Director of Public Prosecutions v Taylor (a pseudonym)

[2016] VCC 1594

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

JASON TAYLOR (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE CAMPTON
WHERE HELD:	Melbourne
DATE OF HEARING:	7 July 2016
DATE OF SENTENCE:	24 October 2016
CASE MAY BE CITED AS:	DPP v Taylor (A pseudonym)
MEDIUM NEUTRAL CITATION:	[2016] VCC 1594

REASONS FOR SENTENCE
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Subject:Using a carriage service to procure a person under 16 for sexual activity; theft; using a carriage service to make threat to kill; knowingly possess child pornography; indecent act with a child under the age of 16; attempted armed robbery; summary charges

Catchwords:  Disability-Justice Plan
Legislation Cited:  Disability Act 2006

Cases Cited:Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queen [2014] VSCA 342 (22 December 2014)

Sentence:State offences: Community Corrections Order with Justice Plan

Commonwealth offences: 14 months imprisonment to be released on recognisance release order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr B. Stevens
For the Accused	Mr T. Sawyer

HER HONOUR:

First Indictment

1Jason Taylor,[1] on indictment 1502241, which I will refer to as the first indictment, you have pleaded guilty to one charge of using a carriage service to procure a person under 16 years of age for sexual activity, one charge of theft, two charges of using a carriage service to make a threat to kill, one charge of knowingly possess child pornography, one charge of indecent act with a child under the age of 16 and one charge of possess drug of dependence.

[1] A pseudonym.

2The maximum penalty for use a carriage service to procure a person under 16 years of age for sexual activity is 15 years.  The maximum penalty for theft, use a carriage service to make a threat to kill and indecent act with a child under the age of 16 is 10 years.  The maximum penalty for knowingly possess child pornography is 5 years and the maximum sentence for possess drug of dependence namely cannabis is 5 penalty units.

Summary Offences

3You have also pleaded guilty to three summary offences, being possess a prohibited weapon without an exemption (Charge 3), use a drug of dependence namely cannabis (summary Charge 5), failing to appear in accordance with an undertaking of bail (summary Charge 16).

4The maximum penalty for possess a prohibited weapon is 240 penalty units or 2 years' imprisonment.  The maximum penalty for use drug of dependence, namely cannabis is 5 penalty units and for failure to answer bail is 12 months' imprisonment.

Indictment 2

5On indictment CR1600911 which I will refer to as the second indictment, you have pleaded guilty to attempted armed robbery.  The maximum sentence for this offence is 20 years.

Summary Offences

6In addition you have pleaded guilty to two summary offences, being commit an indictable offence while on bail and contravene bail conditions.  The maximum penalty for each of the summary offences is a fine of 30 penalty units or 3 months' imprisonment.

Circumstances of Offending

7The circumstances relating to the offences you have pleaded guilty to on the first indictment are set out in full in the prosecution opening which will be annexed to this sentence.

8In summary, the facts relating to the Charge 1 of use a carriage a service to procure a person under the age of 16 for sexual activity and Charge 5, indecent act with a child under the age of 16 are as follows.

9You were 19 at the time of these offences.  The complainant Alysha Wallace[2] was only 14.  You and Alysha had become friends on Facebook.  You began communicating via private Facebook Messenger and began discussing your future together including having children.

[2] A pseudonym.

10You and Alysha made plans to meet and to stay overnight in a motel.  When discussing your meeting on Facebook Messenger, you:

·gave Alysha detailed instructions as to what train she could catch and what station she should disembark at;

·sent her sexually explicit messages and requested that she send you sexually explicit photographs and videos of herself;

·threatened to end the relationship if she did not comply with your request and you repeatedly asked her to send you a picture of her vagina.

11Alysha was too embarrassed to send you a picture of her vagina and sent you a Google image search.  After further requests from you she sent you a photograph of her exposed breasts and a short video of herself caressing her breasts.

12On 11 June 2015 her grandmother drove her to school, but she did not attend school.  Instead, she took a train to meet you at the Gowrie train station.  You met her there and walked with her to the Coburg Motor Inn where you paid for a room.

