Director of Public Prosecutions v Turzi

[2014] VCC 2288

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-00399

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL TURZI

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JUDGE:	HER HONOUR JUDGE COTTERELL
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	29 October 2014
CASE MAY BE CITED AS:	DPP v Turzi
MEDIUM NEUTRAL CITATION:	[2014] VCC 2288

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Albert	Office of Public Prosecutions
For the Accused	Ms A. Hancock

1HER HONOUR:  Daniel Turzi, you have pleaded guilty before me to two charges of failing to comply with reporting obligations, without a reasonable excuse.  The maximum penalty for that offence is five years' imprisonment.  You have also pleaded guilty to one charge of transmission of child pornography, the maximum penalty for that offence is ten years' imprisonment.  You have also pleaded guilty to one charge of using a carriage service in an offensive manner and the maximum penalty for that offence is three years' imprisonment. 

2You have further pleaded guilty to a number of summary offences, being four charges of possessing a prohibited weapon, the maximum penalty for that offending is two years' imprisonment or 240 penalty units; and to one charge of possessing a controlled weapon, the maximum penalty for which offence is one year's imprisonment or 120 penalty units; and finally, to possessing cartridge ammunition, for which the maximum penalty is 40 penalty units; and to one charge of breach of a suspended sentence, the maximum penalty for that offence is three months' imprisonment.

3

The facts of this offending were opened by the prosecutor and a summary of the prosecution opening was tendered as Exhibit A on the plea.  In brief, you were convicted at Melbourne Magistrates' Court of three charges of committing an indecent act in the presence of a child under 14, and were thus a registrable offender under the Sex Offenders Registration Act, with lifetime reporting obligations.  You failed to comply with that legislation by not giving details of a change in your phone number.  This was discovered when, on searching your residence on 9 May 2013, an iPhone was located under cushions on the couch in the sitting room.  You had been using the phone prior to your annual interview that you have to take as part of your obligations, on 25 February 2013, and had not reported that new phone number.  Those are the facts relating to Charge 1.  You further had not reported accessing the internet over the phone between the 2nd and 9 May 2013.  Pornographic images, which are the subject of Charge 3, were received on that phone on

2 May 2013, and that is the basis for Charge 2.

4Between 8 and 9 May 2013, you sent two images of a naked youth you described in a text message which accompanied the image as a 14-year-old.  The two images were sent by your phone to C, a friend of your former partner, whom you had met in about 2008 and with whom you carried on an online dialogue.  The transmission of the photograph to her is the basis for Charge 3.

5During your online dialogue with C you asked her to find a young girl to watch as you and C took part in a sexual act.  You frequently referred to C's 11 year old daughter and asked C to bring her, or to find some young girl that you could experiment on.  You then asked her to photograph her daughter naked.

6On the morning of 9 May 2013, C reported what had occurred to the police, having become concerned about the references to her daughter, and in the afternoon a search warrant was executed at your residence.  You were interviewed and made no comment when matters were put to you.

7The items that relate to the summary Charges 8, 22, 25, 45, 46 and 47 are based on the location of weapons during the execution of the search warrant.  In addition to those charges I am to deal with you for the breach of the suspended sentence imposed for the wilful and obscene exposure charge.  That involved you appearing before windows and exposing yourself to children in the street below.  I had sentenced you in relation to that.  I dealt with you for a breach of a Community Based Order that had been imposed and breached.  It was then varied and it was breached again.  The matter came before me on 20 June 2012 and after numerous appearances and your failure to comply with any orders I sentenced you to three months' imprisonment for failure to comply.  As I understand it, that order would have no effect.  It was way outside of the penalty range permissible for a breach of a Community Based Order at that time.

8

I also re-sentenced you in relation to all of those matters, having realised that you were not going to comply with any orders, and on the original offence of wilful and obscene exposure I sentenced you to eight months' imprisonment which was wholly suspended for a period of 15 months.  The new matters, for which I am dealing with you today, were listed for a contested committal on

5 March 2014 and extensive negotiations had already occurred in relation to resolution.  The negotiations continued before the hearing commenced and the matter was resolved by defence agreeing to proceed by way of straight hand-up brief, even though a complete resolution had not been reached that day.

