Director of Public Prosecutions v Evans

[2020] VCC 1007

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-02388

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRADLEY EVANS

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:	9 July 2020
DATE OF SENTENCE:	9 July 2020
CASE MAY BE CITED AS:	DPP v Evans
MEDIUM NEUTRAL CITATION:	[2020] VCC 1007

REASONS FOR SENTENCE
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Subject:  Criminal law

Catchwords:  Contravention of Community Correction Order; sexual penetration of a children under 16 years; procure a minor for making/producing child pornography

Legislation Cited:          Sentencing Act 1991;    
Cases Cited:
Sentence:  Fine of $500; 40 month Community Corrections Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Fernando	Office of Public Prosecutions
For the Accused	Mr D. De Witt	Greg Thomas Barrister & Solicitor

HER HONOUR: 

1Bradley Evans, on 27 July 2018, you were sentenced by me after pleading guilty on indictment to procuring a minor for the purposes of child pornography and to three charges of sexual penetration of a child under 16 years. 

2You were fined in relation to the child pornography charge, but on the remaining three charges, you were placed on a community corrections order for a period of 28 months. 

3That order included a range of conditions which comprised 300 hours of unpaid community work, supervision by the Office of Corrections, treatment and rehabilitation in relation to drug abuse and dependency, your mental health, and programs to address factors relating to your offending, which included if suitable, Sex Offender treatment and a Men's Behavioural Change program.

4In addition there was a requirement that you attend before me for judicial monitoring, 75 hours of therapeutic conditions were to be offset against the 300 hours of community work ordered. That order was designed clearly to punish, but also to foster your rehabilitation.  The order I made is due to expire on
26 November of this year. 

5You now admit, as I understand it through your legal representative, to contravening that community corrections order by failing to comply with conditions and by reoffending. 

6According to the materials I have read, you failed to perform unpaid community work as directed on ten occasions, you failed to attend for supervision as directed on 14 occasions, and failed to attend drug assessment and treatment as directed on 14 occasions.

7In addition, you failed to attend before me for judicial monitoring as directed in February of this year.  According to the report, although it seems to be a little wobbly on the figures, you completed some 37 hours of the 300 hours of community work ordered. 

8In addition, on 18 June 2020, you appeared at the Melbourne Magistrates' Court in relation to a charge of recklessly cause injury which occurred on
4 October 2019 and a charge of unlawful assault which occurred on
15 May 2019.

9I have seen the summary for that offending and the offence in October of last year is particularly concerning.  On each occasion of your reoffending, you were unable to control your anger and committed offences of violence.  The Magistrates' Court convicted and fined you the amount of $2000.

10The failures I have outlined are relevant to assessing the gravity of the contravention charge, which is a separate charge. 

11Section 83AS(3) of the Sentencing Act requires me to take into account the extent to which you have complied with the order I made.

12On a finding of guilt for contravention of a community corrections order, a court has power to vary the order, confirm the order originally made, cancel the order and re-sentence on the original offences or cancel the order and make no further order.

13Section 83AS also provides that a judge who is dealing with a contravention of a corrections order can deal with the offender for the original offences, with respect to which the order was made, as if the court had just found him or her guilty of that offence.  In other words, an offender can be re-sentenced entirely afresh. 

14In effect, you can be sentenced for both the contravention of the corrections order and your original offending which saw you placed on that order. 

15It is that course which the Office of Corrections seek that I undertake according to their report; that I re-sentence you on the original offences of sexual penetration of a child under 16.  That recommendation is supported by the prosecution submissions that they have filed, which I will also tender and mark as P2.

16The original charges carry a maximum of ten years imprisonment which reflects the seriousness with which Parliament regards those offences.

17The circumstances of your original offending are set out in a document entitled 'Prosecution plea opening, dated 19 March 2018.'  It is a matter of record, and will not be repeated here. 

18At the time of your initial sentencing, I took into account a range of factors which were included in my reasons for sentence, dated 27 July 2018. 

19In short compass, they included an assessment of the objective gravity of your offending, which in itself included the proximity and age between yourself and the victim, that you had known each other for some time, there was no element of coercion or persuasion, there was no breach of trust or power imbalance between you and the victim, there was a single complainant, the events occurred on a limited number of occasions and you were assessed as being immature as of the date of that sentence.  All of those factors remain relevant today.

