CDirector of Public Prosecutions v King

[2024] VCC 787

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-21-02695
CR-23-01593

DIRECTOR OF PUBLIC PROSECUTIONS (CTH)

v

DARRYL KING

---

JUDGE:	KARAPANAGIOTIDIS
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 and 29 April 2024
DATE OF SENTENCE:	29 April 2024
CASE MAY BE CITED AS:	CDPP v King
MEDIUM NEUTRAL CITATION:	[2024] VCC 787

REASONS FOR SENTENCE
---

Subject:  Criminal law – sentencing

Catchwords: Use a carriage service to transmit indecent communication to a person under 16 years of age – use a carriage service for sexual activity with a person under 16 years of age – fail to comply with reporting obligations contrary to the Victorian Sex Offenders Registration Act.

Legislation Cited: s 6AAA, 18, Sentencing Act 1991 (Vic), Part 1B Crimes Act
  1914 (Cth).
Cases Cited:  Hurt v The King; Delzotto v The King [2024] HCA 8; R v Gajjar
[2008] VSCA 268; Martin Trinh [2024] VSCA 61; ABC v The King [2023]
  VSCA 280.  

Sentence:  Total effective sentence of 5 years and 7 months, non-parole period 3 years and 9 months. 

---

APPEARANCES:	Counsel	Solicitors
For the CDPP	Ms H. Baxter	Office of Public Prosecutions
For the Accused	Ms M. Brown	Victoria Legal Aid

HER HONOUR:

1        Mr King, you have pleaded guilty to one charge of use a carriage service to transmit indecent communication to a person under 16 years of age; one charge  of use a carriage service for sexual activity with a person under 16 years of age, and failure to comply with reporting obligations contrary to the Victorian Sex Offenders Registration Act 2004.

2        Further, you have agreed to this court hearing and have pleaded guilty to the summary charge of deal with property suspected of being proceeds of crime.  You have also been charged with, and admit, a breach of a recognisance release order imposed by this court on 27 May 2022. 

3        The full circumstances of your offending are outlined in the prosecution opening, marked as Exhibit A.  This constitutes the factual basis upon which I sentence you and the following represents only a brief summary. 

Circumstances of the offending

4 On 27 May 2022 you were sentenced in the County Court for offending which included accessing, soliciting, and possessing child abuse material. A charge of transmitting indecent communications to a person under 16 years of age was also taken into account pursuant to s16BA of the Crimes Act 1914 (Cth).

5        You were sentenced to 20 months’ imprisonment and released on a recognisance release order after serving 328 days of the term of imprisonment, which was effectively the pre-sentence detention.  You were required to be of good behaviour for a period of three and a half years in addition to a requirement to attend sex offender treatment and other programs as required. 

6        On 8 June 2022 you signed a notice of reporting obligations indicating that you had no email addresses or online accounts.  On 13 June 2022 you reported a mobile number ending 645; an email address, a gmail account, and a myGov account associated with the same email address. 

7        On 14 September 2022 you engaged in a conversation with BF, a child who was 11 at the time, on Snapchat.  You said, ‘Daddy wants to get you pregnant, daughter.  [BF], I am going to take your virginity at 11 years, YO, old’.  BF then blocked you on the platform. (Charge 1).

8        On 14 October 2022 you engaged in conversations with ‘IC’ and ‘SR’, children aged 11.  You sent eight messages to these children, extracted at paragraph [14] of the prosecution opening.  The messages were of an explicitly sexual and highly depraved nature where you narrate in some detail the sexual acts that you wanted to perform on these children, and on several occasions offered money in the varying amounts of 10, 40, and 65 million dollars in exchange for nude photographs.  These messages culminated in a live video chat that lasted at least two minutes and 14 seconds with IC and SR where you masturbated in the presence of both children(Charge 2).

9        On the same day IC informed her uncle that her and her friend, SR, had received inappropriate messages from a male Snapchat user called Darryl King, with your username.  Her uncle then provided screenshots of the messages to ICs grandmother, who subsequently reported the matter to the Australian Centre to Counter Child Exploitation.

