IN THE COUNTY COURT OF VICTORIA
AT La Trobe Valley sitting at Melbourne
CRIMINAL DIVISION	 Revised
Not Restricted
Suitable for Publication	
CR 18-01462 

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
DAVID JOSEPH HODSON		

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JUDGE:	HER HONOUR JUDGE M. SEXTON 	
WHERE HELD:	La Trobe Valley sitting at Melbourne	
DATE OF HEARING:	12 April 2019	
DATE OF SENTENCE:	30 April 2019	
CASE MAY BE CITED AS:	DPP v Hodson	
MEDIUM NEUTRAL CITATION:	[2019] VCC 578		

REASONS FOR SENTENCE
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Subject:	Criminal Law	
Catchwords: 	Using a carriage service to harass a person – Intentionally distributing intimate images – Intimate partner violence		
Sentence:	TES: 136 days imprisonment and released on a Recognisance Release Order with conditions for 12 months. State Charge – 12 months Community Correction Order		

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APPEARANCES:
	Counsel	Solicitors	
For the DPP	Mr D. Gray	OPP	
			
For the Accused	Mr P. McClure	Balmer & Associates	

HER HONOUR:

1	David Hodson, you have pleaded guilty to a charge of using a carriage service to harass a person, which is a Federal offence with a maximum sentence of three years’ imprisonment. 
2	You also agreed to this court dealing with a related summary offence of intentionally distributing intimate images on Facebook of another person. You pleaded guilty to this State offence, which has a maximum sentence of two years’ imprisonment.
3	I sentence you on the basis of the prosecution opening, which is an agreed summary.  I will outline your offending.
4	Around the end of November 2017, you and a woman named Josie Tennant discontinued the intimate relationship you had been in since about April that year.  The breakdown in the relationship was acrimonious, with both of you involving the police in an altercation between you on 4 December 2017.  No action was taken by police against either of you arising from that evening, and I make no findings about what took place. 
5	Following that evening, between 7 and 10 December 2017 you sent Ms Tennant a series of messages, including a photo showing you to be in possession of her old mobile phone, which you then used in your offending. These messages are the subject of charge 1.  
6	In part, they read:
“[Josie] i knew this day would come i have waited years shed tears from what you caused. pian I experance is what reminds me to see this day come and ill see the days that stop you from everything you use to harm those around you. i have the evidence needed to have dhs investigate and put you thru the system your clearly unable to be in society without destroying peoples lives we have made a decision that’s best for you and your children and anyone in harms way.” (sic)
7	A further post on a Facebook page administered by you called “Crum (sic) Stoppers Wonthaggi & Surrounding” read:
“WARNING WONTHAGGI
Omfg have I got the ultimate crum to reveal Lies are a basis in the fake front of her appearance, deception comes so naturally shes rarely questioned, drug habbit thats financed by dating ONE drug dealer to the next and not always one at a time. 
This crum i soon to reveal is dangerous to all around her this will take some time to complete all accusations made will be backed up either by text eveince or hand written letters
It will be worth the wait” (sic)
8	You did soon reveal the person you were talking about, on the same Facebook page, saying in part:
“…we at crum stoppers have never seen evedence stack up as solid as it has against this crum of crums. We would like to state now that its possable several people maybe emotionaly effected to read that someone close to them has been a victom of [Josies] lies deception betrail and hunger to destroy innocent people lives by drugs or sexual interactions.
There is text messages from [Josie Tennant] and also known as aka. XXX XXXXX on a secret facebook profile, true and factual evidence is attached and if any of the following accusations are not clearly backed up pls contact us and we will review that specific assusation.” (sic)
9	You also posted on that Facebook page a photo of Ms Tennant which had been stored on her old mobile phone which was in your possession.  
10	At some stage during the same period, you sent Ms Tennant a message which read,
 “I want my stuff back [Josie]”, 
followed almost immediately by 
“You have 5min to decide”.  