13Once you were in the motel room you began kissing.  You both laid down on the double bed and took off each other's clothes as you kissed.  This continued until Alysha was wearing only her bra and underwear and you were wearing your boxer shorts and tracksuit pants.  You continued kissing on the bed and used your hands to rub her breasts and vagina over her underwear.

14While you were in the motel with Alysha, you smoked cannabis and this action of yours relates to the charge of use drug of dependence and also relates to the charge of possess a drug of dependence.

15At approximately 6 pm, police officers entered the motel room and found you and Alysha asleep.  You were arrested at the scene and transferred to the Faulkner Police Station where you were interviewed and made full admissions to most offences.

16Alysha was taken to the Faulkner Police Station also and a VARE statement was taken from her.  In the statement she provided details of your communications on Facebook and Facebook Messenger.  She also detailed what had taken place in the motel room.

17Charges 3 and 4 are of making a threat to kill via a carriage service.  The circumstances of these charges relate to threats and comments you made to Alysha's 18 year old sister Jasmin Wallace[3] and to her 20 year old sister Laura Wallace.[4]  This was again via Facebook private Messenger and it occurred on 6 June 2015.

[3] A pseudonym.

[4] A pseudonym.

18The substance of the threats made to Jasmin were that you were the member of the second biggest gang or crew in Australia, the police were scared of you, you had a police officer on your payroll, you were going to kill everyone in her family and you would not do any time because of your police connection.  You would see her later that night because you were coming to get Alysha.  Your father had done time with a man who ran the Asian mafia and some of them would come as well.

19The reason for making this threat was that Jasmin had taken possession of Alysha's phone and had informed you that she would no longer be contacting you.

20You made similar threats to Laura later the same day, also via private Facebook Messenger.  Including in that, you thought you might chop her head off in the shower and that she should get her information right before she got raped by your boys.  This was because Laura had initially agreed to tell Alysha that you were looking for her but after looking at comments that you had made about photos on Facebook, she messaged you and told you that she would not tell Alysha that you were looking for her.

21Charge 2, a theft, relates to a silver bracelet which was found in Alysha's possession when the police attended the motel.  You stated in your record of interview that you found the bracelet on a bus travelling to Glenroy on
5 June 2015.  However you made no attempt to locate the owner or to inform public transport officials about finding the item.  You had admitted that you had given the bracelet to Alysha on 11 June 2015.

22Charge 6 of knowingly possess child pornography relates to two level 1 child pornography files located on your phone and these were photographs of Alysha caressing her exposed breasts and a video file of her caressing her exposed breasts.

Indictment 2

23Moving on to the second indictment.  In this indictment you pleaded guilty to attempted armed robbery which carries a maximum penalty of 20 years and the two summary offences in relation to your bail.

24The circumstances of this offending are that on 3 September 2015, you boarded a train at the Glenmore Railway Station together with an associate Barker.  Between Glenmore and Strathmore railway stations, you, Barker and Mr Ali, the victim of the attempted armed robbery, were the only people on the train.

25You seated yourself in the adjacent seat across the aisle from where Mr Alley was seated and blocked his access by placing your feet on that seat.  You made him feel uneasy and uncomfortable and stared at him.  When he walked to the other end of the train carriage, you followed him and asked for his phone in an aggressive and threatening manner.

26When the train was about to arrive at Strathmore Railway Station you blocked the exit door.  Mr Alley backed away from you and you produced a small knife.

27However when the train stopped at Strathmore Station Mr Ali was able to escape.  He ran to the end of the train, he got off and rang the police and reported the incident.

28These events were captured on CCTV footage.  You were spoken to by protective service officers at 7.30 pm that same day and a knife was seized.  You were arrested on 18 November 2015 and conveyed to the Faulkner Police Station. In your record of interview you made partial admissions with regard to this offending, although you indicated that Barker was the aggressor rather than you.    This claim was inconsistent with the CCTV footage which showed that you were the aggressor.