10      On 29 November 2022 IC and SR were interviewed by members of the Victorian Police’s Joint Anti Child Exploitation Team and provided details of your offending.  Soon after ICs grandmother was able to provide police with the part of the video call of you masturbating, and relevant screenshots of conversations between you and the children.

11      In respect of Charge 3, between 21 October 2022 and 20 December 2022 you failed to report within seven days of their creation four email addresses and a Snapchat account, notably the one used during the earlier offending. 

12      On 20 December 2022 a search warrant was executed at your residence, where police seized a number of items, including a Telstra mobile phone and an Apple iPhone.  You participated in a field interview and your answers are extracted at paragraph [10] of the opening.  You made some admissions but, overall, denied your involvement in the offending.

13      With respect to your SORA obligations, you were ‘not entirely sure’ you had to report new accounts.  You ‘did not know’ you had to report new email addresses, and you denied having Snapchat accounts.  Victoria Police subsequently examined your phone and found evidence of the Snapchat conversation between you and BF, the subject of Charge 1.

14      The owner of the red iPhone was identified as being owned by a Carlos Lopez Torres, who made a statement indicating that he had lost his phone.  You told police that you had found the phone on St Kilda Road and did not report it to them (related summary offence 1).

15 All the offences on the indictment constitute a breach of the recognisance order imposed on 27 May 2022. The sentencing options in respect of this breach are outlined in s20A(5)(c) of the Crimes Act 1914 (Cth).

Commonwealth sentencing regime

16 In sentencing for Commonwealth offences, the court is required to have regard to the matters set out in Part 1B of the Crimes Act 1914 (Cth) and, in particular, s16A(2), which sets out a non-exhaustive list of factors where relevant and known. In determining the sentence to be passed the court must impose a sentence that is of a severity appropriate in all the circumstances of the offence.

Gravity of offending

17      The charges you have pleaded guilty to, Mr King, are inherently serious, as reflected in the maximum penalties, and also the mandatory sentencing regime, which I will return to shortly.  General deterrence is the primary sentencing consideration, given the prevalence and ready availability of such means of offending, and the vulnerability of children online.  There is a paramount public interest in protecting children from sexual abuse and exploitation.

18      The principles for sentencing and offending involving child abuse and online child exploitation, which I accept have broad application here[1], are well established and outlined in the prosecution’s submissions at paragraph [16]. I adopt this framework in assessing the gravity of your offending.

[1] Defence submissions at [18].

19      As agreed between the parties, in all the circumstances, I do accept that Charge 1 sits at the lower end of the range of seriousness.  The evidence indicates that you believed you were communicating with a child at the time, and the language used is sexually explicit and vulgar, however, it is limited to the one single communication and BF, fortunately, appeared to block you immediately.

20      I accept that Charge 2 is the more serious charge on the indictment and represents an escalation. As submitted by the prosecutor, your communications with these very young children were brutal.  From the outset they were highly sexualised and graphic, and they were persistent.  You added both IC and SR to the Snapchat platform and initiated communication.  You offered payments (even if in unreal or fanciful amounts) for nude and sexual photographs, and the video call involved you live masturbating to two children who were, in fact, 11 years of age at the time when you were aged 54.  The victims blocked you so you could not further contact them.

21      In assessing your offending’s objective gravity, I also take into account the factors properly raised by your counsel, Ms Brown.  It was not suggested that this charge falls at the lower end of the spectrum given, in particular, that it involved two young children.  However, the offending conduct took place on a single day, 14 October 2022, to be contrasted with offending that spans over a more significant period of time.  Also, while not seeking to minimise the traumatic impact of your offending, it did not involve any physical contact with your victims, or the children themselves engaging in any sexual activity. 

22      Also, I accept that your case can be contrasted to more serious examples involving offenders who engage online in sexual activity with children through gaining their trust, or through grooming or manipulating them, or trying to normalise the exchanges.  While your conduct was reprehensible, and your communications obscene and vulgar, I accept that your offending was relatively unsophisticated and did not involve the type of calculated manipulation or breach of trust that is seen in some cases.

23      I also take into account that at the time of your offending you were subject to a recognisance release order, and that this offending occurred only several short months after your release from custody.