9This is very disturbing offending, particularly in the context of your prior criminal history, which begins with a conviction at the Ringwood Magistrates' Court on burglary and theft charges and obtaining property by deception and using and possessing cannabis.  There were also ten charges of burglary, as I understand it, and you were convicted and sentenced to a Community Based Order for 12 months and were fined in relation to some minor drug matters.

10On 16 June 1998, for burglary and theft, you were convicted and sentenced to six months' imprisonment and on the same day you were dealt with at the Ringwood Magistrates' Court for failing to comply with a Community Based Order made in 1997.  You received six months imprisonment and concurrent and lesser sentences for the minor matters.  On 19 August you appealed in relation to those matters to the Melbourne County Court.  The appeal was allowed and the terms of imprisonment were replaced by a sentence of six months in youth detention.

11At Ringwood in 2001, and at Broadmeadows in 2002, you received fines with conviction in relation to possessing a prescribed weapon without exemption, being unlawfully on premises, and possessing a regulated weapon.  On the same day at Broadmeadows you were placed on an adjourned bond with conviction and ordered to complete an anger management program for making a threat to kill.  On 30 December 2009 at the Melbourne Magistrates' Court you were convicted of the three charges of indecent act in the presence of a child under 16 and three charges of wilful and obscene exposure in public.  You were sentenced to three months' imprisonment on each set of charges, to be served by way of Intensive Corrections Order at the Broadmeadows Community Corrections Centre.

12These were the matters which came before the Melbourne County Court in May 2010 and the appeal was allowed.  You were re-sentenced to imprisonment to be served by way of Intensive Corrections Order and you were placed on a Community Based Order for two years with conditions in relation to alcohol and drug treatment, medical and psychological treatment, psychiatric treatment, and to participate in a program to reduce the risk of reoffending with referral to the sex offender program.  You were sentenced as a serious sexual offender at that time.

13On 14 October 2010 you appeared at the Broadmeadows Magistrates' Court and were convicted and fined $2,000 for failing to comply with your reporting obligations imposed when you were sentenced as a serious sexual offender.  You also appeared at the Melbourne County Court on 3 February 2011 in relation to a breach of your Intensive Correction Orders imposed on 27 May and the orders were reimposed and varied.

14A similar breach was dealt with on 9 September 2011 at the Melbourne Magistrates' Court and again on 20 January 2010 you were convicted and fined for failing to comply with your reporting obligations.  You again appeared in June 2012 and were dealt with for failing yet again to comply with the Community Based Order and that saga, of continuous breaching of orders, finally ended when, as I indicated, you received that sentence of three months for the breach, which was suspended for 15 months. You were re-sentenced in relation to the offences to eight months' imprisonment.

15Your current offending breaches the suspended sentence order.  I note that you have been in custody since your arrest on 9 May.  You now have a total of five hundred and thirty-nine days of pre-sentence detention for which you shall receive credit. 

16In sentencing you to that period of eight months, I told you, and warned you, that because you are a registered sex offender and you are on the register, if you failed to comply with your obligations, that would be sufficient to breach the suspended sentence.  You clearly took no notice of that because you have in fact pleaded guilty to the charges of failing to comply with your reporting obligations, together with the offences for which I am dealing with you today.

17You have not addressed any of the issues, in particular your psychological issues, and the content of your text messages in which you made reference to the involvement of the recipient C's 11 year old daughter are sinister and sickening, and the very nature of those messages raises the issue of you receiving some form of treatment. 

18In a psychological report tendered as Exhibit 1, prepared by clinical psychologist Carla Lechner, it is indicated that you are finding it difficult to come to terms with any view of yourself as a sex offender who is now on the Register.  Ms Lechner indicates that you need further assessment and counselling supports from the sexual offenders program, which ironically was what the Community Based Order that I originally imposed were designed to provide.

