CDirector of Public Prosecutions v Oost

[2022] VCC 2176

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-22-00217

DIRECTOR OF PUBLIC PROSECUTIONS

v

BENJAMIN OOST

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JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	24 November 2023
DATE OF SENTENCE:	30 November 2022
CASE MAY BE CITED AS:	CDPP v Oost
MEDIUM NEUTRAL CITATION:	[2022] VCC 2176

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW SENTENCE

Catchwords:  Using a carriage service to transmit child abuse material – Using a carriage service to cause child abuse material to be transmitted – Using a carriage service to transmit indecent communications believed to be under 16 years of age – Using a carriage service to solicit child abuse material – Possessing or controlling child abuse material – Plea of guilty – Family hardship.

Legislation Cited:     Crimes Act 1914;  Sentencing Act 1991

Cases Cited:

Sentence:20 months’ imprisonment to be released on recognisance after a period of 6 months.

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth	Mr M. Stanton	Commonwealth Director of Public Prosecutions
For the Accused	Mr L. McPhie	Docherty Legal

HIS HONOUR:

1Benjamin Oost, you have pleaded guilty to:

nine charges of using a carriage service to transmit child abuse material, which carries a maximum penalty of 15 years' imprisonment;

two charges of using a carriage service to cause child abuse material to be transmitted, which also carries a maximum period of 15 years' imprisonment;

one charge of using a carriage service to transmit indecent communications to a person believed to be under 16 years of age,
10 years maximum;

one charge of using a carriage service to solicit child abuse material, 15 years' maximum;

and one charge of possessing or controlling child abuse material obtained of accessed using a court service, which carries a maximum penalty of 15 years' imprisonment.

2You have no previous convictions or findings of guilt.

Circumstances of Offending

3The nature and breadth of your criminality is set out in detail in the amended Summary of Prosecution Opening for Plea, Exhibit A, which forms part of these reasons for sentence.  I do not propose to recite the detail of your offending herein.  You engaged in numerous exchanges, conversations and transmissions on an encrypted messaging application known as Kik chat.  You also transmitted child abuse images by email.

4You have taken some comfort from the fact that your offending does not disclose contact offending.  This viewpoint obscures the extremely disturbing nature of the conversations you engaged in and the child abuse material you transmitted.  Those transactions raise concerns as to your danger to the community as well as disclosing actual harm to the victims of child abuse in the images and potential harm in relation to the encouragement and promotion of child abuse material advanced by you.

5To put it simply, in relation to a number the conversations you engaged in you had no idea as to whether actual child abuse would follow your instruction and discussion.  You received some gratification out of discussing the prospect that such abuse would in fact take place.

6The very useful prosecution submission on sentence breaks down the criminality underpinning each charge.  I will not reproduce the detail but I have relied upon it somewhat in summarising the following.

Charge 1

7You sent three child abuse image to yourself which depicted an approximately 11-year-old female's breasts, a 10- to 11-year-old female lying partially naked on the bed with her genitals and breasts exposed, and a child's vagina.  This occurred on a single day, involved a relatively small number of images and the nature of the material transmitted, it was accepted, and I will accept, was not at the high end of the spectrum in terms of relative depravity.

8However, these were actual children of a very young age who were exploited to create these images, and the international nature of child abuse material and its transmission and proliferation from the use of the internet and storage devices are such that image such as this can remain for many years, without putting a time on it, which of course says something considerable about the impact upon victims involved in the production of these images.

Charge 2

9On this occasion you asked two separate people, apparently adults, about sexual activities with their children, and enthusiastically probed further details.  This led you to receiving descriptions of anal sex with an eight-year girl and oral sex on an 11-year-old boy.  This transmission is described as textual in that there were no images.  It was discussion.  The prosecution advanced, and I accept, that the serious aspects of this offending includes your contribution to sustaining an online community which enables and normalises the sharing of child abuse material and encourages the sexual exploitation of children.

Charge 3

10In relation to Charge 3 you sent a picture of your erect penis to a person who you identified and understood was 15 years of age.

Charge 4

11Charge 4 was committed in the context of a sexualised chat with someone purporting to be Andy Marcy.  The chat was about your own family and you sent a photograph of a family member in front of a birthday cake with no.10 on it.  You asked Andy Marcy, 'Would you stick your cock in her mouth?  She'd love it.  I'd join in and I'll show it to her', in reference to a photograph of Andy Marcy’s erect penis.  This particularly serious and disturbing offending.  You were sharing an image of your own family member for the purpose of encouraging the other chat participant to share in your discussion about her sexual exploitation.  Your family member was thus a victim of your depravity.

