Director of Public Prosecutions v Richard

[2014] VCC 2310

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

AT GEELONG
CRIMINAL JURISDICTION

CR

DIRECTOR OF PUBLIC PROSECUTIONS

v

BILLY JAMES RICHARDS

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Geelong
DATE OF HEARING:	28 November 2014
DATE OF SENTENCE:	28 November 2014
CASE MAY BE CITED AS:	DPP v Richard
MEDIUM NEUTRAL CITATION:	[2014] VCC 2310

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms R.M. Maxwell	Office of Public Prosecutions
For the Offender	Mr D. Cronin	Victoria Legal Aid

HIS HONOUR:

1Billy Richards, although you are still a young man, you have in your late teens and early 20s, engaged in very concerning behaviour.  To be frank, it is behaviour of a kind that brings to the fore, the need to protect the community from you.

2In broad terms you have displayed obsessive interest in dangerous weapons, explosives, and exploitative child pornography.  You have collected each of these dangerous and debasing items through access to suppliers, no doubt, you found all too easily on the internet.

3In respect of child pornography, you have collected and transmitted to others, these violent, degrading images.  Of particular concern is that you sent child pornography to children.

4I have spoken in broad terms as to your offending.  It is necessary to turn to some of the details of the charges.

5You have pleaded guilty to 50 charges on an indictment and two uplifted summary charges.  The vast majority relate to you sending child pornography to mainly adults but, also, as I have said, to children via social media websites.

6These account for 30 charges, the first commencing around 15 March 2014, and the last on 22 May 2014.

7The other large block of offences are you using the internet to communicate with children, using language seeking at times sexual photos from them, or simply engaging in sexualised questioning or suggestions.  There are 13 of these offences commencing in late February 2014 and continuing up until 21 May 2014.

8Some of these offences are linked to the transmission of child pornography in that they involve the same child as the receiver, both of the child pornography and of your sexualised communication.

9You had on your various computer systems, be it your Smart phone, your iPad or your laptop, child pornography in photographs and videos.  While the well- known categorisation system when applied to your collection, revealed the majority were in Level 1.

10There were, nonetheless, a good number in Level 4.  But make no mistake about it, Mr Richards, all child pornography is serious offending.

11There are two offences where you have pleaded guilty to procuring a child for child pornography.  This involved requests to a child to send revealing sexual photographs of themselves, often referred to as "sexting".     In one instance, sadly, the child was convinced to send images.

12Separate from your disturbing interests and involvement in the industry of child pornography, you have pleaded guilty to offences involving possession and making of explosive substances for fireworks. 

13These offences involve collecting and storing very volatile substances.  They were found at your family home.  More concerning, they were found also in a room that you had moved into in a popular hotel in the heart of Geelong.  Plainly an explosion and/or a fire was a real risk and the consequences of that could well have been tragic.

14I will not detail all the substances and items that you had, but the catalogue is very extensive.  Although your purposes, it seems, was in the area of fireworks, nonetheless even at that level, these substances being kept in a suburban home, or, worse, in a hotel room, involves dangerous offending.

15You had moved to the hotel room in late November 2013.  Prior to that you had lived with your mother and siblings in Lara.  You were asked to leave because you, in an explosion of rage, threatened to kill your mother.  The threat was made while you held a knife.  An intervention order was taken out and you had to leave.  You have pleaded guilty to the crime of threat to kill.

16When the search was undertaken at the hotel, you also had in your possession, cannabis.  Also of concern was your possession of laser pointers which you had adapted so that the laser beam was over 1400 times stronger than what is lawful.  These laser pointers are extremely risky if used, in any way, and particularly if pointed at a person's eyes or at aircraft.

17You had them as part of your obsession.  Likewise, you have an obsession with knives which saw that you were found in possession of unlawful and dangerous knives.

18All this concerning obsessive behaviour bespeaks of troubled or disturbed mental health.  You have been a patient of the Barwon Health Mental Health Services and, in particular, the well know youth mental health service, Jigsaw, which, in itself, operates within the broader adolescent mental health service called Headspace.

19I have been provided with a helpful and concise letter from Dr Paul Hantz, the consultant psychiatrist with Jigsaw, dated 23 October 2013. 