29Summary Charge 6, commit an indictable offence whilst on bail relates to the fact that you were on bail with regard to the offences on the first indictment when you committed the attempted armed robbery.

30The summary charge of contravene a bail condition relates to the fact that your conditions of bail required you to report at the Faulkner Police Station Monday, Wednesday and Friday.  Despite receiving a warning when you contravened these conditions on 13 July 2015, 28 July 2015, you failed to report with these bail conditions between 21 December 2015 and 22 February 2016.

Personal Circumstances

31Your personal circumstances were contained in a report from
Dr Aaron Cunningham dated 8 April 2016.

32You were born on 6 March 1996 and you are now 20.  Your parents separated when you were born.  You have one older half-brother, a younger brother and two younger half-sisters.

33Your mother raised you until you were six and you had three step-fathers over that period.  You then lived with your father but you were eventually evicted from the family home because you did not get on with your step-mother.  For a period you lived on the streets before moving back home to live with your mother when you were 17.

34I understand that your current living situation is that you spend a part of your time with your mother and part with your father.  You have a close relationship with your father who has been diagnosed with cancer and is in and out of hospital.

35You experienced difficulties in both primary and secondary school due to being a troubled child and having difficulties fitting in.

36As a consequence, it was not surprising to read that you had attended a number of different schools.  You left school at the start of Year 9 due to being bullied and having no desire to return.

37You have been unemployed since leaving school but you told Dr Cunningham that you had ambitions to be a cabinet maker or a baker.

38You commenced using cannabis at the age of 14 and you continue to use about 1 gram a day.  You have no issues with alcohol however, as you are not allowed to drink alcohol due to a liver transplant you had when you were 14.

Dr Cunningham’s Opinion

39Dr Cunningham's opinion with respect to your mental health and intellectual capacity may be summarised as follows: 

·the results of your mental state assessment were consistent with the presence of a persistent depressive disorder;

·the results of the standardised test for general intellectual functioning were that your intellectual functioning was in the disabled range;

·your intellectual impairment contributed to your offending behaviour;

·you did not present with a suitable understanding of the wrongfulness of your behaviour and you believed that the victim was able to consent; 

·you did not present as a paedophile and your lack of understanding was a reflection of your intellectual impairment rather than sexual deviance.

40Given your disabilities, Dr Cunningham was of the opinion that you would be vulnerable to contamination and manipulation in the prison environment.  He believed that from a psychological perspective, you would benefit from a disposition that facilitated your rehabilitation and that ongoing psychological intervention and case management would reduce your risk of reoffending and positively predict rehabilitation.  You would also benefit by an assessment by disability services to determine whether you were eligible for case management.

41You were assessed by the Department of Health and Human Services as having an intellectual disability within the meaning of the DisabilityAct 2006, which means that you are eligible for case management and I will come back to that.

Defence Submissions on Sentence

42Moving on to the matters put to this court by your counsel in mitigation of your offending.  Your counsel relied on your intellectual disability as being a mitigating factor in your offending.  It was submitted that it impaired your ability to make calm and rational choices and to think clearly.  In addition, that imprisonment would be more difficult for you than someone who did not suffer from your disability.

43The other mitigating factors relied on were that:

·you were remorseful for your offending;

·you had entered an early plea of guilty to the offences;

·you are a youthful offender, being 19 at the time the offences were committed;

·your prospects of rehabilitation were good, and;

·with respect to the attempted armed robbery, it was spontaneous and not planned.

44Your counsel submitted that given these mitigating factors a recognizance release order with respect to the Commonwealth offences and a community corrections order with respect to the state offences was an appropriate sentencing disposition.

Prosecution Sentencing Submissions

45The prosecutor did not take issue with these submissions.  It was accepted that the need for general deterrence was modified given your intellectual disability. It was also relevant with the offences on the first indictment, that there was not a large age difference between you and Alysha, and that the pornographic material you were in possession of was in the lower end of the scale.

