Director of Public Prosecutions v H,S

[2024] VCC 684

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

H, S

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JUDGE:	HIS HONOUR JUDGE PILLAY
WHERE HELD:	Melbourne
DATE OF HEARING:	20 May 2024
DATE OF SENTENCE:	20 May 2024
CASE MAY BE CITED AS:	DPP v H,S
MEDIUM NEUTRAL CITATION:	[2024] VCC 684

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:             Breach of Supervision Order

Legislation Cited:     Serious Offenders Act 2018 (Vic) ;Sentencing Act 1991 (Vic)

Cases Cited:Bugmy v R (2013) 249 CLR 571; R v Verdins (2007) 16 VR 269; DPP v XG [2024] VSC 82; DPP v SJW [2020] VSC 746

Sentence:                 180 days imprisonment

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S Locke	Office of Public Prosecutions
For the Offender	Mr J Gilfillan of Emma Turnbull

HIS HONOUR: 

1H,S, this is a sentence in respect of two charges of contravening a supervision order contrary to s169 of the Serious Offenders Act.  The maximum penalty in respect of the offending is Level 6 imprisonment.

2Summary jurisdiction was sought in respect of the charges and granted.  A plea of guilty was then entered through your solicitor, Mr Gilfillan.  A maximum of two years on each charge applies.  It is accepted that your plea was at the earliest stage.

3The circumstances of the offending are set out in the amended summary of prosecution opening[1] and do not need to be repeated in great detail.  Your solicitor accepted the summary as accurate. 

[1] Exhibit P1

4From that summary it is relevant to note that you have been the subject of a supervision order since February 2016.  That supervision order has been reviewed on numerous occasions, most recently in July 2023.  In March this year, I also granted an additional condition sought by the Secretary.  The order requires, relevantly, that you do not produce child abuse material or store images of children under the age of 16 years.

5Briefly as to this offending, on 10 November 2023, you attended at Highpoint Shopping Centre in Maribyrnong with your support worker.  While there, you purchased a book entitled Wavewalker: Breaking Free (“Wavewalker”).  Your support worker observed that it pictured a young girl in the centre of the front cover of the book.

6Detectives of the Supervision Order Specialist Response Unit were informed of this.  On 22 November 2023, they attended your residence to conduct a search and asked whether you had anything in the room that would be in breach of your Supervision Order.  In response, you disclosed that you had written about your prior offending in a black A4 spiral notebook (“notebook”).  Detectives seized both this notebook and Wavewalker.

7On inspection, Wavewalker was found to contain 13 photographic images of male and female children which were perceived to be under the age of 16 years.  As for the notebook, it was identified that it included a description of the sexual acts you purported to have performed against a seven year old-female, as well as acts you wanted to perform on the child. 

8Your counsel filed written submissions.[2]  I have read those submissions.  In the end, none of those submissions were contentious.  The Crown accepted the plea was made at the earliest time, that special reasons exist, the offending was objectively at the low end, that Verdins applied,[3] as did Bugmy principles.

[2] Exhibit D1

[3] Limbs 1,3,4,5 and 6

9The initial written submission was that a term of imprisonment of time served, being 180 days, was appropriate.  Orally, it was submitted a lesser term could be imposed.

10The Crown position was that the offending warranted a term of imprisonment. 

11In dealing with the competing submissions, it is important to refer to some of the background.  This is most helpfully set out in the report of Mr Simon Candlish, 15 May 2024,[4] who saw and examined you on two occasions in April 2024. He recorded that:[5]

“[H,S]’s moderate personality disorder coupled with his assessed intellectual disability undermines his ability to manage his paraphilias, and contributes to inappropriate behaviours such as accessing child images and purchasing child underwear and writing child sexual abuse accounts for sexual purposes.”

[4] Exhibit D2

[5] Report of Mr Simon Candlish dated 15 May 2024, page 26 paragraph 186.

12Your solicitor submits that a term of imprisonment of not less than 12 months need not be applied as “special reasons” exist under s10A Sentencing Act.  These special conditions are that (i) at the time of the commission of the offence, the offender had impaired mental functioning that is causally linked to the commission of the offence and substantially and materially reduces the offender's culpability; and (ii) he or she has impaired mental functioning that would result in the offender being subject to substantially and materially greater than the ordinary burden or risks of imprisonment.  The Crown concedes that such circumstances exist.  Having regard to Mr Candlish’s report, as well as well as that of Professor Keith McVilly, I accept that such special reasons exists.

13Based also on these reports, I find that Verdins applies.  Given your experiences in childhood of family violence and your father’s alcohol abuse, the principles in Bugmy also apply.

14Turning to the determine the level of seriousness of your offending.

15In regards to your breach for storing of images of children under 16, I regard this to be low-level offending.  It was unsophisticated offending involving the seemingly spontaneous purchase of a book containing images of children in circumstances in which you made no attempt to hide your actions from your support worker.  There is no suggestion the images in the book were pornographic or that the children were anything other than fully clothed.  Nonetheless, the images were numerous and I consider you would have known you were not permitted to possess them. 

16Turning to your production of child abuse material, I regard these as being at the low end of seriousness.  You are to be commended for freely producing the notebook to police when asked if you were in possession of anything that would breach your Supervision Order.  This is to your credit.  While you initially presented the notebook as something you were “working through” with your Specialist Case Manager, in written submissions filed on your behalf, it was admitted you were not directed to write down material related to your childhood or offending.  It was also conceded that the contents of the notebook were child abuse material. 

17However, having regard for Mr Candlish’s opinion above, I have no doubt that your offending occurred for sexual purposes.  Breaches of supervision orders are serious offences. Balanced against this is the fact that this is your first breach.

18Despite my findings as to the nature and gravity of the offending, being at the low end of the scale, and my acceptance of the reduced moral culpability for the offending here, there is still some modest role to play for, in particular, general deterrence, and to reinforce the rehabilitation principles by ensuring that the supervision order is complied with.  I state again that a breach of a supervision order is a  serious matter.[6]

[6]DPP v SJW [2020] VSC 746

19In those circumstances and specifically speaking to you, then, H,S, I will sentence you to 180 days in prison reckoned as time served.  I order that you be released immediately to continue on your Supervision Order under the direction of the Post-Sentence Authority.

20But for the plea of guilty and pursuant to s6AAA of the Sentencing Act, I would have sentenced you to 240 days.

21I will also make the forfeiture order sought.