Director of Public Prosecutions v Carmody-Coyle
[2018] VCC 2199
•20 December 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-01716
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SEAN ANDREW CARMODY-COYLE |
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JUDGE: | HIS HONOUR JUDGE C J RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 December 2018 | |
DATE OF SENTENCE: | 20 December 2018 | |
CASE MAY BE CITED AS: | DPP v Carmody-Coyle | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 2199 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – Without reasonable excuse failed to comply with a condition of a supervision order – Plea of Guilty.
Legislation Cited: Serious Sex Offenders (Detention and Supervision) Act 2009; Criminal Procedure Act 2009; Sentencing Act 1991.
Cases Cited:R v Verdins & Ors (2007) 16 VR 269.
Sentence: 125 days imprisonment; 125 days pre-sentence detention; 6AAA declaration: 6 months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J Croxford | Office of Public Prosecutions |
| For the Accused | Mr J FitzGerald | Victoria Legal Aid |
HIS HONOUR:
1 Sean Carmody-Coyle, on 17 December 2018 you pleaded guilty to three charges that you without reasonable excuse failed to comply with a condition of a supervision order. Charges 1 and 4 were brought pursuant to s160 of the Serious Sex Offenders (Detention and Supervision) Act 2009, while Charge 7 was brought pursuant to s169 of the Serious Offenders Act 2018.
2 Each charge is an indictable offence punishable by five years’ imprisonment but capable of being heard summarily before me. In earlier administrative hearings, summary jurisdiction was sought by consent by the parties. Initially the hearing was to proceed by way of a contest, and accordingly procedurally this matter was conducted pursuant to the provisions of the Criminal Procedure Act 2009 applicable to summary prosecutions, with an initial mention and a subsequent contest mention.
3 As the charges were heard summarily I have the sentencing power of a magistrate, which reduces the maximum penalty in respect of each charge to two years’ imprisonment, and cumulatively to five years’ imprisonment.
4 Initially you were charged with four charges, being Charges 1, 3, 4 and 7, but upon entering pleas of guilty to Charges 1, 4 and 7, Charge 3 was struck out.
5 Tendered as Exhibit B was the summary of prosecution opening together with a chronology. The relevant parts of this document were read aloud in court. You were initially placed under a supervision order for a period of five years by Her Honour Judge Campton on 8 February 2013. Her Honour reviewed the supervision order on 22 February 2016 and again on 8 August 2017. On 6 February 2018 I ordered an interim supervision order in respect to you, and the supervision order was renewed for a period of five years on 7 June 2018.
6 The facts that support the charges can be summarised in short compass.
7 Charge 1 alleges that you failed to comply with condition 6.7 of the order of 7 June 2018, in that you failed without reasonable excuse to comply with a condition of your supervision order. On Monday, 2 July 2018, you were advised by telephone by a specialist case manager to attend a scheduled weekly supervision order. You responded to this information by asserting that you were not going to attend the session, and they could “get fucked”. On Wednesday, 4 July 2018, you failed to attend your scheduled supervision session.
8 Charge 7 pre‑dates Charge 4. On 9 August 2018 you were advised that the Post Sentence Authority wished to interview you via videolink. You responded to this by saying, “They can get fucked, I’m not going.” When given a lawful instruction to attend the meeting, you responded by saying, “That won’t work, I don’t give a fuck, I’m not going.” By refusing to attend a meeting with the Post Sentence Authority when asked to do so, you breached condition 6.10 of the supervision order.
9 Charge 4. In light of the attitude that you expressed on 9 August the Post Sentence Authority directed that it would attempt to interview you again on Monday, 13 August 2018. To that end, on 10 August 2018 a specialist case manager gave you a lawful instruction to attend a meeting with the Post Sentence Authority at 9.30am on 13 August 2018. On 13 August 2018 at 9am you were reminded of the meeting with the Post Sentence Authority. You advised the specialist case manager that you would not be attending the meeting. You refused to appear before the Post Sentence Authority. By refusing to attend a meeting with the Post Sentence Authority when asked to do so, you breached condition 6.10 of the supervision order.
