Secretary to the Dept of Justice and Regulation v Lecornu
[2016] VCC 606
•12 May 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-00616
| SECRETARY TO THE DEPARTMENT OF JUSTICE & REGULATION |
| v |
| DEAN LECORNU |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 May 2016 | |
DATE OF SENTENCE: | 12 May 2016 | |
CASE MAY BE CITED AS: | Secretary to the Dept of Justice & Regulation v Lecornu | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 606 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Secretary to the Department of Justice & Regulation | Mr O.P. Holdenson QC | Russell Kennedy |
| For the Accused | Ms E. Ramsay | Mike Wardell |
HER HONOUR:
1 Dean Lecornu, you have pleaded guilty to one charge of breaching a supervision order by, without reasonable excuse, failing to comply with a condition of that order.
2 Section 160(1) Serious Sex Offenders (Detention and Supervision) Act 2009 (“the Act”) is an indictable offence, however the court may grant summary hearing for an offence contrary to s.160(1) of the Act (see s.172(5) of the Act).
3 Summary jurisdiction is sought and, therefore, although the prescribed maximum penalty for the offence contrary to s.160(1) of the Act is five years’ imprisonment, there is a jurisdictional limit of two years’ imprisonment when dealt with in this court summarily.
4 I turn to the supervision order. On 18 May 2012, her Honour Judge Harbison, made a supervision order in respect of you. That supervision order commenced on 18 May 2012, and is at this stage, to expire on 28 August 2018.
5 At all times relevant to the offence, the subject of the charge before me for sentence, that supervision order remained in force.
6 Turning specifically to a summary of your offending. At all times relevant to this charge, one of the conditions of the supervision order (made pursuant to s.16(2)(a) of the Act), specifically condition 6.1, provided that:
“[The accused] must not commit a relevant offence in Victoria or elsewhere”.
7 The phrase “relevant offence” is defined in s.3 of the Act to mean any offences listed in Schedule 1 of the Act.
8 Your offending involved committing an offence contrary to s.70(1) Crimes Act 1958, Victoria, namely, knowingly possessing child pornography. I turn to that offending. On 6 February 2015, two mobile telephones – a black Samsung mobile phone and a pink Alcatel mobile phone – were seized from you by Corella Place staff.
9 On 3 September 2015, there was an examination of the two mobile phones by members of Victoria Police.
10 On the memory card from the black Samsung mobile phone, were two images of naked prepubescent female children, between the ages of 5 and 13 years, with explicit emphasis on their genital area, but which did not involve sexual activity.
11 On the memory card from the pink Acatel mobile phone, there were eight images of naked prepubescent female children between 5 and 13 years of age, with explicit emphasis on their genital area, again not involving sexual activity.
12 All ten of those images were characterised as Category1 images on the CETS C4P Classification Chart.
13
You pleaded guilty to one charge of knowingly possessing child pornography, pursuant to s.70(1) Crimes Act 1958, on 12 February 2016 in the Ararat Magistrates’ Court, relevant to those ten images. You were, at that time, sentenced by the Magistrate to a term of imprisonment of 18 months.
A non-parole period was not fixed. The court did not make any declaration concerning pre-sentence detention.
14
You appealed that sentence to the County Court of Victoria in Ballarat (constituted by her Honour Judge Wilmoth) on 8 March 2016, were convicted of that offence and sentenced by her Honour to a term of imprisonment of
12 months. A non-parole period was not fixed. Her Honour declared 24 days had been served at that time by way of pre-sentence detention. I have been provided with a copy of her Honour’s reasons for sentence, which I have read.
15 The offence that is created by s.70(1) Crimes Act 1958 is a “relevant offence” within the meaning of the Serious Sex Offenders (Detention and Supervision) Act 2009 (see Item 21, Schedule 1 of the Act).
16 Turning to relevant sentencing principles, I was referred to Loader v The Queen & Anor[1] and Lecornu v The Queen & Anor[2]. I have read both those decisions.
