The Secretary of the Department of Justice v Lecornu

[2015] VCC 1099

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-15-00970

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:	16 July 2015
DATE OF SENTENCE:	22 July 2015
CASE MAY BE CITED AS:	The Secretary of the Department of Justice v Lecornu
MEDIUM NEUTRAL CITATION:	[2015] VCC 1099

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

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APPEARANCES:	Counsel	Solicitors
For Secretary to the Department of Justice & Regulation	Mr O P Holdenson, QC	Russell Kennedy
For the Accused	Ms E Ramsay	Victoria Legal Aid

HER HONOUR:

1       Dean Lecornu, you have pleaded guilty to two charges of breaching conditions of the supervision order which were made on 18 May 2012.  The maximum penalty for each breach is five years imprisonment, although summary jurisdiction has been applied for and granted in these proceedings, and the maximum penalty, therefore, applicable is two years imprisonment on each charge. 

2       Briefly by way of chronology, an initial extended supervision order was imposed by her Honour Judge Sexton on 23 May 2007 for a period of ten years.  I determined the order remain in operation in 2010.  In 2011, I sentenced you for breaching that extended supervision order relating to two charges of possession of child pornography and two charges of breaching the order. 

3       The next review of the order was by her Honour Judge Harbison in 2012.  It would appear I was not available at that time to determine that review, and counsel consented to her Honour hearing the review.  Her Honour determined the order should remain in operation. 

4       Both the offences now before me occurred whilst you were resident at Corella Place and subject to her Honour Judge Harbison’s decision. 

5       You have pleaded guilty to charge 3 for offending which occurred between 22 October 2012 and 6 February 2015. 

6       Relevant to that charge, condition 7(q) of the supervision order dated 18 May 2012 stated:

“DL must comply with the written instructions of the Adult Parole Board when using a mobile telephone”.

7       On 22 October 2012, the Adult Parole Board issued a direction and instruction to you under condition 7(q) of the supervision order that:

“DL must not store, produce, reproduce or transmit images of children under the age of 16”.

8       Relevant to that offending on 25 February 2015 and 6 May 2015, a senior prison officer conducted an audit of an SD card located in the Alcatel One Touch mobile telephone.  The results of that audit showed that you had 38 images of children under the age of 16 years (non-pornographic in nature or content) stored on that card. 

9       Turning to charge 4, you have pleaded guilty to offending between 15 August 2014 and 2 February 2015, being the subject of that supervision order, without reasonable excuse failing to comply with a condition of the supervision order, namely, para.7(o) of the order which stipulated:

“DL must not use or access the internet without the prior written consent of the Adult Parole Board”.

10      On 6 February 2015, a Samsung C5220 mobile telephone was seized from you by Community Corrections officers. 

11      On 25 February 2015, a senior prison officer conducted an audit of the relevant SD card, and the results showed you had used or accessed an internet fiction site, You did not have the prior written consent of the Adult Parole Board to do this. 

12      I turn to a brief summary of your offending, as opened by Mr Holdenson QC for the Secretary to the Department of Justice and Regulation (the Secretary). 

13      On 6 February 2015, Mr Hurley, operations manager at Corella Place, determined that there be a search of your premises under s142 of the Act.  Before 4.00pm on that day, a search was conducted by specialist case workers.  While searching your unit, two mobile phones were found.  The first phone was a black Samsung C5220 mobile phone and the second a pink/red Alcatel One Touch mobile phone.

14      On 25 February 2015, the two phones were examined by Mr Tilley, pursuant to the power to audit such devices. 

15      I turn to charge 3.  Regarding the Alcatel phone, a microSD card was in that phone.  That card is used in some mobile phones to provide additional memory and storage space and can be used to save information on the phone or on the SD card.

16      On 25 February 2015, Mr Tilley made a copy of the microSD card and the material stored on it.

17      On 6 May 2015, Mr Tilley searched and analysed the material from the microSD card.  Within it there were 38 images of children under the age of 16, all of non-pornographic nature and content.

18      The 38 images were, as I have said, of children under 16. 

19      The storage of those images by you constituted a breach of condition 7(q).  The audit report attached to those photographs show that all those photographs were “put on” and accessed by you on 5 February 2015, two of the photographs, it seems, a day earlier. 

20      Turning to charge 4 which involved the black Samsung phone, a 2GB microSD Card was located “on the side of the phone”.  It was removed, copied and found to contain a number of VBM files located under the storeys directory, which are bookmark files of internet sites. 