24      In terms of Charge 3, it’s punishable by a maximum penalty of five years’ imprisonment.  You were required to advise police of four email accounts and one Snapchat account, and failed to do so.  I take into account the importance of enforcing this regulatory regime.  I also take into account, as submitted by your counsel, that there was not a blanket failure to advise the authorities of your details and you have made some attempts to comply with your general requirements. 

25      You told forensic and clinical psychologist Dr Michael Davis that at the time of your offending you were not on illicit substances, to be contrasted with the context of your last prior matter.  You claimed that you did not know the children you communicated with were 11 years of age. As Dr Davis observes, based on his assessment of you, while you readily admit to your current and previous offending, you do 'minimise certain aspects of it to some degree and appear to have a fluctuating memory for some aspects of it.'  He considers that this is more reflective of your difficulties with insight and self-awareness as opposed to an overt denial of your offending. 

26      As I have already noted, you were arrested on 20 December 2022 and have remained in custody since this date, which totals, as agreed between the parties a period of 496 days.

Victim impact

27      The grandmother of IC, Ms Marisol Bolton[2], and the mother of SR, Ms Doreen Lam[3], have provided victim impact statements.  Ms Bolton refers to the stress, difficulties and challenges that your offending has placed on her relationship with her granddaughter, as she does her best to monitor her electronic devices and limit her use of social media applications in an effort to keep her safe.  Ms Lam refers to the impact your offending has had on their family as a whole and the stress caused by the Court process.  She refers to the impact of the offending on her daughter and has observed it to have undermined her sense of safety and trust in men, exposed her to triggering events, impacting her behaviours and anxiety, with an increase in her stimming and exacerbating the core symptoms of her autism spectrum disorder. I take into account the impact of your offending.

[2] A pseudonym.

[3] A pseudonym.

Plea, contrition and co-operation

28      As agreed between the parties, your plea of guilty was presented at the first reasonable opportunity, thereby avoiding the costs and delay of a trial, bringing finality to the proceedings and sparing the victims from giving evidence.  Your plea of guilty entitles you to an important sentencing discount.  I accept that it also demonstrates a willingness to facilitate the course of justice and assume responsibility for your offending.

Personal circumstances, character and antecedents

29      Your personal circumstances were canvassed in the detailed report of Dr Davis dated 3 April 2024 and are also outlined in the court's previous sentence.  You have been assessed by a number of practitioners over recent years, and I note that there are some discrepancies in your personal history and the veracity of some of your narrative, as Dr Davis notes, cannot be determined. 

30      In summary, you were born in 1968 and you are now 56.  You have four siblings and your parents separated later in life.  You have not had contact with your family for a long time.  Your father is dead and you think it likely that your mother has also, in recent times, passed away.  Your sister was the victim of significant sexual abuse perpetrated by your father.

31      You completed school to year 11.  You previously worked as a forklift driver in logistics and manufacturing, but you have not worked since you were around 32 years of age.  You were last employed at a transport company. 

32      You have previously been in several age-appropriate cohabiting relationships, as you described to Dr Davis, with the last one commencing when you were approximately 48. 

33      You have a longstanding history of drug abuse. You started smoking cannabis from around the age of 16 and also started using amphetamines. In later years, you started using drugs intravenously and since your early to mid-30s, you have been injecting methylamphetamine.  You also described to Dr Davis the use or experimentation of other drugs. 

34      You have experienced a diverse range of medical issues, over the years, including hepatitis C, asthma and septicaemia. 

35      You have a relevant and significant prior criminal history.  I note that a large portion of it does date back.  You have been sentenced to a range of different criminal dispositions, custodial and non-custodial.  On your last release from custody in May of 2022, you returned to live with a friend.

36      Your counsel submits that you became socially isolated, as your accustomed social group continued to use drugs and you were trying to abstain.  You engaged with alcohol and drug counselling with Caraniche, and you were also assessed by forensic intervention services as eligible for sex offence specific programs and you were placed on a waitlist as at the time of your arrest. 