[1] (2011) 33 VR 86
[2] (2012) 36 VR 382
17 When sentencing for your offending (ie: the breach of the order), you are not to be punished twice for the same wrongdoing. That is, you are not to be punished twice for the conduct which is subject of both the offence pursuant to s.70(1) Crimes Act 1958 and the offence that is before me, contrary to s.160(1) of the Act. However, it must be kept in mind that an offence contrary to s.160(1) of the Act involves the added criminality of failing to comply with a supervision order made by the court.
18 Turning to your contravention of the condition of the supervision order, Mr Holdenson submitted your breach was serious, in that the condition stipulated “(you) must not commit a relevant offence in Victoria or elsewhere”, that is your breach did not relate to what he called an administrative condition, and I agree.
19 Unfortunately, it is not the first time you have breached the supervision order.
20 Mr Holdenson submitted it would be appropriate to direct that some of the individual sentence imposed for the offence before me be served cumulatively upon the sentence imposed by her Honour Judge Wilmoth on 8 March 2016. That would reflect separately the criminality involved in breaching the orders made by the court, and again, I note discussion of this in both decisions to which Mr Holdenson had referred.
21 In particular, relevant to the offence before me, is that you have prior convictions for failing to comply with the supervision order. Specifically you were before me on two prior occasions, 5 July 2011 and 22 July 2015.
22 Mr Holdenson submitted when sentencing for this current breach, specific deterrence, general deterrence, just punishment and denunciation were relevant considerations.
23 He conceded, and I accept, your plea of guilty was entered by you at the earliest opportunity available to you.
24 You are entitled to have the fact of your plea of guilty taken into account in your favour and the timing of it, and I do so. Your plea of guilty has spared the time and cost of a trial and witnesses have not been required to give evidence upon your trial.
25 Further, I take into account in your favour, you entered your plea of guilty at the earliest opportunity and also indicated your intention to plead guilty earlier than that.
26 I also accept your plea of guilty indicates some remorse for your offending, however, as I discussed with Ms Ramsay, I am concerned about the genuineness, or at least level of your remorse, given your repeated breaches of the supervision order.
27 Ms Ramsay submitted that there was no issue taken with the principles of law, as enunciated by Mr Holdenson relevant when sentencing you.
28 Ms Ramsay conceded a term of imprisonment was the only appropriate disposition. Further, she conceded there needed to be some cumulation on the sentence imposed by her Honour Judge Wilmoth, given your prior history and the extra criminality involved in breaching the supervision order.
29 She, however, submitted there were unusual features about the progress of this matter to hearing, which would result in a greater degree of concurrency, not only relevant to totality, but also the delay in this charge coming to court.
30 In regard to the latter, Ms Ramsay tendered a chronology (Exhibit 1), and I now briefly refer to that.
31 The two phones seized from you on 6 February 2015 contained both the non-pornographic images for which I sentenced you on 22 July 2015, and the ten pornographic images for which you were sentenced ultimately by her Honour Judge Wilmoth. You had not been charged with those ten images until 12 November 2015, some 18 days prior to your release from prison on the sentence I imposed for the non-pornographic images on 22 July 2015.
32 That charge was not heard by the Magistrates’ Court until 12 February 2016, ie: after you were released from prison on 30 November 2015.
33 Following the Magistrates’ Court hearing, the appeal was heard and determined by her Honour Judge Wilmoth, as I said, on 8 March 2016. You were sentenced by her Honour, as I said, to 12 months' imprisonment and non-parole period of 24 days declared.
34 A summons was then issued on 14 April 2016 for the breach of the supervision order and the matter then listed before me for this breach hearing on 5 May 2016.
35 Your current release date from her Honour’s sentence is 11 February 2017. It is clear from her Honour’s sentencing remarks that, when sentencing you for the offence of possession of child pornography, her Honour was aware of the delay in the pornographic images being dealt with and had taken that into account when sentencing you on 8 March.
