Director of Public Prosecutions v Naredo
[2019] VCC 1798
•6 November 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT LATROBE VALLEY
CRIMINAL DIVISION
CR 18-02481
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SANDRA CAROLINE NAREDO |
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JUDGE: | HIS HONOUR JUDGE SMALLWOOD | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | 6 November 2019 | |
DATE OF SENTENCE: | 6 November 2019 | |
CASE MAY BE CITED AS: | DPP v Naredo | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1798 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr R. Hammill | Office of Public Prosecutions |
| For the Accused | Ms C. Randazzo SC | Rainer Martini & Associates |
HIS HONOUR:
1 Sandra Caroline Naredo, you have pleaded guilty to one uplifted summary matter of making a false report to police that carries a maximum penalty of 12 months' imprisonment or a monetary penalty. It is a situation where it can also carry a Community Corrections Order, and that is the course I propose to undertake here.
2 The facts of the matter are that you were 22 years of age at the time of the offending and 26 years of age now. You pleaded guilty to a matter that had been resolved, and I give you the rather problematic benefit of remorse. You obviously must get the utilitarian benefit of that plea of guilty, as I think this trial could have become very upsetting for more than you, I suspect.
3 In any event, you have no prior convictions. You have no matters pending. And you are still a youthful offender.
4 I am not going to go into the hows and whys of it, but there has been a delay of some three years between discovery of the offending and the ultimate resolution of it, and clearly you must get the benefit of that delay.
5 Justice Vincent has pointed out on a number of occasions, when His Honour was on the Bench, that delay often assists an accused in that they can show rehabilitation but it is a matter that is clearly taken into account on your behalf.
6 The circumstances of the offending can be resolved in short compass. I have annexed the Crown opening that was for the trial, and it should be read in conjunction with the much abbreviated version given by Mr Hammill during the course of the plea. A number of the matters have been resolved between the parties, and obviously I am not relying on that. It is simply there for the court record.
7 The situation is that both you and your husband at the time, a Mr Lonegan Milham, have intellectual disabilities. Yours would appear to have been from childhood. His as a result of falling off a racehorse. You married in 2014 and had a child in 2015 and that child also I am told from the Bar table, has a significant difficulty and has been diagnosed as being on the spectrum in terms of ADHD. It is not suggested that gives rise to special circumstances here, but it is clearly a matter I take into account in this sentencing process.
8 The circumstances from all the background would appear that the marriage was particularly unhappy at this particular point in time. And in around 11 May 2016, you showed police images that you or your mother had taken of matters that were on the phone of your husband. The inference clearly being that he had access to child pornography and that you had photographed it.
9 That matter was then taken further and the informant in the matter also became involved and in fact made an application for an intervention order based on that material.
10 On 12 May a further complaint was made and SOCIT were informed again. An investigation occurred believing that the victim, that is Mr Milham, had accessed the images and that you had simply provided copies of them. You told police on the second occasion, that is 12 May, that he had left his phone unattended, gone to the bathroom, and when he was in the bathroom you had looked on his phone, child pornography had popped up and you had then taken photographs of the images using your iPad before he returned from the toilet.
11 The matter proceeded from there. Police were able to determine that the accessing of, it would appear, the pornography on his phone occurred only seconds before you took the photographs. This plea it must be understood is proceeding not on the basis that you accessed that pornography and downloaded it onto his phone but that it is the situation that you knew that the victim had in fact not done it. I do not need to take it any further than that. I am not sentencing you on the basis that you actually downloaded the porn, I just make that very clear in these circumstances.
12 In any event when these anomalies became clear police interviewed you and you essentially repeated the assertions that you had made earlier. You were then committed for trial back at the end of 2018 and it has finally gone for hearing at this point in time.
13 The maximum penalty for the summary matter of false report is as I said 12 months which is in a very, very different category to what would have occurred had you been convicted by a jury of pervert the course of justice and/or downloading pornography.
14 The offending has to be regarded as serious. I take very much into account you have no priors and nothing pending but general deterrence has to play a very significant part in this as do specific deterrence to some extent, denunciation, and appropriate punishment.
15 Insofar as false report is concerned it is a serious example of it as I think I have indicated. This report is not done to avoid detection or to avoid punishment for yourself, it is done for the purpose of causing difficulties within the police system at least for the victim. In fact an intervention order was taken out on the basis of it. So that is the nature of the false report, they are the circumstances of it.
16 There is no victim impact statement before me but the learned prosecutor has spoken to the father of the victim who is as I have indicated before, intellectually disabled, and he has given an indication to the Crown of the difficulties that this has caused to the victim and to his family. Obviously had the matter not been detected as being false, there could have been very dramatic consequences as there could have been for you had the matter not resolved.
17 I take those factors into account. As I indicated I am not getting into a family law scenario here of trying to work out who did what to who over an extended period of time. But to do this with the intention of getting somebody into trouble with the police and charged and the potentiality that that can give rise to has to be treated seriously by the courts.
