CDirector of Public Prosecutions v Cutajar

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION
CR-21-02471

DIRECTOR OF PUBLIC PROSECUTIONS
(CTH)

SHANE JAMES CUTAJAR

---

JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	28 June 2022
DATE OF SENTENCE:	4 July 2022
CASE MAY BE CITED AS:	CDPP v Cutajar
MEDIUM NEUTRAL CITATION:	[2022] VCC 1062

REASONS FOR SENTENCE
---

Subject:Use carriage service to transmit child abuse materials (text not images) - 40 years of age at time of offending - Some old criminal history but not for anything similar - Early plea – Worboyes v The Queen [2021] VSCA 169 - COVID-19 - Contrition.
---

APPEARANCES:	Counsel	Solicitors
For the Commonwealth	Mr S. Campbell	Commonwealth Director of Public Prosecutions
For the Accused	Mr G. Steward	Dribbin & Brown Criminal Lawyers

HIS HONOUR:

Shane Cutajar, you have pleaded guilty to one charge of using a carriage service to transmit child abuse materials. The maximum penalty, as you have heard, is 15 years' imprisonment.

You have a quite old criminal history of no real relevance to my task at all.
You are 41 years of age now but you were 40 at the time of the offending, which took place back in August of last year.
The prosecutor, Mr Campbell, opened this matter to me on Tuesday of last week and he relied upon a written summary dated 31 May 2022, which was marked as Exhibit A on the plea. Your counsel, Mr Steward, informed the Court it was an agreed opening. I will sentence in accordance with that document, and for that reason, there is really no great need for me to set out the full sentencing facts in these, my reasons. The agreed summary does that.
One additional reason is that since the plea I have tested positive myself for
COVID-19. I am now bunkered down in isolation and I am sentencing you remotely. You are in court, Mr Steward is in court, Mr Campbell is in court. I am not.
Facts
1. I will bounce the ball by saying that it strikes me as quite an unusual example of transmission of child abuse material in that it does not involve images, either still or moving or pictorial, and it does not involve explicit communications in writing.
2. Very briefly stated, in the between dates period, in WhatsApp communications with a person named, ‘Alice’, you gave an account to her, implying some level of attraction to a child named Corrine, and describing some sexual conduct with that child which had taken place in your bath. That this was a fiction provides no defence at all. The summary sets out some of the communications and of course Annexure A sets out the more complete discussions. Indeed, the full communications are set out within the depositions by way of screenshots.
3. Unlike many cases that are brought before this Court, this was not a communication with an AFP operative, nor was it ‘Alice’ who brought the details to the attention of the police. As Australian Federal Police member, Barlee’s, statement makes clear, the AFP had in fact been investigating what they regarded as some suspect use of the internet from your communication service, and they had been going about the business of obtaining a warrant even before many of the communications I am dealing with had even taken place. They were not in any way investigating this conduct that I am dealing with. In fact they discovered it when the warrant was executed. That is just part of the background. I make very clear that you do not fall to be sentenced for any other activity or any of the child abuse material images that were found in a hard drive when the warrant was executed upon your residence.
They attended with that warrant and you were arrested on 13 August of last year and the AFP, as I say, found evidentiary material on your mobile phone. In your interview you gave a very strange account as to why you were engaged in the discussions. You said that you believed ‘Alice’ was a troll and was trying to extort money from you. You expanded on that account in your dealings with the psychologist and said you were trying to offend an interested woman whom you believed was intent upon scamming you. See p3 of the report of Ms Matthews. Your account makes very little sense at all. If you thought she was a person intent upon extorting money from you, it is very difficult to see why you would provide ammunition such as that provided by you. If you wanted not to communicate with her, well, that was entirely within your power without engaging in such elaborate conduct as this. Indeed, there could really be live debate about who was the troll, given the false details as to your Danish background provided by you in that communication. Nonetheless you were cooperative with the police and you did make detailed admissions.
You pleaded guilty at a committal mention.
So much then for what is only a brief summary of the agreed summary.
In Mitigation
Mr Steward conducted the plea on your behalf and he relied upon a written outline that was dated 27 June 2022. That was marked as Exhibit 1. He relied upon the report from Pamela Matthews, a forensic psychologist. That report was marked as Exhibit 2. He placed before me a letter from your sister, one from your brother’s partner, as well as some mental health admission agreement forms, a certificate of completion from the Wyndham Clinic and a Medicare claims history showing details of billings for a good deal of recent treatment. There was also a list of your prescribed medications.
Mr Steward took me to your family, educational and work history. He made submissions as to the relative seriousness of the offence, the relevant sentencing purposes, as well as to your rehabilitative prospects and the efforts that you have made since being arrested. He called your sister to expand upon those efforts.
He relied upon the following matters in mitigation:
·your co-operation with police backed up by an early guilty plea in the midst of the global pandemic;
·the presence of some contrition or remorse;
·though not specifically mentioned in the written submissions, he adopted some of the Crown submissions dealing with a COVID-19 increase in the burden of imprisonment should prison be your ultimate fate.
He argued that it would be open here to avoid a prison term. He was raising the ability of the Court to deal with you under section 20(1)(a) of the Crimes Act 1914 (Cth) (“the Act”) by way of an adjourned discharge upon conviction. However, he submitted that if prison was required, he argued exceptional circumstances were made out here such that you could be released forthwith on a recognisance release order.