36 Ms Ramsay submitted that because of this delay, in that you had already been released from prison following my earlier sentence on two charges of breaching the supervision order, had this charge been laid earlier (as well as the possession of child pornography charge) you would have had the benefit of concurrency with her Honour’s sentence.
37 Mr Holdenson, in reply, submitted the issue of delay had been dealt with in its entirety in the sentence imposed by her Honour Judge Wilmoth, and referred to her sentencing remarks which were before me.
38 The charge currently before me, he submitted, was one that would always result in a sentence of imprisonment likely to be served, with some partial cumulation.
39 Mr Holdenson submitted the offence for which I am to sentence you, that is, the breaching of the supervision order, could only have come before the court following the appeal before her Honour Judge Wilmoth. He submitted the chronology relied upon by Ms Ramsay did not reveal delay in the charge before her Honour and the charge before me.
40 Mr Holdenson submitted I should wholly disregard Ms Ramsay’s submission that when sentencing, there should be more concurrency as a result of the delay.
41 I turn then to a bit more information regarding the delay. Mr Tilley on 25 February 2015, observed what he thought were pornographic images from the phones. He, however, was not qualified to classify those images. When he realised there was child pornography on the phones, Victoria Police took over. It was not his job, nor did he analyse those pornographic images. The delay from 25 February 2015 to being charged with possessing child pornography on 12 November 2015, was not, Mr Holdenson submitted, an inordinate delay, but rather reflective of the normal process of charging. I agree.
42 Mr Holdenson submitted Judge Wilmoth took that into account when determining the appropriate sentence and such was reflected in her sentencing remarks. He submitted the sole consequences of the delay had already been taken into account by her Honour.
43 In my opinion, the chronology does not support additional concurrency when sentencing for breaching the order relevant to delay. Her Honour rightly, in my opinion, took into account the delay relevant to the possession charge. It was only once this was dealt with that the charge before me could be filed.
44
The principle of totality, however, does have application and the sentence
I have imposed reflects that.
45 Ms Ramsay also submitted you had not been able to receive visits from your father as regularly as you had prior to your recent change of prison. I note that is your only family contact. Whilst Ms Ramsay did not urge this as being material to your sentence, I accept you have less contact with your father now than previously. Regarding your lack of contact with your brother, Luke, and Mr Raimondi, I do not regard that as mitigating your sentence. The transcript will reveal discussion between counsel and myself regarding those convicted and currently incarcerated sex offenders. This contact has been the subject of much discussion in reports tendered at previous hearings before me, and I will not refer to those further here.
46 Ms Ramsay also referred to your IQ of 74. She was not relying on principles in R v Verdins & Ors[3], and that was an appropriate concession on the material before me.
[3] (2007) 16 VR 269
47 I have real concerns about your rehabilitation prospects, in that you continue to breach the supervision order, and in a concerning way, that is, not an administrative breach.
48 As well as matters personal to you, I must also take into account the need for general deterrence, which is important in a case such as this. Also the need for specific deterrence, particularly given your previous breaches of conditions of the supervision order.
49 I must also consider the question of protection of members of the community from you and bear in mind the likelihood of your re-offending. Your continued breach of the supervision order continues to cause me concern in that regard.
50 I am called upon by the Sentencing Act 1991 to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
51 So this is the sentence.
52 On Charge 1, you are convicted and sentenced to 7 months’ imprisonment, and I direct that 3 months' of that sentence be served cumulatively upon the sentence you are currently undergoing. For completeness, I am not imposing a non-parole period, because that would have had to be at least six months' etc. You are to do three months' of that seven months' on top of the sentence you are currently undergoing. Does that make sense?
