Director of Public Prosecutions v NP

[2018] VCC 1970

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-02096

DIRECTOR OF PUBLIC PROSECUTIONS

v

NP

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JUDGE:	HER HONOUR JUDGE SEXTON
WHERE HELD:	Melbourne
DATE OF HEARING:	1 November 2018
DATE OF SENTENCE:	1 November 2018
CASE MAY BE CITED AS:	DPP v NP
MEDIUM NEUTRAL CITATION:	[2018] VCC 1970

REASONS FOR SENTENCE
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Subject:         Criminal Law – Supervision Order
Catchwords:  Breach of Supervision Order – Fail to comply with adjourned undertaking
Legislation Cited:
Cases Cited:
Sentence: TES: 6 weeks’ imprisonment with conviction and fine

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D Plummer	OPP
For the Accused	Ms K Phair	James Dowsley and Associates

HER HONOUR:

1NP you have pleaded guilty today, through your barrister, to two charges of breaching your supervision order, which have, as a result of summary jurisdiction being, a maximum penalty of two years' imprisonment.  You have also, through your barrister, pleaded guilty to a charge of breaching the undertaking to be of good behaviour for 12 months, and that has a level 10 fine as its maximum penalty, which is about $1,600.

2The circumstances have been outlined by both barristers in their written submissions and orally in court.  I will not go into those in detail, but the notable thing is that you were doing reasonably well until about the middle of this year, and in particular, up to September of this year, 2018.

3When I sentenced you in November 2017, the situation was, again, that you had started to make some steps forward but also some steps backwards as well.  And in a way, you are in the same boat here. 

4I do note, though, that looking at your situation overall, the first time you did breach your supervision order which I dealt with last November, the four charges, went back probably to 2016 in terms of the offences being committed.  But between then and September 2018, there was no other offending.

5Both breaches are similar, though, in terms of breaching your supervision order by taking drugs.  This time, I am not dealing with you for breaching the supervision order in respect of failing to provide a urine sample.

6I said to you last year, and I repeat again, that taking drugs is a high risk factor for you, but I also note that in this case and in the same situation from the previous charges of breaching your supervision order, the taking of drugs did not lead to any sexual or violent offences.

7Having said that, though, the supervision order is an order that you are on for the purpose of protecting the community and as a secondary purpose, to attempt to rehabilitate you so that you will not be a danger to the community in future.  These are sometimes slow processes and you have found that to be the case.

8I take into account the matters that I must in your favour.  First, that you have pleaded guilty to these charges. 

9Next, that you have cooperated with police in two significant ways.  First, you made admissions during your records of interview about these charges, about the drug-taking. In particular, for the taking of the endone, Charge 2, you reported that which was not known to the investigating officers or indeed, I think to the Corrections officers. So the fact that you volunteered that information, is a matter in your favour.

10The other way that you have cooperated with police is that you have given them information about other offending arising out of circumstances in Corella Place, and also, importantly, information about the death of somebody who you considered to be a friend of yours, which occurred in September 2018.

11I also take into account that you have pleaded guilty at the earliest possible time, given that we are dealing with these matters on 1 November 2018 and the offences only occurred in September 2018.  To that extent, there is a reflection of remorse in your pleas of guilty, and also some gaining of level of insight into the need for you to be upfront about dealing with your drug use.

12Through your barrister, you have said that you do want to re-engage in drug and alcohol counselling - this time, to deal more specifically with strategies to prevent you using drugs.  If I say that I have heard this before, I do not mean to downgrade what you are saying now, but I am just saying that you have to mean it and follow through with it.  But I do take into account that you are currently of that view.

13I also take into account that you have been held in the Melbourne Assessment Prison under conditions which involved you being in protective custody, and that that makes imprisonment more difficult for you than for somebody who is not in that situation.

14I also take into account your other personal circumstances, and these are outlined in the report provided to the court for the renewal of your supervision order.  So not strictly speaking provided to the court for these proceedings, but your barrister is aware of this report and I have told her that I have read it.

15By way of background, your supervision order expired yesterday. 
On 15 October, an interim supervision order was granted by another judge and the hearing of the renewal of the order - as in the making of another supervision order, not an interim one - is to be heard in February 2019.

16What I gained from that report, and also from the Forensicare report that was provided as we were sitting in court today, you are currently on your community treatment order and that has continued even while you have been in custody, and you have been seen by Forensicare.

17You appear to be compliant with your medication, and that is an important factor that I take into account.  And I also note that you appear to have established a good therapeutic relationship with the psychiatrist, Dr Darjean. I consider it to be highly relevant to your offending in September 2018 that, during that period when you were encountering stress, you were made to see Dr Darjean, because he was on leave.