Prosecution
The prosecutor had filed a detailed written outline of submissions. It was dated
27 June and was marked as Exhibit B. That document was quite lengthy and running for some seven pages and I see no need to set out in these reasons the various submissions. I will mention a few aspects a bit later. That document went to many matters of firmly established sentencing principle in this area, principles that are derived from a variety of cases which are referred to in the document itself. Principles which are simply not in dispute as between the parties.
The Commonwealth Director of Public Prosecutions was calling for a term of imprisonment, and given amendments made in 2020, should I be considering a recognisance release order as the release mechanism, in the absence of exceptional circumstances, I was informed that immediate release was prohibited under the Act. Whether exceptional circumstances were established or not, the prosecutor expressed no view one way or the other on that score. There would also be the requirement to place a number of mandatory conditions into any recognisance release order. Those matters were also the subject of amendments made in 2020. The prosecution provided a brief table of a couple of cases dealing with some similarities. More importantly though, there were statements of principle within those two cases, especially dealing with child abuse material that is not constituted by real images.
I am, not bound by any submission made by either side as to sentence. Of course, I pay appropriate regard to all submissions placed before me but I must form my own view as to the appropriate sentence. I am the judge passing sentence.
Before dealing with these various matters I will turn to your background.
Background
That background is set out in detail in the report of Ms Matthews. There is also some detail in Mr Steward’s written outline. I have no reason not to accept what I have been told of your family and personal background. In fact I accept the family and personal background that has been placed before me.
For that reason, I will provide only a very brief summary. You were born in November 1980. You are now 41 years of age. You are the middle of three children with an older brother and younger sister and you were brought up in Altona Meadows. You had an uneventful and decent upbringing and were close to your father who died some four years ago. Your mother is still alive. In fact you live with her and have been doing so for more than two years. There is obvious family support and you talk regularly with your sister. As I have indicated, she has written a reference. She also gave what I regard as valuable evidence on your behalf. She is also present again here today. There was also a letter from your brother’s partner and both your sister and your brother's partner each speak highly of you.
After doing Year 12 VCAL, you studied information technology and thereafter you worked as a labourer until finding a position in information technology at a large law firm. You have been with your current employer, a brewer, for some 20 years.
You have had some serious enough issues with drugs and also issues with gambling from time to time. See page 2 of the submissions. Ice has been a big enough problem leading into the date of this offending. It has been for many years.
Ms Matthews’ report speaks of your relationship history. Three relationships of note but with no dependents. The last relationship was some four years ago and you have not been successful in finding a new partner.
You have a criminal history that is said to relate to a period in your early 20s when you were running with the wrong crowd, as it were.
You do not fall to be sentenced a second time for those past matters. However, I must make judgements as to the need to deter you and protect the community from you. I must make judgements as to your rehabilitative prospects and your risk of reoffending. A prior criminal history sometimes is important in those determinations for obvious reasons.
1. Having said all of that though, your criminal history is of no significance at all to my task. I see no need at all to set it out. You have no similar matters in that short history and, as I say, it is really quite dated. It simply impedes Mr Steward from submitting that you have no history before the Courts. That is about as far as it goes.
To complete the background, upon your arrest you spent a significant period as an inpatient at Wyndham Private Hospital, firstly for a month in September and then later for a week from late November 2021. You then attended upon a private psychiatrist, who you continue to see regularly. You have been prescribed a range of medication. With your sister's assistance you took a fair time off work by way of sick leave to try and sort yourself out but you are back in full time employment and have been for the last handful of weeks.
Let me turn then to the matters in mitigation.
Guilty Plea
The first of those is your guilty plea.
You have pleaded guilty at the earliest opportunity.
You have taken this earliest responsibility for your offending. There is a utilitarian benefit in pleading guilty in that way. Witnesses have been spared the experience of coming to court to give evidence. The community has been saved the time, cost and effort associated with the conduct of a committal hearing in the Magistrates' Court or for that matter, a trial up in this Court. You were also very co-operative with the Australian Federal Police, answering their questions when you did not need to, and providing the relevant personal identification number for your devices. I must reward you for facilitating the course of justice.
There is also a heightened value for a guilty plea in the midst of the global pandemic for the many reasons mentioned in the Court of Appeal decision of Worboyes.[1] Your case is not part of the very large backlog of cases that has been created in the course of the global pandemic. A guilty plea is especially valuable in such a setting as this.
[1] Worboyes v The Queen [2021] VSCA 169
You have also facilitated the course of justice by consenting to the forfeiture of the devices the subject of the forfeiture application. I take that into account as well.
Contrition
I move then to the aspect of contrition.