10 This is the seventh time that you have appeared before a court for failing to comply with a supervision order. I will not recount the circumstances of those earlier appearances, as they are set out in the prosecution opening.
11 It is my assessment that your contravening behaviour has reduced in severity over time.
12 Tendered as Exhibit A on the plea was your Victoria Police criminal history report that sets out a lengthy criminal history, together with the penalties imposed on you in respect of your many contraventions of the conditions of the supervision order to which you have been subject.
13 Mr FitzGerald of counsel, who appeared on your behalf and presented a most helpful plea, submitted that the time served, being 120 days pre-sentence detention as at the time of your plea, was the appropriate sentence in all the circumstances. Tendered as Exhibit 1 on the plea was his outline of submissions. Mr FitzGerald referred to some of the contents of his written submissions, but his oral argument emphasised your appalling upbringing, and your intellectual disability which is inextricably linked to your genetic chromosomal abnormality that is documented in many reports that have been prepared in respect of you. Mr FitzGerald referred to three of the many reports to which I have referred, being:
a)the report of Adam Deacon, consultant psychiatrist, dated 22 December 2005,
b)the report of Simon Candlish, consultant psychologist, dated 19 November 2017, and
c)the report of Professor Simon Crowe, consultant clinical neuropsychologist, dated 25 February 2017.
14 In particular, Mr FitzGerald referred to paragraphs 66 and 67 of Professor Crowe’s report, wherein Professor Crowe concluded:
“The pattern of performances revealed by Mr Carmody-Coyle on this occasion indicates a man of borderline, low average intelligence with a very marked verbal specific learning deficit, both for verbal comprehension as well as for reading and writing. ...
He continues to endorse significant levels of psychological concern with a high likelihood of pathology including 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.”
15 During the course of many of the hearings that have been conducted before me you have appeared by video link, and from time to time there have been exchanges between you and I. I accept that you are illiterate, and that whilst you can copy words you are unable to write at will. You profess to have a photographic memory. You express continual frustration about your incarceration at Corella Place. It appears to me that you are impetuous by nature, and resist any restriction on your freedom. However, in your quieter moments you are understanding of your present circumstances, and acknowledge that it is in your best interests that you should be compliant with those whose responsibility it is to care for and treat you. In particular, I accept that you are tired of imprisonment, and, whilst not your first preference, you would prefer to be housed at Corella Place and not in prison.
16 As a result of a bail application heard earlier this year, and an article about it in the Herald Sun, you were the subject of bullying and threatening behaviour from other inmates at the Metropolitan Assessment Prison where you have been held on remand. I take this into account.
17 Mr FitzGerald emphasised your chaotic background that has been characterised by significant disadvantage, and your disability, which affects your ability to calmly respond to the restrictive requirements placed on you at Corella Place.
18 It is obvious that the principles set out in R v Verdins apply to you, in that your moral culpability is reduced, and accordingly general deterrence must be sensibly moderated.
19 You entered your plea of guilty after the prosecution agreed to withdraw a number of charges, and the charges that remain involve you refusing to attend scheduled meetings. Whilst I accept that this makes you a difficult client at Corella Place, and must cause immense frustration to those responsible for your care and treatment, your offending is at the lower end of seriousness for this kind of offence, particularly by reference to your antecedents.
20 Accordingly, I am satisfied that the time which you have served on remand in respect of these offences is the appropriate sentence and meets all of the sentencing principles appropriate to you.
21 Accordingly, I sentence you to an aggregate sentence of 125 days’ imprisonment and declare that you have spent 125 days by way of pre-sentence detention.
22 Pursuant to s6AAA of the Sentencing Act 1991, but for your plea of guilty I would have sentenced you to six months’ imprisonment.
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