Director of Public Prosecutions v Timms

[2020] VCC 1791

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 18-02176

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL TIMMS

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	9 November 2020
DATE OF SENTENCE:	9 November 2020
CASE MAY BE CITED AS:	DPP v Timms
MEDIUM NEUTRAL CITATION:	[2020] VCC 1791

REASONS FOR SENTENCE

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Brown	Office of Public Prosecutions
For the Accused	Ms S. Wendlant	Stary Norton Halphen

HIS HONOUR:

1Michael Timms, the offending you have pleaded guilty to occurred in early 2016, now over four years ago.  You were then 57 years old.  At that time, you had been homeless for some time, some years.  From time to time, you slept in empty buildings or squats in Geelong.  By day, you often frequented the mall in central Geelong.   You got to know some of the young teenagers who also hung around in the mall.

2The victim was a troubled 15-year-old girl who was under State care.  She often absconded from the residential facilities which were managed by the Department of Health and Human Services.  You met her and offered her a place to sleep in the squats that you were in at the time. 

3During that time, indeed on 6 March 2016, you supplied heroin to the victim, injecting it into her vein.  It was the first time the victim had heroin, a dreadful highly addictive drug.  You have pleaded guilty to a charge of supplying a drug of dependence to a child.

4A few weeks later and over the week of 19 April to 26 April 2016, the victim, whilst staying at the squat, was supplied with cannabis and methamphetamines.  This was charged as a single rolled-up charge of supplying a drug of dependence to a child. 

5On one occasion, while the victim was affected by the drugs you supplied, you groped her breast while masturbating to the point of ejaculating over her back.  This was charged as a single charge of committing an indecent act with a child under the age of 16. 

6The victim told social workers at the Department of Health and Human Services and the police of what had happened but did not continue with the complaint at that time.  She revived the complaint in June 2018.  You were arrested in
July 2018 and remanded in custody.  You were ultimately granted bail on
3 December 2019.  You spent 497 days in custody or 16 months and eight days. 

7The trajectory of this matter in the courts thereafter needs some discussion.  Substantial pre-trial arguments and the pre-recording of evidence was conducted on 24 and 25 September 2019.  The trial could not continue at that time when a separate complainant was injured in a motor vehicle collision. 

8The trial was relisted for March 2020.  Negotiations occurred at that time and a sentence indication hearing was thereafter listed for 31 March 2020.  However, the circuit and that listing were vacated due to the onset of the COVID-19 pandemic.  A relisting of the sentence indication hearing occurred on
7 August 2020.  I heard that application and granted the sentence indication application, and you pleaded guilty on arraignment. 

9Further unavoidable delays occurred as a consequence of your health seriously deteriorating, in particular, with the discovery of advanced liver cancer.  I will say more of this unfortunate development shortly. 

10Before turning to your health and other aspects of your personal history, I need to make clear that your exploitative and disgraceful offending in 2016 involves serious and troubling criminality.  Vulnerable children need to be protected.  You did the opposite by making your victim's awful circumstances much worse.  She was very troubled.  Her mother was there for her and did much to try and help her, but the complainant was, it seems, not easily controlled or helped. 

11She was duped into your ruse of wanting to help her, you exploited her naïve trust in you.  You knew that supplying her drugs made her predicament much worse, and in a dreadful display of sexual exploitation, you committed the indecent act while she was in a bad way, affected by the drugs that you had given her.

12As to your personal circumstances, you are now 61.  As I said, at the time you were 57.  Your upbringing was within a dysfunctional family due to violence and excessive alcohol use by your father and later, sexual offending by your stepfather.  You had periods of being in State care, including large institutions for the young.

13You gained some qualifications as a plumber and started a small business, but it did not last.  You have had jobs in many industries, but none of them long-term.  You last worked over eight years ago.  You have been on a disability pension for many years. 

14You commenced using drugs in your early teens and became quickly addicted to heroin at an early age.  This addiction dominated your life for many years.  You tried inpatient rehabilitation programs and methadone but would often relapse. 

15You were convicted of many drug, dishonesty and driving offences from the late 1970s, through the 1980s and into the 1990s.  You received sentences of imprisonment but many of those terms were suspended.  However, you breached those suspended sentences and the sentences of imprisonment were reimposed. 

16Relevantly, there were offences for trafficking in drugs, as well as a number of convictions of possession of drugs.  You have no prior convictions for sexual offending. 

17The second last of your prior convictions was in 1998, a false bomb hoax and threat and intentionally causing injury, for which you received another suspended sentence.  Thereafter, you were not before the court again for many years until 2015, when you received a fine for shoplifting. 

18Your prior matters do you no credit, but they are now dated.  In the context of your serious ill health, I am now of the view that your risk of reoffending in the future is low. 

19I have mentioned your serious ill health, and as was revealed in the recently provided medical material, you have advanced and incurable liver cancer; your prognosis is grim.  It turns out that around the time of the sentence indication hearing, you went to the Geelong Hospital following a fall that caused a head injury. 