Charge 5

12In relation to Charge 5 you discussed digital penetration of an eight-year-old girl and referred to ‘fucking her when she was 12’.

Charge 6

13In relation to Charge 6 you had sent a photo of yourself holding your penis to someone purporting to be NyAriel Foster, and then told NyAriel Foster that you were going to fuck her in front of her nine year old daughter and that the nine year old can get naked and touch herself too and show her my pics.  You later said, 'Daddy wants to make love to all of you’, ‘Line all three of you up’ and ‘eat all your pussies one by one'.  You also said, 'Try to touch the little one’ 'Between the legs',  ‘Pretend you are tickling her'.  This was particularly serious offending.  You shared a sexualised image of yourself with a person who you believed was the mother of a nine-year-old girl and encouraged her to show a photo of your penis to the daughter, expressed a desire to make love to her mother and the daughter and then encouraged the mother to sexually touch the girl.

Charge 7

14Charge 7 relates to a sexualised conversation wherein you shared an image of a girl and told the other participant, 'This is what she looked like when we first played’, ‘I felt her up in my bedroom with all the other kids around'.

Charge 8

15You sent two images to someone purporting to be Sam Wilkins.  One was a photo of a child's vagina and the second is a photo of an 11-year-old female lying on a bed with her clothes pulled up, exposing her vagina and mid-section.  You encouraged and exchanged some images and Sam Wilkins sent you three images of a naked 16-year-old girl in return.  The images sent by the offender were of real children who had been exploited.

Charge 9

16Charge 9 relates to you sending to Daniel Biggan an image of a child's vagina, an image of an 11-year-old female lying on a bed with her clothes pulled up, exposing her vagina and mid-section, and a video of a female masturbating, which you said to the purported Daniel Biggan was your family member.

17This was part of an exchange.  Daniel Biggin sent you a photo of a 15-year-old girl who he said was his sister.  You said, 'What else you got?’ 'Younger the better’ and ‘Show me the youngest.'  This person then sent you a video which depicted two female children performing oral sex on a male child.  The children appeared to be approximately seven to eight years of age.  Charge 9 encompasses the images sent by you to Daniel Biggan, not the image you received from him.  The video you received from that person forms the basis of part of Charge 14.

Charge 10

18On the same day you received a video from Daniel Biggan you sent it to someone labelled, 'Kim Kurosaki', in the course of a sexually explicit conversation.

Charge 11

19You requested and received images of a penis and anus.  Apparently those of a person you believed was a 15-year-old boy.

Charge 12

20In relation to Charge 12 you engaged in a highly explicit sexual conversation with a person you believed was a 16-year-old girl from the USA.  During the conversation you sent three images of yourself masturbating.  You also requested the recipient send naked photos of herself.

Charge 13

21You solicited another Kik chat user to send child abuse material.

Charge 14

22Embraces the files contained on your devices including four videos with duplicates of the video originally received from the person labelled,
Daniel Biggan, on 23 March 2021.  This video consisted of three teenage girls, who appear over 13 but under 18 years old, removing their clothing and exposing their bodies.  The prosecution accepts that this offence involves relatively few files and relates to a total of six different children being exploited.  The prosecution accept that the gravity of the exploitation depicted in these materials is at the lower end for this type of offending.  I also accept that characterisation.

Objective Gravity of Offending

23Your counsel, Mr McPhie, also addressed me on the relative gravity of the offending and the overlap of criminality across the charges and the serial nature of the charges.  I accept what is essentially a joint position regarding where the gravity of your offending sits in the range.

24I accept that Charges 2 to 13 inclusive may properly be viewed as a course of conduct in that from 6 January 2021 to 1 July 2021 you used the Kik chat service to transmit, solicit and cause to be transmitted to yourself child abuse material.  This comprised a mixtures of sexualised conversations and sharing of images with adults and children.  Treating this offending as a course of conduct is relevant to the principle of totality, as well as characterising the offending appropriately and placing it in its proper context.

25The offending is very serious offending.  The maximum penalties reflect that.  The offending is very serious because it relates to child abuse.  The is a paramount public interest objective in promoting the protection of children as the possession of child pornography is far from a victimless crime.  Children are sexually abused in most degrading and harmful was, as you well know, in order to supply the market.

