Director of Public Prosecutions v J A

[2019] VCC 610

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

J. A.

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JUDGE:	HER HONOUR JUDGE M. SEXTON
WHERE HELD:	Melbourne
DATE OF HEARING:	2 May 2019
DATE OF SENTENCE:	2 May 2019
CASE MAY BE CITED AS:	DPP v J A
MEDIUM NEUTRAL CITATION:	[2019] VCC 610

REASONS FOR SENTENCE
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Subject:         Criminal Law – Breach of Supervision Order
Catchwords:  Contravening a condition of a Supervision Order
Legislation Cited:
Cases Cited:
Sentence:      TES: 10 weeks imprisonment

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S.M.K. Borg	Office of Public Prosecutions
For the Accused	Ms E. Ramsay	Emma Turnbull and Associates

HER HONOUR: 

1J.A. through your counsel you have pleaded guilty to a charge of contravening a condition of your supervision order, to not have contact with a registered sex offender except if they are resident at Corella Place.  There is a further charge that has been withdrawn.

2Summary jurisdiction has been applied for and granted. That means that the maximum penalty that I can impose is a sentence of two years' imprisonment, and that is reserved for the worst case. 

3This is the third time you have committed exactly the same offence but I do accept what your counsel has said, that the offending by contact with S.C. has been a relatively small part of your previous breaching behavior. Also, you have engaged in other offending behavior that is more serious, and I have found, more relevant to your risk.

4This is a very unusual situation because you have wilfully and deliberately continued to have contact with S.C. and that comes about because of the way that you first met. You met when you were both at Corella Place or in prison, but you have certainly spent time in both places at the same time and there was no problem with you having contact with each other at the time that you were in prison or at Corella Place.

5S.C. is no longer at Corella Place or in prison and no longer on a supervision order, I am told, but the condition is that you do not have contact with any registered convicted sex offender and he remains that for life.  While you are in prison this condition does not apply.  None of the conditions of the supervision order apply while you are in prison.  So that is the explanation for why any contact that you were having that was permitted while you were in prison would start up again straight after you were out of prison if you decided that, regardless of knowing about the condition, you wanted to speak to S.C.

6The prosecution is right in saying that if there is any possibility that you are using S.C. as a sounding board for sexual offending that must be discouraged, and that is the purpose of the condition.  I do take into account, however, that no contact offending has resulted from your speaking to S.C., and I also take into account the very important steps you have taken at the beginning of this year to avoid offending when you have begun to have thoughts of contact offending or other offending.

7It is unfortunate that you had to take the step to personally get in touch with the Post Sentence Authority, and the people who are working with you on a daily basis should have taken steps to help you avoid offending before that.  However, it is not a bad thing, it is a good thing that you contacted the Post Sentence Authority because now things have happened.

8This is somewhat separate from the sentence but I say that on the information I have, which is limited of course, there must be follow up about these matters and I am pleased to hear that both the specialist case manager and the service people have visited J.A. in custody as apparently recommended by the Forensicare assessments.  What else is in those assessments is unknown because they have not been provided on request to J.A.’s legal representatives, but with my experience of these matters it was always a concern to me that there was a break in contact where the person was sentenced to gaol for breaching a supervision order and then the supervision order resumed and everything was expected to be proceeding appropriately.  I think it is vital to have that continued contact and I am pleased to hear that that is happening.

9Getting back to this sentence, the fact is that you were knowingly breaching your condition.  You were frustrated by the fact that you had no one else to speak to and I accept that you are a person in a very lonely position.  I also know that you have a complex personality and that all of these things make life very difficult for you.

10The other thing to say about your offending by continuing to contact S.C. is that it does potentially affect or at least maintain your high risk, as has been previously assessed, of committing further sexual offending against children. I do not have a current risk assessment, but the reason why I say that it might potentially affect or maintain your high risk is simply because of the fact of not complying with a condition of your order full stop. Non-compliance will always be a matter taken into account in assessing your risk. It may also affect your risk assessment because of the reason behind the condition, and that is that research shows that convicted sex offenders are considered likely to encourage each other to more sexual offending.  That is the reason for not having contact except in a controlled environment of a program or at Corella Place where it is unavoidable.