20I also took into account matters that were personal to you at that time, which included your youth - you were 19 at the time of the offending and 20 by the time you came before me - your extremely dysfunctional upbringing that saw you spend periods in foster care as a child - there was constant instability in your accommodation and movement in your childhood between your mother's and father's residence - you managed to complete VCAL in 2015 and left school at the end of that year, and you had a history of self-harm and suicide attempts.

21In January of 2016, you became homeless.  Your life took a further downturn at that point and it was then that you commenced using drugs for the first time.  It was mid-way through that year that you began your relationship which led to you being charged with the offences on the indictment before me, in July 2018.  All of those factors also remain relevant.

22At the time of your plea was a report authored by Dr Simon Candlish, dated 4 June 2018, and he also gave evidence. 

23You were not assessed as having a specific deviant interest in under-age females and fell in a low risk category for sexual recidivism.  His assessment appears to have been correct, given it is three and a half years at least since that offending and there are no allegations of a similar nature. 

24I accept that in relation to the original matters you pleaded guilty at an early opportunity and you had no prior convictions.  I accept in relation to today's matter, that you have pleaded guilty at an early opportunity.

25What was also relevant to the sentencing process in July of 2018 was the fact that you had been working with Melbourne City Mission, the Salvation Army and Aardvark Music.  You had gained and maintained stable accommodation, you had gained and maintained employment, you were drug-free at that time, and materials in relation to all of those aspects were tendered. 

26I formed the view that each of those matters indicated your desire to create a pro-social lifestyle.  You were well aware at the time of your sentence, that should there be a breach of the conditions or reoffending, you could fall to be charged with contravention, as indeed you have, and could fall to be resentenced for the original offences. 

27I have had recourse to a contravention package which includes a, 'Contravention of community corrections order by condition and further offences report' dated 10 June 2020, and details the various contraventions that I outlined at the start.

28I note the Office of Corrections deemed you ineligible from participation in the Men's Behavioural Change program and declined to refer you to the Specialised Offender Assessment and Treatment service.

29At various stages, your Office of Corrections office has moved, and at various stages, support services have needed to be re-established, and at various stages, you have been on wait lists. 

30In addition to the Contravention report provided, I have had the benefit of judicial monitoring which occurred on approximately six occasions. 

31The judicial monitoring report, dated 18 October 2018, detailed your initial progress which at that stage, involved four unacceptable absences across order conditions, but noted that you were engaging well in supervision and were wait-listed at that time for mental health treatment.  That report detailed at that time you had done 33 hours of community work.

32A judicial monitoring report dated 20 February 2019 indicated that at that time you had had real difficulties with compliance.  Around that time, you had lost employment, your housing was jeopardised, you lost contact with the Office of Corrections but did manage to attend, to your credit, for judicial monitoring.

33In that report, it was noted that you completed 26 hours of community work which is somehow less than had been reported on the earlier date.  The judicial monitoring report from 6 May 2019 noted that your compliance had improved and you had maintained contact with the Office of Corrections and that, you had made progress with engaging with treatment providers.  You had regained employment by that time, and located further accommodation which gave you some stability.  The report from that date comments:

'Mr Evans's achievements in conjunction with motivation to meet the requirements laid out by Your Honour at the last judicial monitoring hearing are commended.'

34At that point, you were credited with having completed 28 hours of community work. 

35The judicial monitoring report dated 7 August 2019 was also positive and at that stage, I contemplated releasing you from judicial monitoring.  It was at your request that there was further judicial monitoring. 

36Your Corrections order had been transferred to another office and adjustment was required.  At that point, you were credited with having completed 26 hours of community work which was less than the previous occasion.

37The judicial monitoring report dated 27 November 2019 reported a deterioration in your mental health, including the report of your hospitalisation at Northern Hospital at which time you were suffering significant mental health difficulties.

38You continued to struggle with homelessness and financial stress.  You did manage to re-engage with the Office of Corrections for a further period and you did attend again for judicial monitoring.  At that stage, you were credited with 37 hours of community work. You failed to attend for judicial monitoring in February of this year, when it again appears that things went off the rails.

39Your attendance for judicial monitoring before me overall and the various reports gave me the benefit of tracking your progress.  You faced genuine difficulties at all times with your mental health and homelessness.  You struggled with drug use which I must admit is unfortunate.

40At all times, you struck me as someone, however, who is capable of picking themselves back up when faced with difficulties and continuing to strive to regain solid ground.  I found this impressive.  You also struck me as extremely honest.