21      Those files were web links that pointed to an internet fiction website a sexual stories repository.  In total there were 160 VBM files in that directory.

22      On 5 May 2015, Mr Tilley prepared a report “Dates for VBM bookmarks” (Exhibit A) referrable to those files showing the dates created and accessed by you.

23      The results obtained by Mr Tilley showed you accessed the internet and those files between 15 August 2014 and 2 February 2015 (that is over a period of approximately six months).  As I discussed with your counsel, it would appear that these were accessed on multiple days during that period (not “one off”).

24      A number of prior matters were admitted by you.  Apart from your index offending relevant to the supervision order and other prior offending, you had most recently appeared in the County Court before me on 5 July 2011, sentenced on the two charges of breaching a supervision order and two charges of knowingly possessing child pornography, to which I have previously referred.  A term of imprisonment was imposed.  You appealed that decision to the Supreme Court, and on 26 June 2012 that appeal being dismissed, the sentence imposed was affirmed.  You have, concerningly, previously breached your supervision order. 

25      You were then before the Court on 18 June 2013 when you appealed a charge of unlawful assault, and that appeal was abandoned.

26      You then appeared at the Ararat Magistrates’ Court on 1 July 2013 for contravening a family violence intervention order and with conviction were fined $200.

27      Subsequent to your offending before me, you were dealt with on 15 June 2015, albeit for offending that occurred between February and October 2014 on two charges of failing to comply with reporting obligations.  Specifically, you failed to notify police of a new mobile phone in your possession, and you established a Facebook profile in the name of Carly Peterson.  For that offending you were convicted and fined $2,500.

28      It is particularly concerning that you are before me in relation to further breaching your supervision order. 

29      You have, as I have said, pleaded guilty to these two charges and you are entitled to have that fact taken into account in your favour, and I do so.  The community has, by your plea of guilty, been spared the time and cost of a trial, and witnesses have not been required to give evidence upon your trial.   Further, I also take into account the timing of your plea and accept that you intimated your intention to plead guilty to these charges at an early stage.  You were charged, as I understood it, on 1 June 2015 and offered to plead guilty to these charges on 2 July 2015.  That offer initially not accepted by the Secretary.  On 15 July 2015, however as I understood it, the same offer was made and the Secretary accepted your plea to these two charges.  As I say, such is relevant in mitigation of your sentence.  I am also prepared to accept your plea of guilty is indicative of some remorse for your offending, although I have concerns regarding your remorse given your report to Ms Raymond in her report of 19 January 2015 that you “tested the boundaries” of your supervision order. 

30      Ms Ramsay, who appeared on your behalf, submitted your offending in charge 3 fell at the lowest end of the scale of gravity, that all but one of the 38 photographs were of your niece and nephews.  The one image not of your nieces and nephews (p.9 of the photographs, second-bottom photograph) showed a child in a yellow top.  You instructed you did not know where that picture came from. 

31      I discussed this photograph with Ms Ramsay.  I am concerned about the presence of the “different” child in that photograph.  I also expressed some surprise that two photographs of your niece showed her exposing her panties (pp.4 and 5 of the photographs).  I was advised your sister, who sent the photographs, was aware of your offending.  You instructed you had hard copies of photographs of your nieces and nephews in a photo album in your unit, which is permitted by Corrections.  You had, however, accepted your criminality in this offending and pleaded guilty to the charge, accepting you did not have a reasonable excuse for having those photographs on your phone. 

32      I was advised by Ms Ramsay you had recently discussed being able to have such images sent to you by your sister and that you intended to make an application to the Adult Parole Board to permit photographs of your nieces and nephews being sent to you on your phone.  As I understood it, that request had yet to be made by you.

33      Turning to charge 4, Ms Ramsay conceded that was the most serious breach.  The site accessed, she submitted, was not an illegal site, but involved, rather, literature not photographs.  She conceded, however, the nature of the material contained within the websites involved a serious breach of the condition regarding your internet use.

34      Ms Ramsay submitted you were a paedophile and sexually deviant and had been trying to contain that, however, had not been able to eradicate those desires.  You had been trying as best you could to manage within your diagnosis.

35      You instructed you were conscious of the effects on the community and victims of child pornography.  You had sought and found this literature which provided you with some release regarding your fantasies without impacting upon innocent children. 

36      Ms Ramsay submitted that, in your mind, this was a lesser evil when trying to cope with your thoughts, given your entrenched paedophilia.

37      You accepted this material would be frowned upon and knew you should not have it.  You were aware that this had put your liberty at jeopardy.