11There is nothing here to suggest to me that the conversations you were having with S.C. were encouraging you to commit offending and you have not committed any contact offending. But that is the reason behind the condition and that is the other reason why the fact of contact with S.C. will affect your risk assessment.  That is not going to assist you in future as you attempt to work your way through this order and potentially to transition out of Corella Place.

12So you have a very difficult balance J.A.  You know you are not supposed to speak to him but you do not have anyone else to speak to and you know it is going to affect your risk assessment.  It is really up to you as to how you deal with that, and if you continue to maintain contact then you will continue to be in breach of your supervision order.  For that reason, the sentence that I impose today has to attempt to deter you from committing that offence again.  I understand all the reasons behind it, but the fact is it is still a condition on your supervision order.

13Ms Ramsay has said that your legal representatives are going to consider ways of dealing with this, whether it might be a variation of the condition or after investigation whether the Post Sentence Authority might even consider giving you written permission to have contact with S.C.  I have no idea whether that would be possible but it should be explored and Ms Ramsay has said it will be explored.

14You have also said, importantly, that if you have someone to speak to on a regular basis, whether it is SOATS or, when you can get your finances back together, a private practitioner, you think you can cope without speaking to
S.C. until after the exploration of what application can be made.  That is positive thinking on your part and I take that into account, but it does not stop one of the purposes of my sentencing, being to try and deter you from committing this offence of speaking to S.C. as this condition remains in place.

15My sentence also has to deter other sex offenders from breaching their supervision orders. I accept that this is a less serious breach in the sense that on all your other occasions there have been multiple breaches of conditions, but it is still serious because it is the third time that you have been dealt with for exactly the same offending.

16I take into account that you have pleaded guilty to the charge and that it is at the earliest possible stage. I also recognise that your counsel has conceded on your behalf, that there is no remorse that could be said to come from that plea because you have wilfully committed this offence, and have indicated that you may do so in future if things do not change. Although if you have, as I have said, continued contact with someone to talk with about these problems, then you may not commit the offence in the immediate future.

17Your plea of guilty though is still something that you get the benefit of, not just because it was early but because of the fact of it.  You have avoided the need for a contested hearing and saved the community that time and expense.  Your counsel has submitted that the time that you have served in gaol is sufficient, the 56 days, taking into account that this is a single charge and is therefore, it is put on your behalf, not serious enough to be more than the time that you have served.  The prosecutor has disagreed with that and said that for all the reasons that were outlined, the fact that this is the third breach, the fact that you have continued to offend in this way but also at a time when you were at your most vulnerable, means that there must be a sentence of greater than the time that has been served.

18Sentencing is never an easy thing to do, J.A., I can tell you, even though I have been doing it for a long time, and this one is no exception.  You do need to be punished for committing the offence and the question is whether 56 days is punishment enough.  I have already told you that I need to deter you by my sentence from committing the offence again, but I also do not want to give you a sentence which takes away any incentive you have to reengage in counselling, and of course the efforts that you have made to try and find someone professional to speak to about this, so it is a difficult choice for me to make between those considerations.

19In the end, I have decided that I am going to give you a slightly longer sentence than the 56 days, and it might seem like an unnecessary length but I am going to make it ten weeks' imprisonment, and that means that you still have some time to serve in custody but only a short time. 

20The order of the court is: Charge 1 is struck out. 

21On Charge 2, J.A. is convicted and sentenced to ten weeks' imprisonment. 

22I declare that you have served 56 days in pre-sentence detention and those days will be deducted administratively from that ten weeks. So you will be released back to Corella Place reasonably soon.  Then I would encourage you to continue your efforts to have counselling and I would encourage those who are tasked with doing the work with you that they do so, and that that can continue or begin again even though you are not yet immediately out of custody.

23If you had not pleaded guilty but had been found guilty after a contested hearing, then the sentence I would have imposed on you is a sentence of four months' imprisonment.

24Are there any other orders required?

25COUNSEL:  No, Your Honour.

26HER HONOUR:  All right, thank you.  J.A. may be removed.

27OFFENDER:  Thank you, Your Honour.

28HER HONOUR:  I thank counsel for their assistance and I will adjourn until 9.30 tomorrow.

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