20A whole of body CT scans that were fortunately undertaken revealed a large cancer in your liver.  Later you were admitted to the hospital from 19 to
24 September. You were thereafter discharged into the care of your sister, in what is in effect palliative care with pain relief, including methadone.

21While a precise life expectancy was not given, it is clear your condition is terminal and is very advanced.  Ill health is always relevant to sentencing.  A grant of the sentence indication application before there was any information about your liver cancer.  I indicated at the time that no further imprisonment beyond the 497 days that you had served was required. 

22The fact that you now have advanced and terminal cancer, absolutely fortifies my conclusion that no more gaol is required.  Indeed, a sentence of further imprisonment, given your advanced cancer would be disproportionate, in fact cruel. 

23At the time of the sentence indication, I considered imposing a further punishment via a community corrections order, which would punish but also facilitate your rehabilitation with respect to your entrenched drug problem.

24A diagnosis of your incurable cancer means that the additional sentence in the form of a community corrections order would be itself too much or completely impractical.  Your counsel made that supplementary submission, and upon receiving the material, the prosecution agreed.  I will not impose a community corrections order.

25I have not only given significant weight to your current poor health and poor prognosis.  I have also given weight to your plea of guilty.  It is of real value; especially as jury trials are currently suspended.  The age of the offending and the delays brought on by a range of circumstances - none of your making - also operates to mitigate (indistinct words).

26However, no one should be in any doubt that your crimes were abhorred.  Denunciation and general deterrence play the most important roles.  A gaol sentence is required o meet those sentencing purposes, but what you have served thus far, the 497 days is sufficient. 

27Doing the best I can in respect of Charge 1, impose a sentence of six months.  On Charge 2, I impose a sentence of eight months.  And on Charge 3, the sexual offence, I impose a sentence of 10 months.

28I order that two months of Charge 1 and four months of Charge 2 be cumulative on each other and upon the sentence imposed on Charge 3.  That gives a total effective sentence of 16 months. 

29I declare that you have served 497 days, that being just over 16 months.  I will ensure that this declaration is entered into the records of the court so there can be no doubt that you have served each and every day, indeed more than the sentence that I have just imposed, meaning there is no further gaol to be done.

30Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a sentence of three years with a non-parole period of two years.  Is there anything further required?

31MR BROWN:  There was a disposal order and also just in relation to the Sex Offenders Registration Act, Your Honour.

32HIS HONOUR:  Yes, thank you.  In respect to the disposal order, I will sign an order disposing what is sought.  Just in respect to the Sex Offenders, there is no discretion here, is there?

33MR BROWN:  No,  Your Honour, it is mandatory.

34HIS HONOUR:  Yes, all right.  Yes.  For how long?

35MR BROWN:  Eight years.

36HIS HONOUR:  Thank you.  Mr Timms, the requirement - is Mr Timms still online?  Yes, sorry, I just all the matrix.  Look, Mr Timms, what is required by reason of you having pleaded guilty to the offence of indecent assault of a child under the age of 16 is that you must go onto the Sex Offender Register, there is no discretion about that, and the length of time, there is no discretion, it is eight years.

37So, what will have to occur is that you will be provided with some documents which indicate that you have to - what the requirements of you are in respect of registering on the Sex Offender Register and maintaining your registration. 

38Now, what is normally required, what normally happens in a court is that you sign a document saying that you have been provided with documents that set out your obligations and the consequences if you do not meet those obligations.  That cannot be done in the COVID environment.  However, what I will do is provide all the documents to your solicitor, who will provide them to you.

39Your solicitors, in the end, will explain it all to you, there is significant obligations upon you and serious consequences if you do not comply with those obligations.  Mr Timms, do you understand that you are to be placed on the register and you have, yourself, obligations, and if you do not meet them there are consequences; do you understand that?

40OFFENDER:  Yes, Your Honour.

41HIS HONOUR:  Thank you.  I will sign the document that I have to sign, and my associate will do the same and we will forward those with an notification that
Mr Timms indicated he understood, they will be forwarded to the Chief Commissioner of Police.  Anything further?

42MR BROWN:  No, Your Honour.  No, Your Honour.

43HIS HONOUR:  Thank you.  Ms Wendlant?

44MS WENDLANT:  No, Your Honour, nothing further.

45HIS HONOUR:  Thank you.  All right, that brings this matter to an end.  You will have to speak to Mr Timms via separate telephone or his solicitors will - well, he is at his solicitor's office so they will sort that out.  I just discovered that. 

46MS WENDLANT:  Yes.

47HIS HONOUR:  All right, so thank you very much to counsel for your very considerable assistance in this matter and patience.  Mr Brown will understand that I will add a particular thanks to you, Ms Wendlant; this was a difficult matter that you handled very, very well indeed.  Thank you very much.

48MS WENDLANT:  Thank you, Your Honour.

49HIS HONOUR:  All right, I will sign those orders and we can leave the meeting.  Thank you. 

50MR BROWN:  As Your Honour pleases.

51HIS HONOUR:  Thank you.

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