18There were a number of factors coming into play in September 2018, and those factors appear from the chronology helpfully set out in the written submissions[1] by your barrister, and I take those into account.  There were a number of things operating on you to make you less able to deal with your situation, and that provides no excuse for your breaching your supervision order but it does provide some reason why you seem to have been doing well until September.

[1] Exhibit 1

19So given that the supervision order did expire yesterday, and given that the good behaviour bond, the undertaking to be of good behaviour, also expired yesterday, you came very close to completing that period of time until you breached both of those.  Your barrister has submitted that the events have led you to reconsider your situation, that you are motivated to re-engage in drug and alcohol counselling, and I encourage that.

20It was submitted that I should give you the opportunity to do so, taking into account the factors in your favour that I have outlined, by effectively sentencing you to the time that you have already served of 23 days so that you would be immediately released back to Corella Place, and able to begin that process that you hope to undertake of rehabilitation.

21On the other hand, the prosecutor has submitted that that is not a sufficient term of imprisonment because this is your second breach of your supervision order, because it is the same type of offending, in breaching your supervision order - that is, taking drugs, which is a high risk factor for you - and that that means that my sentence must seek to deter you from doing that again, even though it did not deter you in this last period of time.

22There is also the factor of what lawyers call "general deterrence", which means that my sentence of you for breaching your supervision order has to deter other offenders, serious sex offenders who are on supervision orders, from breaching such orders.

23And all of that is also to underline the fact that the reason for a supervision order is the protection of the community, as I said earlier.  As I said to you a year ago, if these orders are not complied with, then that is a very serious matter.

24Ultimately, I am satisfied, as has been conceded on your behalf, that imprisonment is the only alternative for Charges 1 and 2, and for breaching the undertaking the maximum penalty is a fine.  I cannot impose a term of imprisonment.

25Ultimately, I am not satisfied that 23 days is sufficient time in custody to reflect that this is the second time you have breached your supervision order by the same type of offending, and to reflect the other matters that were put forward by the prosecutor.

26However, I do accept that, or I do find that the offending this time is less serious than the offending that I sentenced you for in November 2017 when I gave you that opportunity with the good behaviour bond.  Less serious, because there are less charges, and also different offending was involved last time by virtue of failing to comply with the condition of providing a urine sample.  That is not before the court on this occasion.

27So as a result, the extra time that I am going to impose above the 23 days is relatively short.  I do propose to sentence you to serve some further time, but that sentence will reflect that you have experienced some positive thoughts towards drug rehabilitation, and that you are compliant with your medication, and will be back working with Dr Darjean when you return to Corella Place.

28Stand up, please.

29The order of the court is that on Charges 1 and 2, you are convicted and sentenced to an aggregate sentence of six weeks' imprisonment.

30On the charge of not complying with the adjourned undertaking, you are convicted and fined $200.

31That fine can be converted into time in prison and served concurrently with the sentence of six weeks.  That can be done at any time, but obviously, if you feel you are not going to be able to pay that fine, then you should do that whilst you are still completing your six weeks' imprisonment.

32I do declare that you have served 4 days in custody, including today and that those matters will be deducted from that six weeks administratively.

33Finally, if you had not pleaded guilty to Charges 1 and 2 of breaching the supervision order, then the sentence I would have imposed is a term in total of three months' imprisonment.

34Do you have any questions?

35OFFENDER:  No, Your Honour. 

36HER HONOUR:  All right, thank you.  Just take a seat and I just want to check if there are any other orders that I need to make.

37MR PLUMMER:  No, Your Honour. 

38HER HONOUR:  All right.  The sentencing reasons will be provided and I will try and revise them and get them to people revised on this occasion.  Nothing further from you, Ms Phair?

39MS PHAIR:  No, Your Honour.  Just the matter of the reflection of the court record from Your Honour's sentence from November last year, if that may be needed.

40HER HONOUR:  Yes.  I am going to - you mean in terms of it being corrected?

41MS PHAIR:  Yes, Your Honour. 

42HER HONOUR:  Yes.  I will be making steps to correct that record.

43MS PHAIR:  As the court pleases.

44HER HONOUR:  Thank you.  My ever-efficient associate has already worked on that while we have been in court, so that record has been corrected from November 2017 and the record is showing that it has been corrected on this day in this matter.

45MS PHAIR:  As the court pleases.

46HER HONOUR:  So that means that ultimately, if I am dealing with this matter again, which I hope not to be, the criminal record will also reflect that correctly as four charges and not nine.

47MS PHAIR:  As the court pleases.

48MR PLUMMER:  As Your Honour pleases.

49HER HONOUR:  But of course, I hope not to be dealing with you again,
NP.  So you have got a couple more weeks to serve and then you will be released back to Corella Place.  Yes, thank you.  NP may be removed.  Thank you.  I thank everyone for their assistance, and I will adjourn now until 9 am tomorrow.

50MR PLUMMER:  If Your Honour pleases.