A guilty plea is often indicative of some contrition or remorse. I have no reason to think you have not taken the matter seriously. I have no reason to think you are in any way revelling in this offending and the references make plain enough that you are not. So too your sister’s evidence, which was very clear on this topic. So too for that matter I think your stance in the course of the Australian Federal Police interview and in the course of your conference with Ms Matthews, as well as, the treatment you have engaged in since arrest.
Ultimately then I am prepared to accept Mr Steward's submission in this area and I find the existence of contrition or remorse in this case. I do take that into account in your favour.
Rehabilitation
I turn then to consider your prospects of rehabilitation. Mr Steward submits they are sound. The Crown argue that I can only really be relatively guarded in the circumstances.
This was very odd conduct whatever the explanation actually. Your account of your motivation is, frankly, bizarre and I am not able to accept on balance your reasons for engaging in these communications. I do not know why Ms Matthews acted on your account, as she seemingly did, but I will not. It seems clear enough to me at least that there was some titillation in talking to another person in the way you did about a child being engaged in a sexual act with you. There is plainly some minimisation here and Ms Matthews seems to recognise that. However, her risk assessments must have been guided to some extent by your input and your account of why you so acted, and as I say, I do not accept your account on the balance of probabilities. There was some odd fantasy in play at the time of the offending. I have no doubt about that at all. You do not acknowledge that. To be fair to you, as I must, you probably do not even understand why you so acted. You have been undergoing some counselling and treatment but not in the area of sexual counselling. You have also been prescribed also some medication. You have what is very clearly valuable family support. I was very impressed by your sister’s evidence. You have made some large gains in aspects of your life since your arrest last August. You also have lived a decent and law abiding life for very many years now and have held down a long term job. That must not be overlooked. As I have said, your past criminal history does not in any meaningful way inform my sentencing task.
The fact remains I do not really know much about why you did what you did, and maybe you do not know yourself. Ms Matthews suggests that there is some need for sexual offender counselling and that seems clear enough.
I believe that the prosecution's submission as to your prospects being guarded is unduly pessimistic. I am more inclined to accept your counsel's submissions and I do. I find that you have sound prospects of rehabilitation.
Report of Pamela Matthews
I have mentioned already that report of Ms Matthews and some of the difficulties in accepting her account. There is meant to be a level of rigour in this field and it is often enough not seen in relation to these reports. This is yet another example of a pretty poor-quality report with not much by way of rigour and seemingly not the slightest challenge offered by her to your account.
She seems to have taken you at your word, that in the current offending you were seeking to offend an interested woman. See p3. She administered the two risk assessment tools but I note that in one she has recorded you as not having any paedophilic interests. At the same time she seems to accept that you were expressing sexual fantasies about children online. She accepts that you minimised the seriousness of your online sexual fantasising. See p6 of the report. You do not even accept that you were fantasising. None of this hangs together at all. It is all a bit of a mish mash. Apparently one basis upon which you fail to meet the diagnosis of paedophilia is because of the short period over which the conduct took place, but why were you acting in this way and how long had you actually harboured these thoughts? There is no real answer in the report on that topic or at least not one that I accept on the balance of probabilities. It is very hard to know what to make of any of the risk assessments. The risk assessment in the Corrections assessment report is much higher, though I accept that was a pretty rudimentary assessment. I do not think you are a high risk of general offending at all on the materials available to me.
Ms Matthews’ report seemingly does at some points accept you at your word but at other points, suggests otherwise. There was a very unsatisfactory explanation for your offending. This was not impulsive behaviour or conduct explained by disinhibition brought about by drugs. I am not greatly assisted by this report in understanding what motivated you to commit this crime and your level of actual risk into the future. I raised these issues really as a matter of fairness early on in the course of the plea and
Mr Steward frankly conceded some of the difficulties in understanding your explanation. He knew I would be interested in the question of why and he said as much.
This report, by the way, has not been relied upon as in any way enlivening any of the principles from the well-known Court of Appeal case of Verdins[2].
[2]R v Verdins [2007] VSCA 102; 16 VR 269; 169 A Crim R 581 (“Verdins”)
You have addressed some issues in your life since arrest, including drug use, which I have said earlier, is a big positive actually, but I do not see drug use as having any real role in this offending. I take into account the report in the limited ways urged upon me by Mr Steward. As I have said already, I believe you do have sound prospects of rehabilitation.
COVID-19: Increased Burden
Your counsel had not made any separate written submission as to the impact of COVID-19 should you be imprisoned, and that is easily explicable because, of course, the thrust of the plea was that you ought not be sent to prison at all. However, I raised that matter of impact and he adopted the Crown concessions in that regard.
I do accept that as a general proposition that the COVID-19 virus and the response to it by those running the prisons has increased the burden of prisoners. Prison has been a more stressful environment. Social distancing has not been easy. No doubt there is a worry about catching the virus in such a setting where, unlike someone in the community who has no level of autonomy at all. There have been no visits and limited courses for a very large portion of the pandemic over the last couple of years. That has not been easy for prisoners, whether sentenced or on remand for that matter.
Of course you have not been in prison so you have not been exposed to any of these tribulations.