38      You acknowledged that you still had fantasies involving children and Ms Ramsay conceded, consistent with the report of Ms Raymond to which I have previously referred, of 19 January 2015, you “tested the boundaries” regarding your compliance with the supervision order.

39      You described difficulty controlling your fantasies and instructed you had recently requested re-referral for anti-libidinal medication as you did not want to continue to breach the order.

40      Ms Ramsay referred to you having supports in the community, visiting your father frequently, also visiting your mother, but less frequently, and visiting your partner’s family.

41      Ms Ramsay conceded there was a need for general deterrence when sentencing you and also the need for specific deterrence, particularly in light of your earlier breach of the supervision order dealt with by me in 2011.

42      Ms Ramsay specifically conceded the principles in R v Verdins & Ors[1] did not apply when sentencing you.

[1] (2007) 1 VR 269

43      Regarding the need to protect the community, Ms Ramsay submitted the current breaches did not represent an increased risk to the community and could be distinguished from breaches such as absconding from Corella Place or actually having contact with children under the age of 16.  That, of course, is so.  Ms Ramsay submitted there had not been an increased risk to the community in this offending above that which you already posed. 

44      You had accepted there needed to be condign punishment of your offending. 

45      Regarding your rehabilitation prospects, Ms Ramsay conceded that at best I would have guarded optimism.  I agree, at best guarded optimism. 

46      Ms Ramsay submitted it was open to me to consider the imposition of a suspended sentence for these breaches or, alternatively, a community correction order.

47      A suspended sentence, she submitted, would assist in promoting your rehabilitation which she urged would ultimately protect the community.

48      A community correction order, she submitted, could involve community work and supervision by a Corrections officer which would be a very different regime from that which you are currently subject under the supervision order. 

49      I discussed at some length, in particular with Ms Ramsay, the decision of Boulton & Ors[2], and discussed with her also the recent decision of DPP v Maxfield[3], and Alam v The Queen[4], which referred to Boulton and the need for the court to “rethink the conventional wisdom about whether prison is really the only option” (see Alam para.20). 

[2]

[3][2015] VSCA 95

[4] (2015) VSCA 48

50      As I discussed with Ms Ramsay, however, I did not understand the decision in Boulton to remove the need for me to consider all matters referred to in s.5 Sentencing Act 1991, nor did I understand Boulton to say that principles previously stated by the Court of Appeal relevant to particular charges now amounted to nought.  Nor did I understand the decision in Boulton to mean that the instinctive synthesis of sentencing was no longer applicable.

51      Ms Ramsay’s third submission, without abandoning her primary or secondary submission, was that if a term of imprisonment was the only appropriate disposition, it should be a very short and sharp sentence, in particular, as your breaches did not involve actual sexual offending. 

52      Mr Holdenson submitted, regarding charge 4, the material you accessed had the effect of fuelling your level of risk of sexually re-offending and, as such, made that offending serious. 

53      I am also particularly concerned regarding your offending in charge 4.  However, that is not to say I am not concerned regarding your offending in charge 3. 

54      Regarding your recent request to take anti-libidinal medication, Mr Holdenson submitted that as recently as late 2014 you were vehemently opposed to using it. 

55      Whilst also noting reference, he said, to the supports you had in the community, he submitted it was, nevertheless, while you had that support you committed the two charges before me.

56      Turning to charge 3, Mr Holdenson referred to a file note dated 30 June 2015 which confirmed a discussion between yourself and your senior case manager regarding what could be done to enable you to receive photographs of your nieces and nephews if they were under the age of 16.  That note revealed you were advised by your senior case manager that a copy would be taken of the photos, a report to the Adult Parole Board made requesting permission for you to retain those photographs.  Mr Holdenson submitted however such a request by you would not mean that that proposal would necessarily be supported by Corrections.  It would, ultimately, be for the Adult Parole Board to consider that material.

57      Regarding the images of your niece and nephew Ms Raymond, who was present during the course of the plea hearing and who authored the report of 19 January 2015, I was told had viewed those photographs and identified some as being inappropriate for you to have had in your possession (specifically those at pp.4 and 5) to which I have previously referred.

58      Turning to disposition, Mr Holdenson submitted the gravity of your offending in charge 4 was particularly serious.  You had prior convictions for breaching your extended supervision order.  He submitted principles of just punishment, specific and general deterrence were relevant when sentencing you.  I agree. 

59      He submitted the only appropriate disposition was an immediate period of incarceration. 

60      Turning to the submissions made by Ms Ramsay regarding a wholly suspended sentence, Mr Holdenson submitted such was not appropriate, and therefore, I understood to mean would be outside the range of appropriate dispositions.