11	She blocked your phone number, but then you contacted her brother, writing in a text message:
“But if shes talking to cops and looks like she is cause cops them selves pretty much said it then me and her are in danger
Hate me what ever ok but fuking go explain to her I cant and she cant fuking cops cant control what will happen.
Think im talking shit im on my way now with gavin to answer question im pretty sure will be about this cause this never happened before
Shes at the fuking cop shop right fuking now.” (sic)
12	With respect to the related summary charge 2, you distributed intimate images of Ms Tennant by posting two photos of her in her underwear side by side under her name on her Facebook profile, clearly identifying her. Ms Tennant was alerted by friends to these posts.
13	Ms Tennant reported the Facebook materials to Facebook and reported all the offending to police in the early hours of 10 December 2017, providing police with screenshots of the text messages and Facebook posts.  You were arrested on 20 December 2017 and during your interview with police you admitted writing the posts and not having permission to use her old mobile phone; admitted posting the intimate photographs but said you did not know it was against the law to do so; and conceded that you were trying to portray Ms Tennant in a negative light.
14	I received an impact statement from Ms Tennant. As she did not want it read out in court, I will respect her wishes by not fully detailing its contents, but I take the whole statement into account in its description of the considerable impact on her of your offending, including her suffering feelings of anxiety, lack of trust, hurt, embarrassment, and a fear of you.  She is receiving treatment and I urge her to take the opportunity for any assistance that is offered to help her to deal with the impact.  I hope that with today’s sentence finishing her involvement in this case, she can put it all behind her and begin to look forward with hope.  I do wish her well for the future.
15	Your counsel told me that your offending was not only in the context of an acrimonious relationship breakdown, but also in the context of your use of the drug ‘ice’ (methylamphetamine).  He submitted that you just wanted to retrieve your property from her house after you had moved out, and that the events of
 4 December 2017 when police were involved by you and Ms Tennant but no action taken, were a ‘tipping point’ for you. 
16	While those circumstances were put forward as providing some reasons for your behaviour, none of those circumstances provide an excuse for your criminal behaviour, and they were not put forward as such.  I find your offending was nasty, vindictive and completely uncalled for.  I am told that since you have been off ‘ice’ having been in custody since December 2017, you say you realise how uncalled for your actions were.
17	Your offending is made worse by the facts that you were on a community correction order when you committed these offences, and that the order was made for previous offending including against Ms Tennant by contravening a Family Violence Order made to protect her from you. There appear to be six such charges. 
18	You have another previous conviction for contravening a Family Violence Order, against an earlier intimate partner, in 2013.  There is a further charge of contravening a Family Violence Order, but I do not know to whom that relates; it was dealt with in 2016.  It seems that you may have a problem with managing your anger and emotions in intimate relationships, especially when fuelled by the dangerous drug ‘ice’.
19	In assessing the seriousness of the offending for which I am sentencing you, apart from the matters I have already mentioned, I have considered your counsel’s submissions that this is “low end” offending, and the prosecution concession that it is not disputed that it is not at the high end of offending. I also take into account that charge 1 is particularised as “harassing conduct”, and not “menacing conduct” or “conduct causing offence”.  However, I find that there is a threatening element to the harassment, as I raised in discussion with your counsel in the plea hearing. Taking all matters into account, I find that your offending overall in both charges is not at the lowest level of offending, but I accept that it is not at the high end.
20	Apart from the Family Violence Order contraventions I have already referred to, you have other offences on your criminal record. Between 2009 and the commission of these offences in December 2017, you were dealt with for a number of charges over six court appearances. The offences range from driving, including driving while under the influence of alcohol and while either unlicensed, disqualified, or suspended, and breaching an alcohol interlock device, to drug possession, possession of prohibited weapons, dishonesty offences, and bail offences.  