Psychological assessments

37      Dr Davis interviewed you for some five and a half hours and provided a comprehensive report, along with giving evidence in Court.  He administered a number of tests, including a Personality Assessment Inventory (PAI). In summary, the results suggested 'serious difficulties with substance misuse and some maladaptive personality features, suspiciousness and feared situations’ (at [128]). The Correlates of Admitted Sexual Interest in Children (CASIC), is a behavioural rating scale that is designed to assist in the assessment and diagnosis of Paedophilic Disorder or Hebephilia.  Scores on the tool range from zero to six and you scored one, which was lower than the average score amongst child abuse material offenders and the samples on which this instrument was developed and validated (at [131]).

38      Dr Davis notes that while you may have experienced some symptoms of anxiety and depressed mood in the past, he did not consider that you currently meet the formal criteria for a major mental illness (at [165]). He is of the opinion that you meet formal criteria for the schizotypal personality disorder.  This is a condition characterised by a pervasive pattern of social and interpersonal deficits, reducing capacity for close relationships, odd thinking and eccentricities of behaviour.  Also you appear to have some comparatively mild Borderline and Narcissistic personality features and while not meeting formal criteria for any further diagnosis, these likely contribute to your interpersonal difficulties and the unusual way that you view yourself and the world. He considers that your personality functioning is currently at a 'severe level of impairment' (at [166]). 

39      In addition to your severe personality disorder, your offending behaviour raises the possibility that a paraphilic disorder, i.e., sexual deviation, diagnosis may be relevant, namely, either Paedophilic Disorder or Hebephilia.  However, in his opinion, the behavioural evidence and the results of the behavioural rating scales indicate that you do not have a sexual preference for pre-pubescent or pubescent children.

40      In summary, Dr Davis did not consider that your offending was primarily driven by a sexual interest in such children. He opines that your online offending behaviour 'can be viewed as an interaction between your unusual personality, poor self-insight and initial involvement in a rather unusual form of atypical sexual behaviour', that is, fantasies involving DDLG (Daddy Dom/Little Girl).  He explains that ‘DDLG fantasies are a form of ‘age playing’, which people embody a role younger or older than their actual chronological age during fantasy role plays and which is not connected with paedophilia in any way’ (at [167]). Dr Davis considers that your documented offending behaviour in 2021 and 2022 reveal some aspects of a DDLG fantasy as canvassed at paragraph [168] of his report.

41 In his evidence and with reference to the current charges, he referred to the crude, almost childish way, in which you referred to sexual activity and your offer of unrealistic and fanciful sums of money. Dr Davis, however, indicates that there are ‘certainly indications that you began to view some underage females as sexually arousing after your introduction to DDLG fantasies', and, in particular, he refers to your previous collection of child abuse material. He states, as your 'involvement in DDLG fantasy play involved, Mr King started to blur the lines between adults acting as children and children themselves' [169]. In cross-examination, he agreed that you had a sexual interest in pubescent females, consistent with what you had told him, and that while your preference was for adult women, this did not exclude you from having a sexual interest in younger kids.

42      Overall, I accept the assessment and opinions of Dr Davis.  In basic terms, he agreed that you have a sexual interest in children, but that it is not your exclusive, preferential or primary interest or motivation for your offending.  He also gave evidence in respect of your personality disorder and that your personality functioning was currently at a severe level of impairment.  In respect of your offending, your impairment would have impacted your appreciation of the wrongfulness of your conduct at the time you were engaging in it.  You were caught up in the idea of DDLG fantasies and did not pick up on obvious cues, which would have been obvious to everyone else.  While I do not accept that you did not know or appreciate that at some point you were communicating with children, I do accept that your disorder is likely to have contributed to the blurring of the lines as referred to and that there is some correlation between your disorder and the offending, which results in a modest reduction of your moral culpability[4].  As discussed at the hearing, your personality disorder, along with the symptoms and the challenges it presents, also heightens the need for community protection.

[4] R v Verdins [2007] VSCA 102 (23 May 2007); Boucher v The Queen [2002] VSCA 3.

