Director of Public Prosecutions v IC

[2016] VCC 121

Pages 1 - 8   IN THE COUNTY COURT OF VICTORIA

Revised Not Restricted Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00110

DIRECTOR OF PUBLIC PROSECUTIONS

v

IC

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JUDGE:	HER HONOUR JUDGE SEXTON
WHERE HELD:	Melbourne
DATE OF HEARING:	18 February 2016
DATE OF SENTENCE:	18 February 2016
CASE MAY BE CITED AS:	DPP v IC
MEDIUM NEUTRAL CITATION:	[2016] VCC 121

REASONS FOR SENTENCE
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Subject:              CRIMINAL LAW
Catchwords:      Pleaded guilty to one charge of breach of supervision order – cannabis use which increased from time of detection – overall breach is at lower end of scale – rehabilitation prospects still reasonable – deterrence major consideration in sentence.
Sentence: 1 month’s imprisonment

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Martin	OPP
For the Accused	Mr W. Collins-Putland	Victoria Legal Aid

HER HONOUR: 

1On 5 November last year I said to you, right at the end of the hearing:

"Unless things go terribly wrong I will not be seeing you again in court, I hope.  So you will, for the next two years, fulfil the conditions of your order and then you will be completely free of the conditions and restraints of the court".

2As we now know, perhaps "terribly wrong" is not the best description; things have gone wrong, though, because you are now back before me for something that you were probably doing wrong at that very time.

3So today I have before me what is called a rolled-up charge for breach of your supervision order that I had reviewed on 5 November 2015 and which you had been on since November 2013.  You have pleaded guilty to that charge and consented to this court dealing with it.  Because this is what is called a summary charge, the maximum sentence I can impose is two years' imprisonment. 

4What makes this charge serious is of course that it was something that you were well aware of, that you were not to use cannabis, and you did so.  I think the prosecutor is right that, apart from being very displeased about the fact that you were not fully telling the truth in November, I cannot use that as an aggravating feature for the offending that then took place between December and January, but I want you to be clear about how displeased I am.  But as I say, it will not make your offending more serious in terms of the way that the law considers these things. 

5Having said that, though, you must have known that eventually this would come home to roost and you would be caught for using cannabis and you were well aware that it was in breach of your order.  The matters that do need to be taken into account for the offending is that there were a number of occasions rolled up into this charge; and that the use actually increased between the time that you were first detected and after you had been to the Adult Parole Board, so that does make it more serious.  I need to look at this breach in terms of other breaches that other offenders have done of their supervision orders and the prosecution have conceded that this is at the lower end of offending of this nature.

6Although I am concerned about the fact that the use increased, I do accept that this is at the lower end of the scale overall, looking at other breaches.  Importantly of course, although it is a risk factor for you for the potential for sexual offending, that did not lead to anything of that nature in this case.  Your counsel has submitted that the risk was moderated because there was no contact with anyone; you were at home watching TV whilst you were using your cannabis.  Of course you only needed to leave the house and the risk factor would certainly have been very much in consideration.  But as I say, it is clearly the case that there is not before the court any suggestion that your cannabis use did lead to your re-offending.  But it is a risk factor. 

7The report writer for your supervision order said in the report dated 15 June last year, 2015, that you have a long history of cannabis use beginning in your adolescence.  It was understood by the writer of this report that that appeared to function to relieve tension and anxiety, which is consistent with what I have been told today.  The report also indicates that during your parole order you struggled to not use cannabis but that at that point, in June 2015, there was no indication to suggest that you had abused cannabis.  That is the word that is used, not that you had not used it but that you had not abused it, so there is a question mark there about use. 

8As I mentioned to your counsel, the report writer did indicate that there was a breach of parole involving use or not ceasing use of cannabis.  As I have indicated, the use of cannabis is a factor that might increase your risk of sexual offending because it can act as something that disinhibits you and that may impact on your judgment and your consequential thinking.  So that is why a breach of a condition is a serious matter, because the entire scheme is to try and prevent you from re-offending and to ensure that potential victims are safe and protected from you.  The scheme will not work unless offenders stick to their conditions.

9I balance all of those matters against the factors that I must take into account in your favour.  The first of these is that you have pleaded guilty and have done so at an early stage.  This is only February and the matters were only brought to light in December and January, so I take into account that you pleaded guilty early.  I recognise that it is difficult to stop an addiction that has been part of your life for many years but that you now, by your plea, acknowledge your wrongdoing and a level of remorse for having committed these offences.  As a result of your plea of guilty I can tell you that the sentence I intend to impose will be less than if you had pleaded not guilty and been found guilty after a hearing. 

10I take into account your criminal record, which of course is known to the court from having dealt with you for your supervision order.  I also take into account that, if my maths is right, you turn 60 this year, and so you are old enough to start learning some lessons even though, as I say, an addiction is hard to stop.

11Your counsel has told me that there are some strong motivations for you to stop now.  I remember from the review that it was important to you to have contact with your grandchildren and that that was carefully arranged and that your daughters were prepared to do that, to have contact with you and to supervise any contact with your grandchildren.  You feel you have let them down and indeed you have.  Of course the last three weeks the only contact with your family has been by phone.  You feel ashamed apparently about coming back to court and facing me and so you should, because you have let the court down, you have let your family down and you have let yourself down.  You have not been using whilst you have been in custody and you apparently believe that you can continue to go “cold turkey” on your release.