61      Mr Holdenson also submitted your breaching offences were too serious for the imposition of a community correction order.

62      As well as matters personal to you, including your rehabilitation prospects of which I have at best guarded optimism, I must also take into account matters such as deterrence, especially general deterrence, which is of considerable importance in a case such as this. 

63      There is also the need for specific deterrence to be reflected when sentencing you. 

64      You need to understand the consequences should you not do what you are required to do when subject to this order.  It is also important others on supervision orders and the like understand the importance of abiding by conditions attached to their orders.  As was stated by his Honour Chief Judge Rozenes in dealing with a breach of an extended supervision order a while ago, as it was then known, “the efficacy of this whole system depends on those orders being properly imposed and adequately maintained”.

65      His Honour the Chief Judge further stated, “Where the breach of a condition is an act preparatory to the commission of a further offence, the breach is much more serious”.  I note there is no suggestion that your breaches were acts preparatory to the commission of further offending.  I do, however, regard your offending as very concerning behaviour by you and, in particular, your offending relevant to charge 4, but that is not excusing charge 3. 

66      In my opinion, to accede to either submission by Ms Ramsay, specifically that I impose a wholly suspended sentence or, alternatively, a community correction order, would not reflect the gravity of your offending, even taking into account all matters in mitigation.  I am, of course, conscious that a term of imprisonment must always be the last resort of the court.  In my opinion the only appropriate disposition is a term of imprisonment.

67      So I sentence you as follows. 

68      On charge 3, you are convicted and sentenced to 2 months imprisonment. 

69      On charge 4, convicted and sentenced to 4 months imprisonment.

70      Charge 4 is the base sentence, and I direct that 14 days of charge 3 be served cumulatively upon charge 4.

71      That results in a total effective sentence of 4 months and 14 days imprisonment. 

72 Pursuant to s18(4) Sentencing Act 1991, I declare you have spent 6 days in custody by way of pre-sentence detention up to and including yesterday, 21 July 2015, and direct that be entered into the records of the court.

73 Pursuant to s6AAA Sentencing Act 1991, had you pleaded not guilty to these charges and been found guilty of them, I would have sentenced you to a term of imprisonment of 8 months, and not set a non-parole period.

74      HER HONOUR:  Now, just one thing before we move on.  We need to address a couple of issues.  It doesn’t have to be today.  I note everyone has places to be.  First of all, it’s the suppression order, the current status of the suppression order and what I should do with it from here on in, and perhaps that could be then considered at review.  Given there has been a breach, we need to look at that again, Ms Peek.  This will be on transcript so that you can pass this on to Ms Ramsay, and she will understand, I’m sure. 

75      But I would want before we perhaps meet for the next review – whenever that will be – we will come to that in a minute – I think we need the status of the suppression orders as they currently exist, and it may be something I wish to revisit.  I haven’t even had a chance to check the legislation, whether it’s something that I can seek to revisit on my own behalf, or whether a party needs to do it.  I don’t expect an answer now, but we need to, I think, revisit and firm up on where we are with the current suppression order in light of the breaches which have been admitted, and for which he has just been sentenced, and I may want to revisit that.

76      The other thing is this.  We would like to, if possible – I don’t know how feasible this is – is to change the – instead of referring to Mr Lecornu as “DL”, change it to “DAL” from now on.  The simple reason is I’ve got someone else with DL initials, and it’s becoming confusing for me, basically.  I should have probably given DL, the other one, some other initials, but I’m lost with all this.  So what I have currently running at the moment are two DLs, and I’m just wondering if we can change this to DAL, but whether it then needs to be reflected in all the other sentences – all the other reviews.  We need to think about.  All right. 

77      MS PEEK:  Yes, Your Honour.

78      HER HONOUR:  All right.  Very well.  Now, Mr Holdenson, anything to say about any of that at the moment?  I don’t expect answers now.

79      MR HOLDENSON:  There’s no need to deal with any of that at the moment. 

80      HER HONOUR:  For the purposes of this sentence, it will be recorded as Dean Lecornu, I think.  Is that right?  Is that acceptable?

81      COUNSEL:  Yes.

82      HER HONOUR:  Because this is a breach, Dean Lecornu.  But when we get to the review I need to reassess DAL.  Sorry, Mr Holdenson, I’ve cut you off.

83      MR HOLDENSON:  No, no.  That’s right.  Yes.

84      HER HONOUR:   So what are we doing?  We’re mentioning the next review.

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