20You were also seen by Dr Cunningham, a medico/legal psychiatrist, used by defence lawyers from time to time. Oddly it appears Dr Cunningham did not access or seek out any of your treatment or treating practitioners.  It seems there was no discussion concerning your tricky mental health problems with those that had diagnosed you and provided treatment, including psychological treatment in the past.

21Dr Cunningham's report referred to various criteria set out in psychological manuals and testing regimes.  Although none of your treatment medical practitioners had made a diagnosis of autism spectrum disorder, Dr Cunningham ultimately came to that significant diagnosis in his relatively brief examination of you in the remand prison environment.

22The treating mental health practitioners did not diagnose you with autism spectrum disorder; rather in Dr Hantz's letter, he indicates a more nuanced way that you have a range of complex mental health problems when he says this.

23"Billy has a range of complex mental health problems, best understood as mixed personality disorder, with borderline and antisocial traits.  He also has a history of substance dependence, cannabis, and mixed anxiety and depressive symptoms with longstanding obsessive compulsive symptoms."

24And he gives an example of excessive hand washing.  "He experiences significant difficulty in managing his emotions with current anger and suicidal ideation, including suicidal gestures.  There's a lengthy history of deliberate self-harm, cutting, in order to see blood, fire setting, and at times, has displayed sexually inappropriate behaviour.  He experiences chronic sleep disturbances and describes frequent nightmares.  He has an interest in knives and has used knife sharpening as a method of self-serving."

25He goes on to indicate what interventions have been offered to you to assist you.

26To understand your problems, I need to look to your background.  You are now 21.  You have been raised by your hardworking mother, your father having left when you were very young.  You have an older brother and a much younger half-brother.  You went to school in Lara to Year 10.  School was difficult as your obsessive behaviours led to unremitting bullying.  You still suffer nightmares about all of that.

27You have not worked since leaving school, rather you have been in receipt of a Disability Pension.  This is because of your mental health problems.  You were exposed to pornography when young and exposed to sexual exploitation at the hands of a friend's older brother.

28You were, yourself, before the Children's Court, on 31 August 2007, when you were 14, for an indecent act in the presence of a child.  A summary of that matter was provided to me, indicates the level of disturbing conduct.

29You were direct to the expert Adolescence Sex Offenders Program.  As noted, in the Law Reform Commission's report in 2004 into sexual offences, it revealed that sexual misbehaviour by adolescents often leads to a risk of serious offending as an adult, if expert treatment is not provided.

30I was told that you were, by a significant margin, the youngest of the adolescents at the MAPS treatment program.  You did not gain much from it, I was told, as the older boys tried to teach you how to get away with things rather than you learning not to do them in the first place.

31As noted, Dr Cunningham came to the conclusion that you suffer from autism spectrum disorder.  As the Court of Appeal decision of Verdins made plain, I do not need to get bogged down in diagnostic labels.  The key is whether you have a mental health problem and, if so, what impact it had on what you did, and why you did it, and what your future holds.

32It seems to me that your enduring mental health problems are realistically, or causally, connected to your offending.  This has two very important but countervailing impacts on sentencing.

33First, it allows me to assess your moral culpability or your personal responsibility as lower than would be the case if you did not have the problems that you do.

34On the other hand, the causal connection combined with this being an enduring mental health problem, means your risk of like or other criminal behaviour in the future is greater and thus the need for protection of the community, including to emergency workers who may be more directly exposed to the danger, becomes a weighty matter.

35Protection of the community, including protection of young and immature users of social media websites, can be achieved by incapacitation of you.  That is, placing you in gaol.  It can also be achieved by dedicated treatment that addresses your risk factors.  Your counsel urged I place emphasis on treatment, so as to increase the chance of rehabilitation so that the community is thus better protected.

36You relied on the evidence of your long suffering mother in arguing that you have gained insight as a consequence of the brutal reality of adult gaol.  You have not fared well in gaol as your odd behaviour and your inability to read social circumstances have seen you stood over and assaulted.

37While gaol is hard, and deliberately so, in your case, your mental health illness makes it more onerous than would be the case if you were not so impaired.  I will take this into account in your favour.

38The very weighty matter of general deterrence in an offence of this kind is more problematic.  In the end I am prepared to ameliorate the impact of general deterrence because you are so different and thus not a suitable vehicle to deter others, but even suitably moderated, general deterrence remains a significant factor in all these offences.