21	Since you committed the offences between 7-10 December 2017, you have been dealt with for further offending which itself breached the community correction order you received on 29 June 2017.  In April 2018, you received an aggregate sentence of 6 months’ imprisonment for two more weapons offences, as well as trafficking and use of methylamphetamine, dealing with the proceeds of crime, and more driving offences, including driving while unlicensed and disqualified, breaching the alcohol interlock device condition, speeding, and failing the oral fluid test. In July 2018, for contravening your community correction order made in June 2017, the order was cancelled, and you were sentenced to an aggregate 60 days’ sentence, and a $1000 fine. 
22	This is a significant criminal history over a 3 year period, noting that your first  conviction was in 2009 when you were aged 29, your second conviction was in 2013, and the main offending period was from 2014 - 2017.  I turn then to your personal circumstances to attempt to discern how your offending behaviour came about.
23	You are now aged 38 years.  You grew up in a stable, law abiding family, with four older sisters.  You had a good education, continuing at a tertiary level where you gained a Bachelor of Business Management, and then a qualification in Occupational Health and Safety, both involving four years of study, followed by a Certificate IV in, among other things, Retail Management and Construction.  After entering the workforce, you had a good work record, with 7 years as Operations Manager (Retail) in the Bunnings Warehouse organisation, before you began your own business in Hydrographics. This was your occupation when you were remanded in December 2017 and entered custody for the first time. You have been in custody ever since. You were in a long term relationship from 2000-14, which produced a daughter and a son, now aged 13 and 9 years respectively. 
24	From what I have been told by your counsel, it seems that a significant incident in 2010 unravelled all that you appear to have set up in your life to that time.  On your daughter’s 5th birthday, you were knocked down by a truck as you protected your daughter while crossing a road.   You went home, but later collapsed and it was discovered in hospital that you had bleeding on the brain. You spent time in Intensive Care, then in a ward and finally had home care.
25	Following this accident, you lost your employment.  A combination of this loss, with time on your hands, and feeling not quite right, apparently led to depression. I was not told whether you sought medical treatment for the state you were in, but I was told that you began self-medicating with ‘ice’ to apparently attempt to lift your mood.  That was a bad decision, and it has impacted your life and those closest to you, as well as victims of all your offending, ever since.
26	Your drug use made your long term relationship problematic, and a Family Violence Order was put in place, which, as I have mentioned, you contravened in 2013.   The relationship ended in 2014, with you having less and less contact with your children. Now, you have no contact with them; you wish to re-engage with them in the future.
27	You moved to Wonthaggi because your family had a holiday house there.  The idea was to get away from drug use, but apparently you found the ‘drug scene’ there just as bad as the one you were trying to escape.  You met Ms Tennant in 2016, and were friends before your intimate relationship began in 2017.   Your offending behaviour had begun in Melbourne, but escalated in Wonthaggi with your drug use, resulting in a consolidation of all your outstanding matters, except two, in April 2018. 
28	The two matters that were not dealt then with were the charges for which I am sentencing you today, and a charge of rape alleged to have been committed  against Ms Tennant some time in 2017.  In the La Trobe Valley County Court in April 2019, this month, you were acquitted of that charge. Today’s charges were originally in the Magistrates’ Court but were uplifted by agreement between prosecution and defence to be dealt with as a plea after the trial, which has happened. 
29	As pointed out by your counsel, but for the trial, these matters could have been dealt with in the Magistrates’ Court. Potentially they could have been dealt with earlier, including as part of the consolidated plea in April 2018, although I note that these charges did not resolve to a plea of guilty, with some charges being withdrawn, until July 2018, the date of the committal for the rape charge.  I will take these matters into account in deciding the sentence, including that the charges could have been heard earlier, but for the trial.
30	I also take into account what has happened since you went into custody, which is a period of 16 months.  For the first time, you have been prescribed medication for your depression, to assist with lifting your mood, and you intend to continue with this medication on your release.  You have been drug free, detoxifying immediately you were remanded.  As your counsel put it, with a clear mind, your plan on your release is to live with one of your sisters, away from Wonthaggi, to return to employment, and when settled, to re-engage with your children.
