Director of Public Prosecutions v Phillips

[2019] VCC 1011

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-01287

DIRECTOR OF PUBLIC PROSECUTIONS

v

JARROD PHILLIPS

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JUDGE:	HER HONOUR JUDGE HANNAN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	3 July 2019
CASE MAY BE CITED AS:	DPP v PHILLIPS
MEDIUM NEUTRAL CITATION:	[2019] VCC 1011

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Ms A. Peek
For the Accused	Ms S. Joosten

HER HONOUR:

1Jarrod Phillips, you come before this court pleading guilty to three charges of breaching a supervision order.  Two charges relate to an interim order and one to a final order made at this court only last week.  Summary jurisdiction was applied for and granted.  The jurisdictional maximum for each offence is two years' imprisonment.

2The circumstances of your offending are set out in the prosecution opening, which I do not propose to recite in full, but I direct to be annexed to the reasons for sentence.  In summary, however, you possessed an internet capable phone,  you accessed and stored pornography and you accessed the internet, in clear breach of orders of this court under the Serious Offenders Act 2018.

3Your breach of the orders was in my view wilful and, at least to some extent, calculated.  It is concerning that within days of a hearing at this court, you were found with an internet capable phone.  I accept that you have difficulties with impulsivity and heard extensive material in relation to that, in the context of the prior hearing.  But that in no sense, excuses your offending. 

4You were at the time of the commission of these offences, in the relatively rare and often sought position of having been placed out of custody, at a purpose focused rehabilitation facility.  That opportunity, of itself, was insufficient to deter you. 

5You have admitted your criminal record which discloses two prior breaches of supervision orders.  Specific deterrence must necessarily be given weight in the sentence I will impose this day.  The nature of the breaches must be seen in light of your history and your prior use of social media in offending.  It simply increases risk and the message must be clear to you and to others that this cannot and will not be tolerated.  An appreciation of this is fundamental to the success of the legislation. 

6You have pleaded guilty at the earliest opportunity, having made admissions upon arrest.  I think this is particularly important in this type of matter.  There has been an acceptance of wrongdoing at an early stage, and its consequences, with a view to resuming rehabilitation. 

7I have been advised that your place at the rehabilitation facility will remain open at least over the coming months and further, that you are keen to return to your position there.

8It is in the community's interest that your rehabilitation is pursued.  You are still a young man and the community must necessarily maintain a real interest in this regard.  Your counsel submits, and the Crown concur in saying, that a modest term of imprisonment such as will allow you to retain your place at the rehabilitation facility is within the range.  Would you stand please.

9On Charges 1 to 3, you are convicted and sentenced to be imprisoned for an aggregate period of five months. 

10I direct that six days be reckoned as served.  I direct it be noted in the records of the court that were it not for your plea of guilty, I would have sentenced you to an aggregate of nine months. 

11I make the disposal order in relation to the phone in the terms of the draft.  I do not propose to allow any further access to that device.  Is there anything further I need to do?

12MS PEEK:  No, Your Honour.

13HER HONOUR:  Mr Phillips let me put this in really plain language for you.  Every time you breach, you will go to gaol.  Do you understand?

14OFFENDER:  Yes, Your Honour.

15HER HONOUR:  If there was any suggestion that you had been engaged in anything to do with children, you would be looking at years now.  Do you understand that?

16OFFENDER:  Yes, Your Honour.

17HER HONOUR:  You are in an incredibly privileged position.  I see so many people who see themselves stuck at Corella or Emu.  You have been given a real opportunity.  You should assume that this is your last chance.  Go back and breach the order again and your chances of staying there, I would imagine would be zero.  Do you understand?

18OFFENDER:  Yes, Your Honour.

19HER HONOUR:  All right.  Thank you everybody and thank you for facilitating that being heard quickly.  Can I just say globally that I truly believe having done this for a long time, that breaches have to be dealt with really quickly and, I will always find a time, even if they are contested, to deal with them within weeks.  Very well, thank you very much.

20MS PEEK:  Thank you, Your Honour.

‑ ‑ ‑

IN THE COUNTY COURT  CR-19-01287 VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

THE DIRECTOR OF PUBLIC PROSECUTIONS

-v-

JARROD PHILLIPS

Date of document:  3 July 2019          

Filed on behalf of:  The Director of Public Prosecutions

Prepared by:  

John Cain

Solicitor for Public Prosecutions  Solicitor’s code:  7539

565 Lonsdale Street  Tel: [phone]

MELBOURNE   VIC   3000  Ref: 1903550

SUMMARY OF PROSECUTION OPENING

Background

1.Mr Phillips is 29 years old having been born on 6 June 1990.

Index Sexual Offending

2.   On 31 March 2011 in the Melbourne County Court Mr Phillips was convicted of sexual penetration of a child under 16 and indecent act with a child under 16.  The circumstances of the offending are set out in the reasons for sentence of Judge Hogan dated 31 March 2011.

3.   Beyond this offending, Mr Phillips was convicted on 23 October 2009 in the Melbourne County Court of indecent act with a child under 16 and on 11 April 2017 in the Melbourne County Court he was convicted of grooming a child under 16 for a sexual offence and procuring a minor for making or producing child pornography.