39So too does deterrence to you.  You are intelligent and have, it has been said, gained important insight so I consider that you are now ripe for a message of deterrence to you personally to be made by the sentence that I am to impose.

40Please understand, Mr Richards, that should you resort to the type of criminal behaviours that you have in the past with knives or weapons, fireworks, explosives or child pornography, there will be no further chances given to you.

41Your plea of guilty is a weighty matter and means your punishment will be less.  I accept that you are remorseful now and the sentiments that you expressed in a letter that you wrote at the time are no longer to the fore.  The contents of that letter which were found in the room in which you were staying were concerning in all the circumstances of the collection of explosive materials that were there.

42I have anxiously considered your case and how to best deal with a very troubled, but still redeemable young man, whose behaviours nonetheless require punishment and an element of protection of the community.

43In the end you must remain in prison and if, and when considered eligible for parole, be released under supervision.  It is hoped that you do benefit from what parole can offer.  In the end, the way to stay out of gaol, Mr Richards, in the future will be you simply putting knives, pornography, explosives and the like, behind you, and getting on to more productive interests.

44The structure of your sentence is technically difficult.  I must announce a sentence for each crime and endeavour to marry the State and Federal sentences together to make a seamless operating single term of custody with a potential for parole, or reconnaissance release, as it is known.

45So I turn to the sentences for each of the offences.  Doing the best I can, taking into account the principle of totality, your youth, but, as I say, it must yield to the other sentencing considerations of denunciation, general deterrence, although those things are ameliorated due to your mental health and also protection of the community.

46Doing the best I can, I now announce a sentence for each of the 50 crimes plus the two summary matters as follows.  I simply will say the charge and the sentence to be imposed.

47Charge 1, nine months.

48Charge 2, six months.

49Charge 3, 12 months.

50Charge 4, six months.

51Charge 5, four months.

52Charge 6, nine months.

53Charge 7, 12 months.

54Charge 8, six months.

55Charge 9, four months.

56Charge 10, four months.

57Charge 11, eight months.

58Charge 12, eight months.

59Charge 13, six months.

60Charge 14, eight months.

61Charge 15, 12 months.

62Charge 16, eight months.

63Charge 17, eight months.

64Charge 18, eight months.

65Charge 19, 12 months.

66Charge 20, eight months.

67Charge 21, 12 months.

68Charge 22, eight months.

69Charge 23, 12 months.

70Charge 24, eight months.

71Charge 25, eight months.

72Charge 26, eight months.

73Charge 27, eight months.

74Charge 28, eight months.

75Charge 29, 12 months.

76Charge 30, eight months.

77Charge 31, eight months.

78Charge 32, eight months.

79Charge 33, eight months.

80Charge 34, eight months.

81Charge 35, ten months.

82Charge 36, three months.

83Charge 37, 12 months.

84Charge 38, eight months.

85Charge 39, 12 months.

86Charge 40, eight months.

87Charge 41, 12 months.

88Charge 42, eight months.

89Charge 43, 13 months.

90Charge 44, nine months.

91Charge 45, 14 months.

92Charge 46, eight months.

93Charge 47, eight months.

94Charge 48, eight months.

95Charge 49, six months.

96Charge 50, you are convicted and fined $500.

97The summary offence of manufacturing lasers, you are sentenced to four months' imprisonment.

98For possessing controlled weapons, the second summary offence, you are sentenced to two months.

99In respect of the State sentences:

100One month, Charge 1.

101One month, Charge 2.

102One month, Charge 5; and one month of the summary charge of manufacturing lasers is cumulative upon each other and on Charge 3.  Gives a total effective State sentence of 16 months, and I have fixed a minimum non-parole period of eight months.

103If I operate on this basis the State sentence is to commence today.  All Federal and Commonwealth sentences are to commence ten months after the conclusion of the State non-parole period.

104That brings about a total sentence, as I calculate it, of 24 months, and the reconnaissance release period is 12 months.

105What I seek to achieve is a total effective sentence of two years' with a minimum period of 12 months. 

106You have currently served 183 days in custody which I reckon as part of the sentence that I have just imposed, and I will ensure that this declaration is entered into the records of the court so that the authorities are left in no doubt that you have already served 183 days of the sentence that I have just imposed.

107Had you pleaded not guilty to these offences and been found guilty of them, I would have, doing the best I can, imposed a sentence of three years with a minimum term of two.

