Director of Public Prosecutions v SW
[2015] VCC 386
•27 March 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-02032
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| S W |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 March 2015 | |
DATE OF SENTENCE: | 27 March 2015 | |
CASE MAY BE CITED AS: | DPP v SW | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 386 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr P. Rose QC | Office of Public Prosecutions |
| For the Accused | Ms A. Beech | Leanne Warren & Associates |
HER HONOUR:
1 SW, you have pleaded guilty to four charges of failing to comply with a supervision order. The charges are that on 8 November 2014 you failed to comply with a condition of the order by attending in Carlisle Street, St Kilda between Barkly Street and Fitzroy Street. You are further charged that on that date at that location you failed to comply with a condition of the order, namely knowingly engaging the services of a sex worker.
2 On 14 November 2014, you again failed to comply with a condition of the order by attending in Grey Street, St Kilda between Barkly and Fitzroy Streets, and on that occasion again failed to comply with a condition of your order, knowingly engaging the services of a sex worker.
3 The maximum penalty for each charge is five years' imprisonment, although summary jurisdiction has been applied for, agreed and granted in these proceedings. The maximum penalty applicable to each charge is two years' imprisonment with a total maximum of five years' imprisonment.
4 Briefly by way of chronology. On 17 December 2010 I determined that you be subject to an Interim Supervision Order pursuant to Serious Sex Offenders (Detention and Supervision) Act 2009 (the Act).
5 On 16 August 2011, pursuant to the Act, I determined that SW be subject to a Supervision Order (the order).
6 That order was the subject of a review on 7 November 2013. At that time I directed the order remain in operation, and the next review of the order is to be undertaken by 14 August 2015.
7 SW is before me for sentence for breaching conditions of the order on the two occasions in November 2014, to which I have referred. It is not necessary to recount in great detail the facts of this matter, as they are on transcript, the matter having been opened by the learned prosecutor in some detail. I turn to a brief summary of the charges.
8 You were 36 years of age at the time you breached the order, and are also 36 at time of sentence.
9 This is your first appearance and conviction for breaching the order, although I do note with some concern an earlier incident report referred to in the review on 7 November 2013, when on that occasion you were, on 28 March 2013, located in the St Kilda area. I note it was not suggested that in March 2013 you were attempting to engage the services of a sex worker, or in that location for any other sexual purpose. You were, however, in St Kilda contrary to the conditions of the order.
10 The prosecution opening provides details of your index sexual offending and the history of hearings, appeals and retrials regarding that offending. This detail was set out in the Interim Supervision Order of 17 December 2010. Ultimately, you were convicted of offences involving one victim. Your offending was described in my reasons for decision on 17 December 2010. It involved you accessing sexual services from a sex worker in St Kilda, and your ultimate refusal to pay her. You grabbed her around the neck with sufficient force that she had difficulty breathing, and whilst maintaining that hold of her neck with one hand, you raped her.
11 Reference was also made in the current prosecution opening (Exhibit A), to you being paroled on 5 February 2009, and such subsequently cancelled on 18 September 2009. Details of that was also referred to in my reasons for decision of 17 December 2010. Amongst other things you were approaching women in shopping centres asking for sex. You were again released on parole on 8 June 2010, with parole expiring on 1 December 2010.
12 You were then, on 17 December 2010, placed on the Interim Supervision Order with a number of conditions attached, including core conditions, additional conditions pursuant to s17 of the Act, and two discretionary conditions pursuant to s20 of the Act.
13 On 16 August 2011 the supervision order was made. You were subject to eight core conditions, nine additional conditions pursuant to s17, and three discretionary conditions pursuant to s20 of the Act.
14 On 7 November 2013, following a review of the order, I ordered various conditions made on 16 August 2011 be varied, added to or removed. You were, as a result, subject to eight core conditions, and 11 additional and discretionary conditions pursuant to s17 and s20 of the Act.
15 Relevant to the charges before me were conditions 4.2(a) – (i) and 4.6.
16 On 7 November 2013, pursuant to s118 and s121 of the Act, the Adult Parole Board issued a schedule of instructions and directions regarding the confirmed supervision order, and you were inducted into the confirmed order and were aware of the conditions of the order.
17 I have no doubt, from the court hearing at review, that you were aware not only of the conditions, but also the potential ramifications should you breach those conditions. The transcript of your plea hearing will reveal there was detailed discussion, in particular relevant to the street boundaries in St Kilda where you were not to attend, and discussion regarding not seeking the services of a sex worker.