Sentencing Considerations

26General deterrence is thus the primary sentencing consideration.  Because general deterrence is a primary consideration personal mitigatory factors such as prior good character, prospects of rehabilitation and so on attract less weight than might otherwise be the case.

27Specific deterrence, denunciation, punishment and protection of the young and the community are all important sentencing considerations.  Offending involving child pornography is difficult to detect given the anonymity provided by the internet and the use of encrypted messaging services such as in your case.  The possession and transmission of child pornography material or child abuse material creates a market for the continued corruption and exploitation of children.

28Alongside the prominence of general deterrence, denunciation is a significant sentence consideration.  The sentence I impose reflects the community's denunciation of those who actively support this market in childhood misery, but on a more basic level the denunciation of those who derive gratification from witnessing or discussing the degradation and infliction of sexual offending against children.

29I will address the circumstances that were submitted have led to the offending.  Your counsel, Mr McPhie, provided a very helpful written submission,
Exhibit 1, which set out the circumstances surrounding your offending, and before turning to those circumstances I will summarise your personal circumstances briefly.  They are set out within Exhibit 1.  They are also set out in Mr Cummins' report and also Mr Brown's report, and I will not reproduce all of that detail herein.

Personal Circumstances

30You are 48 years of age.  You were born and raised in New South Wales and were a talented student, receiving a high Year 12 score and then commencing a Bachelor of Commerce at Newcastle University.  You completed the course over four years, including a year off, and you maintain greater than a distinction average and I was told you received a Dean's Honours List award, commenced working thereafter as an assistant marketing coordinator and marketing coordinator with educational experience.

31Around the age of 27 you travelled overseas and you lived in India and London during your travels.  You met your now ex-wife in London in 2001.  She returned with you to Australia and you were married in 2003.  You and your ex-wife have two children, a 16-year-old and a 14-year-old.  For six years you ran a café with your ex-wife.  That is from 2010 to 2016.  Financial difficulties developed, I was told, around the time that a business partner ceased involvement in the café.  You tried to sell the business.  There were difficulties surrounding that.  The relationship soured.  You stated that there was emotional and physical abuse perpetrated toward you within the relationship and I was told that separation occurred due to stresses in the relationship in 2016.

32You lived under the same roof, however, for some 12 months.  You obtained employment as a barista once you had sold the café business.  You had care of your children.  Your ex-wife moved to New South Wales.  You were in a strained and difficult financial position.  You resumed another relationship with Riva with whom you still enjoy her support.  You purchased a property together in Campbells Creek and your new partner had four children.  You had the care of your two children and thus the eight of you resided in the property up until the time of your incarceration.  It was advanced on your plea, and I do not have any difficulty accepting, that would have been a stressful and challenging set of circumstances given the background of the financial difficulties.

33You completed a Masters degree in creative writing, publishing and editing at Melbourne University in 2018 and received a scholarship to commence a PHD in creative writing at James Cook University.  You were partway through the PHD when you were charged with the offences before me.  That brief summary highlights your high-level academic ability.

34Following being charged your children went to live with their mother, who was now living in Western Australia and you have had little contact with them since their relocation.  Following your arrest in July you moved out from the property at Campbells Creek and resided with your parents at Tingira Heights.  Your father is 84 years of age and your mother is 69.  I was addressed during the plea hearing by your counsel, and within Exhibit 1 detailed written submissions were also made to this point, that your father unfortunately is terminally ill and his passing is imminent.  This has been a significant matter for consideration in relation to the matters in mitigation on your plea, and is a matter of significant mitigation.  It is also relevant to the lead-up to the offending because the information that your father was terminally ill arose in time and came to your knowledge around the time of these other stressors that I have touched upon.

35The reports that have been relied upon, Mr Cummins and Mr Brown, also provide a basis which I accept that during the offending you were experiencing symptoms of depression, reflective of the multiple stresses and turbulence in your life at the time.  You commenced drinking alcohol to excess to problem levels.  I accept this was also a form of self-medicating due to the stresses in your life at the time of the offending.  You have managed to deal with that problem somewhat it would seem.

