Director of Public Prosecutions v Stewart (a pseudonym)

[2020] VCC 1544

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL JURISDICTION

Revised

Not Restricted

Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

RICHARD STEWART (A PSEUDONYM)[1]

[1] To ensure there is no possibility of identification, this sentence has been anonymised by the adoption of pseudonyms in place of names of the victims and family or witnesses

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Melbourne
DATE OF HEARING:	29 September 2020
DATE OF SENTENCE:	29 September 2020
CASE MAY BE CITED AS:	DPP v Stewart (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2020] VCC 1554

REASONS FOR SENTENCE

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CRIMINAL LAW – Sentence – Contravention of a Community Corrections Order – Delay – Serious prior offences – Sentencing Act 1991 – Evidence of community engagement – Evidence of greater maturity – Lower level non-compliance – DPP v Stewart (a pseudonym) [2016] VCC 1884 – $2000 Fine Imposed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr S. Davison	Ms A Hogan, Solicitor for Public Prosecutions
For the Accused	Ms K. Rolfe	Slate & King Lawyers
Amicus Curiae	Mr Anderson	Office of Corrections

HIS HONOUR:

1Yes, well, Mr Stewart[2], you have been a bit elusive in the sense that I have had you before me a number of times and you have not turned up after I gave you the opportunity to prove to me that you are able to comply with your obligations.  You failed in relation to the reporting obligation, but you have paid a pretty heavy price up there in the New South Wales justice system. As your counsel has put, you would have got some concurrency had we been able to deal with the matter under some cross-border arrangement, which has obviously been testing the Federation in recent times.  You have now got a young child; you are committed to the mother and to looking after her other older children.  You have now got a job.

[2] A pseudonym

2As I indicated in the original sentence for the charges of sexual penetration[3], you were something of a lost soul, according to your barrister, with moving between New South Wales, Victoria and Queensland, multiple addresses, a dysfunctional upbringing. But it appears that aside from the breaches of the sex offender registration laws, which are serious, but in a sense they are status breaches as distinct from reoffending in a sexual way, you have paid a big price for those.  As I said to your counsel and to Mr Davison, you are maturing, and you are going to knuckle down and be a productive member of society and put all this behind you. I certainly hope you can do that, and I commend you for what you have done so far. In particular, I commend you for being involved in a relationship and you have got a child and that child needs a father, and you are the one, which also is part of the societal responsibility that you have got to be a breadwinner, bring in the bacon.

[3]DPP v Stewart (a pseudonym) [2016] VCC 1884

3OFFENDER:  Yes, Your Honour.

4HIS HONOUR:  And that is what you are doing relatively for the first time, although you were working in the abattoir there for a while earlier, and no doubt a period in the Junee Correctional Centre would have really woken you up, but there is no excuse for failing to comply with the Sex Offender Registration obligations.  It is a very blunt instrument.  You are stuck with it for life under the current regime, even though you were just over 18 when you committed these offences, but that is what you have got to do for life.

5Now, whether in due course down the track you can make an application to have it lifted, you can think about that and there might be some legislative change in due course, but you are stuck with it, and if you breach it you can see what the sort of penalties that they impose in New South Wales, you have paid the price.  So, I cannot minimise that or minimise your obligations.

6Going back to the Community Corrections order that I put you on, Mr Anderson of the Office of Corrections was tearing his hair out with sort of people like you, you know you are supposed to turn up for supervision, turn up for community work, make arrangements to go for counselling, that type of thing, and you just did not, because of the sort of dissolute lifestyle you were involved in, but you are now maturing and you are now taking action to address your drug problems and to get a job and support the new child.

7So weighing all the community interests involved of punishment and deterrence, and specific deterrence, it is the first offence you have got for breach of a Community Corrections order, that is relevant, and taking into account the actions that have been taken, I agree with your counsel in her comprehensive submission that, in a sense, it is not in the community's interest to throw you back into prison now.  It is early days in a sense for you and the young child, the child is only three months old or something, and the job, you have been working there for a couple of months and the building industry probably in that Albury - Wodonga area is probably just getting off the ground again.  There will be a lot of government money in domestic building, so they will want plenty of plasterboard, so you will have the chance to keep working there and maybe get your licence back, so that you can keep bringing in money rather than being dependent on social welfare, and that is good too, because we have got half the population in Victoria on government benefits at the moment.

8So if you can do something in the private sector that is a value that the courts want to advance, and that includes, in your case, if I threw you into prison you would lose that job and that would be a problem getting another job when you get back out.  So it would not be in the community's interest to do that when you have got a job with two good references from the employer, you are on a stable sort of opioid substitution program, you have done a number of sessions with a psychologist, and you have got to remember, and the psychologist may have told you, that you can now go back for another dose of the mental health program, 20 sessions in a year, double what it usually was, so at any time you can go back and get another referral from your GP and go back to it, so you do not wobble, and you can just keep that cognitive behavioural therapy up and address the problems and keep on the straight and narrow with the drug substitution program and focus your life on working and being a support for your family.

9The maximum penalty for this offence is three months' imprisonment but, as I said, had I been able to deal with the whole matter, the Local Court got cross-vested jurisdiction or something to deal with this breach, or it was sent down here to Victoria and I could have dealt with it, the breaches of the sex offender reporting and this breach of Community Corrections order, then it is highly probable you would have got concurrent sentencing or a bit of cumulation.  That has all been lost, not through your fault but this is attributable to the State borders and State arrangements.  So that makes a very important consideration in the ultimate disposition of a matter.

10I deferred the sentencing after I found you guilty of it there previously, and now I have got to sentence you. So, on the charge of breaching of a Community Corrections order, you are convicted and fined $2000.  I will give you four months to pay that fine, and if you are unable to pay it, in that four months you can make an application to the registrar at the Wodonga Court and get some further time to pay and possibly convert it into community work.

11So it is a serious imposition but it reflects the fact that, as set out in the schedule to the breach summons, there were multiple failures to comply with the Community Corrections order that you consented to do when I sentenced you but you did not do it. You are paying the penalty now but, as I said before to your counsel, it is years since the original offending, and now, finally, it is all wrapped up today.

12So, was there anything else that I need to cover, Mr Davison?

13MR DAVISON:  No, Your Honour.

14HIS HONOUR:  All right, thank you for your help, Mr Davison.  Thank you,
Mr Anderson, for your participation today.  It has not been necessary but I know the Community Corrections office up there in Wodonga, they do a good job and they do not need people like Mr Stewart but the ones that do respond, they are an important part of the system.  It is just unfortunate that everything with COVID makes it harder for all the programs that you want to get and the community work, but with any luck probably that area, you might be able to get the community work off the ground now that things are getting back to normal up there, which is better than it is down here in Melbourne.

15And thank you for your comprehensive submission, Ms Rolfe, and so with that, adjourn the court sine die.

16MS ROLFE:  As Your Honour pleases.

17COUNSEL:  As the court pleases.

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