108There is forfeiture of items, a very large number of items, that is sought, and I intend to grant that application.

109Is there any other applications sought?

110MS MAXWELL:  A forensic sample.

111HIS HONOUR:  Is that to obtain a forensic sample?

112MS MAXWELL:  Yes, it is, Your Honour.

113HIS HONOUR:  The prosecution has made an application seeking that you provide a forensic sample, that is a scraping from your mouth so that sufficient can be obtained for extraction of your DNA and placement of your DNA on a database.

114Because of the seriousness of the offences, because of your prior matter, and because it's in the interests of justice, I intend to grant the order and having done that you need to understand that when the authorities come to take the scraping from your mouth, that you need to co-operate with them.

115They are authorised to use reasonable force to obtain that sample if you do not co-operate with them.  As I say, just co-operate with them and it will be all straight forward.

116Back to the sentence structure itself.  In announcing the sentence just then, Ms Maxwell, Mr Cronin, I simply said that the State sentences start first, and the Commonwealth sentences start later.  I am not fixed on that and if it is achievable in another way, I can manage that, that is, just if all the Federal sentences start today, that is, 28 November 2014, if all of them start today, except for Charge 45, which I will start four months after the commencement of all other Federal sentences, that gives a total Federal sentence of 18 months.  And therein I fix a reconnaissance release of 12 months with a period of that release of 12 months.

117All right?  If that is the case then the State sentences commence eight months after the commencement of the Commonwealth sentences, bringing a total effective sentence of 24 months.  To achieve the 24 months with 12 months.  Can the parties contemplate all that and see if I have got it right?

118MS MAXWELL:  Yes, Your Honour.

119HIS HONOUR:  Is there anything else required?

120MS MAXWELL:  No, Your Honour.

121HIS HONOUR:  It was not made clear, I did not refer to various sections in the Commonwealth Act as to what I took into account, so hopefully they are plain enough.

122Ms Maxwell, for some reason or another, unlike all the other s.464ZF matters that I have dealt with, it is on two pages, spread over two pages, and the second page simply is for the signature with the - second page - just reading, "Judge of the County Court".  I am not inclined to sign a document like that.

123MS MAXWELL:  No, no, that's my formatting error, Your Honour.

124HIS HONOUR:  Can you just take his name out of the top under "Respondent", it is there twice, and I think you will find that ‑ ‑ ‑

125MS MAXWELL:  I will show your Associate.  There is two orders, one for a custodial and non-custodial.

126HIS HONOUR:  Yes, yes, well, that is custodial.

127MS MAXWELL:  Sorry, Your Honour, I'll correct that.

128HIS HONOUR:  I have signed all those orders.

129MS MAXWELL:  Thank you, Your Honour.

130HIS HONOUR:  Effectively what I am doing, Ms Maxwell and Mr Cronin, I am standing the matter down and you call it back on if - call it back on so that I can have it confirmed on the transcript that things seem technically correct, so that I can sign orders.

131MR CRONIN:  Yes, Your Honour.  Before we go outside, just so that I can have it clear in my mind what Your Honour's intention is; is it the intention that there is effectively a two year sentence with 12 months to serve?

132HIS HONOUR:  To serve, correct, yes.

133MR CRONIN:  And then what's left of the parole period after that?

134HIS HONOUR:  No, once he has served the 12 months, if the authorities wish him released, he will be released.

135MR CRONIN:  Yes, on the balance of that parole.

136HIS HONOUR:  On parole or reconnaissance release.  So that that's the nature of it.  Does that make sense?

137MR CRONIN:  Yes, no, just so I can have it clear in my mind so there would be, at most, eight months of the parole period that he would serve.

138HIS HONOUR:  Correct.

139MR CRONIN:  Yes.

140HIS HONOUR:  That's enough, and I can't extend his parole period artificially on the State sentences because that's, in my estimate, what the State sentences were worth with an appropriate - if these were two
indictments ‑ ‑ ‑

141MR CRONIN:  Yes.

142HIS HONOUR:  ‑ ‑ ‑ which I think sometimes these things would have been, then the State - the Commonwealth indictment, 43 charges, would have resulted in a sentence of 18 months with a reconnaissance release up to 12, together with a cumulation on a State sentence, State indictment, of a further six months to bring it up to two years, and the same reconnaissance release.

143MR CRONIN:  Yes.