36Your counsel submitted that at the time of the offending you were under considerable stress and anxiety due to the circumstances in your life and he summarised these at paragraph 50 of Exhibit 1, and I accept those matters, the break-up of the 13 year marriage, the financial stress, the combined family with six children that you were dealing with, juggling work, homemaker duties, which only became more difficult during the COVID-19 lockdowns, which involved home schooling, of course, and like many other children, your son and your daughter began showing signs of the stresses no doubt in the family home but also those exacerbated by the pandemic and the restrictions.  The news in relation to your father's illness was also a significant matter at this time and I accept that that took an enormous toll on you.  I accept you were overwhelmed and you were not coping and your alcohol intake increased significantly.

37I accept that this was the background to the offending.  You were vulnerable against that background.  I accept the observations of Mr Brown in reference to poor stress management capabilities, maladaptive responses to the
build-up of stress, and that these are contributing factors to what took place, but they are very much background factors.

38What I do not accept is that those factors explain adequately or entirely your descent into the nature of the offending that is before me.  There is clearly, in relation to the offending before me, an underlying issue that underpins the offending that you need to address and that you will address as part of the sentence I impose upon you.  You have indicated a willingness to address your issues and to rehabilitate.  What I am not entirely satisfied of is that you have appropriate insight into the drivers that led to your offending.

Other Factors in Mitigation

Early plea

39You pleaded guilty at the earliest opportunity and you are entitled to a significant discount for that.  The plea was entered during the pandemic and it is worthy of greater weight in mitigation due to the state of trial lists at present and the greater facilitation of the justice system in that climate.

40There utilitarian benefit of the plea of guilty is enhanced in this context.  I also accept your pleas are reflective of appropriate remorse and contrition and is part of an appropriate response to the detection of these matters.  I do accept that there is a significant degree of contrition and remorse and I accept the matters advanced by your counsel, particularly with reference to the statements extracted from the reports of Mr Cummins and Mr Brown.

Lack of criminal history

41You have no criminal history, and that is a relevant matter to take into account.  I also take into account your bail history in the sense that you have been compliant on bail with these difficult matters and then made the difficult decision to have bail revoked to into custody, facing up to what the likely outcome of your plea hearing would be, and also with a view to try and put yourself in the best position to be physically available closer to your father's passing.

Family hardship

42Family hardship is relied upon as a standalone factor by your counsel and there is hardship to your children based on their lack of contact with you.  It is also advanced that they are also deprived of some financial support due to your current circumstances.  Significantly, the imminent passing of your father is a matter of hardship both to your parents and your wider family.  It is also a significant matter for you because it is something that is going to weigh heavily upon you during your time in custody, and I have taken both those aspects into account and given them significant weight.  That is hardship to others but also hardship to you in your experience of custody in those circumstances.

Prospects of rehabilitation

43I am satisfied that you have good prospects of rehabilitation due to your embracing psychological intervention to date, particularly with Chris Brown, and your responses are appropriate save for the pause I have indicated or the caution I have indicated in relation to whether you have full insight into all of the drivers underpinning your offending.

44You have good supports.  You have support from your mother and father and I have noted the matters that they have written about in their letters of support for you, as well as that from your uncle and your de facto mother-in-law.  I have taken all those matters into account and accept what they have to say about your previous character and your response to these matters.  I also take into account that you appear to have the ongoing support of Ms Ellis moving forward.

45Your time on remand has been difficult for you.  The 105 days you have spent on remand.  You have been subject to some intimidation but it is perhaps trite to say that for someone of your background it is an experience that will be salutary and very difficult and I accept that, it coming at a time when pandemic restrictions are still in place in custody and add to the burden of imprisonment, is something that I have also taken into account.  To your credit, you have endeavoured to undertake and complete course whilst on remand and I was provided with certificates in relation to those completion of courses, and that is a matter in your favour.

46In relation to the matters, as I have indicated, there is some overlap and I have been careful to avoid a double punishment where there is overlap and criminality between charges on the indictment.  I have also applied the principle of totality in arriving at the appropriate sentence alongside being mindful of the statutory requirements for cumulation where they apply.

47I take into account your previous good character to the extent available for offending of this type.  As I have done, the hardship to your family and to you due to the matters to which I have referred, and the fact that this is your first experience of the criminal justice system and, of course, prison.

48These matters together with your pleas, your education, your intelligence, your work capability and the supports, all lead me to a view that you have good prospects of rehabilitation.  In considering the sentence to impose I have had regard to the objective of rehabilitating you and to that end I will impose treatment conditions as part of this sentence.