Prospects of rehabilitation

43      In all the circumstances, Mr King, your prospects of rehabilitation cannot be viewed as favourable and, as such, I do accept that community protection looms large in the sentencing exercise. As submitted by the prosecution, whether your offending represents an extension of fantasy or a sexual gratification and interest in children, you were prepared to engage in this offending conduct very soon after your release from custody for similar offending. Given your criminal history, and the fresh offending occurring during the operational period of a recognisance order, specific deterrence is a primary sentencing factor in your case. 

44      Your risk of future offending was comprehensively assessed by Dr Davis.  In his report he notes the complexities and difficulties in conducting such an assessment (at [134]), as you appear to pose different levels of risk for different scenarios of sexual offending (at [158]).  For example, you have not committed a contact sexual offence since December 2007.  Your offending as it relates to child abuse material, and offending over the internet, commenced in your early 50s.  Given your circumstances and history, he chose to cautiously assess you against five instruments that address various aspects of risk to provide a fulsome overview[5].

[5] See The Hare Psychopathy Checklist-Revised (PCL-R), generally designed to identify traits of psychopathy ([135]

[137]); The Level of Service/Risk, Need, Responsivity (LS/RNR) which covers predictors of general criminal conduct across several domains ([138-140]); The Risk Matrix 2000/S (RM2000/S) designed to assess sexual recidivism risk among adult males who have already been convicted of a sexual offence ([141-144]); The Child Pornography Offender Risk Tool (CPORT), a tool in its relative infancy, recently designed for the assessment of sexual recidivism among male offenders with a conviction for a child abuse material offence ([145-148]); The Risk for Sexual Violence Protocol – Version 2 – for assessing risk for sexual violence ([149-157]).

45      At paragraph 158 of his report Dr Davis states:

‘While it is my opinion that Mr King’s offending was not primarily driven by deviant sexual interest in children, the fact that the offending behaviour continued after he was subject to a Recognisance Release Order is nonetheless concerning.  Accordingly, it is my opinion that Mr King poses a low to moderate risk for contact sexual recidivism but a moderate to high risk for further online indecent communication offences.  The fact that he does not appear to have had a collection of child abuse material depicting other children at the time of the most recent offending is positive, and suggests that his risk of collecting such material again is best viewed as a moderate risk’.  

46      He concludes, at 171:

‘A thorough consideration of relevant risk markers for general and sexual offending indicated that Mr King poses various levels of risk for different forms of offending behaviour’[6].

[6] Dr Davis canvasses the risk for general criminal recidivism; contact sexual recidivism; further child abuse

material offending; and on-line indecent communications offences.

47      In my assessment of your  rehabilitative prospects I have also taken into account your relevant prior criminal history, along with your lengthy history of substance use.  I do note that upon your last release from custody you had not commenced any sex offence treatment program. I accept that your prospects of rehabilitation will be enhanced by the completion of offence-specific treatment.  As was noted in the sentence of 2022, your prospects of rehabilitation, in part, depend on you receiving targeted treatment.

48      In terms of future treatment, your personality disorder will present challenges and your minimisation of the offending, while not a relevant risk factor, can potentially be an impediment to some forms of treatment (at [160]).  I do note, however, that Dr Davis confirmed in his evidence that you did seem quite keen to undertake treatment.  At paragraph [172] of his report he also makes a number of specifically tailored recommendations regarding your future treatment and management, which should be made available to those who will be managing and treating you in the future (at [172(6))].

Sentencing purposes

49      In sentencing you, Mr King, I must give effect to the principles of just punishment; general and specific deterrence; denunciation, and protection of the community. I have already canvassed, in some detail, these considerations as they apply in your case. I must also take into account the objective of rehabilitating you.  Where general deterrence is a primary consideration, as it is in your case, personal mitigatory factors must usually be given less weight than they might otherwise be given[7].

[7]R v Gajjar [2008] VSCA 268; though I have, as canvassed, taken into account personal factors and the

matters raised, in particular, by Dr Davis.