As to what lies ahead on the pandemic front, whether in the community or in prison, it is really impossible for me to know. The impacts of the virus upon prisoners has been lessening. Visits recommenced in March. However, it is pretty clear to me, sitting where I am sitting here today as a result of a COVID positive test, we are clearly not beyond the reach of this virus and nor are prisoners. It seems clear there will be some lockdowns and quarantines from time to time and the virus will continue to bring about a level of uncertainty in the minds of prisoners. It will add to their prison burden and I have regard to that reality when considering the prospect of sending you to prison for the very first time.
Principles
I turn then to some general matters of principles of play in this sort of matter.
As I said earlier in these reasons, the general principles for sentencing in relation to this sort of matter are firmly established. Many of these general principles are referred to in the prosecution written submissions. They were not under any serious challenge at all.
The prosecution sentencing submissions cite a large number of cases from which those principles have been distilled. I see no need to refer to either the cases or to the principles for that matter. They are set out in paragraphs 3 to 8 and elsewhere in the written submissions.
It is clear from the various authorities to which I have been referred, that the problem of child pornography is a significant and international problem. The prevalence and the ready availability of pornographic material involving children, particularly on the internet, requires that general deterrence be the paramount sentencing consideration in this field.
It is clear that given the prevalence of this style of offending and the paramountcy of general deterrence, that past good conduct is to be given lesser weight than is often the case. That is so but it is still obviously relevant to my task.
Consistency of sentencing is an important consideration.
I have looked at the two cases that I have been referred to. I have to pass an appropriate sentence in your case. There are no two cases that are ever the same. Those two are not comparable cases, nor are they suggested to be, and the sentences imposed in those cases really say nothing at all about the sentence required in your case. There is a marked difference between the child abuse material in those matters constituted by explicit stories and lewd communications and requests and what I am dealing with. One of the offenders was a member of the Australian Federal Police, which was a matter of some aggravation obviously enough. However the principles are more important and that is why the cases were referred, and those cases descend to some analysis of the reasons why child abuse material not involving or depicting a real victim is still serious offending. See the case of Edwards[3]. I apply those principles to my task.
[3]R v Edwards [2019] QCA 015 at [60] to [79]
Non-image based child abuse material is different. That is all. It is no less serious. It is not a victimless crime for the reasons spelt out in Edwards. It still has the capacity to affect others. It still has virtually all of the other vices represented by explicit images.
As is clear from the prosecution's written submissions, including the many footnotes within that document, there have been a vast array of decisions both in our Court of Appeal and equivalent Courts of review in other States, dealing with the seriousness of this sort of crime and the relevant sentencing principles at play. Terminology has changed over the years. What was referred to in the past as child pornography is now badged up as child abuse material, but the principles are unchanged.
I have reviewed the case law and the trend over the last several years discloses that the Court of Appeal in this State has undoubtedly tightened up the circumstances in which a non-immediate term of imprisonment should be imposed for this sort of offending. I observe that is hardly surprising and it reflects, no doubt, the alarming increase in the rate of internet-based matters coming before the courts and the frequent enough statements from the Federal Parliament spelling out the seriousness of this offending.
Occasionally courts, whether in this State or, for that matter, New South Wales or Western Australia, have spoken of the 'need' for an immediate term, other than in cases where exceptional circumstances are found to exist.
The prosecution written submissions picks up that thread at paragraph 11 and sets out a number of propositions, including that:
'The authorities speak with one voice that a term of immediate imprisonment will ordinarily be expected for such offending'.
And:
‘That courts have suggested that unless there are exceptional circumstances, a sentence of imprisonment is generally warranted'.
The prosecutor argued that this view is reinforced by the amendments that have been made to s20(1)(b)(ii) requiring proof of exceptional circumstances before a recognisance release order conferring an immediate release is open to the Court.
Well, that amended provision does not alter the way a Court approaches the sentencing task more generally. It undoubtedly applies if a prison term is selected and one with a recognisance release order, and that is because that is then the clear statutory position. It is quite explicit.
As to those general statements in some of the case law about what is ‘ordinarily expected’ by way of sentence or the need for 'exceptional circumstances to avoid prison', well, the short answer is that there is no general exceptional circumstances test set out in the Act itself. Nor should I treat such statements from other Courts as somehow importing such a test into the Act. As a result of those 2020 amendments, prison is mandated, and mandated for a variety of other offences, but not this one. Prison is mandated for a second or subsequent offence such as yours, but there is no legislative mandate for prison in this case. Nor should one be imported into the Act. Section 17A remains unaltered by the 2020 amendments in terms of the decision as to whether prison is actually required in a given case. If it is, then the amendments to s20(1)(b)(ii) come into play. The fact is if the legislature wanted to mandate prison across the board, well, they easily could have. They chose not to.
So what I have to do then is to exercise my sentencing discretion in your case, and I must do that, always cognisant of the fact that prison is a disposition of last resort. That it may be selected only if satisfied that no other sentencing alternative is appropriate in all the circumstances of the case. That is what emerges from s17A of the Act.