19Ms Lechner writes that she suspects that you are minimising the extent of your socially unacceptable sexual interests and attitudes, in that you have not completed the sexual offenders program.  She also stated you told her that you had done the assessment but after you got the suspended sentence you decided it was not a requirement.  The reason you received the suspended sentence, of course, was, as I have explained, due to your complete refusal to cooperate in any way with the orders on which you were placed.

20Ms Lechner also gives your personal history in her report.  Your childhood had very damaging aspects as you were exposed to intense violence perpetrated by your stepfather on both yourself and your mother.  You left school half-way through year 10 and your education was therefore incomplete and you have had only intermittent employment since that time. 

21You used drugs from an early age, resulting in your social, emotional and vocational development being very limited.  You never negotiated or acquired the skills which one normally acquires during adolescence, such as conflict resolution, problem solving, or management of negative feelings.  You did, however, have a period of relative stability during the time you lived with your partner, Natasha.  She worked and you were the primary parent in relation to your daughter, who is now aged seven.  That relationship has now ended.

22

You are showing symptoms of clinical depression, to which your current predicament, that is, being incarcerated, is a large contributing factor. 

Ms Lechner indicates that you need to be involved with the sexual offenders program.

23

As a result of your indication that you believed your cognitive abilities were declining, a neuropsychological report was obtained, it was prepared by

Ms Jane Lofthouse and tendered as Exhibit 3 on the plea.  You had indicated you were assaulted in 2011 and sustained a traumatic brain injury.  The report was sought to clarify any intellectual impairment.  Ms Lofthouse refers to a number of instances which may have resulted in you sustaining an acquired brain injury.  During your sessions with Ms Lofthouse you tended to deflect responsibility for your criminal behaviour and you told her that you did not know that the behaviour that led to your current charges was criminal, although you accept that ignorance did not excuse the offending.  The question of your brain injury, if there was one, remains unclear, but she indicated it would probably have largely repaired itself in the intervening time.

24Your intelligence quotient was assessed as being low-average range and testing indicated some intellectual deficits and also that you reported symptoms of depression and anxiety since your late 20s.  Ms Lofthouse indicated that you are likely to benefit from a psychiatric review with an ongoing treatment plan for psychiatric intervention, as appropriate.  She indicated that your psychiatric state is likely to impinge significantly on you while you are incarcerated and you would therefore suffer an additional hardship in comparison with members of the prison population who do not suffer from similar issues to yours.

25Ms Lofthouse assesses your intellectual impairment as mild and most likely related to the type of brain injuries sustained from drug and alcohol use through your adolescence, together with traumatic incidents.  Although she had no medical material for reference, Ms Lofthouse concluded that after the assault which you referred to that occurred in 2011, any residual impairment would be mild in nature and that any difficulties that you have could be ameliorated with appropriate rehabilitation.

26She indicates that you were able to express remorse for your criminal offending and that you are now in a positive position to undertake rehabilitation which may reduce the risk of your reoffending.  I have taken those assessments in to account in determining an appropriate sentence for you, in particular the passage I just read you from Ms Lofthouse, that she finds that you are in a positive position to undertake rehabilitation.  In relation to the gravity of your offending, as I understand it your failure to comply with reporting obligations was not the most serious breach of the reporting conditions, however you did use the iPhone, which you had failed to report in relation to sending the image, which is the subject of Charge 3.

27I am now going to summarise some matters that I am required to take in to account in sentencing you, the other matters which the Sentencing Act requires me to take in to account.  Firstly, general deterrence, that is that others who would think to behave as you have will realise that serious consequences will flow when they are apprehended.

28Secondly, specific deterrence, which is very important in this case, because you have refused, up until now, to accept your obligations made under the orders which were made to address your offending and you have refused to accept your responsibility, indeed, in relation to the offending which has been repeatedly before the courts.  Any sentence I impose must deter you from committing further offences.  I must also address your need for some form of treatment.  I do note that you have now spent some 18 months in prison and I understand that that has had a serious deterrent effect on your behaviour and on your intentions as to how you will conduct your life in the future.

