Director of Public Prosecutions v JF
[2020] VCC 28
•31 January 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-00047
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JF |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 31 January 2020 | |
DATE OF SENTENCE: | 31 January 2020 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v JF | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 28 | |
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords: Breach of Supervision Order – consumption of alcohol – sentencing – specific deterrence – general deterrence
Legislation Cited: Serious Offenders Act 2018
Cases Cited: R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269
Sentence: Total effective sentence 48 days imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr R Kornhauser | Solicitor for the Office of Public Prosecutions |
| For the Offender | Ms T Skvortsova | Stary Norton Halphen |
HIS HONOUR:
1 JF you come before this Court pleading guilty to one charge of breaching a Supervision Order. Summary jurisdiction was applied for and granted. The jurisdictional maximum therefore for the offence is 2 years’ imprisonment.
2 The circumstances of your offending are set out in the prosecution opening, which I do not propose to recite in full, but I direct to be annexed to the Reasons for Sentence. In summary, however, you obtained materials to make an alcoholic beverage, a “homebrew” in your unit at Corella Place, in the period 12 to 14 December 2019. You then consumed that homebrew and became intoxicated. Such behaviour is in clear breach of orders of this Court under the Serious Offenders Act 2018 (Vic).
3 Specifically, on 21 February 2018, you were made subject to a Supervision Order made by Her Honour Judge Hannan. That order was for a period of four years. Specifically, and relevantly for the purpose of this plea, the Supervision Order provides:
“6.5[JF] must abstain from the consumption of alcohol except in accordance with the written directions of the Adult Parole Board.”
4 I note that the role of the Adult Parole Board has now been taken over by the Post-Sentence Authority.
5 Your breach of Condition 6.5 of the Supervision Order was, on any view, wilful and calculated. Not only did you obtain the materials necessary to produce the homebrew, you concealed its manufacture from those at Corella Place and then, having brewed the alcoholic beverage, you consumed it.
6 I accept that you have an intellectual disability, a turbulent family history and have had significant difficulties with alcohol consumption in the past, but that in no sense excuses your offending.
7 You have admitted your criminal record, which discloses two 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 6.5 but, rather, related to absconding behaviour and cutting off your electronic monitoring device. Your Counsel noted that the second breach saw you absconding but then returning of your own volition. She submitted this evidenced a degree of control – this is no mean feat given your intellectual disability and impulsivity issues.
8 Given these previous breaches, which occurred over the last two years, specific deterrence must necessarily be given weight in the sentence I will impose this day. However, this breach goes to a central and significant matter which has arisen in some of your past offending. That is, the role of alcohol. In this regard, the sentencing reasons of His Honour Judge Murphy on 9 March 2016 at paragraph 28 touches on this issue. The role of alcohol in you becoming disinhibited and impulsive in Ms Reeves’ report, which was attached to the Summary of Prosecution Opening, dated 7 December 2016 at paragraph 121, supports His Honour Judge Murphy’s comments.
9 The nature of the breaches must be seen in light of your history and the expert material. The consumption of alcohol can be seen to increase the risk of your re-offending in a serious manner. The 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.
10 You have pleaded guilty at the earliest opportunity, having made full admissions to both staff at Corella Place and then police. I think this is particularly important in this type of matter. There has been acceptance of wrongdoing at an early stage and this goes to your credit.
11 Your counsel submits, and the Crown concur, in saying that by reason of your mild intellectual disability this lessens your moral culpability and affects the weight to be given to specific and general deterrence. Essentially, both parties say that the principles in R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269 have a role to play.
12 However, given your history and the particular importance of the breach in terms of 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 consideration.
13 Would you stand please. Your Counsel noted that your offending occurred at a particularly trying time in that you had made allegations that you were being sexually victimised, and further, your foster mother (to whom you were close) had just been diagnosed with cancer and as such you could not visit her. She submitted these maters heightened your stress and anxiety and led you to the making and consumption of the homebrew.
14 These matters must all be balanced. I consider both general and specific deterrence to play a role. However the issue of specific deterrence is lessened by the extant Supervision Order.
15 On Charge 1, you are convicted and sentenced to be imprisoned for an aggregate period of 48 days. I direct that 48 days be reckoned as served. I direct it 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 of 72 days.
16 JF, having heard your Counsel speak of the circumstances of your offending I would have you return to Corella and take up the activities and counselling there such that there are no further breaches.
17 I make the Forfeiture Orders sought in respect of:
(a) the drink bottle containing alcohol;
(b) empty orange juice bottle; and
(c) packets of yeast.
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