18 Tendered on your behalf were a number of documents. I think I can go through this very, very simply. You yourself have been diagnosed has having an intellectual disability back in 2002. It was described as mild to moderate. As I indicated to your counsel those words are particularly misleading in this jurisdiction. You have an overall IQ it has been found in more recent times of 68 which is within the bottom 2 per cent of the population. That is clearly a significant disability and in those circumstances I take into account the principles outlined in Muldrock. It will be the situation that I think I could safely infer that you yourself whilst conscious of the crime that you were committing may not have fully appreciated the consequences that could have occurred in the event of your complaint not having been discovered to be false.
19 As it stands at the moment, you are still married to the gentleman involved. I am told divorce application has been made. There are other proceedings which will be undoubtedly taken in the future, they are of no concern to me.
20 Accordingly I have to sentence you to simply for what you are before this court, that is a youthful offender with no priors, nothing subsequent and a very diminished intellectual capacity to understand as well as having a daughter with her own disabilities.
21 I am told from the Bar table and accept that you are now on a disability pension with Centrelink and are receiving the benefits of that. You are awaiting the confirmation or otherwise by the NDIS of your status and there seems to be no reason why I should be involved in putting other processes into place. Counsel has indicated you are able to carry out work hours and the Crown do not demur from that position.
22 It is a situation where because of your personal circumstances I am prepared to do it without conviction but the number of work hours that are imposed must reflect just what a serious example this is of what admittedly is a summary offence.
23 The prospects of your rehabilitation should be good, the risk of you reoffending in this way I suspect would be zero.
24 Taking all those matters into account, on the charge you are if you agree to be placed on a Community Corrections order. It will be without conviction and it will be over a period of three years which is a lengthy period of time.
25 During the course of that three years as I say because of the seriousness of the actual act itself you will be required to perform 200 hours of community service work. What you understand is that once that work has been completed the COO will cease. Do I have to do a 6AAA on that? it is a bit silly where it has been - - -
MR HAMMILL: It is a little artificial.
HIS HONOUR: The way it has been resolved I think is just
totally - - -MS RANDAZZO: That charge wasn't there in the first place - - -
HIS HONOUR: No that is what I am saying.
MS RANDAZZO: - - - so that is why I don't think Your Honour needs to do it.
HIS HONOUR: Which I couldn't have gone ahead with it if she had pleaded not guilty.
MS RANDAZZO: That's right.
HIS HONOUR: Would have been directing an acquittal.
MS RANDAZZO: Exactly.
HIS HONOUR: So I'm not going to do a 6AAA.
MR HAMMILL: Yes Your Honour.
HIS HONOUR: Is Morwell the best Corrections office?
MS RANDAZZO: Morwell is the closest one. May I approach the dock?
HIS HONOUR: Yes of course, I'd ask you to. I can do that for three years can't I on a summary matter?
MR HAMMILL: After three years, yes that's my understanding.
HIS HONOUR: I'm not limited like a magistrate is. It's not being dealt with, it's being dealt with by me not a magistrate.
MR HAMMILL: No, Your Honour is not sitting as a magistrate.
HIS HONOUR: I'm not sitting as a justice, no that's right. Nothing else, no other orders I need to make?
MR HAMMILL: No Your Honour.
MS RANDAZZO: No Your Honour.
HIS HONOUR: No, thanks for that.
MR HAMMILL: Your Honour, we may need an order with respect to disposal but can I - - -
HIS HONOUR: You will. I'm assuming, within reason. If there's any disposal orders they can be sent to me in chambers as long as Ms Randazzo - - -
MR HAMMILL: Is copied in.
HIS HONOUR: - - - is sent a copy beforehand if she's got any objection.
MS RANDAZZO: Yes, I guess there'd be no objection.
HIS HONOUR: It's just going to be the - - -
MS RANDAZZO: The iPad.
MR HAMMILL: I don't know but just if there is. I don't have the original police brief.
HIS HONOUR: They would have been kept for the trial.
MR HAMMILL: Yes.
HIS HONOUR: So you're going to need a disposal order for them.
MS RANDAZZO: Yes. I imagine there will be a destruction of the iPad, the photos.
HIS HONOUR: Yes.
MS RANDAZZO: The iPad.
HIS HONOUR: That's about it.
MS RANDAZZO: That's about it really. I don't know what happened to the phone, I'm not sure.
HIS HONOUR: He can get his phone back, it's his phone.
MS RANDAZZO: It's his phone.
HIS HONOUR: There's no dispute about that. Yes all right. Okey doke?
MR HAMMILL: Yes Your Honour.
HIS HONOUR: I'm not going to give her a speech about CCOs, you'll explain to her what will happen if she doesn't do the work.
MS RANDAZZO: Yes it's already been explained and I'll go through it again.
HIS HONOUR: All right, and explain to her that she's been a very lucky girl today and if she came back for breaching this, I'd do something very different.
MS RANDAZZO: That's been made clear. And they'll be going straight over to the Corrections office.
HIS HONOUR: Good. 10 o'clock.
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