Director of Public Prosecutions v Graham

[2015] VCC 828

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-00176

DIRECTOR OF PUBLIC PROSECUTIONS

v

PERRY GRAHAM

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JUDGE:	HIS HONOUR JUDGE JORDAN
WHERE HELD:	Melbourne
DATE OF HEARING:	15 June 2015
DATE OF SENTENCE:	17 June 2015
CASE MAY BE CITED AS:	DPP v Graham
MEDIUM NEUTRAL CITATION:	[2015] VCC 828

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr T. Hoare	Office of Public Prosecutions
For the Offender	Mr M. Phillips	Victoria Legal Aid

HIS HONOUR: 

1Mr Perry Graham, you have pleaded guilty to one charge of sexual penetration of a child under 16 years of age.  The maximum penalty is ten years' imprisonment.  You have pleaded at the commencement of the trial.  I take that into account.  The circumstances of your offending are set out in the Summary of Prosecution Opening on Plea, exhibit A.  It speaks for itself about your offending and the facts really need no elaboration.  Those facts have been agreed to by you. 

2Any offence of this nature is serious, involving a victim under the age of 16 years.  However, the prosecution pointed out that while you knew the age of the victim, the offence involved two teenagers closer in age than is often seen in this type of case.  The prosecution also pointed out to the court that whilst serious, the offending was in the circumstances where both parties saw themselves as being in a boyfriend and girlfriend relationship.  Uncharged acts have also been referred to by the prosecution.  That puts your offence in that context of a boyfriend/girlfriend relationship. 

3I have read the two victim impact statements tendered; Exhibit B. I have taken into account the effects your offending has had on the victims. You were 18 years of age when the offence occurred. You qualify as a young offender under the Sentencing Act (1991). You have served 46 days in adult imprisonment before you obtained bail. Your personal circumstances have been set out in the Brief Outline of Defence Submissions on the Plea. Exhibit 1. I do not need to elaborate on those.

4Your prospects of rehabilitation at your age are real, in my opinion.  Not only have you no prior criminal history, but there is nothing by way of charges pending.  In mitigation, your counsel pointed to a number of factors.  These include your plea of guilty.  While not an early plea, I accept it indicates some remorse.  It also has the obvious utilitarian benefits.  There is no need to elaborate separately on the objective and subjective criteria of those benefits, but importantly you have saved witnesses including a 15 year old victim, from giving evidence at a trial.  You have saved time and expense for the community.  You are a very young adult offender and rehabilitation is an important sentencing factor.

5As well as the matters personal to you, I must also take into account other relevant sentencing considerations.  General and specific deterrence must be given weight in the sentence.  The community cannot tolerate offending which involves young and immature people of only 14 years of age.  There must be clear and appropriate punishment in the circumstances.  Your sentence must manifest the community's denunciation of your conduct.  I must protect young people in the community from any repetition of this type of offending.  I must seek to deter you and others. 

6Your counsel submitted that a Community Corrections Order (“CCO”) was the appropriate disposition without any imprisonment.  The prosecution submitted a CCO in the circumstances of this case was within the range of appropriate sentencing dispositions.  Assessment was ordered. An assessment dated 15 June 2015 has been received, exhibit C.  You have been assessed as suitable for a CCO with conditions of unpaid community work, treatment and rehabilitation and offending behaviour programs together with supervision.

7You are sentenced to a CCO of 18 months' duration, in addition to the statutory terms of the order, you are required to perform 50 hours of unpaid community work and to undergo treatment and rehabilitation involving assessment and participation in the Sex Offenders' Advice and Treatment Services Program. 

8You are now registered under the Sex Offenders Registration Act (2004) for 15 years. The length of the reporting period is 15 years. This registration and the reporting period are matters conceded by your counsel. In a moment, my associate will provide you with relevant documentation setting out your obligations in this regard and ask you to sign an acknowledgement in court that you have received that documentation. I declare 46 days' pre-sentence detention pursuant to s.18 of the Sentencing Act, pursuant to s.6AAA of the Sentencing Act. But for your plea of guilty I would have sentenced you to a CCO for two years with 100 hours of unpaid community work and treatment conditions and supervision.

9I have a discretion in relation to the application under s.464ZF of the Crimes Act for you to provide a forensic sample. Taking into account all the circumstances of your offence, including the absence of any submission about a risk of recidivism, together with your age and also the prosecution submission that the offence was in the context of a boyfriend/girlfriend relationship, I refuse the application.

10MR PHILLIPS:  As Your Honour pleases.