Parsimony

49I have applied the principle of parsimony.  Despite the strong submissions or your counsel, which had some force, I have concluded that notwithstanding the significant matters in mitigation to which I have referred, a period of imprisonment with release on recognisance is the only sentencing disposition available to me that will adequately meet the sentencing factors I must have regard to.  As I have indicated, I have had regard to the presumption of cumulation in relation to the offences on the indictment.

Other matters

50By virtue of the sentences I impose you will be subject to registration under the SORA.  The registration period is for life.  There is also an application to forfeit devices connected with this offending.  Has that been resolved, that matter,
Mr Stanton?

51MR STANTON:  It has.  It is agreed, Your Honour.

52HIS HONOUR:  Agreed.  I make that forfeiture order.  Thank you, Mr Stanton, Mr McPhie.  I have had regard to the appropriate penalty to impose for each individual charge and, as I have said, the principles of totality and requirement for cumulation.  In all the circumstances of the case, given the serial and connected nature of all charges on the indictment, I propose to order an aggregate sentence.  I do so on the understanding that the Victorian provisions and requirements relating to aggregate sentences are picked up pursuant to s68 and 79 of the Judiciary Act.  Is that so, Mr Stanton, it is available to me?

53MR STANTON:  It is not an issue.  It is available, Your Honour, yes.

Sentence

54HIS HONOUR:  Yes, thank you, Mr Stanton.  Mr Oost, I sentence you as follows. 

55As I have just indicated, on the 14 charges on the indictment you are sentenced to an aggregate term of 20 months' imprisonment. 

56You are to be released on recognisance after serving a period of six months' imprisonment.

57I declare that you have served 105 days as pre-sentence detention.

58Pursuant to s 6AAA were it not for your pleas of guilty I would have sentenced you to a total effective sentence of three years' imprisonment to be released on recognisance after 24 months.

59Would that have to be a non-parole period of three years?  Is it less than three years that - it is just three.  I know it is just a 6AAA indication but just as I have stated it I realised it.

60MR STANTON:  I am sorry.

61HIS HONOUR:  Is it more than three years you have got to give a non-parole period or is it just - - -

62MR STANTON:  I will just check with my instructor if I may on that point,
Your Honour.

63HIS HONOUR:  Yes.

64MR STANTON:  Three years or less can be by recognisance.

65HIS HONOUR:  Yes, all right.  Well, look, the 6AAA is three years to be released on recognisance after 24 months.

66Mr Oost, you clearly do need treatment in order to address the underlying drivers of this offending and to rehabilitate fully and I order as part of the recognisance release order that you complete a designated sex offender treatment program.

67Are there any other conditions I should impose on a recognisance release order?  Mr Stanton?

68MR STANTON:  Yes, Your Honour, and my instructor has prepared a draft order if that might assist and we will populate that with Your Honour's conditions.

69HIS HONOUR:  It will assist.

70MR STANTON:  There needs to be a recognisance sum.

71HIS HONOUR:  That is right.

72MR STANTON:  Yes, and at a period over which time Mr Oost has to be of good behaviour.

73HIS HONOUR:  Yes.

74MR STANTON: And there are mandatory conditions pursuant to s 21B of the Crimes Act to be subject to the supervision of a probation officer for a period of a certain amount of months or years, to obey all reasonable directions of that probation officer, not to travel interstate or overseas without written permission and to undertake treatment, such treatment or rehabilitation programs that the probation officer reasonably directs, and there are also conditions that give effect to those mandatory conditions but certainly, Your Honour, we - if it would assist I can have my instructor populate that draft order and then provide it to Your Honour's associate so Your Honour can consider it.

75HIS HONOUR:  Yes.  Well, do that.

76MR STANTON:  With those additions.

77HIS HONOUR:  Thank you very much, Mr Stanton.  So the recognisance - you will be released on recognisance after serving that period of custody in the sum of $500.  You will be subject to the core conditions or the mandated conditions that have been referred to by Mr Stanton, and additionally the special condition imposed by me that you complete - I will invite or allow your instructor to have the preferred wording.

78MR STANTON:  Yes, Your Honour.

79HIS HONOUR:  But to complete an appropriate and recommended sex offender course.

80MR STANTON:  Yes, Your Honour.

81HIS HONOUR:  That relates to the offending.

82MR STANTON:  As Your Honour pleases.

83HIS HONOUR:  All right.

84MR STANTON:  There will need to be a reporting requirement.

85HIS HONOUR:  Yes.

