Director of Public Prosecutions v Lowe (a Pseudonym)
[2023] VCC 346
•7 March 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVID LOWE (A Pseudonym) |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 March 2023 | |
DATE OF SENTENCE: | 7 March 2023 | |
CASE MAY BE CITED AS: | DPP v Lowe (A Pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 346 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Charges of contravening conditions of a supervision order – previous convictions of contravention of a supervision order – early plea of guilty – diagnosis of schizoid personality disorder and schizotypal personality disorder – diagnosis of autism spectrum disorder – importance of specific deterrence and community protection – uncertain rehabilitation prospects
Legislation Cited:
Cases Cited: Worboyes v The Queen [2021] VSCA 169
Sentence: 12 months term of imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. Sheppard | Office of Public Prosecutions |
| For the Accused | Mr C. Grant | Victoria Legal Aid |
HIS HONOUR:
1Mr Lowe[1], what I propose to do is to sentence you to 12 months imprisonment and to credit as time served the 103 days of your pre-sentence detention which excludes today. I will give you these reasons.
[1]A Pseudonym.
2On 1 March 2023, you pleaded guilty to
(a) on proceeding numbered CR‑22‑02281, to amended charge to include all of the electronic items found in your possession on 24 November 2022. The remaining Charges 2 to 10 were struck out.
(b)
On proceeding numbered CR-22-00082, to amended
Charges 1, 3, 4 with Charge 2 being struck out.
3The circumstances are described in an exhibit which is called the Summary of Prosecution Opening. In November 2022, you were living at Horsham[2]. You notified Corrections Victoria that you had bought an Xbox One console. Corrections Victoria then notified the police. On 24 November, the police members searched your unit and found the items described in paragraph 16 and 17 of Exhibit A which is the Summary of Prosecution Opening.
[2]A Pseudonym.
4On 24 November 2022, you owned or possessed a Nokia mobile phone, three Xbox consoles, a Nintendo 2DS, a Raspberry Pi, a PC Nuno, two PS3 consoles and a Pendo tablet. Your ownership or possession of these items was contrary 5.7C of your supervision order. On the same day, you possessed images of children under 16. There were 277 images and seven videos on a portable hard drive 2TB. On your Nokia phone, there were found six files showing children under 16. On your Pendo tablet, there were 68 images of children under 16. Your possession of these images and videos is contrary to Condition 5.10 of your supervision order. It is not said these images and videos contained child abuse material or pornography.
5Condition 5.7 provides you - names you - must not:
(a) use, own or possess a computer, and
(b) access the internet either directly or indirectly, or
(c) use, own or possess any internet cable devices, except in accordance with the written directions of the Post-Sentence Authority.
6Condition 5.10 provides you must not collect and retain in your possession images of children under the age of 16 years except in accordance with the written directions of the Post‑Sentence Authority.
7
Apart from the proceedings in this court in 2005 and 2009, you have appeared in a criminal court on four occasions and have been convicted of
25 offences. Of those 25 offences, 15 were contraventions of conditions of the supervision order. You have been sentenced to imprisonment for those offences, the longest being 18 months.
8Appendix A to Exhibit A is a helpful summary of the circumstances of your court hearings between June 2005 and May 2022. The current offences occurred within six months of my sentences for the same offences. Your pleas of guilty were made at an early stage of the proceedings. Owing to the judgment in the case of Worboyes v The Queen[3], it is now well understood the enhanced benefit of pleas of guilty of offences in times of the crisis in the criminal justice system through the pandemic. Although lockdowns are likely to be a thing of the past, the other effects of the pandemic are still being felt. Your pleas of guilty, irrespective of whether they evidence deserve a significant discount on the sentences that would otherwise have been imposed in their absence. The offence of contravening a condition of a supervision order attracts a maximum penalty of five years imprisonment or a fine. There are jurisdictional limits where the charge is determined summarily as is the case here.
[3][2021] VSCA 169.
9You are now 45. You are the youngest of three children. Your father died when you were five or six. Unfortunately, your mother suffered from paranoid schizophrenia and was intermittently placed into psychiatric care. Very largely you were raised by your sister. You are single. You have no dependents. You were educated to Year 11. You then undertook and obtained an Advanced Certificate in Electronics. You left home when 17 or 18. You lived with a friend, your sister and your mother afterwards. Presently, you live at Horsham which is a supported accommodation facility. Your knowledge of electronics has not resulted in employment in that area. You have worked as a console operator at a service station and for six months as a taxi driver. Other than that, you have been largely unemployed.
10Erin Cunningham, a psychologist, at the request of your solicitors interviewed you on 12 and 16 May 2022. His report was tendered to me at the last proceeding. Doctor Cunningham adopted the previous diagnosis of schizoid personality disorder and schizotypal personality disorder. For these disorders, you are prescribed an antipsychotic medicine and antidepressant medicine. Doctor Cunningham's psychometric testing of you indicated autism spectrum disorder. Although discussing the interrelationship between a schizotypal personality disorder and autism, Dr Cunningham concluded broadly:
'Mr Lowe’s psychological condition contributes to his offence behaviour. He has an obsessive compulsion towards computer systems and programming, that drives his acquisition of hardware. Further, he presents with his own sense of morality that does not necessarily conform with that of society. This can be seen with his difficulty understanding the common sense logic behind many of his order conditions which leads to difficulty complying. He continues to deny sexual attraction to children'.
11Doctor Cunningham notes your psychological condition is not easily amenable to treatment and your views and the way you interact with the world will lead to ongoing problems with the conditions of your supervision order. Your psychological makeup would not lead many like-minded offenders to identify with you. In fact, few would do so. General deterrence is not a significant factor in sentencing you, although generally, it is for this type of offending. However, specific deterrence and protecting community from you are very important sentencing purposes. Specific deterrence is not moderated by virtue of your psychological state. You repeatedly contravene the conditions of your supervision order. It is necessary for me to impose a penalty which will deter you from reoffending in the same or a similar manner.
12Again, your psychological make-up and your previous history indicate rehabilitating you has been and remains a long process. I agree with your counsel's submission that the prospects of rehabilitation are uncertain.
13On proceeding No.CR-22-02281, on the remaining charge, I sentence you to six months imprisonment.
14On the proceeding numbered CR-22-00082, on Charge 1, I sentence you to six months imprisonment.
15On Charge 3, I sentence you to six months imprisonment.
16On Charge 4, I sentence you to six months imprisonment.
17The base sentence is the sentence on Charge 1, on proceeding numbered CR-22-02281.
18The sentence on Charge 1 of CR‑22‑00082, is to be served cumulatively upon the sentence of Charge 1 on CR-22-02281.
19The remaining sentences on CR-22-00082 are to be served concurrently with Charge 1 on CR-22-00082 and Charge 1 on CR-22-02281. Actually, that should be on the remaining sentences that is served concurrently on the charge.
20
The total effective sentence is 12 months imprisonment. I declare your
103 days of pre-sentence detention excluding today as time served under my sentences.
21Absent your guilty pleas, I would have sentenced you to 16 months imprisonment.
22I will make the forfeiture order in the terms sought.
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