18 Nevertheless, in November 2014 you committed the breaching offences before me.
19 I turn to the police summary of that offending. On 8 November 2014, at approximately 2.45 am, you attended in Carlisle Street, St Kilda, and engaged in conversation with a sex worker for the purposes of soliciting prostitution. You asked the worker to get into your car to discuss the services you wanted then drove her to the end of the street near the botanical gardens. You said to the worker that you had "never done this before” and asked if she would agree to give you sex without a condom. She refused.
20 You drove the worker to an alley off Blanche Street, St Kilda, behind 120 Barkly Street, St Kilda. You asked the worker to take her clothes off and you engaged in sexual activity with the worker. During that you asked the worker to pretend she was your girlfriend.
21 You then locked your keys in the car with the worker’s belongings inside, including her clothing. You told the worker you had a spare key, however later admitted to her you did not. The worker was naked and frighted and she walked to a nearby house where the occupant called the police.
22 At about 5.30 am that day police attended at the laneway and spoke to you. You said you had locked your keys in the car. I note you provided your details to police upon request. The worker then advised the police you were her client and that you had paid her $100 to have sex with her, and that her belongings had been locked in your car. The worker described being panicked and uncomfortable during the “service” and stated you made her role play to pretend to be your girlfriend.
23 You were interviewed at the scene by police.
24 Relevant to Charges 1 and 2 before me, you attended at Carlisle Street, St Kilda, without having obtained the prior written consent of the Adult Parole Board, and you knowingly engaged in services of a sex worker. You were therefore in breach of conditions 4.2 and 4.6 of the confirmed supervision order.
25 On 14 November 2014 you attended in Grey Street, St Kilda, and agreed to pay a sex worker $100 for a “full service”.
26 You drove the worker to a lane behind Coles Express service station at the corner of Barkly Street and Blanche Street, St Kilda. You requested sex without a condom and the worker became upset, refusing to engage in that sexual activity. The worker picked up your wallet and threw it onto the ground. You started yelling and asked her to pick up your cards, and you called 000.
27 At approximately 2.01am police attended at the scene. You were with the worker and you were interviewed by police.
28 When asked why you were in St Kilda you said you were “just driving through”. You said you picked the worker up on Grey Street and told her you wanted to have sex without a condom, that a price was agreed and you drove her to the laneway. You described consensual sexual intercourse. You said the worker had taken your wallet from your pocket and thrown it and the cards everywhere, which had prompted you to call the police.
29 On 14 November, without the prior written consent of the Adult Parole Board, you attended Grey Street, St Kilda, and knowingly engaged the services of a sex worker in breach of conditions 4.2 and 4.6 (Charges 3 and 4).
30 On that same day, 14 November, at 3.30pm, you attended your scheduled supervision session with your specialist case manager at Box Hill Community Correctional Services office. I discussed with counsel whether you notified the case manager of your breach of the conditions between 8 and 14 November. A quarterly review status report dated 5 February 2015 was received by me following your plea hearing. It would appear Corrections were not told by you of your attendance in St Kilda in breach of your conditions. The author of the recent report noted your returning to the St Kilda area on two occasions and soliciting the services of sex workers, in the author’s opinion, represented a major escalation in risk behaviour that was not detected by your family or Corrections "until after the fact, due to his tendency to be dishonest and conceal his behaviour."
31 The police attended those offices at 4.20pm and you were arrested and charged with the four offences before me. When interviewed regarding breaching your supervision order you answered “no comment” when questioned by police. It was, of course, your right to answer that way.
32 You were remanded in custody on 14 November 2014, and on 18 November 2014 the charges were transferred from the Magistrates’ Court to this court pursuant to s172 and s172A of the Act, and you were remanded to appear before me for mention on 19 November 2014. The matter was then listed for 18 December. There was a further mention on 27 January 2015 to confirm how this matter was to proceed, as there was an issue regarding your representation and uncertainty whether you intended to plead guilty or not guilty to the charges. You have now pleaded guilty to them.
33 You have been in custody since 14 November 2014 and had spent, as at 12 March 2015, 119 days by way of pre-sentence detention.
34 You have pleaded guilty to these offences and you are entitled to have that fact taken into account in your favour, and I do so.
35 The community has, by your plea, been spared the time and cost of a hearing, and witnesses have not been required to give evidence.