29I am further required to denounce your conduct on behalf of the community and I do so absolutely.  The community will not tolerate sexual offending such as yours.  It will not tolerate the type of message that you were sending using your iPhone, which, as I said, was totally abhorrent and sinister.  Also, the community will not tolerate your repeated appearances for breaching court orders made to try to address your initial behaviour, or which were made as a consequence of it.

30Finally, I am required to impose just punishment in all of the circumstances.  That is, I need to take into account the matters put in mitigation on your behalf and also the now lengthy period that you have served in custody, which has been your first experience of incarceration and I also need to ensure that as a relatively young man you have the opportunity to be rehabilitated and return to the community as a functioning member.

31To that end, I intend to sentence you to far shorter terms of imprisonment in relation to the offences, but combine them with a Community Corrections Order.  To that end I obtained an assessment report as to your suitability for such an order.  You have been found suitable, despite your history of breaching such orders, which I have been through at length.  You have been assessed as being a high risk offender and to address that risk a condition of the order should be that you complete a sex offenders treatment program, such as the one which you refused to engage in when you were on an earlier order.  I understand that you are now willing to comply with and participate in the requirements consequent to any such order.

32I'm now going to sentence you, so if you would stand for me, please.  On Charges 1 and 2 you are convicted and sentenced to two months' imprisonment, to be served concurrently with each other and with other sentences imposed in this case.  On Charge 3 you are convicted and sentenced to eight months' imprisonment, also to be served concurrently with other sentences.  On Charge 4 you are convicted and sentenced to four months, that is the Commonwealth offence, that will also be served concurrently with the other sentences imposed in this case and that sentence will commence today

33In relation to the summary offences, on Charges 8, 45, 46 and 47 you are convicted and sentenced to two months imprisonment to be served concurrently with all other sentences.  On Charge 25 you are convicted and sentenced to one month imprisonment, to be served concurrently with all other sentences.  On Charge 22 you are convicted and fined $800 and you will be given time to pay that.

34I further order in relation to these matters that you be subject to a Community Correction Order of 20 months' duration, which will commence on your release from prison, which should be imminent.  The order will require that you perform community work and I order that you perform 200 hours of community work; that you undergo treatment and rehabilitation for mental health matters; that you undergo treatment and rehabilitation programs to reduce re-offending, and that will include the sexual offenders program; and that you be subject to supervision for the period of the order.

35You understand that if you breach the order you will be brought back before the court, as you well know, because you have been back many times before, and you will be dealt with and maybe resentenced in relation to the matters for which I have imposed low prison sentences at this stage.

36Further, I order that the breach of the suspended sentence be found proved and that the eight months period of imprisonment that was suspended be restored and served cumulatively on the other sentence imposed in the matters for which I dealt with you today.  That, on my calculation, is a total effective sentence of eight months' imprisonment followed by 20 months of Community Corrections Order which will commence when you are released.  I declare that the 539 days of pre-sentence detention be declared time served and that that fact be entered in to the records of the court.  I will impose 2 separate Community Corrections Orders, one for the state offence and one ith no work component for the Commonwealth offence.

37Pursuant to s.6AAA, but for your plea of guilty I would have ordered that you serve two years imprisonment with a one year Community Corrections Order.  Did you understand all that, Mr Turzi?

38MR ALBERT:  I understand that.  Or not substantially more, anyway.  I do not think Your Honour sentenced on the breach of the suspended sentence.  You restored it.

39HER HONOUR:  That is right, I did not sentence on the breach, and - so if I sentence him to two months' imprisonment for the breach and again artificially make that cumulative on the other sentences, that makes 18 months.  If I make it one month that makes it 17 months. That means he would be released immediately, would it not?