46However, it was submitted that the offences were of a serious nature and that while there was no victim impact statement, it could be presumed that your conduct harmed Alysha. In addition that there had been a degree of planning by you to meet with Alysha at the motel.

Sentencing Remarks

47In sentencing you, I have taken all of these mitigating factors into account.  With respect to the state offences, I have given you an appropriate discount for your plea of guilty at an early stage which saves the state the expense of a trial and the witnesses the ordeal of giving evidence.

48I have taken into account that you are a youthful offender with no priors.  While I consider your counsel's assessment of your prospects of rehabilitation “as being good,” somewhat optimistic, I accept that with case management, you are not without prospects of rehabilitation.

49With respect to your intellectual disability, I accept that it impacted on your ability to make calm and rational choices and to think clearly. Accordingly, I have moderated general and specific deterrence to a degree.

50In doing this, I have also accepted that you will be more vulnerable in gaol than a prisoner with normal health.

51As you are a young offender, I consider there is a public interest in you being rehabilitated in the community rather than gaol.

52In a well-known case called Boulton v R[5], the Court of Appeal said that the community conviction order is a flexible sentencing option, enabling punitive and rehabilitative purposes to be served simultaneously and it can be fashioned to the particular circumstances of the offender.  This is most apt and appropriate in your case due to your intellectual disability.

[5] Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queen [2014] VSCA 342 (22 December 2014)

53You are currently on a community corrections order.  This order was made on 1 April 2016 and I note that you have to complete 50 hours of community work within six months on this order.

54I ordered a report with respect to your suitability for a further order and that report concluded that you were suitable albeit that you were assessed to be a high risk of reoffending.

55Whilst apparently you have had difficulty in complying with your current order, community correctional services are of the opinion that with the additional support from the Department of Health and Human Services, you would be in a better position to complete a community corrections order and hopefully this assessment is correct.

56There was also a report from the Department of Health Services which set out recommendations for a justice plan which I consider to be appropriate in your case.

Sentence

57On the first indictment, dealing firstly with the state offences, on Charge 2 of theft, Charge 5 of indecent act with a child under 16, Charge 6, knowingly possess child pornography and Charge 3, possess a prohibited weapon, that is the summary charge, and Charge 16, fail to appear in accordance with your undertaking of bail, you are convicted and placed on a community corrections order for a period of 18 months.

58The conditions of the order are:

·That you be supervised;

·That you continue to engage and accept care, management and support from Disability Justice for the duration of the order;

·That you participate in assessment and referral process for and attend and participate in programs as recommended by Disability Justice;

·That you continue to engage in discussions with your Disability Justice case manager regarding your substance use and participate in alcohol and drug services as recommended;

·That you be referred for and undergo an assessment with ASCO COTES and follow treatment recommendations made;

·That you undergo assessment for a sex offender's treatment program for people with intellectual disabilities and participate in treatment if deemed appropriate.

59On Charge 7, possess a drug of dependence, you are convicted and fined $100.  On the summary Charge 5, use a drug of dependence, you are convicted and fined $100.

60I must inform you with respect to the community corrections order that if you were to breach the order by committing an indictable offence, you come back before this court and it is likely you would be sentenced to a period of imprisonment.  There are also conditions attached to that order that are referred to as core conditions that you must comply with.  I will be seeking the indulgence of your counsel, given your intellectual disability, to carefully go through the conditions of the order with you at the end of this hearing.

61Now in relation to the Commonwealth charges on that same indictment, on Charge 1, use a carriage service to procure a person under 16 for sexual activity, you are sentenced to 12 months' imprisonment;

62On Charge 3, use a carriage service to make threat to kill, you are sentenced to 6 months' imprisonment;

63On Charge 4, use a carriage service to make a threat to kill, you are also sentenced to 6 months' imprisonment.

64One month of each of those sentences is cumulative on the sentence of 12 months on Charge 1.  This means the sentence is of 14 months.

65Pursuant to s.20(1)(b), you are released on a recognizance order and that's of the Commonwealth Sentencing Act.  You are released on a recognizance order to be of good behaviour for a period of 2 years.