53 OFFENDER: Ah, yes.
54 HER HONOUR: You got it?
55 OFFENDER: Yeah.
56 HER HONOUR: All right, now, just check that this is right.
57 Pursuant to s.18(4) Sentencing Act 1991, I declare you have not spent any days in custody by way of pre-sentence detention for this offence and I direct that that be entered into the records of the court. So the PSD, just double-check that. I am pretty sure that is right.
58 MS RAMSAY: That is right.
59 HER HONOUR: Pursuant to s.6AAA Sentencing Act 1991, had you been found guilty of this offence, that is the breaching offence, following jury verdict, in other words, if you had pleaded not guilty but been found guilty, I would have sentenced you to a term of imprisonment of 12 months' and not set a non-parole period. Straight 12 months'. Does that make sense?
60 OFFENDER: Yes, it does.
61 HER HONOUR: You follow? All right, you are not getting that now.
62 OFFENDER: Yes.
63 HER HONOUR: All right?
64 OFFENDER: Yes.
65 HER HONOUR: All right, so basically - now, is there anything that I have missed? Anything that is unclear?
66 MS RAMSAY: No, Your Honour.
67 MS MANLY: As Your Honour pleases.
68
HER HONOUR: Good. There was something I wanted to - yes, where I have said this, "I must also consider the question of protection of members of the community from you and bear in mind the likelihood of your
re-offending, your continued breach of the supervision order", I said, "continues to cause me concern." That is what I have said. But I have also noted, "in this way", which means it is the particular offence of - that is the concerning aspect, as opposed to administrative, is what I was trying to say then. I don't know if that makes sense, but I hope it does. All right.
69 MS MANLY: Your Honour, I just wanted to bring to your attention, the supervision order that you reviewed on 18 December 2015.
70 HER HONOUR: Yes.
71 MS MANLY: Paragraph 7, you said that the matter is listed for hearing on Friday 6 May 2016 at 9.30 am for the purposes of reviewing paragraph 511.
72 HER HONOUR: Been and gone?
73 MS MANLY: And Ms Ramsay mentioned this - - -
74 HER HONOUR: Sure
75 MS MANLY: - - -at the sentence last week.
76 HER HONOUR: Yes.
77 MS MANLY: The Secretary's happy to adjourn that sine die.
78 HER HONOUR: Yes, I think that is what we were going to do.
79 MS MANLY: Yes.
80 HER HONOUR: So, all right, do we need another order to that effect, or are you going to - can you - do you prepare an order to that effect?
81 MS MANLY: I am happy to prepare an order to that effect and I'll send it through to your associate.
82 HER HONOUR: All right, Ms Jackson, yes, but do you agree with that?
83 MS RAMSAY: Yes.
84 HER HONOUR: Well that is what we said last time.
85 MS RAMSAY: Yes.
86 HER HONOUR: I didn't realise that the order was there, so we need to formally do something with that.
87 MS RAMSAY: Yes.
88 HER HONOUR: So if there's a formal order, you'll be shown. Can you send a copy to Ms Ramsay ASAP.
89 MS MANLY: Yes.
90 HER HONOUR: So she knows what's coming to me and I'll then sign it. Are you happy with that?
91 MS RAMSAY: Yes, happy with that, Your Honour, yes.
92 HER HONOUR: So that means that at this stage, there isn't actually another hearing date set before me.
93 MS MANLY: Correct.
94 HER HONOUR: It will be brought back to my attention by either party or both parties, probably after sentence is completed at some stage. Yes?
95 MS MANLY: Yes.
96 MS RAMSAY: Yes.
97 MS MANLY: That is correct.
98 HER HONOUR: Did you get that, Mr Lecornu?
99 OFFENDER: I do, thank you.
100 HER HONOUR: Excellent, all right. Got it. Everyone is happy. That is the main thing. Nothing further?
101 MS RAMSAY: No, Your Honour.
102 HER HONOUR: Got it, all right. Thank you both and thank you Mr Lecornu.
103 OFFENDER: Thank you.
104 HER HONOUR: All right then. Thanks very much.
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