40MR ALBERT:  Yes, 18 months he'd probably be released - 539 days, maybe a week or two.

41HER HONOUR:  No, I'll make it 17 - I'll make it one month for the actual breach, which will be served cumulatively, and that makes 17 months.  So then you should be released almost immediately.

42From Charge 3 I am sentencing you as a serious sexual offender and I have taken that in to consideration in considering matters of cumulation between the various charges and I have not imposed a sentence which is in any way disproportionate, however, to the degree of criminality which I have found as I may have done in the interests of protection of the community which becomes a prime consideration when you are sentenced as a serious sexual offender.  I have not had it urged upon me by counsel that I impose any disproportionate sentence.  Is that all right?

43MR ALBERT:  Yes, Your Honour.

44HER HONOUR:  Did that cover everything?

45MR ALBERT:  So far, I'm going step by step.

46

HER HONOUR:  Yes, thank you.  I'll make the forfeiture order and disposal order as requested, which has not been opposed.  Not opposed,

Ms Hancock?

47MS HANCOCK:  Not opposed, Your Honour.

48HER HONOUR:  I'll make a declaration that it should be entered in to the records of the court that he is already on the serious sexual offenders register for life.  But for that fact I would have made him a registered - he would be on the register for a period of eight years.

49I reserve the right to amend the transcript so that it accurately reflects what occurred today.  The end result of what occurred today.  CLMS will not allow us to include the Commonwealth offence on the Community Corrections Order.  That's a surprise to me.  But I suppose we could make two separate orders.

50MR ALBERT:  Does it make any difference, in terms of ‑ ‑ ‑

51HER HONOUR:  Well, it doesn't really make any difference. It's a small - a very small sentence.  I think maybe we might do two more orders.  All right, we could include that by another order, a free hand order, that it is included, but I don't know whether this is something you would know, Mr Albert, whether there's something that precludes the inclusion of a Commonwealth offence.  Perhaps it needs to be a separate order.

52MR ALBERT:  I think probably it does need to be a separate order, keeping them apart.

53HER HONOUR:  I think it probably does, because otherwise ‑ ‑ ‑

54MR ALBERT:  So we have the CCO applicable to the state offences and the Commonwealth sentence standing on its own but concurrent with the imprisonment, the custody.

55HER HONOUR:  Yes, we can we do that.  They have the same dates and the same conditions but it just allows them to - all right.  Any difficulty with that, Ms Hancock?

56MS HANCOCK:  Your Honour, I was just saying to my learned friend, I'm not sure that a Community Corrections Order is possible for a Commonwealth offence and that might be a difficulty.

57HER HONOUR:  That might well be right.

58MR ALBERT:  If that's the case it's the best way to do it, in two separate orders, then.

59HER HONOUR:  No, if we can't have a Community Corrections Order for a Commonwealth, it doesn't matter how many orders we make, it's just not appropriate.

60MR ALBERT:  It's not appropriate, but it won't be reflected in the record by the addition of that offence.  It's not appropriate, can't do it, and the record will be right that there's two separate ‑ ‑ ‑

61HER HONOUR:  Two separate orders, one of which just says it can't be done.

62MR ALBERT:  No, that doesn't mention it, the Commonwealth offence order doesn't mention the Community Corrections Order at all.

63HER HONOUR:  No, but I think that's right, it's a separate - I just thought we might be able to - I didn't realise that you couldn't order a Community Corrections Order in relation to a Commonwealth offence.  That doesn't sound right to me, are you sure of that Ms Hancock?

64MS HANCOCK:  I'm not, Your Honour.

65

HER HONOUR:  So I think we should check on that.  You can sit down,

Mr Turzi.  Do you understand, now, about the time, that you should be released - you have served your time.  So within a day or so you will be released.  Thank you.  Is there an appeal still on foot?

66MS HANCOCK:  No, Your Honour, it's possible that that appeal is the number for the breach of the suspended sentence.  Would that be correct?

