Director of Public Prosecutions v Lecornu
[2019] VCC 548
•8 April 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-00135
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DEAN LECORNU |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 April 2019 | |
DATE OF SENTENCE: | 8 April 2019 | |
CASE MAY BE CITED AS: | DPP v Lecornu | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 548 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords:
Legislation Cited: Serious Sex Offenders (Detention and Supervision) Act 2009; Sex Offenders Registration Act 2004; Serious Offenders Act 2018; Serious Sex Offenders Monitoring Act 2005; Sentencing Act 1991; Criminal Procedure Act 2009.
Cases Cited:R v Renzella [1999] VSCA 85; Price v DPP (No. 2) [2019] VSCA 44; Acting Secretary to the Dept of Justice v McKane [2012] VSC 459; Lecornu v R [2012] VSCA 137; Loader v R [2011] VSCA 292.
Sentence: Five months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. McKenry | Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms E. Ramsay | Emma Turnbull Lawyers |
HER HONOUR:
1 Dean Lecornu, you are before me on one charge of failing to comply with a supervision order contrary to s160 of the Serious Sex Offenders (Detention and Supervision) Act 2009 (“SSODSA”). The maximum penalty applicable to this offence is five years’ imprisonment.
2 This court may grant summary hearing of an offence under s160 of the SSOSDA (s28 of the Criminal Procedure Act 2009) and in such circumstances the procedure applicable would be as in the Magistrates’ Court referrable to hearing of summary offences. However, the prosecution opposed summary jurisdiction for a number of reasons, specifically, your extensive history of sexual offending, that this offence before me constitutes your fourth chronological breach of your supervision order. You have also already been sentenced for your fifth breach of a supervision order and for previous sentences involving possession of child abuse material while under supervision at Corella Place. These are all concerning aspects of your offending and I am sure you understand my concern. Sentencing for breaching your offending has not been a deterrent in the past. While the prosecution conceded the quantity of child abuse material possessed by you was small, in the context of your previous offending it was a serious example of a breach, and I agree.
3 The offence of breaching a supervision order carries a maximum penalty, as I said, of five years’ imprisonment under s160 of the SSOSDA, and as I have said two years if it is under s113 of the Sentencing Act 1991.
4 Your offending arises out of events which took place on 6 September 2017, in that you did, without reasonable excuse, fail to comply with a core condition of the supervision order, namely condition 4(1), by committing a relevant offence in Victoria, namely possession of child abuse material. I turn to the background of your offending.
5 You are 40 years of age at sentence and a registered sex offender under the Sex Offenders Registration Act 2004 (“SORA”). At the time of this offending you were also subject to a supervision order made under the SSODSA.
6 You have been directly indicted for breach of a supervision order by committing relevant offending.
7 The prosecution opening (Exhibit A) set out brief details of your index offending and also refers to your criminal record, also before me and admitted by you.
8 Turning to your index offending, on 29 January 1999, you were convicted and sentenced in the County Court by his Honour Judge Nixon on five charges of assault with intent to rape, two charges of burglary, one of theft and a number of summary offences of loitering near schools, et cetera. His Honour imposed a total effective sentence of eight years’ imprisonment with a non-parole period of five years.
9 By way of further chronology in this matter, on 23 May 2017, Judge Sexton of this court made an extended supervision order (“ESO”) under the then Serious Sex Offenders Monitoring Act 2005 (“the 2005 Act”) in respect of you for a period of ten years, which commenced on 26 May 2007.
10 On 14 July 2010, that ESO was reviewed and confirmed by me under the 2005 Act.
11 On 18 May 2012, the extended supervision order was reviewed by her Honour Judge Harbison, who then made a new supervision order under the SSODSA to commence on that date and expire on 28 August 2018.
12 The supervision order made on 18 May 2012 was reviewed and varied by me on 18 December 2015. That order was to expire on 28 August 2018.
13 Subsequently, on 20 August 2018, I made an interim supervision order on the SSODSA, which commenced on 28 August 2018 and is currently subject to the supervision order made by me on 17 December 2018, under the Serious Offenders Act 2018 (“the 2018 Act”).
14 At the time of your offending, you were subject to the following condition under that supervision order.
“Pursuant to s16 of the Act, the core conditions of this order are that during the period of the order Dean Alan Lecornu must –
4.1 not commit a relevant offence in Victoria or elsewhere.”
15 You have appeared on three previous occasions for breaching a supervision order prior to your offending before me on 6 September 2017.
16 On 5 July 2011, you were sentenced by me for two charges of knowingly possessing child pornography and two charges of breaching a supervision order. You were sentenced to 20 months’ imprisonment with a non-parole period of 13 months. Your appeal against that sentence was dismissed.
17 On 22 July 2015, you were sentenced by me on two charges of breaching a supervision order, those breaches involving storage of non-pornographic images of children on a mobile phone, using the internet without prior written consent of the Adult Parole Board, and including accessing a sexual fiction website on a second mobile phone. I sentenced you to 4 months and 14 days' imprisonment for those offences.