50      In respect of the mandatory sentencing regime, I have been guided by the relevant authorities[8]. The minimum term restricts sentencing power to the minimum period of imprisonment, subject to the exceptions, and provide a yardstick representing the Commonwealth Parliament’s view of the least worst possible case warranting imprisonment against which the case before the court at the time can be measured.  Thereby, the statutory minimum operates to increase the appropriate term of imprisonment generally for that offence[9]. 

[8]Hurt v The King; Delzotto v The King [2024] HCA 8; Martin Trinh [2024] VSCA 61; ABC v The King [2023]

VSCA 280;see also defence submissions [9]-[14]).

[9]      Trinh v The King [2024] VSCA 61.

51 In respect of Charge 1, as I have already noted, both counsel submit, and I accept, that the offending sits at the lower end and that the minimum term does not allow for full weight to be given to the plea of guilty and that, in the circumstances, a discount should be applied pursuant to s16AAC of the Crimes Act 1914 (Cth). Both Counsel also submit, and again I agree, that Charge 2 falls in a different category and cannot be considered at the lower end or in the least serious category of offending. I consider that the instinctive synthesis of all relevant sentencing considerations, including a plea of guilty, can be given adequate expression if the sentence remains at or above the statutory minimum.

52 I intend to impose separate sentences in respect of each charge to reflect the separate criminality involved; the different type of offending, and the different victims of each offence. I have taken into account the presumption of cumulation provided by s19(5) of the Crimes Act 1914 (Cth), noting that it’s purpose is to ensure that the effective sentence represents a tougher response to the objective seriousness of the sexual abuse of children[10]. 

[10] See Explanatory Memorandum.

53      The presumptions in the minimum terms do not abrogate the requirement to take into account the principle of totality. In all the circumstances, I consider that ordering full cumulation between charges would result in a disproportionately severe sentence, taking into account the gravity of the offending, as I have assessed it; the relative close proximity between the charges, and your plea of guilty.  I must  ensure that your overall sentence remains just and appropriate, and I have sought to do this through the orders for cumulation on the separate charges.

54 In respect of the breach of the recognisance order, as already noted, the sentencing options are outlined in s20A(5)(c) of the Crimes Act1914 (Cth). I consider it appropriate, as both counsel have submitted, to activate the unserved portion. I do consider that substantial concurrency is warranted, particularly as I have also taken into account, in my assessment of the new offending, that you were on an order at the time.

55      I must also have regard to current sentencing principles for offences of the kind that you have committed, and I have done so.  I note there are a few intermediate Appellate Court decisions regarding s474.25A, and in some of the available cases there are vast differences in the offending conduct[11].

[11]    See DPP (Cth) and DPP v Watson [2016] VSCA 73; R v Whaley [2020] NSWDC 517.

56      In your case, Mr King, there was no dispute that a term of imprisonment is warranted in respect of the principal offences and that, globally, the sentence should be structured by way of a total effective term with a non-parole period.  On an assessment of all relevant matters, I have concluded that, given the gravity of your offending, the only just and appropriate sentence in your case, on the Commonwealth matters, is one of imprisonment.  Applying the principle of parsimony and proportionality I consider that there are alternative sentencing options available on the State offences.

Sentence

57      Synthesising all relevant matters, you are convicted and sentenced as follows:  Charge 1, two years and three months’ imprisonment.  Charge 2, five years’ imprisonment.  Charge 3, which is the failing to comply with SORA, convicted and fined $500.  Charge 4, convicted and fined $300. 

58 In respect of the breach of the recognisance order, pursuant to s20A(5)(c), I find the charge proven. The order is revoked and you are ordered to serve a period of imprisonment, fixed under paragraph 20(1)(b), that you have not served at the time of your release, which is approximately nine months.

59      Taking into account all the circumstances in your case as discussed today with counsel, particularly totality and the term of custody that you will be serving and your circumstances, I will not order that the attaching surety be estreated pursuant to s20A(7).

60      Orders for cumulation are as follows, and I am going to refer to them in months and then I will turn to commencement dates there.  Because I have dealt with the State matters by way of monetary penalties I can turn straight to the Commonwealth matters as to the commencement.

61      Cumulation as follows:  Charge 1, five months; Charge 2 is effectively the base sentence, and on the breach of the recognisance release order my intention is to cumulate two months.  That arrives at a total effective term of five years and seven months’ imprisonment. 