67HER HONOUR:  Yes, it is, it is, yes.  So this is the - I've now signed the disposal orders and the forfeiture order.  Now, Mr Turzi, could you stand up for me please?  I have made this order, the Corrections order, because of the matters contained, I don't know whether you understood, in your psychologist's report and the neuropsychological report that I got and this is where I was heading at the beginning with the orders I made at the very beginning, that you do the sex offenders course and it's most important that you take this opportunity to accept the treatment and try to reinstate yourself in the community.  You do understand that?

68OFFENDER:  Yes, Your Honour.

69HER HONOUR:  You do understand that if you breach the orders, well, we'll just start the whole process again, but there'll be a lot less leniency.  You'll just go back to gaol.  All right?  Thank you.  What's the problem, Mr Albert?

70MR ALBERT:  Not a problem, Your Honour, but the question is whether a Community Corrections Order can be given for the Commonwealth offence that Your Honour's mentioned.  I understood the Commonwealth regime, in some aspects, was fairly self-contained in terms of a sentence over six months, and this isn't a sentence over six months, there would have had to be a recognisance release order.

71HER HONOUR:  I would have had to have the recognisance release order.

72MR ALBERT:  It's less than six months, so that's not required, the Community Corrections Order.

73HER HONOUR:  Another thing that played on my mind, yes.

74MR ALBERT:  I thought the sentencing regimes tended to be separate to that extent.

75HER HONOUR:  Then I don't see why I couldn't impose - there's nothing that says I can't impose a Community Corrections Order.  What happens in - there are some matters - I haven't dealt with any for years, but where they have a very low sentence, or they just get an order.  I'm sure they got Community Based Orders.

76MR ALBERT:  Under Commonwealth offences?

77HER HONOUR:  Yes.  Didn't they get - some of the people who defrauded the welfare ‑ ‑ ‑

78MR ALBERT:  Aren't they released on recognisance ‑ ‑ ‑

79HER HONOUR:  Bonds, you mean bonds?

80MR ALBERT:  Yes.

81HER HONOUR:  I don't think so.

82MR ALBERT:  I'm not going to be very helpful about this, Your Honour, because I just don't know.  Not deliberately.

83HER HONOUR:  I thought you were the expert on Commonwealth sentencing.

84MR ALBERT:  Commonwealth offences, Your Honour, limited to what - very limited.  My learned friend is looking that up, or trying to look it up. 

85HER HONOUR:  I might stand down for a minute while you - then you'll be more relaxed. 

(Short adjournment.)

86HER HONOUR:  Any results?

87MS HANCOCK:  Your Honour, I believe that under s.20AB of the Commonwealth Crimes Act that it is open to Your Honour. 

88HER HONOUR:  Yes.  That's the old s.20 bond section, is it?

89MS HANCOCK:  It's headed ‑ ‑ ‑

90MR ALBERT:  No.

91HER HONOUR:  No? 

92MS HANCOCK:  It's headed 'Alternative' - can I have a moment to get it up again, Your Honour, sorry. 'Additional Sentencing Alternatives'. 

93HER HONOUR:  Yes?

94MS HANCOCK:  I'm happy to hand mine up to Your Honour, if you'd like to have a look.

95HER HONOUR:  No, that's all right.

96MS HANCOCK:  Your Honour, that section is quite long. 

97HER HONOUR:  Yes.

98MS HANCOCK:  Your Honour, regulation 6 under the Crimes Regulations defines prescribed State and Territory orders and includes a Community Corrections Order under part 3A of the Sentencing Act 1991 of the Victoria.

99HER HONOUR:  Fantastic.  So what we've done is make the two orders.  The Commonwealth one does not include the work order because it would be double work. 

100MS HANCOCK:  As Your Honour pleases. 

101HER HONOUR:  Or could be interpreted as being double work. 

102MS HANCOCK:  Your Honour, may I approach my client?

103

HER HONOUR:  Yes.  Have those orders now been signed by your client,

Ms Hancock?

104MS HANCOCK:  They have, Your Honour.

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