Director of Public Prosecutions v DB
[2013] VCC 1309
•2 August 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-01192
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DB |
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JUDGE: | HER HONOUR JUDGE PATRICK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 2 August 2013 | |
CASE MAY BE CITED AS: | DPP v DB | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1309 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. Rose SC | Secretary to the Department of Justice |
| For the Accused | Ms N. Ma |
HER HONOUR:
1 David Byrnes, you have pleaded guilty to one charge of breaching a condition of an extended supervision order made under the Serious Sex Offenders (Detention and Supervision) Act 2009. That order was made by me on 21 February 2012. You have consented to a summary hearing of this matter. A summary hearing was granted, and the applicable maximum penalty is two years' imprisonment. I have taken that maximum penalty into account in sentencing you.
2 The order made by me included a number of conditions. Those conditions included conditions that had the effect that you were to be present at your unit at Corella Place between 8 pm and 7 am during the time of the year when daylight saving hours do not operate. You also were required to stay at Corella Place unless you were in the company of an approved person and you were required to comply with electronic monitoring. You started living at Corella Place on 12 May 2012.
3 You breached the order by absconding with another resident at about 11.30 pm on 19 June 2013. You and your co-accused met at the rear of Corella Place. The co-accused was carrying a shopping bag which contained clothing and survival items. You and he climbed over the 1.8 metre fence at the rear. You went into an area outside Ararat. You used scissors to remove your electronic monitoring devices, which were ankle bracelets. You then headed off across paddocks and small farm fences.
4 At about 12.30 the next day you were seen by police walking in a nearby township, which is about 25 kilometres from Corella Place. Police approached you. You and your co-accused tried to walk away. You were then arrested and transported to the Ararat police station. Your co-accused was later sentenced to three months' imprisonment on a charge of absconding. He was sentenced in relation to other matters. I understand that this was the first occasion that he had absconded and been charged in relation to that absconding.
5 You have admitted a significant prior criminal history. That history includes a previous episode of absconding. In relation to that, I sentenced you on 6 September 2012 to two months' imprisonment for breach of the order. On 10 September 2012 you were sentenced in the Magistrates' Court to three months' imprisonment to be served concurrently for offending which involved an assault and threats made at Corella Place.
6 You have been remanded in custody since you were apprehended in relation to the breach of the supervision order. You have spent 43 days already in custody.
7 As I did last time I sentenced you, I have taken into account that you are relatively young, being 26 years old. You also have an intellectual disability. Your intellectual disability is compounded by personality disorders. You have had difficulty in cooperating with others and in modifying or controlling your own behaviour. These matters were referred to in previous reports of Ms Pamela Matthews, psychologist, and in a recent report from Ms Matthews dated 1 August 2013. That report was tendered as Exhibit 2. Ms Matthews says that you told her you left Corella Place this time because you were being sexually harassed and felt your complaints were not being dealt with. Last time you absconded it was because you were concerned that threats from your family were not being dealt with appropriately.
8 Ms Matthews is of the view that the stress of your living conditions and of feeling sexually harassed, along with your cognitive and developmental limitations, predisposed you to act out when you felt unsupported in solving your problems. It is Ms Matthews' opinion that you require active support in respect of the various problems you face, such as the sexual harassment. Ms Matthews says the difficulty with you spending more time in prison is that you will not be accessing treatment required for your sexual offending and other needs, including your social skill development. Ms Matthews says such an environment would be expected to damage your current and future therapeutic relationships, which are vital for your psychological wellbeing and reduced risk of sex offending. She considers that more time spent for you at the particular prison where you are now housed is unlikely to be a deterrent as a friend of yours is also at that prison.
9 As I made clear to you last time, my orders meant that you had to stay at Corella Place. You knew that was where you were meant to stay, unless you were escorted outside by an authorised person. You deliberately left Corella Place with another person and took off your ankle bracelet. Fortunately, again you were found after a relatively short time. I accept that you did not abscond in order to commit any offence.
10 I have taken into account in mitigation of sentence again your personal circumstances, including your youth and difficulties as I have described. I have also taken into account your early plea of guilty in mitigation of sentence. I have taken into account the sentence that was imposed on your co-offender, but this is the second time that you have absconded. A sentence must be imposed to send a message to you and to other people in similar circumstances that you will be sent to gaol if you do not obey the court's orders. You must obey those orders even if you are upset or angry about the authorities and what they are doing or not doing about your problems. Prison does not seem to have stopped you from absconding, but it might stop other people from absconding. Your punishment this time will involve a longer period in gaol. Perhaps eventually you will understand that you must obey my orders, otherwise you will just spend longer times in gaol.
11 It appears from the material provided that while you were at Corella Place there was some improvement in your engagement with support staff. As suggested by Ms Matthews, your engagement with staff who try to assist you in relation to your potential for sexual offending and your social skill development is vital for your prospects of rehabilitation. It is clear that you need long term support in order to reduce your risk of re-offending to a level where you will be able to live somewhere other than Corella Place. That is very important for you, but also to protect the community. I consider that your prospects for rehabilitation are not good at the moment because of the offending since the supervision order was made, but there is some encouragement because you are getting older and are able to engage better with the staff.
12 I note and accept what Ms Matthews says in her report about spending longer times in gaol. It is important that you are able to be released back to Corella Place so that the engagement you were having with the staff can be picked up again. Because of the importance of your rehabilitation, I have set a sentence shorter than I would otherwise have imposed.
13 I was referred to two sentencing decisions of this court. They were the case of Secretary to the Department of Justice v TO (2012) VCC 877 and Department of Justice v WR (2012) VCC 882. I have had the benefit of reading those sentencing decisions of other judges of this court. Clearly, there are some similarities with your case and some differences. I have considered the sentences imposed in those cases when fixing the sentence in this case. Clearly, a sentence of imprisonment is warranted for the purposes of punishment, general deterrence, and specific deterrence.
14 In relation to Summary Charge 5, you are convicted and sentenced to six months' imprisonment. But for your plea of guilty I would have sentenced you to a term of imprisonment of nine months. I declare that you have spent 43 days by way of pre-sentence detention in relation to this sentence to be deducted administratively.
15 There is also currently in respect of you a non-publication order in place pursuant to s.184 of the Serious Sex Offenders (Detention and Supervision) Act 2009. The prosecution has submitted that that order ought to be revoked and no further order made. The defence opposes that position and opposes the revocation of the current order. I have considered the effect of s.184. I received verbal and written submissions in respect of this matter. I have decided that it is appropriate to revoke the non-publication order that I made on 23 January 2012 in relation to proceeding CR-11-00963. I have decided that it would not be appropriate to make a further non-publication order. I consider that because of your repeated absconding and risk of re-offending and the need to protect the community and assist in your apprehension if you abscond again, that it would be inappropriate to make such an order. I am not satisfied that it is in the public interest to make a non-publication order in this case. As I said, I revoke the non-publication order already made and do not make a further order.
16 COUNSEL: If Your Honour pleases.
17 HER HONOUR: Thank you. Mr Byrnes, you need to be careful. I think that things are overall improving, but you need to work with the staff at Corella Place when you go back there. Clearly, you need to stop re-offending.
18 Thank you both very much.
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