31	On balance, I find that the chances of your rehabilitation are reasonable, given your time abstaining from drug use, your previous education and work history, your family support, and your willingness to deal with your lowered mood in a proper and appropriate way guided by medical professionals.  However, your prospects are only reasonable if you remain drug free. I say that because you have shown yourself to be clearly susceptible to the lure of self-medication by illicit drugs, and commit offences as a result. However, you are not unintelligent, and you must realise that a return to drug use, especially such a pernicious drug as ‘ice’, can lead very quickly to another downhill spiral, with the inevitable result of more time in prison. At 38 years old, you do not want to waste another decade of your life.
32	I also take into account the need for today’s sentence to provide deterrence. The internet, and social media, have made it far too easy for people to offend in the way that you did, and so my sentence must try to deter others from using text messaging and social media to embarrass, humiliate and harass others.  I find that my sentence needs also to deter you from re-offending, given your criminal record, and the fact that you are yet to be tested as to your resolve to remain drug free in the community.  However, I recognise that the time you have been in custody will serve as an added deterrent.  I do not think that there is a risk of you re-offending against Ms Tennant in any way in future, but there is still a risk of you re-offending in other ways, and the community still needs to be protected from you. 
33	Other matters that I take into account include your plea of guilty, which has saved Ms Tennant from giving evidence to an extent, although she was cross examined about these matters in the trial for rape, legitimately, as providing a potential motive for her to make the rape allegation in January 2018.  Despite this cross examination, I find that the plea of guilty has saved her from giving evidence in another contested hearing and saved the community from the cost of another hearing.  I also find that it reflects an acceptance of your responsibility for your actions, a willingness to facilitate the course of justice, and is a reflection of some remorse for these offences. 
34	Your counsel submitted that you have rehabilitated yourself while in custody, and that taking into account your total offending in 2017, today’s sentence should not add anything to the time you have already spent in custody. I note that although you have spent 16 months in custody,  the pre-sentence detention that is available to you for these offences alone is 135 days, or roughly 4½ months. Your counsel further submitted that you could re-enter the community without supervision.
35	The prosecutor conceded that all sentencing options are open to me.
36	I had you assessed for your suitability for another community correction order. Despite your history of contravening court orders in general, and community correction orders in particular, you were assessed as suitable.
37	Taking into account the maximum sentences applicable to these two charges; the level of seriousness of your offending as I have found it;  the considerable impact on Ms Tennant; your criminal history; the time you have already spent in custody as well as the need for today’s sentence to reflect the totality of your offending in 2017; and your steps towards, and prospects for further, rehabilitation, I have decided to sentence you effectively to the time that you have served for charge 1 and to a community correction order for charge 2. 
38	I will announce the formal orders in a moment, but the outcome is that you will be sentenced on the Federal charge 1 to a total of 136 days’ imprisonment to be released immediately on what is called a recognisance release order in the amount of $800 to be of good behaviour for 12 months.
39	On the State summary charge 2, if you agree, I will convict and release you on a community correction order for 12 months, with the conditions I will outline in a moment.
40	The period you have already spent in custody, including today, will be taken into account so that the total effective sentence will be 136 days’ imprisonment, with you to be released immediately, to be on a bond in the amount of $800 on the Federal charge, by which you promise not to commit any more offences of any kind for 12 months after release, and at the same time, promise to undertake a community correction order on the State charge with the conditions attached to that.
41	So, to be absolutely clear, I am sentencing you to the time you have spent in custody, which is about 4½ months, with you to be released to be of good behaviour and complete two orders with conditions, to run at the same time.
42	Because you must agree before I can release you on a community correction order, I need to tell you what the conditions are, even though you have been on such an order before. The core conditions attached to every community correction order are that you must report to and receive visits from Corrections Victoria; must notify Corrections Victoria of any change of address or employment; must not leave Victoria without permission of Corrections Victoria; and must comply with any direction given by Corrections Victoria to ensure compliance with the order. You also must not commit any offence. 