The Crown submissions refer to the case of Garside[4], a decision of our Court of Appeal. That case drew together much of the case law and the principles to be distilled from the preceding case law, both in this State and elsewhere.
[4]DPP (Cth) v Garside [2016] VSCA 74; 50 VR 800
It is plain enough that child pornography or child abuse material offences are considered as grave, both by the courts and by the legislature. General deterrence is to be the paramount consideration. Denunciation is very important. It is a prevalent crime and prior good character is generally to be given less weight.
The Court of Appeal in that same decision, dealt with this task of assessing the gravity of the offending, including considering the nature and the content of the material, the age of the victims, the gravity of the sexual activity portrayed, the number of images accessed, and whether there was a commercial setting or distribution in mind, or any profit motive engaged in the exercise. The matters that are set out in paragraph 8 of the Crown submissions. Well, of course, here you were not transmitting any images at all. We are not dealing with images of a real victim. We are not dealing with that sort of filth. We are not dealing with profit, and I have a relatively confined period.
The Court of Appeal went on to say that it is clear from the authorities that they had examined in their decision, that access to child pornography is regarded as very serious, morally depraved conduct that is harmful to children and went on to say at paragraph [62], that:
'The authorities speak with one voice, that a term of immediate imprisonment would ordinarily be expected for such offending'.
It was this statement that was being referred to in the prosecution written submissions, but the Court of Appeal set down no broader principle in terms of any need to establish exceptional circumstances to avoid such an outcome. That is because, of course, each case must be decided according to its own circumstances. I am exercising my discretion in your case, not any of these others.
As I said on the plea, there really is no starting point. There is no starting point that prison is on the table, until it is not. The only starting point is that a judge comes on to the Bench, acts judicially, and faithfully exercises his or her sentencing discretion in the given case and on the materials placed before that judge.
This is not a case involving transmission of images at all. You were not dealing with a child or transmitting images of a child. You thought you were communicating with an adult. The problem, of course, is you were communicating about a sexual act with a child. True, it was fictional but that is no defence.
It is an unusual case and it seems to me to put this case into a different category to many instances of this crime where depraved images, or for that matter, disgusting stories or fiction, is transmitted.
You were communicating with a person you believed to be an adult about this act with a child and not doing it explicitly at all.
I take into account the matters that are set out in the relevant provisions of the Act, including s16A(1) and (2) and also s16A(2AAA). I have said general deterrence is obviously important. Of course it is. So too denunciation. I must give weight to the need to punish you adequately and to also adequately reflect specific deterrence and protection of the community. On that score, as I have said, it does strikes me as a most unusual example of this offence. The offence will often involve the sending of images to a child. You were not seeking to deal with children. You were not sending child abuse material images or even wicked or depraved communications to a child. You were not even transmitting child abuse images to an adult. It was a strange offence with the child abuse materials founded in the text of your communications, sent to an adult and seemingly not even to a like-minded adult. The communications implied some existing sexual activity with a child. It was fictional but as I say, it must have been engaging your interest to some extent, and of course how could you know what impact it might have on that person receiving the communication? What do you know about Alice? Who is Alice? Is Alice even that person's real name or sex?
So whilst not unique, it will probably be relatively rare to have a charge constituted by written communications, but those that do would, I am sure, normally be quite explicit. They would descend to a level of explicit description of sexual acts with or by children. Those sorts of things mentioned in the two cases that have been cited to me. Your offending strangely skated around the edges and was implying the existence of such conduct. It was quite unusual in that respect. It was devoid of any explicit or lurid statement but of course it still sadly meets the description of child abuse material. It is a very strange case indeed.
It is for these reasons, it seems to me, that I can moderate the weight given to community protection and specific deterrence, and give more weight to your ongoing rehabilitation. I do not accept Mr Steward's submission that specific deterrence has no or little role to play, but I do accept it has less work in my sentencing task than it would have in a different case.
Now, I have mentioned the large range of relatively recent amendments in this area which spell out the serious manner in which child abuse offences are viewed by the legislature. There are many offences requiring mandatory minimum terms and big ones at that. There are also second or subsequent offences which are met with mandatory minimum prison terms. Again they are very large.
Prison is a disposition of last resort in this case, and as I have said, s17A of the Crimes Act makes that plain enough. Had I reached a view that this last resort had been reached, well, I would then be prohibited from wholly suspending the term by fixing an immediate release onto a recognisance release order. Those amendments in 2020 brought that refinement into the Act. So that in the absence of exceptional circumstances, there is a presumption of serving at least some time in prison. That was mandated, and also a number of mandated conditions attaching to the recognisance release order. Mr Steward’s fall-back position was that if, if I thought that prison was warranted here, that the various matters raised on the plea and mentioned in his written submissions, would amount to exceptional circumstances such as to leave open an immediate release onto a recognisance release order. Well, ultimately I do not need to consider that submission.
