Director of Public Prosecutions v Powell

[2020] VCC 76

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-00702

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

v

THOMAS POWELL

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JUDGE:	HIS HONOUR JUDGE RYAN
WHERE HELD:	Melbourne
DATE OF HEARING:	10 February 2020
DATE OF SENTENCE:	10 February 2020
CASE MAY BE CITED AS:	DPP v POWELL
MEDIUM NEUTRAL CITATION:	[2020] VCC 76

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – Contravention – Knowingly possess child abuse material – Failure to comply with Sex Offender Registration reporting obligations – Plea of guilty.

Legislation Cited:     Sentencing Act 1991; Sex Offenders Registration Act 2004

Sentence:Original Community Correction Order extended by 2 years; Convicted and fined for breach.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms L. Murdoch	Commonwealth Director of Public Prosecutions
For the Accused	Ms L Ljubicic	Stary Norton Halphen

HIS HONOUR: 

1Mr Thomas Powell comes before me pursuant to charge and summons, initially issued out of Magistrates' Court but transferred as is the practice, to this court on 11 December of 2019.  He has pleaded guilty to contravening a community corrections order that was imposed on him by me on the 31st day of August 2017.

2He has contravened that community correction order by failing to attend appointments for treatment and rehabilitation on three occasions, being 15 February 2018, 21 February 2018 and 11 April 2018, after having been inducted into this community corrections order on 22 December 2017, so within a matter of weeks, in effect, he commenced to breach my order.

3Between 19 June and 26 June 2018 he committed the offence of knowingly possess child abuse material, the very offence for which I sentenced him to the community correction order.  As well, he failed to comply with reporting obligations under the Sex Offenders Registration Act and further, he possessed a prohibited weapon without exemption or approval.

4On 12 March of 2019 at the Sunshine Magistrates' Court he was convicted on each charge and sentenced to an aggregate term of imprisonment of 12 months.  He had 252 days by way of pre-sentence detention declared.  A non-parole period of six months was ordered.  I am informed and accept that he served the entirety of the 12 months’ imprisonment imposed by the learned magistrate.

5During the course of this application the witness Ms Markovic was recalled and confirmed that on her initiative, upon the prisoner being released from prison on 3 July 2019, she chased him and came into contact with his mother and then, as a result of that, there has been a reconnection, and recommencement, of the community correction order that I imposed upon the prisoner some years ago.

6A generous view of the period of time that Mr Powell complied – and I use that term guardedly for he contravened his order in a series of most serious ways – he probably has been under the supervision of a community corrections officer for a period of 12 months.  Because of his reconnection with Ms Markovic and her attitude towards him and the environment in which he now lives and his abstinence from the use of methylamphetamine as proved by two urinalyses, she appears confident that the prisoner will comply with the terms of the community corrections order originally imposed on him.

7Taking into account his plea of guilty, which would indicate that he has some remorse for his offending, and it has some limited utilitarian benefit, and the evidence of Ms Markovic in respect of the community corrections order, I propose to vary it by extending it by a period of two years so the community correction order is to conclude on the 21st day of December 2022.

8That is the first leg of the quinella.  What do we say should happen in respect of proving the breach and my ability to punish him for that?

9MR MURDOCH:  It's a matter for the court, Your Honour.

10HIS HONOUR:  Yes, Ms Ljubicic?

11MS LJUBICIC:  It's my submission that no further orders be made with respect to the breach given that this corrections order is now in place, as a matter of totality.

12HIS HONOUR:  Why does that follow?

13MS LJUBICIC:  Just as a matter of totality now that this matter has been dealt with.  Also, Your Honour can take into account - - -

14HIS HONOUR:  No, stop.  Please do not confuse two sentencing principles.  I have dealt with this man in respect to the issue of what should take place as to the sentence I imposed some time ago and I have shown this man considerable leniency.  There is a charge sheet and summons on foot.  He has pleaded guilty to a criminal offence which is punishable by three months' imprisonment.  What should I do with him?  I await your submissions.

15MS LJUBICIC:  In my submission it's open to the court not to make any further orders, taking into account now the protection that he has from community corrections and also Your Honour can take into account the 12 months of imprisonment that he has served on the further offence by way of totality, as a matter of totality.  So that is a term of imprisonment that's been served since the breach occurred that related to the further offending, the police matters.

16HIS HONOUR:  It does not deal with his non-compliance with treatment and rehabilitation.

17MS LJUBICIC:  No, so it is open to the court to sentence him further in connection to that.  My submission is that Your Honour doesn't need to do that and ought not do that; given that he's served his full months of 12 months' imprisonment, it's a significant sentence.

18HIS HONOUR:  Why don't I put him on a community corrections order for a period of 12 months with a work component?

19MS LJUBICIC:  Your Honour, he has difficulty completing work.  My understanding is that he's on a disability support pension because of medical conditions that prevent him from being able to perform work.  If Your Honour was minded to impose a work component then perhaps the hours that Your Honour intended to attribute to that can be converted into a monetary penalty.

20HIS HONOUR:  I take it he's in receipt of a Commonwealth benefit?

21MS LJUBICIC:  He is, Your Honour, a disability support pension.  It would be onerous for him to pay but the fine can be appropriately weighted to take into account those matters and the seriousness of the offending, and also, of course, Your Honour, the totality principle that also applies which ought to mitigate any further disposition.

22HIS HONOUR:  Yes, thank you for that.

23MS LJUBICIC:  If Your Honour pleases.

24HIS HONOUR:  The prisoner will be convicted and fined $100.  When those orders are prepared I will sign them and provide them to the parties.  Is there any trouble with those orders?

25ASSOCIATE:  No, Your Honour.

26HIS HONOUR:  Thank you.  Mr Powell, a document will be brought to you in respect to the variation and extension of your community corrections order.  If you are willing to accept the order you should sign it.

27MS LJUBICIC:  Your Honour, may I seek leave to just assist him?

28HIS HONOUR:  Certainly, by all means.  You go and assist him.  Mr Powell, you can step out of the dock and sit behind your counsel.  Sit down please, Mr Powell. 

29Mr Powell, I have provided you with a copy of my orders today.  They are a reminder to you of what you are obliged to comply with.  I would like to thank counsel for their assistance in this matter.

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