The Secretary to the Department of Justice & Regulation v Elliott
[2018] VCC 2087
•30 November 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-01031
| THE SECRETARY TO THE DEPARTMENT OF JUSTICE AND REGULATION |
| v |
| FREDERICK JAMES ELLIOTT |
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JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 November 2018 | |
DATE OF SENTENCE: | 30 November 2018 | |
CASE MAY BE CITED AS: | The Secretary to the Department of Justice & Regulation | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 2087 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Fail to comply with condition of supervision order – Plea of Guilty.
Legislation Cited: Serious Sex Offender (Detention and Supervision) Act 2009 and Sentencing Act 1991
Sentence: 4 months’ imprisonment; 4 days pre-sentence detention; 6AAA declaration: 7 months imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Secretary | Mr O. P. Holdenson QC | Russell Kennedy |
| For the Accused | Mr T. Lynch | Rainer Martini |
HIS HONOUR:
1 Frederick Elliott, on 10 March 2016 you were made subject of a Supervision Order under the Serious Sex Offender (Detention and Supervision) Act 2009 (“the Act”). On 26 November 2018, you pleaded guilty to three charges of without reasonable excuse fail to comply with a condition of the Supervision Order pursuant to s.160(1) of the Act. As the prosecution proceeded as a summary hearing, the maximum penalty for each offence is two years’ imprisonment.
2 Charge 1 alleges that between 13 January 2018 and 15 March 2018, you failed to comply with condition 6.13 of the Supervision Order, being that you must not knowingly access, store, or transmit images of pornography unless otherwise directed by the Adult Parole Board.
3
On 15 March, you attended your weekly meeting with your specialist care officer, who requested that you produce your mobile phone. The phone, a Samsung Galaxy mobile phone, and an S/D card contained within the phone, were audited, which audit revealed that you had stored five audio visual files (pornographic in nature and content) on the S/D card with creation dates of
13 January and 1 February 2018 respectively.
4 The details of the content of the files are set out at paragraphs 23.1 to 23.5 of the statement of Igor Filipovic, forensic auditor, dated 21 May 2018. I will not repeat the contents of the report, save to say that the stored material included images of you masturbating and audio files of you speaking about indulging in homosexual intercourse with a person you described as a "virgin". Other files contained images of your genitals.
5 At the commencement of the plea, Charge 2 was amended by consent to add to its particulars set out at paragraph (d) that related to the S/D card, particulars originally contained in paragraph (d) of Charge 3 that related to the Samsung Galaxy phone, so creating a rolled-up Charge 2. On entering a plea of guilty to Charge 2, Charge 3 was struck out.
6 The amended Charge 2 covers the period 29 September 2017 to 15 March 2018 and alleged a failure to comply with condition 6.13 of the order of 10 April 2016. By my calculations, there are at least 36 files created on 17 dates from 29 September 2017 to 23 February 2018. Again, it is alleged against you that you stored the images contained on these files. The S/D card showed 16 visually unique images, while the Samsung Galaxy phone showed 33 visually unique images. I viewed the images.
7 In summary, the images depict you in various sexually suggestive poses, focusing on your genitals and buttocks. You appear fully or partially naked in some images. In others, you appear to be wearing see-through underwear and posing with a sex toy. Several of the images depict you wearing false breasts in sexually suggestive poses.
8
Charge 4 alleges that between 6 October 2017 and 23 March 2018, without reasonable excuse, you did fail to comply with condition 6.10 of the order of
10 April 2016, being that you must not access any chatroom or other social media site unless approved in writing by the Adult Parole Board.
9 On 23 March 2018, during a home visit, your laptop and a number of other devices were requested and taken into the custody of the Department. Upon audit, you had accessed the chatroom “Google hangout” on 74 occasions. The prosecution were unable to say whether you chatted with anyone, or sent or received material.
10 On 30 November 2018, each party was granted leave to re-open their cases. Mr Lynch, on your behalf, tendered the Exhibit 1, the report of Deba Millard, dated 23 November 2018 and in turn, Mr Holdenson of Her Majesty's counsel, tendered Exhibit A, a report of Dr Joel Godfredson, dated 29 November 2018. To my mind, the reports merely reflect that you were, prior to April this year and subsequently, compliant with aspects of your conditions of the treatment. However, it is to be noted that at least in part, some of the offences were committed during that period of treatment.
11 Mr Elliott, you are 70 years of age. You were released into the community under supervision in November 2016 and remained at liberty until you were returned to Corella Place on 5 April 2018 as a result of your offending. You were compliant with the conditions of the order for 11 months before you commenced to offend. During that time, you lived alone in a single bedroom flat, you attended to the normal domestic duties of cleaning, shopping, cooking and the like. You met your wife, Joan, on a weekly basis and from time to time, assisted her in gardening projects. You were a regular attender at a Methodist church and had regular contact from a Christian Fellowship worker and reconnected with a radio club that you were an active member of prior to being sentenced by her Honour Judge Curtain (as she then was) in March 2004.
12 Your return to Corella Place has restricted your freedom of movement and, whilst I will take it into account, it does not equate to pre-sentence detention and has little impact on the sentence that I will ultimately impose.
13 The purpose of the order made on 10 April 2016 was to reduce the risk of you re-offending by the commission of a sexual offence. The conditions that you breached were intended and designed to prevent you from engaging in behaviours which would put you at risk of re-offending. An examination of the dates of the particulars to each of the charges reveals that your offending was persistent and protracted.
14 In respect to Charges 1 and 2, your pleas were entered at the earliest possible opportunity. The same cannot be said for Charge 4. However, you are entitled to the benefits that flow to you from your plea, it having both utilitarian benefit and is some evidence of your remorse.
15 I was referred to a number of comparable cases. However, as has been recognised by the Court of Appeal and the High Court, such cases are of limited assistance and the sentencing exercise is a unique one, balancing the objective circumstances of your offending against your subjective circumstances, applying sentencing principle and by the process of instinctive synthesis, arriving at an appropriate sentence.
16 Will you please stand.
17 Taking into account the circumstances of your offending with your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, I sentence you to an aggregate term of four months' imprisonment.
18 I declare that you have spent four days by way of pre-sentence detention, not including today.
19
Pursuant to s.6AAA of the Sentencing Act 1991, but for your plea of guilty,
I would have sentenced you to seven months’ imprisonment.
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