Director of Public Prosecutions v Jefferson (a pseudonym)

[2020] VCC 1223

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALVIN JEFFERSON (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE PILLAY
WHERE HELD:	Melbourne
DATE OF HEARING:	14 February 2020
DATE OF SENTENCE:	14 February 2020
CASE MAY BE CITED AS:	DPP v JEFFERSON (A PSEUDONYM)
MEDIUM NEUTRAL CITATION:	[2020] VCC 1223

REASONS FOR SENTENCE
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Subject:  Breach of Supervision Order

Catchwords:  Breach of Supervision Order – rehabilitation – general deterrence -
community protection

Legislation Cited:     Serious Offenders Act 2018 (Vic)

Cases Cited:R v Verdins [2007] VSCA 102; Bugmy v The Queen (2013) 249 CLR
571

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Kornhauser	Department of Public Prosecutions
For the Accused	Ms J. Buxton	Valos Black & Associates

HIS HONOUR:

1Mr Jefferson,[1] you come before this court pleading guilty to one charge of breaching a supervision order.  Summary jurisdiction was applied for and granted.  The jurisdiction or maximum therefore for the offence is two years' imprisonment.

[1]      A pseudonym

2The circumstances of your offending are set out in the prosecution opening which I do not propose to recite in full but I direct it to be annexed to the reasons for the sentence. 

3In summary, however, you drove a car, not your own, at hours you were not permitted to, around the suburbs of Melbourne.

4Specifically, in May 2019 you were made subject to a supervision order.  That order was for a period of four years.  Specifically and relevantly for the purposes of this plea the supervision order provides at clause 5.2 and I quote  “Alvin Jefferson must be present at his residence between 12 am and 6 am unless otherwise directed by the Post Sentence Authority”.

5Your breach of condition 5.2 of the supervision order was on any view wilful and calculated.  Not only did you obtain a friend's car for the purposes of your driving, you were also I find disingenuous in your exchange with Mr Corbin[2] of Corrections Victoria at about 12.17 am.

[2]      A pseudonym

6You told him your breach of the order was as you had mistimed your drive and that it would take you 30 minutes to return home.  However the monitoring device then recorded you driving towards the Melbourne CBD and not your place of residence.  You arrived home ultimately at about 1.30 am in the morning.

7There are two aspects of that behaviour which are particularly concerning.  First, your driving took you to a carpark of a TAB.  Gambling behaviour is featured in your previous index offending and also prior breach behaviour.

8Second, you were contacted by staff of the PSA and told to return to your residence to avoid continued breaching of the supervision order conditions 5.2.  You did not do so immediately but continued on flouting the order.  Your counsel submitted that such behaviour was because you became flustered.

9I do not consider such to have solely been the case, given your responses to Mr Corbin, the path you took and the length of time you continued to drive after the first notification that you were past curfew.  Such behaviour is in clear breach of orders of this Court under the Serious Offenders Act 2018.

10Your counsel points to the fact that during this time you had contact with Corrections Officer Corbin, were obviously being monitored and of your own volition called to confirm your arrival at home.  She submitted that this behaviour stood in your favour.

11I accept that you have an intellectual disability, a turbulent family history and have had significant difficulties with drugs and alcohol, as revealed by your past offending and Ms Owens in her report of 23 July 2019.

12But that in no sense excuses your offending.  The principles in Bugmy and Verdins have application as put by your counsel and accepted by the Crown.

13You have admitted your criminal record which discloses particularly three prior breaches of supervision orders.  Those breaches are set out in the summary of prosecution opening, and I will not detail those, save to note that they did not involve a breach of condition 5.2, but rather related to using drugs and gambling.  An earlier breach in 2012 did involve a breach of a curfew condition, however.

14Turning now to the specific sentencing considerations.  Your counsel noted that rehabilitation must be considered as a factor given that you have lived in the community with a network of supports since your parole in early last year.  See particularly the report of Ms Ferrari, 5 May 2019 at paragraph 76 to 80, the reference of Pastor Felix Kester,[3] dated 20 May 2019, and certificates of attainment from TAFE and Kangan Institute as to relevant courses of study.  See also the defence submissions at p.4, paragraph 4.

[3]      A pseudonym

15In further support of that contention was cited the report of Ms Ferrari dated 14 September 2019 specifically at paragraph 106.

16However I do note that despite these factors being in play you have in the past breached your supervision order and they did not have stop this breach.  In any event I am of the view that your engagement with Mr Kester and the church groups will continue despite this recent breach and the sentence I ultimately impose.

17Given the most recent two previous breaches which occurred over the last two years, specific deterrence must necessarily be given weight in the sentence I will impose this day.  The nature of the breaches must be seen in light of your history in the expert material.  The consumption of alcohol and drugs can be seen to increase the risk of your reoffending in a serious manner.  See for example, Ms Owen, in her report, 26 January 2019 at p.27 and at paragraph 136.

18While alcohol and drugs are not involved here, the behaviour involved in this breach has echoes of previous offending behaviour such that I consider specific deterrence particularly important.

19General deterrence also plays a role, given the intent of the Serious Offenders Act as put in the Crown's submissions, and the nature of the post-sentence regime in Victoria.

20The message must be clear to you and others that such breaches cannot and will not be tolerated.  An appreciation of this is fundamental to the success of the legislation.

21Turning to community protection.  Given your history and the particular importance of the breach in terms of potentially leading to further offending, this must be weighed with the fact that there is limited rehabilitation which has occurred to date, and as such community protection is an important sentencing principle.

22I consider this to be highly important when the breach is looked at in light of your past history and particularly the index offending involve you cruising in a car before picking up your victim in the inner city.

23While there is no evidence it was your intention to proceed down this path on the night of this breach, the reason for the curfew condition is such behaviour is considered to at least heighten the risk of reoffending.    This also heightens the importance of community protection in the sentence I give.

24In considering this factor however, I have also taken into account your counsel's submissions as to your advancing years and the various health conditions that you suffer from such as heart and knee problems.

25You have pleaded guilty at the earliest opportunity and have made full admissions to both staff of Corrections and then police.  I think this is important in this type of matter.

26There has been acceptance of wrongdoing at an early stage and this goes to your credit.  Would you please stand Mr Jefferson.

27These matters must all be balanced and synthesised.  While there is a role for specific deterrence there must also be weight given to general deterrence and community protection looms large in my sentence.  I consider rehabilitation prospects as limited.

28On Charge 1 sir, you are convicted and sentenced to be imprisoned for an aggregate period of 90 days.  I direct that 28 days be reckoned as served.

29I direct it to be noted in the records of the court that were it not for your plea of guilty I would have sentenced you to an aggregate period of 136 days. 

30You may be seated, sir.  Counsel are there any matters that arise?

31COUNSEL:  Nothing further, Your Honour.

32HIS HONOUR:  As I made clear to you before I sentenced, I will revise the transcript of the ruling and provide it to you in due course.  We will adjourn until 12.15 for judgment, please.

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