As I have said, the amendments that I have mentioned, did not remove the requirement that I pay regard to s17A of the Act. Is prison required here? If it is not, then those mandated provisions have no role to play.
In the time since the plea I have had the opportunity of re-reading all the materials and reflecting on the matter, and ultimately I do not think that this last resort of prison is attained here.
I have had you assessed for your suitability for a community corrections order. You are judged to be suitable and I intend to release you onto such an order,
Mr Cutajar. So you need to listen very carefully to what I am about to say. I can only place you one of these orders if you are consenting. I am sure you will be consenting, there will be no question about that but if you need time to speak to Mr Steward to understand the “ins and outs” of this order, I will give you that opportunity. I think you have only had one of these orders by way of a fine default from memory, so cannot be expected to have any real understanding. I note that you have signed the consent to the making of an order if one was imposed by the court. So what I have in mind is this. Listen carefully. I am going to explain it in some detail and I always do, and look, maybe I go into too much detail. I do not think there can be too much detail, frankly, because the last thing I ever want is someone coming back in breach of one of these orders and saying, 'I did not know what could happen to me'. That has never happened to me because I do explain, and when people come back, quite often I play the tape to them of what I am saying, the things I am saying to you right now.
Conviction
So it is going to be an order with conviction, obviously, and there is no option as to that nor would it be exercised in your favour even if there was. You will be convicted on the charge of using a carriage service to transmit child abuse material. I am going to admit you to a two-and-a-half-year community corrections order, which will commence today. So it runs for two and a half years from today.
You will be required to attend at the Werribee Community Corrections Services within two clear working days. Let me just - I am not sure what the report mentions.
Ms Todisco, is that still by phone initially or not; do you know?
ASSOCIATE: I will just confirm.
HIS HONOUR: If that can be confirmed, I will come back to that but you will need to report within two clear working days, that is the point, and because of the COVID pandemic we have generally been having people report by phone and getting further instructions, but the other day we had the Corrections crowd saying, no, they are receiving people back in person. I will confirm that one way or the other, but you will need to do one thing within two working days. Either ring them or turn up, whichever is the appropriate thing.
These orders, they have mandatory terms that apply to every person who gets an order. You are getting one so they will apply to you, so listen to them. The first is a pretty obvious one. You must not commit another offence for which you could be imprisoned during the time the order is in force. In other words, for the next two and a half years, you stay out of trouble. Pretty straightforward. It should not be a problem for you. It has not been for the last 20 or so years with the exception of this conduct. So you do not commit any offence which could be punished by a term of imprisonment, and these days virtually every offence can be. So I there is no reason for me to think that you are going to embark on a life of crime, but just to illustrate that, if you stole a Freddo Frog - I do not think any Magistrate in their right mind would be locking up someone for theft of a 50 cent item or whatever it costs these days, but a charge of theft is punishable by a term of imprisonment, and that is the critical thing. If you commit any offence that could in theory be punished by a term of imprisonment you breach this order. It should not be a problem for you.
You must report to and receive visits from the Corrections officer. You, as I say, must report within two clear working days to the Corrections Centre. I will give you more detail about that in a moment.
You have got to let them know within two clear working days of any change of address or job and, listen to this. You must not leave Victoria without first getting permission to do so.
Finally, you must obey all lawful instructions.
So they are pretty straightforward. They should not be an issue for you. I mean you would not be holding a job for 20 years if you could not follow instructions. So you just need to stay out of strife. Now, I should make plain that to use drugs, and drugs have been an issue for you over the last decade, and they would surely represent your gravest prospect of breaching this order I would think, to use drugs you have got to possess them. To possess drugs is itself an offence punishable by a term of imprisonment. You would breach the order.
It goes without saying, I think you play around on the internet again and do this sort of thing again you cannot expect any mercy at all. I will have more to say about that as well because, as I have mentioned, there are some pretty severe punishments for repeat offending in this domain. Anyway, they are the mandatory terms. They apply to you for the balance of this order.
There are tailored conditions that I attach here as well. They are tailored to achieve the various purposes of sentencing but also to foster your rehabilitation. One of them is unmistakably punitive. That is the unpaid work component, and you are going to need to do unpaid work. You must perform 250 hours of unpaid work over the period of this order.
You are going to be under supervision of a Corrections officer for the duration of this order. You must undergo assessment and treatment including testing for drug abuse or dependency as directed.
You must also undergo any mental health assessment and treatment as directed. That is a longer condition. You will see it on the document. There are all sorts of directions they can give you but I imagine that the direction they will give you will be to continue seeing the psychiatrist that you are currently seeing, but whatever direction they give you that is what you do.
You are going to need to, and indeed you must, participate in programs and/or courses that address factors relating to the offending as directed by the regional manager, including if assessed as suitable, a sex offender program as directed.

