Director of Public Prosecutions v Preston

[2015] VCC 1503

IN THE COUNTY COURT OF VICTORIA

  Revised

  Not Restricted

Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01005

DIRECTOR OF PUBLIC PROSECUTIONS

v

LEOPOLD FREDRICK PRESTON
(A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE GRANT
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	30 October 2015
CASE MAY BE CITED AS:	DPP v Preston
MEDIUM NEUTRAL CITATION:	[2015] VCC 1503

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K. Mildenhall	OPP
For the Accused	Mr M. Nicolosi	Victoria Legal Aid

HIS HONOUR: 

1On 22 October 2015, I sentenced Leopold Preston[1] on indictments numbered E11184424 and E13149782.

[1] A pseudonym

2On indictment No.E11184424, I sentenced Mr Preston as follows:  indecent act with a child under 16, one year; produced child pornography, two years; use a carriage service to transmit child pornography material, two and a half years; and possess child pornography, two years.  I ordered six months of the sentence on Charge 1 be served cumulatively on the sentence imposed on Charge 3, with the intention of making a total effective sentence on this indictment of three years' imprisonment.

3I have since realised that the order is contrary to law because I cannot order a Commonwealth sentence to be cumulative upon the state sentence unless I either make a direction under s.16(4) of the Sentencing Act 1991 delaying the commencement of the state sentences, or alternatively a direction under s.19(3) of the Crimes Act 1914 (Cth) delaying the commencement of the Commonwealth sentence.

4The matter is further complicated by the order I made cumulating 18 months of the sentence on this indictment upon the sentence made on indictment No.E13149782.

5Because of these facts, I have relisted the matter pursuant to s.104B of the Sentencing Act 1991 to amend my order and make orders that are in accordance with the law. I now impose this amended sentencing order on indictment No.E11184424.

6Mr Preston is convicted on all charges and sentenced to imprisonment as follows:

7Charge 1, indecent act with a child under 16, one year;

8Charge 2, produce child pornography, two years;

9Charge 3, use a carriage service to transmit child pornography material, two and a half years; and

10Charge 4, possess child pornography, two years.

11I order six months of the sentence on Charge 1 and six months of the sentence on Charge 2 be served cumulatively on each other and upon the sentence on Charge 4.  This makes a total sentence on the state matters of three years.

12I order the sentence on Charge 3, the commonwealth offence, commence on 22 October 2015. Pursuant to s.19AB(3) of the Crimes Act 1914 (Cth), I exercise the discretion not to make a recognizance release order. Such an order would be inappropriate given the total effective sentence imposed on both indictments.

13I order 18 months of the sentence imposed on the state charges be served cumulatively on the order made on indictment No.E13149782.

14This will result in a total effective sentence on the two indictments of 11 years' imprisonment, and I confirm a minimum term of 9 years before Mr Preston will be eligible for release on parole.

15All the other orders that I made on 22 October 2015 are confirmed.