Director of Public Prosecutions v Larson (a pseudonym)

[2022] VCC 1259

IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION Revised
(Not) Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

KYLE LARSON (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE PILLAY
WHERE HELD:	Melbourne
DATE OF HEARING:	4 August 2022
DATE OF SENTENCE:	4 August 2022
CASE MAY BE CITED AS:	DPP v Larson (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2022] VCC 1259

REASONS FOR SENTENCE

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Subject:CRIMINAL LAW SENTENCE

Catchwords:              Sentencing – Breach of supervision order – Late for curfew by 23 minutes – Use of drug of dependence – Methylamphetamine – Significant prospects of rehabilitation – Offender receiving strong support from family members – Offender engaged in psychiatric and support services – Offender engaged with Aboriginal justice workers and Aboriginal cultural activity – Deterrence considered in imposing period of imprisonment – Limited period of imprisonment imposed

Legislation Cited:      Sentencing Act 1991 (Vic)

Sentence:14 days’ imprisonment and a fine of $500

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms F. Holmes	Office of Public Prosecutions
For the Accused	Ms A. Sharpley	Stary Norton Halphen

HIS HONOUR:

1Kyle Larson[1], you have pleaded guilty to two charges of breaching your supervision order, which as a result of summary jurisdiction being granted, attracts a maximum penalty of two years' imprisonment or a fine of about $92,000.

[1]A pseudonym

2You have also pleaded guilty to one charge of using a drug of dependence, being methylamphetamine. This attracts a maximum penalty of one year imprisonment or a fine of $924.

Circumstances of offending

3The circumstances of the offending underpinning all three charges have been set out in the prosecution summary tendered on plea and accepted by you. I will not detail these matters in depth, but something brief must be said about the circumstances leading up to the period of time from 24 to 28 May 2022.

4

In 2021, you were approaching the end of your sentence in New South Wales.

Dr Sean Foster’s[2] report records the very significant progress that you had made while doing that time in prison. So much so, that you were to be released on a Community Corrections Order and were to reside with your mother. You have a very close relationship with your mother and the fact that she is appearing today on screen testifies to that fact.

[2]A pseudonym

5You had also recently settled your personal injuries claim arising from you being sexually assaulted at a young age. All this leads me to find that you had both a plan and a means to begin a positive new life. Your prospects for rehabilitation were good. However, much of that was derailed when you were extradited suddenly to Victoria and placed on an interim and then permanent supervision order. This led, in Dr Foster’s opinion, to a significant period of you feeling considerably down and depressed.

6After the final supervision order was made on 13 April 2022, you became subject to further orders of the Post Sentencing Authority and were allowed to live with your godmother. During this time, your mother visited you. However, almost immediately after she left, you experienced difficulties with your godmother. You were moved to a hotel as a result. This was by any accounts, temporary and unstable emergency accommodation.

7

There you met someone with a similar background to you, used methylamphetamine on one occasion as alleged, and was late by some

23 minutes for curfew.

8This use of drugs and breach of curfew is the first breach of the supervision order. It is, I find, a spontaneous act and in the context of a very difficult accommodation situation, where you had limited access to the support which you had relied upon when your mother was with you. In particular, you had fallen out with the only other person you knew in Victoria from your family, being your godmother. Of course, this does not excuse your breaches, but in context it explains your actions.

Sentencing Assessment

9I note that you pleaded guilty at the earliest stage and this is accepted by the Crown. While the breaches are at the lower end of offending, the supervision order serves the purpose of protecting the community and allowing you to rehabilitate. Drug and alcohol use has been a feature of your past offending.

10However, I take into account the following factors which go to your favour.

11First, your early plea of guilty evidences your remorse.

12Second, and very significantly, the thorough report of Dr Foster who commented on the positive steps you made at a Residential Treatment Centre to engage with psychological and counselling services in a positive way.

13

Third, the special report of 26 July 2022, which proposes to place you at

a secure accommodation location deemed suitable, where your family can visit in Werribee. The fact that your family members appear on screen today before the Court, indicates that you will take up the opportunity of having supportive family around you to assist with rehabilitation. Their input into this rehabilitation process is critical and I commend you for your family being involved so keenly in your rehabilitation.

14Fourth, your willingness to engage with local Aboriginal justice workers, given your past positive involvement with cultural activity such as “The Torch”, I consider to be a very significant pro-social factor and supports the notion that you will successfully rehabilitate.

15Fifth, your engagement with the ACSO intensive transition program.

16Sixth, your willingness as expressed to Dr Foster to engage with psychiatric treatment.

17I also take into account in a very broad sense, the fact that you have now been on remand for 65 days. I am concerned when I look at all of the circumstances, that this period of incarceration does not crush your rehabilitation prospects. I consider rehabilitation in your case to be a most critical factor.

18I consider that you have made very significant progress in both New South Wales and at the Residential Treatment Centre, and that you have a very supportive family who will assist you. I consider when looking at protection of the community, that rehabilitation is a strong and dominant factor.

19Your barrister suggested that a fine alone is the appropriate sentence. The prosecution suggests otherwise, that Courts have traditionally viewed breaches of supervision orders such as these, as warranting a term of imprisonment. This is partly to deter you from further breaches, but also it is to deter others from such breaches of the supervision regime in Victoria.

20On this occasion I propose to impose only a very limited period of imprisonment and no more, so as not to crush or further hinder your prospects for rehabilitation.

21Mr Larson, on Charges 1 and 3, I sentence you to 14 days' imprisonment. I reckon time served as being 65 days, and I make it plain that you should be released immediately today.

22On Charge 2, I sentence you to a fine in the sum of $500.

23For the purposes of s6AAA of the Sentencing Act 1991 (Vic), I indicate that but for the early plea, the sentence would have been 28 days and a fine of $500.

24Before I formerly pronounce those orders, I will ask counsel if there's anything further that needs to be done?

25MS HOLMES: Not from my end Your Honour, no.

26HIS HONOUR: No.

27MS HOLMES: Section 6AAA Your Honour, sorry.

28HIS HONOUR: Yes. Did I not say 28 days.

29MS HOLMES: I beg your pardon, Your Honour, I did have some noise in the background here so that may have obliterated it, so thank you. I just wanted to double-check, thank you.

30HIS HONOUR: Thank you. So, with that said, my last word to you sir is that having reviewed the materials, I do consider that you have made very significant strides in the last two and a half years, in what has been very trying circumstances. When I look at all the materials, and I see the family support that you have, I have great hopes that you will rehabilitate and become a successful member of the community, especially with your artwork. I was most impressed when I read about your artwork. So, I congratulate you and I hope you and your family have a good get together in the near future.

31OFFENDER: Thank you so much, Your Honour.

32HIS HONOUR: Thank you. You may all now terminate your links.

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