So they are the tailored conditions. So you have got the mandatory terms, you have got the tailored conditions. If you breach any of those you breach the order. It is very straightforward. These orders are not easy. People breach them all the time. It is amazing how many people do breach them actually. People who are greatly relieved to get them as I am sure you will. You did not know what would be happening, whether you would be going to prison or not. Well, you are not.
Not at the moment but this case is not over. It is amazing. You have people who seem to think that it is when they get an order. Yes, they are very concerned about court. Yes, they are worried about their future. They get the order and they leave court. They consent to it. They have it explained to them but it is amazing how many people breach them. Some people do not even turn up for the induction. People scoot the State. People leave their place of residence. People think, well, unpaid work is a bit inconvenient, I will sit that one out for this week and this week and this week and before you know it they have breached the order.
Let me give you a bit of advice, and Mr Steward will no doubt speak to you about all this at the end of the hearing today, but your best approach is to form a decent relationship with your Corrections officer, all right. You will have a Corrections officer, case manager, who will be appointed, and they will be no doubt responsive to your needs. They are not going to want to cut across your work. You have got paid employment, which is a very protective factor, all right. So they are going to require you to attend for supervision. They are going to require you to attend for unpaid work. The work is not meant to be amusing or particularly pleasant for you. It is by way of punishment.
What you do is you turn up when you are told to turn up and do what you are told to do, which again should not be a problem for someone with the level of discipline that you must have to have held down a job for 20 years, but if you do what some people do, that is you leave court today and you think ‘well, it is all over, I have not been locked up and that is a happy ending, you will breach this order, because it has not ended.’ It is a two and a half year order from today's date.
So form a decent relationship with your Corrections officer. If there is any sort of attendance under the order that is - that you are having difficulty complying with, whether it is an attendance for work or whatever, if there is some conflict or something, get on the phone there and then and let them know. Do not do what many people do, which is just put it off and not turn up and put your head in the sand. Those people wind up being breached. So it should not be an issue.
You need never see me again. That is what it amounts to today. You need never be sitting in the dock of a Court again. You need never expose yourself to the risk of being sent to prison again in relation to this matter, simply by complying with this order, and I hope that you do. It is my sense that you will. It is certainly my sense that it is an appropriate order in the circumstances of this case and it falls within my sentencing discretion or I would not be imposing it.
All right then, let me then deal with the ramifications of breaching it, because I have to. If you breach any of the tailored conditions or the mandatory terms of this order you will be brought back to court for breach. That will not be the Magistrates' Court. It will be the County Court but it will not just be the County Court, it will be back in front of me, because we deal with our own breaches. You would be brought back in front of me and I would do, as I have indicated. What I tend to do is I either look at my notes and what I have said to a person, or sometimes I even view the actual footage - this footage will exist and what I am saying to you now, and sometimes I even play that back to the person who is there, sitting in the dock on the breach. I have very limited options open when dealing with a person by way of breaching one of these orders.
The fact is there are very limited options. One could impose a fine or one can make no order. Well, you would not expect either of those things to happen. Or one can revoke the order, cancel it, and that sounds attractive, except if I do that, then I am resentencing you. There is nothing attractive about that I can tell you. So what you need to do is work on the theory that if you breach this order you will be back in the dock. My obligation would be as it was in the course of the plea. I will listen to what was said on your behalf in terms of reasons why the order was breached and then make some assessment of the nature of the breach, the gravity of the breach, the efforts that you had made on the order. So I cannot say exactly what I would do to you in advance. It is impossible for me to do that, but work on the theory, work on the hypothesis, that if you do not take this chance, you will not get another one, all right? Do not think that you can come back to Court in a year or two from now and say, well, look, yes, I committed this offence and I have breached this order in a number of ways, but look, I will have a second chance now if you would not mind. Do not expect that is going to happen. This is your chance.
The Crown are calling for a term of imprisonment in this case. I do not think a term of imprisonment is appropriate at this point. I am dealing with you in this way, but work on the theory that if you are foolish enough to breach this order and come back before me for breach, that the very likely outcome is you will be sent to prison immediately, there and then, and it will not just be for a matter of months. So let me just see if there is anything else I need to deal with.
Mr Steward, I think I have probably more than adequately explained the order. Do you want to speak to your client and see if he consents or not?
MR STEWARD: No, Your Honour. He is nodding. I do not know what he is nodding for but he consents.
HIS HONOUR: Well, look, let me just see. In terms of the wording of that order I mean I - they are the provisional wordings. I do not think there is any particular magic in the wording in terms of the Sex Offender Program, Mr Campbell. I am fixing to the order a condition that he do other programs to reduce his reoffending, including that assessment and that is suitable, isn't it?
MR STEWARD: I have just been handed a copy of the order, Your Honour. It appears to be in accordance with what we typically see so, yes, that appears to be - - -
HIS HONOUR: I had better ask Mr Cutajar. Mr Cutajar, could you just stand if you would, please? Mr Cutajar, I am sorry that I have taken so long to get to the end point of these reasons, and I am sorry to be doing it online, of course. It was just unavoidable I am afraid. Do you understand the effect of this order that I am seeking to impose upon you?
OFFENDER: Yes, Your Honour.