11HIS HONOUR:  You understand your obligations under the CCO order and the sex offenders' registration and I will have my associate attend to that now and I would ask you, counsel, to just ensure that he fully understands those obligations.  Do you wish to approach the dock when my associate attends to that paperwork ‑ ‑ ‑ 

12MR PHILLIPS:  I might do that Your Honour, and ‑ ‑ ‑ 

13HIS HONOUR:  Is that the usual procedure?

14MR PHILLIPS:  Yes, it is Your Honour, and I will certainly undertake to go through those conditions with Mr Graham also.

15HIS HONOUR:  Yes, all right.  If that can be attended to now, and you can approach your client if you wish, Mr Phillips, to assist.

16[In open court the Associate read out the conditions of the CCO to the accused]

17MR PHILLIPS:  May I approach my client again, Your Honour? 

18I indicate Your Honour, for the purposes of the transcript that Mr Graham has signed four copies of the notice under the Sex Offenders Registration Act and has also signed indicating his consent with respect to the community corrections order that Your Honour's imposed.

19HIS HONOUR:  Mr Graham, do you understand your obligations under the Community Corrections Order and the registration system for sex offenders?

20OFFENDER:  Yes.

21HIS HONOUR:  All right, I'll get some copies of that paperwork to be given to you now.  You should take that with you.

22MR HOARE: Just while that's happening, Your Honour, unless you want me to wait, I just want to take Your Honour's attention of s.l8 of the Sentencing Act with the pre-sentence detention declaration. I'd submit that the s.18 declaration would only really be relevant ‑ ‑ ‑

23HIS HONOUR:  Just wait while I get the Act, Mr Prosecutor.

24MR HOARE:  Sorry.  So it would only be relevant in this if Your Honour had sentenced the offender to 46 days' imprisonment or some other term of imprisonment and then that period of 46 days is deducted administratively from the period of imprisonment.  And as I understand it ‑ ‑ ‑ 

25HIS HONOUR:  Which subsection are you referring to specifically?

26MR HOARE:  18(1), if an offender in respect of an offence is sentenced to a term of imprisonment.  Sorry, if an offender is in respect of an offender sentenced to a term of imprisonment, that hasn't happened Your Honour, at this stage.  And as I understand it, the submission was, "Don't sentence him to imprisonment".  The offending has not reached that level of seriousness that a period of imprisonment should be imposed.  Your Honour can take into account, under common law type principles, looking at the offender from a global point of view. 

27HIS HONOUR:  I take into account that you have actually served 46 days' imprisonment in respect of these offences and I take that into account when I impose the Community Corrections Order.

28HIS HONOUR:  Tell him to wait for a moment.

29MR HOARE:  So it probably seems like I'm being a bit pedantic.  I don't mean to be. 

30HIS HONOUR:  Are you saying I should not make the declaration?

31MR HOARE:  That's right, Your Honour.  That's what I'm saying.

32HIS HONOUR:  I have mentioned the time in custody in the sentencing remarks, which I think it's important that they be set out there.

33MR HOARE:  I agree that it should be, with respect ‑ ‑ ‑ 

34HIS HONOUR:  I've done that.

35MR HOARE:  Because ‑ ‑ ‑ 

36HIS HONOUR:  So you say that the declaration ought not to be formally made.

37MR HOARE:  That's right, that's my submission ‑ ‑ ‑ 

38HIS HONOUR:  Because really I haven't got the power to do it, is that really what you are saying or does it affect some terms of corrections or something.

39MR HOARE:  No, only because the offender has not been sentenced to a term of imprisonment. 

40HIS HONOUR:  What do you say, Mister ‑ ‑ ‑ 

41MR PHILLIPS:  I think the effect of what my learned friend is saying is it's because Your Honour hasn't imposed imprisonment, the declaration is superfluous and it doesn't need to be made in those circumstances so I don't take any issue with that.

42HIS HONOUR:  Are you both asking me then not to make the formal declaration.  I have mentioned it in the sentencing remarks.

43MR PHILLIPS:  Yes, it's sufficient that Your Honour's noted that that's been taken into account in arriving at the appropriate sentence.

44HIS HONOUR:  I am happy to accede to your mutual request about that.

45MR PHILLIPS:  Yes, certainly.

46HIS HONOUR:  Mr Graham, you can go.  You understand that if you offend again, you have got to come back before me to be dealt with further.  Do you understand that?

47OFFENDER:  Yes.

48HIS HONOUR:  Your counsel has undertaken to just double check that you understand all of those terms and he will take you through that after court.  You are free to go.  You are excused, gentlemen.

49COUNSEL:  Thank you, Your Honour.

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