43	I will also order that you comply with other conditions during that 12 months: that you be under supervision by Corrections Victoria, as I consider that appropriate; that you attend, undertake and complete an Anger Management Program, or other programs as directed by the community correction officer to reduce your risk of re-offending; and that you be assessed and if required, receive treatment for mental health issues and drug abuse and dependency. 
44	Yes, stand up please, Mr Hodson. Do you agree to being released on a community correction order with those conditions attached for charge 2?
45	OFFENDER:  Yes. 
46	HER HONOUR:  If you do not complete any condition of the community correction order, as you know, you will be brought back before this court before me to be re-sentenced on that charge and also be dealt with for not doing what you are ordered to do under the community correction order.  That will almost certainly result in more gaol time. So, do you understand what will happen if you do not complete any condition of the order?
47	OFFENDER:  I do.
48	HER HONOUR:  I should also tell you that both the Federal recognisance release order on charge 1, and the State community correction order on charge 2 can be changed or removed by the court if your circumstances change. To do that, you should get legal advice.
49	So, the formal orders are: 
50	You are convicted and sentenced on charge 1 (Federal) – using a carriage service to harass –  to 136 days’ imprisonment, thereafter to be released on a recognisance in the amount of $800 to be of good behaviour for 12 months. That sentence starts today.
51	On related summary charge 2 (State) – intentionally distributing intimate images - you are convicted and released on a community correction order for 12 months with the core and special conditions I have just outlined. That order starts today.
52	The effect of the orders for commencement of sentences on both charges is a global effective sentence of 136 days’ imprisonment. 
53	I declare that you have served 136 days in pre-sentence detention including today and direct that these be deducted administratively from the Federal sentence I have imposed. 
54	To make it clear, it is my intention that you be released today. You will need to be processed through the Custody Centre. Then you will be under the conditions of a recognisance release order and a community correction order for the next 12 months. If you do not re-offend in that period, you will not serve any more time in prison. If you do offend, you will forfeit $800, and you will be re-sentenced by me on both charges, as well as sentencing you for not complying with the court orders.   And as I have said, that will mean more gaol time, even if you have nearly finished the 12 months and re-offend at that point.
55	You will now be asked by my Associate to sign two documents. The first is your agreement to abide by the conditions which allow for your release on Federal charge 1, that is, to be of good behaviour for 12 months. The second is to show that you agree to abide by the conditions of the community correction order. Mr McClure will assist you with these forms. 
56	MR McCLURE:  Thank you, Your Honour. 
57	HER HONOUR:  Thank you. All right, so I have signed each of those orders and copies will be provided to you, Mr Hodson, and they are now in force. 
58	I will not indicate what my sentence would have been for the Federal charge but for the plea of guilty until legislation specifically requires it for Federal offences or an authority binding on me states that it is required.  
59	However, if you had not pleaded guilty to the State charge, but had been found guilty after a contested hearing, the sentence I would have imposed on related summary charge 2 alone is a total of 6 months’ imprisonment.
60	Yes, are there any other orders required?
61	MR McCLURE:  No, Your Honour.
62	MR GRAY:  No, Your Honour.
63	HER HONOUR:  All right, thank you.
64	MR McCLURE:  As Your Honour pleases.
65	HER HONOUR:  So, Mr Hodson can be removed and processed through the custody centre.
66	MR McCLURE:  As Your Honour pleases.
67	MR GRAY:  Thank you.
68	MR McCLURE:  Does he need to take a copy of his CCO with him?  I'm not sure if - it'll be sent down, all right.
69	HER HONOUR:  It'll be sent down, yes, thank you.
70	MR McCLURE:  Thank you. Thank you, Your Honour.
71	HER HONOUR:  And can I thank both counsel for their assistance in finalising this matter.
72	MR GRAY:  Thank you, Your Honour.
73	HER HONOUR:  And Mr McClure, I wish you well in whatever endeavours you undertake after today.
74	MR McCLURE:  Thank you so much, Your Honour
75	HER HONOUR:  We'll adjourn until 9.30am tomorrow.  Thank you.
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