66Now in relation to that recognizance order, it is the same in some ways as a community corrections order.  That is, if you were to commit an indictable offence, you would come back before this court and you will be re-sentenced on those Commonwealth offences and it is likely that you would be sentenced to a term of imprisonment.

67Now I do want to check one thing in relation to the Commonwealth orders.  It was a 14 month sentence but effectively suspended for a two year period.

68MR STEVENS:  Yes, Your Honour.

69HER HONOUR:  Is that permissible to have the period of the recognizance longer than the sentence?

70MR STEVENS:  Yes, Your Honour.

71HER HONOUR:  It in fact has to be, does it not?

72MR STEVENS:  It has to be at least the balance which would be 14 months but ‑ ‑ ‑

73HER HONOUR:  Two years brings it within ‑ ‑ ‑

74MR STEVNS: ‑ ‑ ‑ two years is not unsuitable, Your Honour.  The only, just if I can mention at this point, Your Honour will have to specify when each of those charges commence and I can assist Your Honour with that now or ‑ ‑ ‑

75HER HONOUR:  All right.  Well we may as well do that now ‑ ‑ ‑

76MR STEVENS:  Yes ‑ ‑ ‑

77HER HONOUR: ‑ ‑ ‑ and get rid of ‑ ‑ ‑

78MR STEVENS:  Perhaps the easiest way to do that, Your Honour, would be to start Charge 3 today.

79HER HONOUR:  Charge 3, using the carriage service.

80MR STEVENS:  The six months imprisonment to start ‑ ‑ ‑

81HER HONOUR:  All right.  Well Charge 3 will commence on today's date which is ‑ ‑ ‑

82MR STEVENS: 24 October.

83HER HONOUR: ‑ ‑ ‑ 24 October 2016.

84MR STEVENS:  Charge 4 can commence in one month.

85HER HONOUR:  Charge 4 will commence one month from 24 October 2016.

86MR STEVENS:  Yes and Charge 1 will commence in two months after the commencement of Charge 3 or today, in two months' time.

87HER HONOUR:  Charge 1 will commence two months ‑ ‑ ‑

88MR STEVENS:  From today.

89HER HONOUR: ‑ ‑ ‑ from today's date.

90MR STEVENS:  Yes, Your Honour.

91HER HONOUR:  For 24 October 2016.

92MR STEVENS:  Yes, Your Honour.  thank you.

93HER HONOUR:  Yes, thank you.  That was of assistance.

94MR STEVENS:  If there is a recognizance amount as well - I do not recall whether Your Honour indicated an amount.  It is really a matter for Your Honour but it would be customary to have about $500 or depending on what
Your Honour sees fit.  It is only to be forfeited upon a breach potentially.

95HER HONOUR:  What does defence counsel say?

96MR SAWYER:  I would say $100, Your Honour.  I mean taking into account my client's personal circumstances.  There is no figure that has to be put on ‑ ‑ ‑

97MR STEVENS:  It is a matter for Your Honour.

98HER HONOUR:  All right.  I will make a figure of $200.

99MR SAWYER:  Yes, Your Honour.

100HER HONOUR:  Now that leaves us with the charge on the second indictment which is the charge of attempted armed robbery.  On that charge and on the charge of fail to comply with bail conditions and commit an indictable offence while on bail, you are convicted and placed on a community corrections order for a period of 12 months.  That is concurrent with any other state sentences imposed today.  So effectively it runs concurrently with the other community corrections order.

101I will make disposal orders when I receive the paperwork and that will be on the basis of it being by consent and in the public interest.  That is, the forensic sample order.

102MR SAWYER:  As Your Honour pleases.

103HER HONOUR:  Now disposal order, that is consented to, so I will make that order.

104MR STEVENS:  Thank you, Your Honour.

105HER HONOUR: I should inform you also that because you have pleaded guilty to three registrable class 2 offences as identified in schedule 2 of the Sex Offenders Registration Act, you are obliged to comply with reporting conditions for life.  I have no say in that.  That is a mandatory piece of legislation that you have to comply with and this is another thing that your counsel might have to spend a bit of time explaining to you.

