Director of Public Prosecutions v DW

[2023] VSC 143

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2023 0041
S ECR 2023 0045

DIRECTOR OF PUBLIC PROSECUTIONS	Crown
v
DW	Accused

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 March 2023
DATE OF SENTENCE:	28 March 2023
DATE OF REVISED REASONS:	13 June 2023
CASE MAY BE CITED AS:	DPP v DW
MEDIUM NEUTRAL CITATION:	[2023] VSC 143

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CRIMINAL LAW – Sentence – Guilty plea – Breach of supervision order under Serious Offenders Act 2018 (Vic) – Deletion of text messages and telephone call logs – Serious sex offender – Significant time in custody – General deterrence and community protection – Two months’ imprisonment – Serious Offenders Act 2018 (Vic) ss 169(1), 174 and 224 – Sentencing Act 1991 (Vic) s 6AAA.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R. de Vietri	Office of Public Prosecutions
For the Accused	Ms M. Walker	Melinda Walker Criminal Law Solicitor

HIS HONOUR:

Background

1. DW is charged with failing to comply with a condition of a supervision order by deleting text messages and call history from his telephone between 30 January 2023 and 8 March 2023. This breach is contrary to s 169(1) of the Serious Offenders Act 2018 (‘the Act’).  He has pleaded guilty to this offence.

1. Section 169(1) of the Act provides:

(1)An offender who is subject to a supervision order or an interim supervision order must not, without reasonable excuse, contravene a condition of the order.

Penalty: Level 6 imprisonment (5 years maximum).

1. This is an indictable offence triable summarily. By agreement, this matter is to be dealt with summarily as contemplated by s 174 of the Act, which has an effect that the maximum penalty applicable is reduced to two years’ imprisonment.

Circumstances of the offending

1. Briefly, the circumstances of this offending are as follows.

Conditions of the supervision order

1. DW is 39 years of age and is subject to a supervision order under the Act. That order was imposed by Fox J on 27 January 2023 for a period of 10 years. Relevantly, Condition 6.10 of the supervision order required that DW to comply with the written directions of the Post-Sentence Authority when using a telephone including a mobile phone.

1. On 27 January 2023, a Notice of Direction Regarding Order Conditions was issued by the Post-Sentence Authority, which relevantly included the following directions in relation to Condition 6.10:

DW, when using a telephone including a mobile telephone, just not use such a device to stalk, sexually harass or cause fear in the recipient; and

DW must not delete any sent or received text messages or any sent or received phone call records or delete or reset the call log history on any mobile phone in his possession or to which he has access. 

1. It is the latter direction, which is relevant to the proceeding before the Court today, namely the deletion direction.  

1. On 27 January 2023, DW signed the Notice of Directions Regarding Order Conditions, making a declaration in the following terms:

I declare that I’ve been served with a copy of this notice and that the specialist case manager has explained the conditions as well as the directions imposed by the Post-Sentence Authority. 

I understand the conditions and directions of the order and undertake to comply with them. 

The breach in relation to the first device

1. On 22 February 2023, Corrections Victoria conducted a search of DW’s unit at [redacted], pursuant to s 224 of the Act, which was authorised by the Acting General Manager, Mr Craig Dunsford. During the search, DW’s Telstra ZTE503 mobile phone (‘the first device’), was seized for audit pursuant to Condition 6.12 of the supervision order.

1. On 23 February 2023, Senior Constable Judith Sproull ('the informant') collected the first device from Corrections Victoria's secure safe for audit by Victoria Police.

1. The mobile phone was subsequently audited and a Cellebrite Report containing contents of the mobile phone was produced.  Call charge records were also obtained for DW’s mobile phone number [redacted] for two periods, the first being between 28 January and 17 February 2023, and the second being between 16 February and 22 February 2023.  Those records depict DW’s outgoing text messages and calls. 

1. On 2 March 2023, a comparison of the Cellebrite Report and the call charge records in relation to the first device was undertaken by the informant.  This comparison identified that DW had deleted 662 outgoing text messages and 328 outgoing call records between 30 January 2023 and 22 February 2023.

The breach in relation to the second device

1. On 10 March 2023, DW was arrested and his mobile phone, a Telstra ZTET403 (‘the second device’) was seized by police for audit pursuant to Condition 6.12 of the supervision order.  DW was transported to a police station where he participated in a record of interview.

