother.  Eventually, you did so at a Kmart store.  However, prior to meeting your mother, you met with a man at the Reject Shop at Dandenong Plaza and purchased marijuana from him.

9OFFENDER:  Your Honour, just one minute.  I actually met up with my mum first and then I caught up with me mate.

10HIS HONOUR:  All right.  The transaction too place when you met a man within the shop and you embraced him in a way that concealed both your and the other man's hands.  The supervising staff became suspicious of you and upon arriving back at Corella Place, you were searched and found secreted in your sock was 2.9 grams of cannabis.

11Tendered as Exhibit B was your Victoria police criminal history report.  You have seven prior convictions for breaching the supervision orders applicable to you.  The circumstances surrounding each of those breaches is set out within Exhibit A and I will not repeat them.

12You are 33 years of age having been born on 28 November 1985 in Moe.  You have three brothers and two sisters.  You have never met your father who you understand to have abandoned your mother. Your early developmental milestones were delayed and at about 11 years of age, you were taken into the care of the Department of Human Services.  Thereafter, you were housed at a number of foster care placements and residential care units.

13As a child, you were diagnosed with attention deficit hyperactivity disorder.  Whilst you attended school, you left at the age of 15 in 1999 and able to read or write.

14You have used cannabis since the age of 11, alcohol since the age of 15 and by the time you were 18, you were binging on alcohol on weekends.  You have also abused morphine and inhaled solvents as part of your drug abuse.

15In your teens, you had some employment in various jobs, mowing lawns, chopping wood and working as a farm labourer.  However, since that time, you have been on a disability pension. 

16You have spent at Loddon prison and have obtained a forklift licence, platform ticket and white card.  Whilst in prison, you have engaged in drug and alcohol courses. 

17You have been declared eligible for client disability services having been assessed as falling within the mild range of intellectual disability.

18Mr McLoughlin relied upon the reports of Adam Deacon, consultant psychiatrist, from Forensicare dated 22 December 2005, Simon Candlish, consultant psychologist, dated 19 November 2017 and Professor Simon Crowe, consultant neuropsychologist, dated 25 February 2017. In summary, you are a man of borderline to low average intelligence with a marked verbal specific learning deficit.  According to Professor Crowe, you have,

"High levels of suicidal thinking, social withdrawal, health problems, negative affect, psychotic features and alienation as well as severe levels of self-reported depression, anxiety and stress"  ‑ ‑ ‑

19OFFENDER:  Your Honour, no, I don't know what you mean by alien confirmation?  That alien thing you said.

20HIS HONOUR:  Alienation.

21OFFENDER:  What does that mean?  Am I alien?

22HIS HONOUR:  No, it doesn't mean you are alien.  It means that you feel divorced at times from the environment surrounding you.

23OFFENDER:  Oh okay.

24HIS HONOUR:  In short, you have impaired mental functioning brought about by intellectual disability, XYY chromosome disorder and profoundly disturbed behaviour.

25You have appeared before me on four occasions now.  On the first two occasions being 6 February 2018 and 4 June 2018, the hearings related to applications by the Secretary to the Department of Justice and Regulation for an interim supervision order and the renewal of a supervision order respectively. On the third occasion, you appeared before me in respect to failing to comply with your supervision order. 

26It has been your practice during these hearings to interject from time to time.  This is not a criticism of you in any way.  You are highly emotional at the time of these interjections and seem unable to control your emotions.  You are want to say outrageous things and even from to time make threats.  However, those expressed states of mind change as often as the wind changes direction. What is plain throughout my dealings with you is that you have no desire to comply with the lawful and reasonable requests of the staff at Corella Place.  What follows from that is that you have no desire to comply with the order I made on 7 June 2018 that restricts your liberty.

27The Crown accepted that you were not an appropriate vehicle for the application of the sentencing principle of general deterrence, however, submitted because of your repetitive offending, a sentence which will specifically deter you from reoffending is required.

28Mr McLoughlin on your behalf emphasised that your ability or unwillingness to comply with the lawful and reasonable directions of the staff at Corella Place arise out of your disabilities and that you have little or no control of your offending behaviour at the time it occurs.  However, he submitted, perhaps conceded, that your offending would continue as a result who you are.

29You pleaded guilty at the earliest opportunity and are entitled to the benefits that flow to you from that plea.  In respect of the offending which was a breach of the Drugs, Poisons and Controlled Substances Act, it can only be described as minor and this is reflected by the penalty imposed by the magistrate who convicted and discharged you. The same cannot be said of your contravention of the supervision order to which you are subject.  Your breach was planned, wilful and knowingly in breach of the conditions of your supervision order.  Despite Mr McLaughlin's eloquence, it cannot be treated as a minor infraction deserving of a sentence of time served which as at the date of sentence is 32 days not including today.

30Doing the best I can, taking into account the seriousness of your offending and your personal circumstances and applying sentencing principles, I sentence you to three months' imprisonment and declare that you have spent 32 days by way of pre-sentence detention not including today.

31Pursuant s.6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have sentenced you to six months' imprisonment.

32Anything arising out of that, gentlemen?

33MR McLOUGHLIN:  No, Your Honour.

34MR LEE:  No, Your Honour.

35OFFENDER:  I've got one thing, Your Honour.  Can you tell Corella Place to stop ringing me and stop trying to get in contact with me.

36HIS HONOUR:  I missed half of that.

37OFFENDER:  In Corella Place, they keep trying to get in and see me.  They are trying to come in - ah they are trying to pay - give me the - do video conference.  I don't want nothing to do with them.

38HIS HONOUR:  Well, you are presently serving a sentence.  In respect of who you see or who you do not see, I think you have got the call in that respect but of that, I am not entirely certain.  You are still subject to the supervision order but you are presently serving a sentence so there is a representative from that organisation here and it may very well be that they will leave you alone for the rest of your sentence.

39OFFENDER:  Um, Your Honour, can I ask for a date of being released please?

40HIS HONOUR:  Well, the date is one month and 30 days from today.

41MR McLOUGHLIN:  Well, it will be three months from 21 January ‑ ‑ ‑

42HIS HONOUR:  Yes.

43MR McLOUGHLIN:  ‑ ‑ ‑ so it will be 21 April.

44HIS HONOUR:  That is right.  21 April.

45OFFENDER:  Thank you, Your Honour.

46HIS HONOUR:  I would like to thank counsel for their assistance in this matter.

47MR LEE:  Thank you, Your Honour.

48MR McLOUGHLIN:  Thank you, Your Honour.

49HIS HONOUR:  I will stand down.  Can we break the link with Mr Carmody-Coyle please and I will just stand down.

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