106I believe at this stage my associate has to approach the dock and has to show him the paperwork and he has to sign that paperwork.  I think it is probably appropriate that it be explained to him before he signs it and I think I will give you some time to do that.

107MR SAWYER:  Thank you, Your Honour.  Maybe ten minutes,
Your Honour?

108HER HONOUR:  Yes.

109MR SAWYER:  Actually five minutes.

110HER HONOUR:  Yes, all right.  Do you want me to stand the court down while I do that?  I can go out and I can sign these documents while I am outside while you explain those matters to him.

111MR SAWYER:  I would agree with that, Your Honour.

112HER HONOUR:  At the same time, the corrections order can go to him and that can be explained to him also.

113MR SAWYER:  Yes, Your Honour.

114HER HONOUR:  So he can sign that.

115MR STEVENS:  Your Honour, I have completed the recognizance release order.

116HER HONOUR:  And we will have that order as well.

117MR STEVENS:  It just requires Your Honour's signature.

118HER HONOUR:  All right.  Well I will go outside and I will keep myself busy signing all this documentation.  Yes.  Those matters that I have just alluded to can be explained to the accused and I will come back in.

119MR SAWYER:  Yes, Your Honour.

120(Short adjournment.)

121MR SAWYER:  Thank you for that time, Your Honour.  I have gone through everything with my client and he understands.

122HER HONOUR:  Yes.  Well I am now going to hand him the paperwork for him to sign which is the recognizance order, the community corrections order and the sex registration.  I can make - you can take a seat.

123MR SAWYER:  Yes, Your Honour.

124HER HONOUR:  Mr Taylor, it is actually not - it is really not complicated.  I know you understand totally what it all means.  It all means one thing.  You cannot go out and commit any more crimes.  You cannot get into any more trouble.  If you do, you come back here and you go to gaol.  It is really that simple.  That is what those signing of those documents is saying.

125MR STEVENS:  Just one very quick thing, Your Honour.  I forgot to cross out the undertaking by surety.  If that could be crossed out at the bottom ‑ ‑ ‑

126HER HONOUR:  All right, we can just cross that out.

127MR STEVENS: - - - because that does not apply.

128HER HONOUR:  Now in relation to the fines, are you seeking a stay?

129MR SAWYER:  Yes, Your Honour.  I am.

130HER HONOUR:  I will grant a stay of - how long do you want?

131MR SAWYER:  County Court is a little bit different than the Magistrates' Court but I would be seeking three months at the very least, Your Honour.

132HER HONOUR:  All right.  There will be a stay of three months.  Can you tell him that he can convert those into community work.

133MR SAWYER:  Yes, Your Honour.

134HER HONOUR:  Given his financial position that would be a very sensible thing to do.  Now is there anything else, because this was reasonably complicated because of the different sorts of orders ‑ ‑ ‑

135MR SAWYER:  You made it very simple actually, Your Honour ‑ ‑ ‑

136HER HONOUR: ‑ ‑ ‑ and charges and - now I probably have to do a s.6AAA I suspect ‑ ‑ ‑

137MR SAWYER:  Indeed.

138HER HONOUR:  I will say, once again for the record in this particular case, is highly artificial but I am going to do it because I am required to.  On indictment 2, you would have been sentenced to 12 months imprisonment with a minimum non-parole period of 6 months.  On indictment 1, 15 months to be followed by imprisonment, followed by two years of a community corrections order.

139MR STEVENS:  As Your Honour pleases.

140MR SAWYER:  As Your Honour pleases.

141HER HONOUR:  Now there is a final thing I want to say.  I notice that your mother is in court today, Jason.  I think it was really important that she attend here today to not only hear about the trouble that you got yourself into, but also to show her support for you and I commend her for being here today and supporting you and I know she has had a tough life and I know you have got a brother that has been in trouble as well. 

142Given that, I say once again, it is great that she is here and I am really pleased to see her here.

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