36 I accept your plea of guilty was entered at an early opportunity, accepting you had difficulty obtaining representation. Transcript of the various mentions of this since your arrest will further clarify this issue.
37 I accept that you were apprehended at the scene and on one occasion it was you who contacted police.
38 Whilst such is relevant, and in your favour, I am concerned about whether there is true remorse by you for this offending. The explanation for your attendance, given your index offending, the matters raised at each of the hearings relevant to the order, and the two recent review reports tendered before me cause me concern.
39 Ms Beech appeared at your plea hearing. She submitted that your breaching offending occurred after you had been attending the "Meet Up" group, an organisation which facilitated meeting others for the potential of developing intimate relationships. When you attended at St Kilda on 8 and 14 November 2014 you instructed you were attempting to address your intimacy issues. You were aware, as I understood, you should not have been in that area, and/or associating with sex workers, however instructed you did not appreciate the ramifications of breaching the order, that is, you did not appreciate that you would be incarcerated. I do not accept that.
40 As part of the plea Ms Beech tendered a quarterly review status report dated 6 August 2014, prepared by Community Correctional Services, relevant to the reporting period on the order between May and July 2014. Ms Beech urged this most recent quarterly review indicated you had an improved understanding of the need for counselling, and had expressed your desire for counselling in the sex offender program.
41 Ms Beech submitted your recent period of incarceration had had a profound effect upon you, and that you now appreciated the consequences of breaching the order and were willing to participate in further programs to avoid future breaching.
42 Ms Beech referred to details of the recent neuro-psychological assessment from Dr Popp (23 June 2014), and his findings. Dr Popp recommended you receive co-ordinated services from a multidisciplinary treatment team, including specialists. He was of the opinion that in the long-term one on one specific treatment with a single practitioner would be required, although he noted that your interpersonal style and personality characteristics would prove extraordinarily challenging to whomever provided the required treatment. He also recommended review to determine whether you would benefit from a mood stabiliser.
43 Ms Beech referred to paragraph 37 of the report and submitted that despite the assessment and recommendations of Dr Popp having been made to Corrections in late June 2014, the recommendations had not been initiated as at the time of the report in August 2014. Ms Beech also referred to the approach in your treatment that she anticipated would occur following this report.
44 I discussed this at some length with Ms Beech, and again today, and in particular my concerns, as I said last time, about your lack of preparedness in the past to participate in treatment programs, as discussed in the three appearances before me in 2010, 2011 and 2013. Ms Beech submitted you had recently acknowledged the importance of engaging in offence specific treatment to address your offending behaviour, and that given this change in attitude to previous occasions, when you had refused to consider treatment, this was regarded by Corrections as a significant step. I hope your currently stated motivation continues.
45 Ms Beech also relied, in the earlier plea hearing, in support of what she submitted were your favourable rehabilitation prospects upon your attendance with Meet Up. I discussed with Ms Beech, however my concern is your participation in this group relied upon your self-report (paragraphs 4 and 5). The author of the August 2014 quarterly report was unable to confirm your attendance with the group as you were reluctant to provide authority to the author to speak with the organisers.
46 I was also told by Ms Beech you had some employment working in a factory provided through various agencies such as Skilled and Drake Employment. This was, however, again through self-report, and not supported or confirmed in other material before me. There have been frequent references in past hearings to concerns regarding the veracity of your self-reporting, and I remain concerned about that.
47 There were also, in my opinion, a number of concerning observations in the August quarterly review (see paragraphs 16-22). That information will no doubt be before me at the next review of your order, and is not of assistance in determining the appropriate sentence for the offending that is before me. It is possible that your behaviour towards your parents has improved. This is not yet clarified.
48 In the recent status report of 5 February 2015, I note again the author’s concern regarding your tendency to be dishonest and conceal your behaviour. It is apparent that when you were questioned by the author regarding your attendance at ‘Meet Up’ group, described by the author as “a potential concern”, it became apparent you had not attended in several months. Further, during appointments you continued to report being unemployed, and such was corroborated by your parents, that is, your unemployed status.
49 Your self-reporting, as I have said, is concerning and raises issues regarding your rehabilitation prospects.
50 I discussed with Ms Beech at some length my concern about your breaching offences, which included breaching on two occasions, 8 November, and again on 14 November, and that you placed yourself in a situation identical to that involved in the index offending. From your instructions to Ms Beech you knew you should not have been in the area and that you should not have been engaging the services of a sex worker. Nevertheless, you did, twice. Your instructions were this attendance with the sex worker was to address your intimacy issues. This, I note, despite your repeated instructions in previous hearings that you did not have any interest in sex, nor have any sexual urges. Either those earlier instructions were inaccurate or your sexual urges have returned. I am also concerned by your instructions to Ms Beech that you did not appreciate the potential ramifications of breaching the orders in the way you have, as I have previously stated. Although I note that submission is not being maintained, understandably.