144HIS HONOUR:  But to achieve that I've got to fix a non-parole period of eight months, and I did that.

145MR CRONIN:  Yes, Your Honour.

146HIS HONOUR:  Does that make sense?

147MR CRONIN:  Yes.

148HIS HONOUR:  If it's wrong we'll come back and try again.  Thank you, I will stand down in this matter and Mr Richards can be removed.

149(Offender removed.)

150(At a later stage 5/12/14)

151HIS HONOUR:   Ms Maxwell, you appear for - - -

152MS MAXWELL:  I do, Your Honour.

153HIS HONOUR:  Thank you.  Mr Cronin, in Melbourne, thank you again.

154MR CRONIN:  Mr Richards is on the video link I can see him there at the prison at Port Phillip.  Predictably, I still have not got this right, apparently.  You have got the material that Ms Maxwell has prepared with the assistance of her colleagues in the Commonwealth OPP, Mr Cronin?

155MR CRONIN:  I do, Your Honour, yes.

156HIS HONOUR:  Thank you.  Everyone knows what I want to achieve, which is - was effectively a sentence which became 22 months with a non-parole period of 12 months, but the Commonwealth says I need to declare the 183 days of pre-sentence detention on both the Commonwealth sentences and the State sentences.  That is as I read it, Ms Maxwell; that is what you state?

157MS MAXWELL:  Your Honour, it  is a declaration at the end of the orders, 183 days, and that, as I understand it, will then achieve - it relates to both sentences because it was Corrections that raised - - -

158HIS HONOUR:  They have.  They have raised another thing that if he does have it declared and applied to both, then he double counts and they cannot achieve the outcome that I wanted, but I cannot see that.

159MS MAXWELL:  I did speak to Corrections this morning.

160HIS HONOUR:  Yes.

161MS MAXWELL:  And I indicated that what we were submitting that Your Honour do is impose the Commonwealth sentence and the State sentence to commence together.

162HIS HONOUR:  Yes, they do.

163MS MAXWELL:  And then at the end of the order Your Honour declares the 183 days;  that then relates to both sentences because they are concurrent and I think his exact words were, "I think that sorts it out", or something - - -

164HIS HONOUR:  We have got hopefully around about six more months to get this right, probably take me that long.

165MS MAXWELL:  I have done the best that I can too to assist Your Honour.

166HIS HONOUR:  Yes, over and above, I am the person who should get this right, I do not - your role is to give me some assistance and tell me what the case is all about and I should be getting it right and I am not so do not feel as though anything other than gone over and above.  You, too, Mr Cronin, I am grateful to you.

167MS MAXWELL:  Yes.

168HIS HONOUR:  But I think the way to sort it out is to make it clear the orders will say that they commence from the date of the announcement of sentence on 28 November 2014 that I make it plain, if it were not plain before, by application of those provisions of the Commonwealth matters, or certainly the State Sentencing Act, that I can - and Criminal Procedure Act that I can fix things up if they are not clear, so I do to ensure that 183 days of pre-sentence detention is declared as the last thing on the orders to apply so that the prison authorities are left in no doubt he has done 183 days of the sentence that he has been required to do, both the Federal and State sentences; the Federal sentence running concurrently with State sentences.

169I will sign that order.  Anything more?

170MS MAXWELL:  There was just the declaration that is required in the order and that was - that is the s.19AB(4), Your Honour announced that in court.

171HIS HONOUR:  I thought I did.

172MS MAXWELL:  You did, but - - -

173HIS HONOUR:  The order itself will now articulate, pursuant to s.19AB(4), that the non-parole period, the fact of a non-parole period, and the fact of no reconnaissance release, that is appropriate by reason of the imposition of the State sentences which run concurrently to enable the outcome which I wish to achieve which is a period of incarceration which is 12 months with a period of supervised release of ten months until the end of the head sentence.

174Anything further from your part, Mr Cronin?

175MR CRONIN:  No, Your Honour.

176HIS HONOUR:  Thank you very much.  Mr Richards, I hope I have got it right.  If I have not, someone will tell me and we will come back again.  Maybe one day the Commonwealth will pass laws to make all this a little bit easier.

177Anything further?

178MS MAXWELL:  No, Your Honour.

179HIS HONOUR:  Thank you.  I will end the links and we will return back to other matters, thank you very much again.

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