The Supervision Order

4.On 29 March 2012 His Honour Judge Parsons made a supervision order under the Serious Sex Offenders (Detention and Supervision) Act 2009 to commence on 14 April 2012 for a period of 6 years.

5.Your Honour on 8 April 2019 made an interim supervision order under the Serious Offenders Act 2018 (‘the Act’).

6.Of relevance to this hearing is the following conditions of Mr Phillips interim supervision order:

5.15 JARROD PHILLIPS must not

5.15.1 access the internet

5.15.2 use, own or possess any internet-capable devices

5.15.3 use, own or possess a mobile telephone

7.   On 24 June 2019 Your Honour made a full supervision order for a period of 5 years ( ‘the supervision order’) . Also of relevance to this hearing is the following condition of the supervision order:

7.14 JARROD PHILLIPS must not:

7.14.1 access the internet; or

7.14.2 use, own or possess any internet-capable devices;

Except in accordance with the written directions of the Post Sentence Authority.

8.   Mr Phillips was inducted into the supervision order and was aware of the conditions of the order.

Previous Breaches of the Supervision Order

9.   This is Mr Phillips first breach of the supervision order, but he has breached his previous order on two occasions. 

10.  On 27 February 2014, Mr Phillips was sentenced to 4 months imprisonment wholly suspended for 6 months for breaching his supervision order by having contact with a female under the age of 16.

11.  On 11 April 2017 Mr Phillips was sentenced to 37 months imprisonment with a non parole period of 24 months for breaching his supervision order by committing a relevant sexual offence.

Current offence

12.  At the time of offending Mr Phillips was residing at a rehabilitation facility,  in accordance with condition 7.1 of the supervision order.

13.  On 27 June 2019 Investigators from the Supervision Order Specialist Response Unit and Stonington Crime Investigation Unit attended the facility , whereby a search of Mr Phillips’ room was conducted for the purpose of monitoring his compliance with the supervision order.

14.  Mr Phillips’ exited his room with Detective Senior Contable Simmonds and Detective Senior Constable Hume so the search could be conducted. When Mr Phillips’ entered the lounge area a mobile phone slipped out of his waistband and landed on the floor. Mr Phillips’ attempted to kick the phone under the couch.

15.  Detective Senior Constable Arbanovski arrested Mr Phillips and seized the mobile phone. Mr Phillips was taken to Melbourne West Police Station for interview where he made full admissions and explained he had removed the mobile phone from a box of his belongings at Emu Creek, and had concealed the phone from staff.

16.  By possessing an internet capable device, Mr Phillips has contravened condition 7.14 of the supervision order (Charge 1).

17.  On 2 July 2019, Detective Senior Constable Justin Goddard conducted a forensic audit of the seized phone. This analysis showed that Mr Phillips had stored 25 images and 14 videos of adult pornography. By storing and accessing pornography Mr Phillips has contravened condition 5.14 of the interim supervision order (Charge 2).

18.  The audit revealed that Mr Phillips had been using an internet application KIK to message multiple contacts. By accessing the intenet Mr Phillips contravened condition 5.15.1 of the interim supervision order (Charge 3).

Charge History

19. Mr Phillips was arrested and interviewed by police on 27 June 2019. On this date charge 1 was filed and Mr Phillips was remanded. The charge was transferred under s 173(6) of the Act.

20.  On 3 July 2019 charges 2, 3, 4 were filed to be heard with charge 1.

Pre-sentence Detention

21.Mr Phillips will have spent 6 days  in custody to be declared as pre-sentence detention (27 June 2019– 2 July 2019 inclusive).

Summary Jurisdiction

22.  This Court may grant a summary hearing of an offence against s 169 of the current Act (s 174(1)) and s 28 Criminal Procedure Act 2009).  In such circumstances, the practice and procedure applicable in the Magistrates’ Court to the hearing of summary offences applies so far as is appropriate to the summary hearing of this offence (s 174(2)).

23.  The Crown does not oppose summary jurisdiction in respect of this matter.

Maximum and Minimum Penalties

24.  Contravene Supervision Order – Level 6 imprisonment (5 years maximum) per s 169 of the current Act. The maximum term of imprisonment to which this Court may sentence the offender if exercising summary jurisdiction in relation to the charge is 2 years ( s 113 Sentencing Act 1991).

Sentencing submissions

25.Specific deterrence is a relevant sentencing factor; given that the offending occurred just 3 weeks after Mr Phillips had been released from custody for serious sexual offending and contravening his supervision order.

26.Mr Phillips has a history of non-compliance with court orders, this being his third contravention of a supervision order.

27.Using social media and the internet is a precursor to Mr Phillips risk of sexually reoffending it is therefore an important aspect of his ongoing supervision in the community that he not use internet capable devices.

28.The Honourable Justice Williams in Acting Secretary to the Department of Justice v McKane [2012] VSC 459 stated at paragraph 21:

“It is essential to the effectiveness 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.”

29.General deterrence is also a relevant sentencing factor.

30.Mr Phillips has pleaded guilty at the earliest opportunity.

Other orders/declarations

31.The Court must comply with s 6AAA of the Sentencing Act 1991 and must cause that to be noted in the records of the Court.

32.  The Crown seeks a disposal order pursuant to section 77(1)(ca) of the Confiscations Act 1997 in respect of the ZTE mobile phone.