51 Regarding your rehabilitation prospects, I am largely left to rely upon your self-report and the hope Ms Beech has expressed that the recommendations of Dr Popp will be instigated. As I discussed with counsel, I have concerns regarding the veracity of your self-reporting, those concerns supported by material before me at previous hearings in relation to the imposition of the order and review of same.
52 Ms Beech, however, urged that you are now willing to engage in treatment and the likelihood of breaching again would be greatly reduced.
53 I discussed with Ms Beech the deficits in the material that was before me at the time of the initial plea hearing which supported a hopeful view of your rehabilitation. That is, the deficits that supported that submission.
54 I do, however, note that this is your first appearance for breaching the order, and Ms Beech conceded your previous breach of parole, however, was a relevant consideration.
55 Mr Rose QC, on behalf of the prosecution, submitted that many of the propositions urged by Ms Beech at the first plea hearing had no evidentiary basis other than your self-report. Mr Rose submitted you were an “unreliable historian”.
56 In relation to your breaching I was advised this did not come to the attention of Corrections from you, but rather by police. I discussed with Ms Beech my concern, in particular that you did not report your breaching, apparently, between 8 and 14 November, and I expressed my concern it would appear you were not the initiator of any discussion with your case worker of your breaching before being spoken to by police on 14 November when you attended at Corrections.
57 Mr Rose submitted your self-reporting was self-serving and unreliable. That it was clear you knew you were not to go into the area and seek the assistance of sex workers, and that you had been inducted in relation to the conditions of the order. Mr Rose submitted you would have been aware from your court appearances at the time of the order and review, where you were represented by counsel, of the importance of adhering to the conditions of the order. In this regard I note you signed supervision order rules and regulations form dated 26 August 2011. On the very page where you signed there is reference made to the consequences of breaching such orders, and that gaol can be imposed. In my opinion, as I have said, you were aware of the conditions that you were not to go into St Kilda and that you were not to have the services of a sex worker, and in my opinion you knew the potential ramifications, ie: imprisonment.
58 In my opinion, as I said, you would have been in no doubt there would be ramifications for breaching the order, and that you would not have been under any misapprehension that such would involve a term of imprisonment. Mr Rose submitted that even with a mild intellectual disability you would have understood the ramifications of breaching the orders and the serious nature of breaching. That the area you were prohibited from attending in St Kilda was clearly delineated on a map, and engaging the services of a sex worker was “rammed home” to you during that court hearing.
59 Mr Rose submitted your offending, when compared with other cases where there had been breaches of supervision orders, fell in the middle to higher end of the range of gravity. Ms Beech urged your breaches fell towards the middle of the range, and perhaps today, slightly less. In my opinion, your breach falls in the middle to higher end of gravity.
60 Ms Beech referred me to the decision of Muldrock v R[1] when sentencing mentally retarded offenders, and I have read that decision. Such is clearly a matter relevant as part of the sentencing process.
[1] (2011) HCA 39
61 Ultimately, each case depends upon its own facts and circumstances. I do however note the statement of his Honour Chief Judge Rozenes in Secretary to the Department of Justice v MAB[2], in which his Honour referred to the efficacy of the supervision order (scheme) being dependent upon orders being properly imposed and adequately maintained. His Honour continued that when a sentence for breach of conditions occurs there is a clear requirement to emphasise the need to comply with conditions attached to an order under the Act, and in particular, where such a breach is not merely a breach of curfew, or some other administrative condition, but a contravention of a specific prohibition against the commission of further sexual offences. His Honour referred to the need for specific and general deterrent messages to be given prominence when sentencing in cases such as this. In my opinion those principles also apply in your case. Whilst some allowance can be made for your IQ, as most recently assessed by Dr Popp and confirmed in the submissions by Ms Beech today, in my opinion, based on all the material that is before me, the veracity of your stated lack of understanding and the ramifications of any breach causes me concern. Although as I have said, Ms Beech has conceded that submission cannot be maintained.
[2]
62 As you know, the further hearing of the plea was adjourned two weeks until today's date for further material to come to me, and that material has arrived and I have discussed it throughout my reasons for sentence.
