Director of Public Prosecutions v Van Daalen

[2020] VCC 1210

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00480

DIRECTOR OF PUBLIC PROSECUTIONS

v

JACOB VAN DAALEN

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	22 July 2020
DATE OF SENTENCE:	7 August 2020
CASE MAY BE CITED AS:	DPP v Van Daalen
MEDIUM NEUTRAL CITATION:	[2020] VCC 1210

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:             Contravention Community Corrections Order (CCO) – Commonwealth and State offences – Separate CCOs originally imposed for separate jurisdictional charges – Withdrawal of State contravention charge – Contravention by way of non-compliance – Delay in prosecuting contravention charge - Lack of insight into offending – Mental health issues

Sentence:Commonwealth contravention charge proven – No further order in relation to this charge – Convicted and re-sentenced on original Commonwealth charge – New CCO imposed of 2 years’ duration – Supervision - Unpaid community work of 211 hours with up to 100 hours of this condition to be satisfied by an equivalent period of successful completion of any of the treatment and rehabilitation conditions – Mental health treatment and rehabilitation – Program in relation to re-offending - s.6AAA Sentencing Act 1991 declaration

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Pillai	Commonwealth DPP
For the Accused	Mr J. Barrera	Stary Norton Halphen

HER HONOUR: 

1Jacob Van Daalen, you have pleaded guilty to one charge of contravention of a community corrections order - the community corrections order had been imposed in respect of a Commonwealth offence, namely, using a carriage service to groom a person under 16 years, by Her Honour Judge Patrick, as she then was, on 17 February 2017.  The offence was committed between
1 October 2014 and 12 December 2014, and comprised two distinct occasions of interactions with a police undercover operative posing as an underage girl.

2Under the Commonwealth regime, the maximum penalty for such a breach is 10 penalty units and it is open to me to re-sentence you in respect of the original offending.  The maximum penalty is in relation to the breach offence is one of the matters that I must take into account in sentencing you, and obviously if I were to re-sentence you, which I do intend to do, I must take into account the maximum penalty applying to the original offence.

3At that time, Her Honour imposed a community corrections order for the Commonwealth offence, she also imposed a community corrections order for a State offence, namely possession of child pornography which was discovered at your home when you were arrested for the Commonwealth offence in July 2015.

4The Commonwealth community corrections order was to run for two years from 17 February 2017 and the State community corrections order was to run for six months from that date.  The Commonwealth community corrections order required you undergo supervision for two years, to engage in treatment and rehabilitation to address factors relating to your offending, and to perform 300 hours unpaid community work over the period of the order.

5The State community corrections order required you to perform an additional 100 hours over the six months that it operated.

6When the breach proceedings came before me, the prosecution withdrew the state contravention charge, as the charge was filed too late, so you only face the Commonwealth matter before me.

7The contravention of the community corrections order admitted by you in respect of the Commonwealth matter is by way of non-compliance and further offending, namely, failing to comply with reporting obligations under the Sex Offender Registration provisions/failing to report child contact-committed between 18 February 2017 and 31 August 2017, and contravening a bail condition.

8Insofar as non-compliance of the Commonwealth community corrections order is concerned, there was a degree of compliance but the failures to comply are as follows:

(a) four unacceptable absences from supervision;

(b) 210.5 hours in respect of unpaid community work which were not performed.

9I note that you did complete the 100 hours in respect of the State community corrections order, which is to your credit, but across the orders you incurred 85 unacceptable absences.

10It is of concern that you did not continue on with the community corrections order requirements in respect of the Commonwealth community corrections order, but I understand that the subsequent matters meant that one of the most important conditions of the order - that you undergo appropriate sex offenders program, never happened.

11The contravention report indicates that although you engaged in the supervision aspect of the community corrections order to a fairly significant extent, you did so at a fairly superficial level.  You have a good way to go in developing appropriate insight in respect of your offending.

12I note that the further offending was committed shortly into the commencement of the community corrections order and there have been no further matters since, which is now a significant period.

13There has been a great deal of delay in respect of the contravention proceedings through no fault of yours.  The prosecution at State and at Commonwealth level dropped the ball to some extent in respect of this matter, no doubt, this led to you having a good deal of anxiety in respect of the matters hanging over your head, but it also gave you time to show that you could rehabilitate.  Also in the intervening period, you underwent 90 days' gaol for the subsequent matters, which was a most salient experience.

14In all of the relevant circumstances, it was agreed as between the parties that it would be appropriate for the present Commonwealth community corrections order to be cancelled and for you to be assessed once more for a further community corrections order.  I agree that this is the appropriate course in your case in all of the relevant circumstances.

15I find the breach proven and cancel the Commonwealth community corrections order.

16In re-sentencing you, I have taken into account the circumstances of the original offending as set out in the plea prosecution opening and the matters factored in by Her Honour Judge Patrick, a number of which must also be factored in by me - these include the relevant maximum penalty for the original offence, the stage that you pleaded guilty and your background.  I also take into account the extent to which you complied with the community corrections order for the Commonwealth offence.

17In re-sentencing you, I have taken into account your mental health issues and the COVID-19 conditions in gaol at present - these factors would make time in gaol a good deal more burdensome than might otherwise be the case.  I also factor in the report of Ms Mynard psychologist in a general way in
re-sentencing you.  I have also taken into account the report of Geoffrey Burrows, who is a ‘forensic counsellor’, who reported that you have engaged in seven 60 minute sessions of a sex offender treatment program with him via video conference, the first being in May this year.  You have paid for these out of your own pocket.  He indicated that you have been making some progress but have a good way to go in developing appropriate insight and appreciating the impact of your offending in respect of the original matters.  However, you expressed a willingness to him to continue with treatment to further address these issues.