HIS HONOUR: I can only put you on one of these orders if you consent to it, and do you consent to entry onto this community corrections order?
OFFENDER: Yes, Your Honour.
HIS HONOUR: And you understand the ramifications of this order in the event that you breach it? You understand what is likely to happen?
OFFENDER: Yes, Your Honour. Prison.
HIS HONOUR: Yes, there is a fellow off to your right and that is the sort of direction you are likely to be heading if we ever clap eyes on each other again. You understand?
OFFENDER: I understand, sir.
HIS HONOUR: Unless it is out on the street or something. So it is entirely in your hands actually. I am not setting you up for a breach. I do not want to see you again. I am not rubbing my hands and thinking, wait until I see this man back in the dock. I do not want to see you back in the dock. I want you to comply with this order, get on with your life, get on with this treatment and leave courts behind you, as you have for pretty much the last 20 years, but as I say, you are in control of your own destiny now. You were not until a moment ago and I pronounced these orders. So if at any stage your determination on the order starts to flag, and it goes for two and a half years, just remind yourself of the way you felt when you were coming to court last week. You did not know whether you were going to wind up in a prison last week. You did not know whether you were going to wind up in a prison later today. I do not think you have got any idea what that would really involve, but if ever your effort starts to wane on the order, just put yourself back in that mindset and that will hopefully cause you to pick up any performance but, anyway, you consent to entry onto this order? Is that so?
OFFENDER: Yes.
HIS HONOUR: I will have my electronic signature attached to it, Ms Todisco.
ASSOCIATE: It is already on the order, Your Honour. Corrections have confirmed that he can report by phone in that first two days.
HIS HONOUR: So you have heard that. You will pick up the phone later today and report and they will give you further directions then, Mr Cutajar. So I will have that taken up and signed by you, Mr Cutajar then, please.
Mr Cutajar, you will get a copy of this order but do you confirm that you have signed that order; is that so?
OFFENDER: Yes, sir.
HIS HONOUR: And you are signifying that you are consenting to being released onto such an order, all right?
OFFENDER: Yes.
HIS HONOUR: All right, grab a seat then for a moment, thank you. I have told you that I have - I should - I have not said it specifically but I think I need to - I have told you about some of the mandatory provisions that exist in relation to this sort of offending within the Act. There are some really dire consequences that attend to people who involve themselves in any repeat offending or, for that matter, first time offending for some offences, not the one that you are dealing with, but as I, from memory, the repeat offending of this sort of conduct would get you something like a mandatory minimum period of four years. So you really must leave the internet alone in terms of this sort of thing and engage with the counselling.
6AAA
I have told you that I reduced your sentence because you have pleaded guilty. I have. I have taken into account your guilty plea. If you had been convicted of this offence following a trial I would have sent you to prison for a period of 27 months. I would have fixed a recognisance release order releasing you after 14 months and that statement is to be noted in the records of the court. So you can see there is a very tangible benefit in pleaded guilty.
Sex Offender Registration
There is one other thing I have to deal with. You have been sentenced by me in relation to what is described as a Class 2 offence under the Sex Offender Registration Act 2004. It is accepted that this triggers the obligation to report under the Sex Offender Registration Act and there is no issue taken with the length of your reporting obligations.
So you must comply with your reporting and other obligations under that Act for the next eight years. Now, this represents also, it seems to me, a significant risk of
re-offence, because failure to comply under that Act is itself an offence punishable by a term of imprisonment, and there are many ways in which people breach their reporting obligations. Do not be one of them.
I am going to have a document brought down to you in a moment. You are going to need to acquaint yourself with that document in due course. I am not expecting you are going to do it now. It would be impossible. It is a very lengthy document. I am going to have it provided to you for you to sign and in signing you are just acknowledging that you have received those explanations as to your responsibilities under that Act. You will see that the Sex Offender Registration Act imposes a number of conditions upon you, and they are serious matters. They include impediments to future employment in a number of areas. There are some serious impediments to your future contact with children and your obligation to report contact. You will really need to familiarise yourself with those matters and get legal advice in relation to them as well if you need it, as any breach of this Act or your reporting obligations under it, is itself a very serious criminal offence, one punishable by a term of imprisonment which would itself then breach the terms of this community corrections order. Mr Steward, you have seen these documents before. They are extremely lengthy. All I am dealing with here is the notification of his reporting obligations. It is a very lengthy document. It goes into all his requirements under the Act. It is impossible for him to read it now. He is not being asked to, but he will need to read it, have it explained to him in due course and get any sort of advice he needs to get. He is being asked merely to acknowledge by a signature the receipt of that notice under that Act. You understand that, do you not?
MR STEWARD: Yes, Your Honour.
HIS HONOUR: I think he has signed that document already, has he,
Ms Todisco?
ASSOCIATE: That is correct, Your Honour.
Forfeiture
HIS HONOUR: So that has been signed and finally there is an application to forfeiture of the items listed in the schedule attached to a forfeiture application under s23ZD(1) of the Crimes Act 1914 (Cth). There is no opposition taken to the making of that order and I will have my electronic signature attached to that document. Are there any other matters I need to attend to at all or not?
MR CAMPBELL: No, Your Honour, nothing from me.
MR STEWARD: Nor me, Your Honour.
HIS HONOUR: All right, well, again I apologise to be doing it over the remote facility but I - - -
MR STEWARD: But I actually thank Your Honour for - Your Honour is probably not well. So we are grateful that Your Honour could sentence today.
HIS HONOUR: Yes. I reckon I am about 40 per cent but going downhill. That completes the matter then but hopefully I will not see you again,
Mr Cutajar, all right?
- - -

[2022] VCC 1062

4 July 2022