12Two other motivating factors are that, apparently, although I do not have any medical documentation, you have been diagnosed with emphysema and your doctor was at that time concerned about the fact that you had continued to use cannabis.  You should also consider, of course, your brother's situation and that cannabis use can be linked to cancer.

13The final matter is that you have found this time in prison difficult and traumatic, even though you spent a considerable time in custody in the 2000s.  Returning to custody has been difficult for you and of course you have been in protection.

14Considering your prospects of rehabilitation, I take into account that things were going very well for you when I assessed you on your supervision order review in November and I again emphasise that there has been no other offending, so in that sense your rehabilitation is progressing.  But this is a step backwards and must be recognised as such; however, because you had been able to maintain the conditions of the order up until this point in time, I think that your rehabilitation prospects are still reasonable and I do think that the motivating factors are strong ones and should be very much at the front of your mind if you think to continue use of cannabis.  It is plain and simple that you will simply spend more time in gaol, more time away from your family.

15A very important factor for me to take into account in sentencing you is deterrence.  That is, deterring other offenders on supervision orders from breaching their orders but also deterring you from offending again.  That needs to be another motivating factor:  that you know that you will spend more time in custody.  There is no suggestion that anything other than a prison sentence is appropriate and I agree that I have no alternative to a sentence of imprisonment.  The submission made on your behalf is that the time served of 21 days should be sufficient and, although the prosecution are limited as to what they can say about what a suitable time is, it has been indicated that that would not be an inappropriate sentence.

16So I have considered all of these matters as well as the previous offences that other people have received for such sentences and taken all of those other matters into account.  Could you stand up, please, IC.

17I have balanced all of those matters together and I am satisfied that there should be some more time to spend in custody, but it will not be an inordinate amount of time.  The order of the court is that you are convicted and sentenced to one month's imprisonment, so you have served 21 days.  There will be in effect about a week to go, so that will be time to consider that you do not want to be in custody any longer than that.

18I declare that you have spent 21 days in custody already and that those days are to be deducted administratively from your sentence, which is why you will then have only about a week left to serve.  If you had not pleaded guilty, the sentence I would have imposed is three months' imprisonment, but I will not be imposing that because you of course have pleaded guilty.  But that is something to also bear in mind if you do come back before me again.

19Do have any questions, IC?

20OFFENDER:  I don't, Judge Sexton.

21HER HONOUR:  All right, thank you.  Just take a seat.  Are there any other orders required?

22MR COLLINS-PUTLAND:  Your Honour, it is possible that it is already covered, but I would seek an order under s.172(5) of the Sex Offenders Detention and Supervision Act.

23HER HONOUR:  Sorry, if I can just interrupt you there ‑ ‑ ‑

24MR COLLINS-PUTLAND:  Apologies, under s.184.

25HER HONOUR:  Yes.

26MR COLLINS-PUTLAND:  I apologise, I have identified the wrong section and I do apologise.

27HER HONOUR:  That is all right.  There was an order made on 5 November which is to the date of expiry of the supervision order.

28MR COLLINS-PUTLAND:  As the court pleases, Your Honour.

29HER HONOUR:  So that non-publication order is in place, IC, and that will continue until the expiry of the order.  Whether that is the end of your order will be a matter for the Department of Justice to consider, because you have somewhat cruelled the pitch, if I can put it in cricketing terms.  But that is not my decision, that is not for today, that is something that you need to be aware of as a possibility.

30So IC can now be removed.  Thank you.

31OFFENDER:  Thank you, Judge Sexton.

32MR COLLINS-PUTLAND:  As the court pleases.

33HER HONOUR:  Sorry, just before IC disappeared, I did not know - we have actually been given a date of 17 March in the Magistrates' Court for Charge 7.

34MR COLLINS-PUTLAND:  Your Honour, the only matter I would raise is that he is currently remanded solely on that Charge 7, and so he would be likely to serve - sorry, my maths is perhaps going to fail me but significantly perhaps about three weeks more time in custody remanded on that matter if that is indeed the first date.  I have to confess I am not familiar with the exact process for listing, but ‑ ‑ ‑

35HER HONOUR:  No.  Well, having remitted it back to the Magistrates' Court, I cannot even deal with it by way of a bail application.

36MR COLLINS-PUTLAND:  Yes, Your Honour.

37HER HONOUR:  It is no longer in front of me.  In fact it could not be in front of me. 

38MS MARTIN:  I should also indicate, Your Honour, that that charge, the maximum penalty is a fine, so it would be inappropriate I think for him to be remanded for three weeks.

39HER HONOUR:  Yes.

40MS MARTIN:  But it might be something that we can deal with if we go across the road.

41HER HONOUR:  Yes, deal with offline, as they say.

42MS MARTIN:  Yes.

43HER HONOUR:  Yes.  I do not think I will set that date.  I think it should be that the Magistrates' Court should be approached to have that matter dealt with asap.

44MR COLLINS-PUTLAND:  Yes, thank you, Your Honour.

45MS MARTIN:  As Your Honour pleases.

46HER HONOUR:  All right.  Well, I thank counsel for their assistance and we will adjourn then until 9 am tomorrow.

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