Dojr v A.J

[2018] VCC 1412

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00975

DEPARTMENT OF JUSTICE AND REGULATION

v

A.J.

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JUDGE:	HER HONOUR JUDGE SEXTON
WHERE HELD:	Melbourne
DATE OF HEARING:	24 July 2018
DATE OF SENTENCE:	24 July 2018
CASE MAY BE CITED AS:	DOJR v A.J.
MEDIUM NEUTRAL CITATION:	[2018] VCC 1412

REASONS FOR SENTENCE
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Subject:         Criminal Law – Supervision Order
Catchwords:  Fail to comply with supervision order
Legislation Cited:
Cases Cited:
Sentence:      TES – 2 months imprisonment

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APPEARANCES:	Counsel	Solicitors
For the Secretary to the Department of Justice & Regulation	Ms F. Holmes	Minter Ellison
For the Accused	Ms E. Ramsay	Emma Turnbull Lawyers

HER HONOUR:

1A. J., you have pleaded guilty to two charges of failing to comply with a condition of a supervision order and you have been found guilty in respect of one charge of failing to comply with a condition of your supervision order.  I granted summary jurisdiction for these charges and so the maximum sentence for each of them is two years' imprisonment. 

2The prosecutor has provided written documents which have been exhibited and the ultimate submission is that it is open to the court to impose a further period of imprisonment on you in order to give effect to the relevant sentencing principles.  It is acknowledged however on behalf of the Department of Justice and Regulation that these breaches are not of the highest order. 

3On your behalf, it has been submitted that there are other options than a gaol sentence.  And as I have made clear, I can only impose a sentence of imprisonment if I am satisfied that it is the only appropriate alternative.  Counsel on your behalf submitted that the other options were a community correction order or a deferral of the sentence where I would adjourn the sentence for a period, anything up to 12 months, and then come back and see what has happened in the meantime.  And if things have not gone well, I can proceed to sentence you at that time on that basis and after hearing further from the barristers.

4The counsel on behalf of the Department of Justice and Regulation submitted that the option of a community corrections order was not a real option when the person is on a supervision order.  I indicated that that was information I had previously been given but was getting to a stage where I might need to hear evidence about exactly why it is impractical.  Although as I said, it has been outlined as to why it is impractical.  I also have explored the possibility of a fine, as there had been a previous disposition of that nature, just so that I had all options explained before me or submitted before me. 

5Any breach of a court order is serious but a breach of a supervision order where a person has been found, as you have been found, to be a high risk of committing a sexual offence if in the community and not on a supervision order, and where the conditions are designed to manage that high risk, then the level of seriousness of not complying with the order is greater.  Having said that, these particular breaches that appear in the submissions filed on behalf of the Department and also in my ruling in terms of the finding of guilty, are not at the highest level and are realistically at the lower level.

6The sentence that I impose today if I do not defer sentence must reflect the fact that there has been a plea of guilty to two of the charges, and that must be taken into account in your favour.  It must also take into account that you have a history of breaching a supervision order or the condition of a supervision order.  And therefore the sentence needs to have, as one of its purposes, try to prevent you from reoffending in the same way in the future.  It must also take into account that, as I have said, these are lower level breaches.  But it is still conceded on your behalf that general deterrence is important, that is to say that other people on supervision orders must understand that they will be punished if they breach such an order.

7I also need to take into account by this sentence that you have a complex personality which is difficult to define, but it does mean that you make impulsive and wrong choices, that may have some bearing on the offences which led to you being found guilty or pleading guilty to breaching your order.  I also take into account that unusually, you have a level of insight into your risk and recognise that and indeed, want to do something about it.  And that is in your favour. 

8I have been told that you are looking to find a way of reengaging in treatment and that you have been seeing a private practitioner recently, and that is to be encouraged, either with the private practitioner or back with the SOATS.

9Ultimately, I have decided that this is not a case where I will defer the sentence.  It seems to me that this is a matter that should be concluded today. 

10I have decided that a term of imprisonment is the only appropriate alternative for you for these breaches, and that is taking into account all of the things I have just said, but in particular, that this is the third time you have breached your supervision order.  One of the charges related to a repeat type of breaching behaviour, that is, contact with a convicted sex offender being the same person, on a previous occasion; that you are at a level of risk which requires you to be on the supervision order and two of the charges are relevant to that risk: one speaking to a child, even if it was saying "Hello", and the other being the retaining of images or an image of children under 16.

11So taking all of that into account, I have decided as I said, a sentence of imprisonment is the only alternative.  That means there will be some delay before you can resume your treatment with a private practitioner.  But the need for punishment outweighs the need for you to resume that attempt at rehabilitation. 

12So if you could stand up please, Mr Armstrong.

13On all the charges, you are convicted and sentenced to an aggregate term of imprisonment of 2 months.  If you had not pleaded guilty to the two charges to which you did plead guilty, then the sentence I would have imposed on those charges would have been two months on each sentence.  Are there any other orders required?

14MS HOLMES:  No, Your Honour.  We would seek that a transcript be prepared if possible please, Your Honour.

15HER HONOUR:  Yes, I know that's usually the request.  Don't usually have them on a plea.  However ‑ ‑ ‑ 

16MS HOLMES:  Because the matter proceeded as a contested hearing with the plea at the end, perhaps it might slip under the radar.

17HER HONOUR:  Well, I was thinking that the ruling that I provided for the finding of guilt would be revised ‑ ‑ ‑ 

18MS HOLMES:  Yes.

19HER HONOUR:  ‑ ‑ ‑ and available in any event.  Would that be sufficient?

20MS HOLMES:  My instructions are to request the transcript.  But I can do no more than simply do that and acknowledge that it would be very helpful to have a revised copy of the finding.

21HER HONOUR:  All right.  Well, perhaps I'll follow the usual practice but not saying that it's a precedent that - and I say the usual practice, that where there is something unusual in these supervision order cases, I will order that there be a transcript prepared of today's hearing and made available to the parties.

22MS HOLMES:  Thank you, I appreciate that, Your Honour.

23HER HONOUR:  Yes, thank you.  Mr Armstrong may be removed.  Yes, I thank counsel and everyone else for their assistance.  And I will adjourn now until 9 o'clock tomorrow morning.

24MS HOLMES:  Your Honour pleases.

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