Director of Public Prosecutions v Davis

[2016] VCC 1083

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00282

DIRECTOR OF PUBLIC PROSECUTIONS

v

EDWARD DAVIS

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JUDGE:	HIS HONOUR JUDGE CHETTLE
WHERE HELD:	Melbourne
DATE OF HEARING:	18 July 2016
DATE OF SENTENCE:	29 July 2016
CASE MAY BE CITED AS:	DPP v Davis
MEDIUM NEUTRAL CITATION:	[2016] VCC 1083

REASONS FOR SENTENCE
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Subject:              Possess child pornography, fail to comply with supervision order, breach of        suspended sentence
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K. Churchill	Office of Public Prosecutions
For the Accused	Mr J. Kantor	Mike Wardell

HIS HONOUR:

1Edward Davis, you have pleaded guilty to two separate charges on two indictments.  On indictment G10562997, you pleaded guilty to one charge of possessing child pornography.  On indictment C1610796 you pleaded guilty to one charge of failing to comply with a supervision order.  In addition, you have pleaded guilty to one summary charge of failing to comply with a supervision order and two charges of breaching suspended sentences.  The first suspended sentence relates to a one month term of imprisonment suspended for nine months from 4 June 2015 and on one charge of possess child pornography; the second to six months' imprisonment suspended for two years from 16 June 2014 for the offence of failing to comply with the supervision order.

2The facts of your offending are set out in Exhibit A, the summary of prosecution opening.  I incorporate that document into these reasons for sentence and I sentence you on the basis of the facts set out therein.

3Briefly stated, this court made a supervision order in respect of you pursuant to the Serious Sex Offenders (Detention And Supervision) Act 2009 on 9 November 2011.  One of the core conditions of that order mandated that you must not commit a relevant offence.  One of the additional conditions order that you have no contact with any convicted sex offender except while having treatment, residing at Corella Place or attending Corrections Victoria.

4On 24 February 2016, you were found in possession of a 32 gigabyte SD card on which were located 166 child pornography images and one movie.  The categorisation of those items is set out in paragraph 13 of the prosecution opening and need not be repeated here.  Possession of these items constitutes a relevant offence and breach of your supervision order.  Police investigations established that between December 2015 and February 2016, you made phone contact with various other registered sex offenders in breach of your supervision order.  Those collective contacts have been rolled into one charge, the summary breach of supervision order. 

5These three offences, breach of supervision order indictable, breach of supervision order summary, and possession of child pornography all breach the two suspended sentences imposed on 4 June 2015 and 16 June 2014.  Those breaches each carry a maximum penalty of three months' imprisonment and in addition unless exceptional circumstances are demonstrated, the suspended sentences - that is, six months and one month - must be restored.  The maximum penalties for your other offences are set out in paragraph 29 of the prosecution opening.

6You fall to be sentenced as a serious sexual offender in relation to your child pornography offence.  In order to protect the community from you, the court may impose a disproportionate sentence for that offending.  The prosecution properly concede that such a sentence is not required to be imposed in your case.  I can adequately otherwise protect the community from you.  A sentence however of a serious offender for a relevant offence must unless otherwise ordered be served cumulatively upon any other sentence imposed.

7I direct that it be recorded in the records of the court that you have been sentenced as a serious sexual offender and in respect of the charge of possess child pornography. 

8You have admitted a prior criminal history.  You have several Children's Court appearances.  In 1989 you were sentenced in the Magistrates' Court to a community-based order for burglary and various theft matters.  On appeal, that sentence was varied to a common law bond.  In 1993 and 1995, you were convicted of several dishonesty offences including a suspended gaol term for burglary and theft.  In 2004, you again received a community-based order for dishonesty offences before significantly on 19 March 2004 being imprisoned for 18 months for three offences of causing a child to take part in prostitution.  On appeal, that sentence was reduced to 12 months with six months suspended. 

9On 17 February 2006, you were convicted of two charges of sexual penetration of a child, 20 charges of indecent act with a child and one charge of attempting to pervert the course of justice.  After a successful appeal, you were retried and reconvicted on two charges of sexual penetration, 16 indecent acts with a child and one attempt to pervert the course of justice.  You were sentenced to seven years' imprisonment with a non-parole period of four years and nine months.  The details of that offending are set out in the prosecution opening Exhibit A.

10After being placed on the supervision order to which I have referred in November 2011, you were fined $250 for failing to comply with your reporting obligations in June 2013.  You were imprisoned for three months on 17 March 2014 for failing to comply with reporting obligations.  On 16 June 2014, you received the six months' suspended term of imprisonment to which I have referred for failing to comply with the supervision order I imposed.  Your three-month gaol sentence was reduced on appeal on 4 June 2015 to one month suspended term of imprisonment.

11You are now 45 years of age being born on 14 July 1971.  You have been in custody now for 156 days for the offending for which I am to sentence you.  Your counsel provided written submissions on your behalf.  Those submissions are Exhibit 1 on your plea. 