18 On 12 February 2016 you pleaded guilty to one charge of knowingly possessing child pornography and were sentenced at the Magistrates’ Court to 18 months’ imprisonment. You appealed that matter to the County Court and were resentenced on 8 March 2016 by her Honour Judge Wilmoth to 12 months’ imprisonment.
19 On 12 May 2016, you were sentenced by me for breach of a supervision order by relevant offending and sentenced to seven months’ imprisonment, three months to be served cumulatively on your sentence for the substantive offence.
20 Your offending on 6 September 2017, which is currently before me, occurred approximately four months after your release from that sentence.
21 I discussed with both counsel incidents between release from that sentence to your offending on 6 September 2017 (referring to the incident reports referred to by Ms Raymond) in addition to reports subsequent in December 2017. In brief, your behaviour following release in May 2017 had a number of concerning aspects to it by way of background.
22 You have also been before me, referable to your prospects of rehabilitation for a subsequent breach on 13 February 2018. You were then sentenced by me to an aggregate three months’ imprisonment on four charges of breaching a supervision order and convicted and fined in relation to a fifth charge of breaching a supervision order.
23 That offending spanned a period of time both before and concurrent with the current offending and involved you breaching a curfew condition (a rolled-up charge) on 16 August 2017, possessing two DVDs containing images of children, on 16 August and 6 September 2017, possessing non-pornographic images of children, on 6 September 2017, using an internet cable on a mobile phone without prior consent of the Adult Parole Board and on 6 September, failing to comply with lawful instructions to provide the PIN number or password to access that mobile phone. Your offending before me also arose from the search on 6 September 2017.
24 Your continued breach of the supervision order involving similar type of offending in broadest terms is very concerning.
25 I turn to the offending before me.
26 On 6 September 2017, when you were living at Corella Place, pursuant to the supervision order, at 8.45pm there was a search of your unit, and the mobile phone that you had was seized. A subsequent audit of the phone on 27 November 2018 located child abuse material on it as referred to in the prosecution opening (paragraph 18). On 11 December 2017, you were arrested and interviewed and admitted to possessing a mobile phone, but denied ownership of it. You were charged with possession of child abuse material.
27 That matter went before the Magistrates’ Court and on 14 November, and after a number of mentions, the matter resolved and you pleaded guilty to one charge of possession of child abuse material. Summary jurisdiction was applied for and granted unopposed, and you were sentenced to 12 months’ imprisonment which was appealed to the County Court and His Honour, Judge Chettle, resentenced you to 9 months’ imprisonment.
28 That offending involving possession of child-abuse material, is a “relevant offence” under the SSODSA and by committing that offence you were in breach of condition 4.1 of the supervision order which is now before me for sentence on that charge. You indicated your intention to plead guilty to this breach at the first mention on 1 February 2019, i.e. I accept at an early opportunity.
29 You have pleaded guilty to this offence and you are entitled to have that taken into account in mitigation of your sentence. Your early plea of guilty is also relevant in mitigation of sentence. By your plea of guilty you have saved the court the time and cost of a trial and witnesses the need to give evidence upon your trial.
30 Whilst I accept your plea of guilty indicates some remorse by you, I am concerned about the extent of your remorse given your repeated breach of the supervision order and the similarity of your breaching behaviour.
31 The prosecution do no submit that the mandatory minimum term of 12 months’ imprisonment under s10AB of the Sentencing Act 1991 applies to this current offence.
32 Despite the change of legislation and the now Serious Offenders Act 2018 (“the 2018 Act”), your offending is prosecuted under the SSOSDA.
33 By way of pre-sentence detention you have served 66 days in custody in relation to this current offence under s18(4) of the Sentencing Act 1991. That I was told commenced at the date of your direct indictment on 1 February 2019 to the plea on 8 April 2019, which is today's date.
34 You have, in total, been in custody most recently, however, for approximately 16 months for offending the subject of the search of your premises on 6 September 2017. The delay in this hearing was in part due to awaiting e-crime material and I am well aware of that.
35 That 16 months was relied upon by Ms Ramsay as consistent with R v Renzella[1] time.
[1][1999] VSCA 85
36 In my opinion there is merit in her submissions regarding totality – conceded as I understood by Mr McKenry for the prosecution, albeit Mr McKenry disagreed with the length of imprisonment.
37 Ms Ramsay, who appeared on your behalf, prepared a written outline of submissions and addressed them during your plea hearing.
38 In mitigation of your sentence she relied principally on totality.
39 In considering this, I am aware your offending was part of a group of offences relating to activity associated with the search on 6 September 2017.
40 Ms Ramsay also referred to the care needed to avoid double punishment, citing Price v DPP (No. 2)[2] and I am, of course, conscious of that.
[2][2019] VSCA 44 [71]
41
While the prosecution submitted your offending fell in the mid to high range of gravity for breach of a supervision order, Ms Ramsay submitted your offending was mid-range, and only because this was the third time you have been before the court for similar offending. That analysis in my opinion was simplistic, however, and did not seem to me to take into account the concern of
Ms Raymond regarding your risk and likely type of further sexual offending. Ultimately Ms Ramsay did not consider that categorisation of your offending was particularly relevant.