63 The prosecution opening also contained reference to a number of authorities, including Acting Secretary to the Department of Justice v McKane[3], and at paragraph 21 in particular, in which her Honour Justice Williams noted:
“It is essential to the effectiveness of 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.”
[3] [2012] VSC 459
64 General and specific deterrence are relevant sentencing considerations consistent with Department of Justice v WR[4].
[4] (2010) VCC 0882, 13 July 2010
65 At the last hearing the prosecution submitted your previous breach of parole was a relevant consideration in respect of specific deterrence when sentencing you. I agree, and that concession was also made by Ms Beech. In that regard reference was made to DPP v AD[5].
[5] (2014) VCC, 30 June 2010
66 Also attached to the prosecution opening were a number of cases and sentences for breaching supervision orders by failing to comply with conditions.
67 It is difficult comparing cases factually, as factual circumstances vary enormously case to case, as do matters personal to an offender. Ultimately, I must determine the appropriate sentence based on all relevant sentencing principles, your offending before me and matters personal to you.
68 I am concerned, as I discussed at some length with your counsel, your presence in this location contrary to the order and your engagement with sex workers. I am concerned by your previously repeated statement that you did not have any sexual urges, such stated by you on a number of occasions since 2010 when you were placed on the order. As I say, either that was untrue, or if true, you now have those urges. It is relevant that your index offending involved rape of a sex worker, and whilst there is no suggestion before me that you raped the workers referred to in your breaching offences, you were nevertheless with the same victim group. This was, to say the least, very risky behaviour by you.
69
As well as matters personal to you which include your rehabilitation prospects, as I find them to be, there is also the need for specific and general deterrence when sentencing you. Specific deterrence in relation to your previous breach of parole, and on this occasion, returning in particular on the second occasion on 14 November to the same area even after you had been questioned on
8 November 2014. There is also a need for general deterrence when sentencing for breaches of these orders.
70 As I said, I have concerns about your rehabilitation prospects. However, when imposing sentence I must maximise your rehabilitation prospects as they may be. Hopefully these prospects will improve based upon the assessment of Dr Popp and any other assistance provided in that regard.
71 I have also taken into account when sentencing the principles of totality and proportionality. I am also conscious that you have, at times, either been in protection or locked down in a secure cell, as it has been described in various ways in the material before me, however I note that is largely a result of your own disruptive behaviour, and as such, that is not a matter that I take into account in determining the appropriate disposition.
72 I sentence you as follows.
73 On Summary Charge 1, you are convicted and sentenced to 3 months' imprisonment.
74 On Summary Charge 2, you are convicted and sentenced to 3 months' imprisonment.
75 On Summary Charge 3, you are convicted and sentenced to 5 months' imprisonment.
76 On Summary Charge 4, you are convicted and sentenced to 5 months' imprisonment.
77 Charge 3 is the base sentence and I direct that 1 month of Summary Charge 1 be served cumulatively upon Charge 3, 1 month of Summary Charge 2 be served cumulatively upon Charge 3, and 1 month of Charge 4 be served cumulatively upon Charge 3.
78 That results in a total effective sentence of 8 months' imprisonment. I do not propose to order a non-parole period.
79 Pursuant to s6AAA Sentencing Act 1991, had you pleaded not guilty to these charges and been found guilty of them, I would have sentenced you to a term of imprisonment of 15 months and set a non-parole period of 9 months; ie: 15 less 6.
80 Pursuant to s18(4) Sentencing Act 1991 I declare you have spent 133 days, up to and including yesterday, 26 March 2015, in custody by way of pre-sentence detention, and I direct that be entered into the records of the court.
81 I don't believe there are any other orders sought but I might stand to be corrected on that.
82 MR ROSE: Not from us, Your Honour.
83 HER HONOUR: Anything further?
84 MS BEECH: No, Your Honour
85 HER HONOUR: All right, thank you for that. I should clarify I suppose in relation to the s6AAA when I said 6 months, as you know it needs to be if there's a non-parole period set 6 months at least.
86 MS BEECH: Yes.
87 HER HONOUR: So therefore the 15 and the 9 that I said, but I'm not ordering a non-parole period in relation to the eight months that I have just imposed.
88 MR ROSE: Yes, understood.
89 HER HONOUR: All right. Now I hope that's all clear and I thank you both for your assistance. Thanks, Mr Williams, would you mind going out? Thank you.
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