1. In that record of interview, DW admitted to deleting his messages and call log and provided further admissions that he had deleted messages and his call log on the second device seized by police prior to the interview. He further admitted that he had not paid attention when he was served with the scheduled directions, including a direction not to delete his call log and telephone messages.

1. Upon the second device being seized for audit, a Cellebrite Report containing the contents of the mobile phone was produced.  Following DW’s arrest and interview, call charge records were obtained from his mobile phone number [redacted] between 26 February and 8 March 2023.  The records depict DW’s outgoing text messages and calls. 

1. On 14 March 2023, a comparison of the Cellebrite Report and the call charge records in relation to the second device was undertaken by the informant.  This comparison identified that DW had deleted 312 outgoing text messages and 298 outgoing calls between 26 February and 8 March 2023.

1. The comparison identified that all outgoing calls and text messages on the second device had been deleted.  The comparison tables prepared by the informant in relation to the first device are extracted in Appendix C.[1]

Record of interview

[1]See Summary of Prosecution Opening, filed 20 March 2023, 10.

1. The police conducted a record of interview on 10 March 2023.  DW raised no factual issues about what had occurred and the explanation he provided for his actions was that he had an analogue phone that had a very small amount of data it could retain.  Ms Walker, counsel for DW, submitted that an analogue telephone holds approximately 43 megabytes of data, whereas more modern telephone hold approximately 500 gigabytes.[2] There is no evidence that he deleted the messages and phone numbers in order to conceal other offences.

   [2]Transcript of proceedings, Director of Public Prosecutions v DW (Supreme Court of Victoria, S ECR 2023 0041 and S ECR 2023 0045, Lasry J, 21 March 2023) 8.

Prosecution’s submissions

1. However, as the prosecution have submitted, the importance of the monitoring of the telephone was very clear, and there was a specific direction from the Post Sentence Authority. 

1. DW also claimed that he had not paid sufficient attention to the Notice he was given on 27 January 2023 and for which he signed an acknowledgement.

Defence’s submissions

1. Counsel for DW relied on the admissions he made to the police on 10 March 2023 when he was arrested and interviewed.  He relies on his plea of guilty which he argued should be viewed as representing some utilitarian value.  The practical difference between the plea and a contest may not have been substantial or resulted in delay but nonetheless, he has not taken this matter to contest and has asked for these matters to be dealt with as expeditiously as possible.

History of offending

1. There is a long history to this matter and to DW’s index offending.  Those matters are set out in detail in the judgement of Fox J and do not need to be repeated.[3]  I have noted those details. 

   [3]See DPP v DW [2022] VSC 24.

Personal circumstances

1. It is sufficient to note that DW has a very diminished background, and that is not in contention. 

1. He has had very limited educational attainment and has spent a significant period in custody since 2001.

1. He has served over 15 years in prison between 2007 and 2023, with a brief period out of custody between August 2019 and November 2019.

1. However, it is the fact that breaches of supervision orders, such as this one, undermine the effectiveness of the whole statutory scheme and that is an important principle to consider in this particular individual circumstance.

1. DW has prior sentences for contravening court orders including the sentence imposed by Dalziel J in the County Court in 2020, which involved offending when he was last at [redacted] in 2019.[4]

   [4]DPP v Brian Carroll (a pseudonym) [2020] VCC 1402.

Gravity of offending

1. As the prosecution have argued, this is a relatively serious example of the contravention, though it is not a breach involving further offending of sexual or violent nature.  It is not at the lower end, for example, being caught with marijuana or failing to turn up for a drug test, or something of that nature.  It does go to one of the central mechanisms by which the supervision order was to do its work and undermines the effectiveness of that condition.

1. The overall gravity of the offending is informed by the volume and persistence of the breaches, totalling 974 text messages being deleted and 626 call logs being deleted.  The fact that it occurred or commenced three days after receiving the direction and spanned for a period of five weeks is a matter of some significance.

Sentence

1. General deterrence and community protection are clearly also important considerations in upholding the integrity and effectiveness of the whole post sentence supervision order regime.

1. In my view, the appropriate sentence to impose is a period of two months’ imprisonment.  I declare that the defendant has already served 18 days by way of pre-sentence detention, including this date, which I direct be reckoned as time already served.

1. Pursuant to s 6AAA of the Sentencing Act 1991, I declare that had he not pleaded guilty to the charge, I would have sentenced him to six months’ imprisonment.