42 Ms Ramsay submitted that the table of sentences annexed to the prosecution opening had little relevance and I agree, given the particular circumstances of your offending, and dare I say your repeat appearances before the court for breaching the order.
43 Turning to sentence, the prosecution submitted the safety and protection of the community was an important sentencing consideration, given your criminal history, minimal prospects of rehabilitation and your high risk of sexual re-offending in the future, referring to the report of Ms Bea Raymond, 13 April 2018 (paragraph 40). I agree.
44 I discussed with counsel Ms Raymond’s conclusion regarding your risk and the most likely type of future offending, should your offending occur, that is possession of child pornography.
45 It was submitted specific deterrence was also relevant when sentencing you, given your prior offences for breaching the supervision order and also a subsequent breach and I agree, the latter relevant to rehabilitation prospects.
46 The prosecution also referred to general deterrence and the decision of Acting Secretary to the Dept of Justice v McKane[3] in which her Honour Justice Williams stated regarding this post-sentence supervision regime:
“… It is essential to the effectiveness of the statutory scheme that offenders subject to supervision orders be aware of the significance of their obligations under the conditions of those orders and the seriousness with which breaches will be viewed by the courts.”
[3][2012] VSC 459
47 That is not the only statement that has been made by the courts. Several similar comments have been made by this court.
48 The prosecution submitted, and as I have said I agree, the principle of totality is relevant when sentencing you as you have already been sentenced for the substantive offences of possession of the material. However, the court is entitled to impose additional punishment for this offence to reflect the distinct and separate criminality involved and such has been referred to in Lecornu v R[4] and Loader v R[5]. I agree.
[4][2012] VSCA 137, [68-71]
[5][2011] VSCA 292, [51-54]
49 Despite conceding the amount of material involved in this substantive offence was relatively small, the prosecution submitted your possession of the material occurred while under post-sentence supervision at Corella Place in deliberate contravention of the supervision order, and that your current offending fell into the moderate to high range of gravity for breach of a supervision order. Your offending is concerning in my opinion in light of your previous breach offending and Ms Raymond’s risk assessment of likely sexual offending behaviour.
50 Turning to those cases that were provided by the prosecution referable to similar types of offending. It is difficult to compare cases factually, as facts vary enormously case to case, as do all matters in mitigation of sentence. These are very distinct differences between offending referred to in those cases and yours. Ultimately, I must determine the appropriate sentence based on all the circumstances in your case, including matters in mitigation of sentence and the gravity of your offending.
51 Regarding your rehabilitation prospects, I have at best guarded optimism, previously I had “guarded optimism”. I have real concerns about your prospects despite your preparedness to discuss your fantasies involving children with your case SCM and with Mr Foster. I must, however, when sentencing you seek to maximise your chances of rehabilitation as they may be and I always hope that you can be rehabilitated.
52 As well as matters personal to you, including your prospects of rehabilitation, I must also take into account matters such as general deterrence, to which I have previously referred, being of particular importance in a case such as this, involving breach of a supervision order.
53 There is also the need for specific deterrence, given the breaches in the past and, of course, your subsequent breach in again the matter relevant to your rehabilitation.
54 I must also consider the question of protection of members of the community from you and bear in mind the likelihood of your re-offending. This does cause me some concern given the repeated nature of your offending involving pornographic material. I also refer to your assessed level of risk as stated by Ms Raymond.
55 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
56 I have considered counsel's submissions over the luncheon adjournment regarding the length of your time of imprisonment. In that regard I am mindful of all the time recently spent in custody, 16 months, and the 66 days to be declared as pre-sentence detention. I am however, concerned about the number of breaches of the supervision order to date and the similar offending rather than to those breaches.
57 You have already been sentenced for the substantive offence, however, your breaches of the supervision order cause me concern, in particular in light of your likely sexual offending should it arise. Upon further consideration, having had the benefit of counsel's submissions and chronology relevant to your recent incarceration, I consider the appropriate sentence for the breach should be five months. Whilst this may be regarded by some as lenient, I must and do take into account the principle of totality.
58 On Charge 1, you are convicted and sentenced to five months’ imprisonment.
59 Pursuant to s18(4) of the Sentencing Act 1991, I declare you have spent 66 days in custody by way of pre-sentence detention up to and including yesterday (7 April 2019) and direct that that be entered into the records of the court.
60 Pursuant to s6AAA of the Sentencing Act, had you pleaded not guilty to this charge and been found guilty of it, I would have sentenced you to a term of imprisonment of 12 months and I would not have set a non-parole period.
61 The prosecution made application for a disposal order. That was consented to by counsel on your behalf, and I make the order in the terms sought.
62 No other orders were sought.
63 COUNSEL: As Your Honour pleases.
64 HER HONOUR: Thank you both. Mr Lecornu, do you understand that? Five months less 66 days. You do the maths.
65 OFFENDER: I do. Thank you, Your Honour.
66 HER HONOUR: Three and something - but do not quote me. All right, you will have to go. Thanks, again Ms Ramsay, and thanks to you, Mr McKenry.
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