12Your counsel conceded that this court must restore the suspended terms of imprisonment but submitted that there should be some concurrency of sentences imposed despite the statutory presumption of cumulation the Sentencing Act sets out.  Your counsel relied on and I take into account your pleas of guilty.  Those pleas of guilty have saved the court the time and expense of a trial and a contested hearing, and have spared the witnesses the need to give evidence.  I have reduced the sentence I would otherwise impose to reflect those pleas of guilty and I will return to the effect of that reduction subsequently.

13I also take into account in your favour your loss of property when you were arrested and imprisoned.  You will have to restart your life when you are finally released from custody.  I accept that your time in custody has been and will be more onerous for you because you have and will be held in protection whilst you are in custody.

14So far as the offence of possession of child pornography is concerned, your counsel again properly conceded that the only appropriate sentence is a term of imprisonment given your prior criminal history.  I accept her submission that your offence of possession of child pornography falls towards the lower end of the scale for such offending.  You possessed only a relatively small number of images.  On the other hand, you did attempt to conceal those images and possess them in breach of your supervision order.

15General deterrence is the paramount sentencing consideration for this offence.  Those who commit this type of offending support the sexual exploitation of children and must personally be deterred from such offending and others must be deterred from doing like similarly. 

16Your breach of your supervision order imposed by the court must be viewed as a serious offence particularly as that breach involved the commission of further sexual offending by you.  Your summary breaches, telephoning inmates and associates at Corella Place, is a less serious matter but nonetheless still a significant breach of your supervision order.  You knew that your repeated contact with those associates was repeatedly breaching your order.  Your breaches were committed whilst you were subject to two suspended sentences.  You need to be specifically deterred from reoffending in the future.

17I said to you on 16 June 2014 in sentencing you for the previous breach of supervision order:

"If you commit any offence or offences and if you breach this order that you know is in existence now for some years to go, if you have any contact with children or fail to comply with your obligations under the order, it will constitute a breach of the suspended sentence that I am now imposing.  So apart from what you might get from that, let us assume hypothetically you committed an offence where you are imprisoned, that term of imprisonment will be on top of the six months that I have now held in suspension.  So you need to understand that you are going to have to behave yourself in the future and make sure you do not have contact with children in particular."

18It is obvious that you failed to follow the advice I gave you.  In sentencing you, I need to have regard to principles of totality.  That is, I must impose a sentence that properly deals with all of your offending and reflects the matters urged upon me in mitigation.  I must ensure that you are not doubly punished for the offence of possession of child pornography when I sentence you for the offence of breach of supervision order.  That breach warrants separate punishment.  The whole basis of the serious sexual offender legislation requires supervision orders to be properly maintained and those who fail to comply with such orders must receive additional sanction.

19The purposes of sentencing require that terms of imprisonment be imposed for each of your offences.  No other disposition is appropriate in your case.

20Would you stand up please.

21On the charge of possession of child pornography, you are sentenced to be imprisoned for seven months.  On the indictable charge of failing to comply with a supervision order, you are sentenced to be imprisoned for six months.  On the summary offence of failing to comply with a supervision order, you are sentenced to be imprisoned for four months.

22I order that the suspended sentence of one month imposed on 4 June 2015 be restored.  I order that the suspended sentence of six months imposed on 16 June 2014 be restored.

23The breach of each of those suspended sentences is itself as I said a separate offence with a maximum penalty of three months' imprisonment in respect of each.  However, having regard to principles of totality, I find each of those breaches proven but take no action on each breach of suspended sentence.

24I order that the term of imprisonment imposed on the indictable charge of breach of supervision order and the six months suspended term of imprisonment restored be served cumulatively upon the sentence imposed for the offence of possession of child pornography, the base sentence.

25The sentence imposed for the summary offence of breach of supervision order and the restored suspended sentence of one month shall be served concurrently with the other sentences imposed.

26That is a total effective term of imprisonment of 19 months' imprisonment. I order that you serve 12 months of that sentence before being eligible for parole. I declare that 155 days of that sentence not including today has already been served by way of pre-sentence detention and pursuant to s.6AAA of the Sentencing Act, I indicate that but for your pleas of guilty, I would have imposed an effective term of imprisonment of two years with a non-parole period of 18 months.

27Finally I make the forfeiture orders sought by the prosecution.

28MR KANTOR:  As Your Honour pleases.

29HIS HONOUR:  Any other orders required?

30MS CHURCHILL:  Your Honour, I have 156 days not including today.

31HIS HONOUR:  All right, well, I will amend it to 156.

32MS CHURCHILL:  Thank you, Your Honour.

33HIS HONOUR:  The pre-sentence detention is 156 days not including today.  All right, have a seat Mr Davis, your counsel will explain that to you.

34MR KANTOR:  As Your Honour pleases.

35HIS HONOUR:  I'll leave the link on for a while if you want to talk to him.

36MR KANTOR:  Yes.

37HIS HONOUR:  I will be back at 10 o'clock for the other matter.

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