41Tendered on your behalf, are materials which support the impression that you gave me.  I have seen letters from Melbourne City Mission as tendered, Vincent Care Co-Health authored by Ned Thompson, your drug and alcohol counsellor, a letter from Deborah Stahmer, provisional psychologist, and a letter from your friend, Steven Hogan.

42Those materials indicate to me that you have continued to work on your drug rehabilitation, accommodation needs, mental health and active engagement in keeping yourself occupied through courses to strengthen your employment prospects

43You have been capable of identifying your needs.  You have been capable of accessing appropriate supports and much of it you organised for yourself. 

44You have also written a letter to me effectively apologising for contravening the order and indicating a strong desire and commitment to complete the order if given an opportunity to do so. Normally, I find such letters self-serving, but in your case I accept your apology, insights expressed and aims for the future, all of which appear to me to be very genuine.

45I have also had the benefit of detailed written submissions authored by
Mr De Witt.  You again have stable accommodation and you have established therapeutic relationships.  In my view, it cannot be in yours or the community's interest that your path to rehabilitation and further development be stymied at this stage.

46You have not, as I have said, reoffended in a similar way.

47Whilst it is of concern that there has been reoffending and that has involved instances of violence, another court has punished you for that offending and you have demonstrated insight into the contributing factors and a desire to change those factors. 

48In relation to the charge of contravening the order I have made, you are convicted and fined the amount of $500. 

49I choose to vary the order made by me on 27 July 2018 by extending it for a period of 12 months.  

50The COVID-19 pandemic has limited some of the goals the order was designed to achieve and in any event you have achieved some of the goals by yourself.

51The reality is, community work is suspended, supervision is via the phone and many programs are also suspended.  In my view, this reality also needs to be accommodated in the variation.  Accordingly, I reduce the community work to 150 hours and seek to be advised at a later stage as to the hours that should be properly credited.  In any event, 75 hours of treatment will again be offset against those hours.  I will obviously remove the requirement to do Men's Behavioural Change and Sex Offender Assessment and I will re-engage in judicial monitoring so I can keep an eye on you again, Mr Evans, and also keep an eye on the appropriate interventions.  I will set that up for about three months I think.

52Have we got diary issues?  No.  How is 6 October looking, Mr Evans, got anything else on that day?

53OFFENDER:  Ah, nothing, thank you.

54HER HONOUR:  All right, well I will list it at 10.  Well, you are really going to have to wait and see what the realities are then, if we are still suffering under the current environment you can WebEx in like you did today if restrictions have eased you can physically attend.  Just touch base in the lead up to that date about what the requirements actually are.

55OFFENDER:  Yes, Your Honour.

56HER HONOUR:  As discussed, you are going to have to sign documentation.  I am happy for you attend at Mr De Witt's office to sign that documentation but it needs to be done really in the next 24 hours, all right?

57OFFENDER:  I'll be - I'll be doing it today, Your Honour.

58HER HONOUR:  Yes, all right.  Any questions, Mr Evans?

59OFFENDER:  Ah, no - no, Your Honour.

60HER HONOUR:  Anything further from you, Mr De Witt, anything I have missed?

61MR DE WITT:  No, Your Honour.

62HER HONOUR:  Ms Fernando.

63MS FERNANDO:  No, Your Honour.

64HER HONOUR:  And Ms Lazarevski thank you very much for your assistance today.

65MS LAZAREVSKI:  No, you are welcome, Your Honour.

66HER HONOUR:  It has been appreciated but when I do have a judicial monitoring, I would like some clarity in the - in what hours should be properly credited.  Yes.

67MS LAZAREVSKI:  Yes, Your Honour, absolutely.

68HER HONOUR:  Sorry, I did talk over you then.  Yes, I would like some clarity in the - of the hours that should be credited on the next occasion.

69MS LAZAREVSKI:  Yes, Your Honour.

70HER HONOUR:  All right, well thank you everybody for their assistance today and thank you for accommodating it by virtual appearances.

71MS LAZAREVSKI:  Thank you, Your Honour.

72MS FERNANDO:  Thank you, Your Honour.

73HER HONOUR:  And I will see you one way or another Mr Evans, on
6 October ‑ ‑ ‑

74OFFENDER:  Thank you ‑ ‑ ‑

75HER HONOUR:  ‑ ‑ ‑ but can you keep up the good work and do your best to get rid of the bad work.

76OFFENDER:  Yes, I will do, thank you.

77HER HONOUR:  All right, thanks very much.  Standing down till nine - closing the court till 9 o'clock tomorrow morning, thank you.

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