62      HER HONOUR:  Setting a non-parole period of three years and nine months, which is the minimum term that I consider justice requires that you serve taking into account all relevant factors. 

63      Pre-sentence detention is 496 days, and I declare that as having been served. 

64 Section 6AAA declaration, I must say, is difficult in this case because of the complexities and the mandatory regime that applies but, doing the best I can, I indicate that, but for your plea, I would have sentenced you to some six years and 11 months imprisonment with a non-parole period of four years and 10 months.

65      I consider that the reasons I have indicated meet the requirements or satisfy the requirements of s19(7), and that is, that I am required to state the reasons for imposing a sentence that is not fully cumulative and cause the reasons to be entered into the records unless Counsel suggest otherwise.  They are indicated in the body of the reasons including the assessed gravity of the offending, the proximity of the charges and the plea of guilty. 

66      MS BAXTER: Yes, Your Honour. 

67      HER HONOUR:  In terms of commencement dates as required by the Act, the sentence imposed on Charge 2 is to commence immediately.  The sentence imposed on Charge 1 is to commence one year and 10 months prior to the expiry of Charge 2, which accommodates the five months’ cumulation unless Counsel tell me otherwise.  Is that right? 

68      MS BAXTER: That is right. 

69      HER HONOUR:  And the difficulty I had in terms of the commencement was I would pronounce that the reinstated sentence upon revocation of the recognisance release order is to commence seven months prior to the expiry of the sentence on Charge 1.  That is right, but I am just not sure that it is the exact – not sure that the amount outstanding - - -

70      MS BROWN:  My view is without the benefit of conferring with the learned prosecutor – is that if Your Honour were to direct that the unserved portion of the term of imprisonment imposed on the original ..... were to commence seven months and two days prior to the expiry of the - - -

71      HER HONOUR:  Charge 1.

72      MS BROWN:  - - - sentence imposed on Charge 1.  That would give effect to Your Honour’s intentions, and similarly with the orders, the commencement dates between Charge 1 and 2 – that should end up with the total effective sentence of five years and seven months.

73      HER HONOUR:  Yes.  Do you agree, Ms Baxter?  It seems to me that it should – Charges 1 and 2 are straightforward in that - - -

74      MS BAXTER:  Yes.

75      HER HONOUR:  - - - the sentences are quite clear.

76      MS BAXTER:  Yes.

77      HER HONOUR:  But to accommodate what it is that I am intending, I think I ought to proceed in that manner.  Do you agree?

78      MS BAXTER:  I do, Your Honour.  My instructor has helpfully been able to indicate the exact amount of days that would be left to serve, and the process by which she did this was to do between the time of 27 May 2022 and 27 January 2024, which would be the 20 – 20 months from 27 May.  That is 610 days having regard to those exact months as they were.  He has then served the 328 days which would leave – having regard to that sentence, if he had have served the 20 months from 27 May 2022, he would have left 282 days. 

79      HER HONOUR:  All right.  282 days.  So I think that that should then be accommodated by an order of commencement – nine months and two days.  I think that is correct, that it should achieve that - - -

80      MS BAXTER:  Yes.

81      HER HONOUR:  I will make very plain on these orders as well that the intention is that it be two months.

82      MS BAXTER:  Yes.

83      HER HONOUR:  So that will be plain to the authorities.  The commencement date should align with that, but it will be very clear that that is the court order.  All right.  Counsel content with that?

84      MS BROWN:  Yes, Your Honour.

85      MS BAXTER:  Yes, Your Honour.

86      HER HONOUR:  All right.  Now, while Mr King is already subject to SORA – that is, the requirements under the Act – I must issue him with another notice of reporting obligations under the Sex Offence – Offenders Registration Act, and his reporting period as a result of the offences for which he has been convicted today is life, and a copy of that notice will be provided to him at the prison later this afternoon. 

87      HER HONOUR:  Yes.  Thank you.  Counsel, was there – is there anything else?

88      MS BAXTER:  No, Your Honour.

89      MS BROWN:  No, Your Honour.