18I take into account your preparedness to accept responsibility for breaching the community corrections order and that, as at the time that the offences giving rise to the community corrections order were committed you had no prior convictions or findings of guilt and were a young man - you still are fairly young, and I must do what I can to maximise your chances of rehabilitation.

19You have a solid work ethic and a wife and child to care for.

20I have factored in the letter from DHHS in respect of your care for your child and their supervision of you insofar as caring for your child is concerned.  Their intervention provides a further protective layer which works in your favour.

21In all of the relevant circumstances, and having viewed the community corrections order assessment of you, I intend to impose a further community corrections order which will ensure that you complete the sex offenders program and complete the unpaid community work that is still outstanding.  However, it is very important that you get the mental health treatment that you need as well.  I am therefore going to allow for a good portion of the unpaid community work to be traded off against the successful completion of any of the treatment and rehabilitation conditions.

22Therefore, you are convicted of the breaching offence, and I make no further order in respect of this.

23In respect of the original offending of Using a carriage service to groom a child under 16 years, having cancelled the previous community corrections order imposed, I propose to place you on a further community corrections order but I cannot do so unless you agree so please listen carefully to what I propose:

24The community corrections order would run for a period of two years.

25The conditions of the community corrections order would be as follows:

26The mandatory terms that apply to all community correction orders are:

27You must not commit another offence for which you could be imprisoned during the time that the order is in force;

28You must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations 2011;

29You must report to, and receive visits from, the Secretary to the Department of Justice (or his or her delegate);

30You must report to the Werribee Community Corrections Centre before 4 pm within two clear working days of today.  I understand at this stage, it would be best to telephone and see what happens from there in terms of how you should report and it might be that it is just telephone reporting, but I would ring them today and just check that out, all right?

31OFFENDER:  Yep.

32HER HONOUR:  You must let a community corrections officer know within two clear working days of you changing your address or job;

33You must not leave Victoria without first obtaining permission to do so from the Secretary to the Department of Justice (or his/her delegate);

34You must obey all lawful instructions from and directions of the Secretary to the Department of Justice (or his/her delegate).

35The conditions that apply in addition to the mandatory terms listed are:-

Community Work

36You must undergo 211 hours unpaid community work within two years.  Up to 100 hours of this condition may be satisfied by an equivalent period of successful completion of any of the treatment and rehabilitation conditions.

Supervision

37You must be under the supervision of a Community Corrections Officer for a period of two years.

Treatment and Rehabilitation

38You must undergo mental health assessment and treatment including (but not limited to) mental health, psychological, neuropsychological and psychiatric treatment and, if required, in a hospital or residential facility, as directed by the Regional Manager.

Programs re offending

39You must undergo programs or courses aimed at addressing factors relating to the offending as directed by the Regional Manager - the principal program that I want you to undertake is the Better Lives program or any program which addresses the original offending and helps you to develop appropriate insight in respect of this.

40Do you consent to the terms and conditions of the order?

41OFFENDER:  Yes, I do agree, Your Honour.

42HER HONOUR:  I should tell you that if you do not comply with all of the requirements of this community corrections order then you will face breach proceedings before me.  You will be sentenced in relation to the breach and you will be re-sentenced in relation to the charges - in which case you may well be sentenced to a term of imprisonment.  I would regard a breach of the community corrections order as a most serious matter, whether it be because of further offending or because of non-compliance with any of the other conditions of the order.

43Do you understand this?

44OFFENDER:  Yes, I do, Your Honour.

45HER HONOUR:  Do you maintain your consent to the order?

46OFFENDER:  Yes, I do.

47HER HONOUR:  Therefore, in relation to the charges, you are convicted and sentenced to a community corrections order in the terms and conditions that I have just set out.

48I am going to arrange for you to sign that order which will be achieved I understand by certain steps that have been put in place because of the COVID-19 restrictions and my associate will attend to those steps and you must sign that order and it will be sent back to the court and I will also sign that order, all right?

49OFFENDER:  No problem.

50HER HONOUR:  Now, I indicate that if you had not pleaded guilty to the contravention offence, I would have convicted you of the contravention offence and fined you $1000.

51Now, first of all, Madam Prosecutor, is there anything arising out of that?

52MS PILLAI:  No, as I understand it, Your Honour has imposed a community corrections order without the optional fine pecuniary penalty.

53HER HONOUR:  That is right.

54MS PILLAI:  The Commonwealth never sought that and never specified that but I just wanted to close off on that.

55HER HONOUR:  That is right.  Yes, I know you did not seek it.  Yes, thank you.  Yes, Mr Barrera, anything arising out of that?

56MR BARRERA:  No, Your Honour, thank you.

57HER HONOUR:  All right, yes.  Thank you.  Very well.  At this stage, it might be that I just have you put in the lobby for a moment and I will just check with my staff as to whether there is anything further that needs to be done.

58All right, thank you.  That is all that needs to be said other than, Mr Barrera, my associate will be sending the order to you for your client's signature.  I think that one way or another that can be achieved but it will be done through you and she will be contacting you by email in relation to that and Madam Prosecutor, I do note what you said in relation to the reasons for delay in the matter, which were further explained.  I thank you for that.  I still was of the view though that there was some delay as you indicated that was not through any fault of Mr Van Daalen but I thank you for your assistance.

59MS PILLAI:  Thank you, Your Honour.

60HER HONOUR:  All right.  Thank you very much.

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