86MR STANTON:  In relation to a Community Correction Centre.  As we understand it, this may well be in New South Wales if he is to return to
New South Wales, but we can address that in the form of draft orders.

87HIS HONOUR:  All right, and I should say that the recognisance release order in the sum of $500 on the condition that you be of good behaviour for two years - is that open to me?

88MR STANTON:  Yes, Your Honour, yes.

89HIS HONOUR:  Yes, all right.  So that will be the supervising period, if I can put it that way.

90MR STANTON:  Yes.

91HIS HONOUR:  Mr McPhie, have you followed all of that?

92MR McPHIE:  Yes, I have, Your Honour.  I have got a copy of the draft recognisance release order that Mr Stanton is referring to as well.

93HIS HONOUR:  All right.

94MR McPHIE:  The only query I would raise, Your Honour, is I was not aware of the good behaviour bond or the good behaviour period could go beyond the
20 months sentence, but if my learned friend is confidence of that I take that on face value.  I am just trying to look at that now on the Crimes Act.

95HIS HONOUR:  I accepted that without question because my experience in the past has been that, I am pretty sure I have been instructed or it has been submitted to me in the past that I can do that and I have done it.  So is that the case, Mr Stanton?

96MR STANTON:  I am instructed that the good behaviour period can run up to five years.

97HIS HONOUR:  Yes.

98MR McPHIE:  No, that is conceded, Your Honour.  I have found that now at s 20.

99HIS HONOUR:  Thank you for raising that, Mr McPhie, but I have considered that and I think there is good reason to have it two years from today's date.

100MR McPHIE:  What I might also raise, Your Honour, just with respect to the mandatory condition, and I appreciate it is mandatory in relation to Mr Oost not travelling overseas or interstate without permission, I believe I have seen similar situations on - as to a notation from a judicial officer that is supportive if the custodial officer is supportive.  Given Mr Oost's situation that may help his - or any concern from his worker if there is a view from Your Honour.  So I simply raise that as to whether Your Honour - - -

101HIS HONOUR:  All right.  Look, I - no, I am happy to indicate that.  I will state as part of these reasons that I am supportive of Mr Oost being permitted to travel to and reside in New South Wales or in another location if it is connected to family requirements.  I do so given the matters I have already referred to in relation to hardship.  In relation to children but more pertinent, in relation to his father's condition, I will also state as part of these reasons so that Corrections, when they request these reasons, which they always do, will note that  I would expect that notwithstanding the sentence I have imposed, that prison authorities would create any opportunity that is appropriate and feasible to allow Mr Oost's release at a time of imminent passing or obviously for funeral services.  That is a matter for the prison authorities if that transpires between now and the point in time that he is released on recognisance.

102MR STANTON:   As the court pleases.

103HIS HONOUR:  All right.  Anything else, Mr McPhee?

104MR McPHIE:  No.  As Your Honour pleases.  Thank you, Your Honour.  I thank Your Honour for allowing me to appear remotely for the sentence.

105HIS HONOUR:  That is all right.  So will we stand it down and get that done and then the - - -

106MR STANTON:  Yes, Your Honour.

107HIS HONOUR:  Then because - I mean otherwise it can just go as part of the orders but I think given Mr Oost is in custody we should get that done now.

108MR STANTON:  And he will need to have the order.

109HIS HONOUR:  He has got to sign it.

110MR STANTON:  He has got to sign it so we will have to facilitate that as well, which may be difficult.

111HIS HONOUR:  He cannot consent to it orally and then we can send it to him for signature?

112VOICE:  (Indistinct words) signature and (indistinct) Your Honour.  We can get it out to him (indistinct) otherwise the prison officers sign and witness to it.  We can have a look at that later.

113HIS HONOUR:  All right.  You probably heard that.

114MR STANTON:  Yes, Your Honour.

115HIS HONOUR:  We will get it emailed to you, Mr Oost, and it will be signed and witnessed and there is also SORA documentation that will have to go to him as well.

116MR STANTON:  Yes, there will be, Your Honour.

117HIS HONOUR:  As I understand it, he has got to be served with that.

118MR McPHIE:  I will explain it to him, Your Honour, thank you.

119HIS HONOUR:  You will explain it as well, Mr McPhie.

120MR McPHIE:  Yes.

121HIS HONOUR:  All right.  Well, look, I will stand down and I will just be out the back and if we need longer we will take longer.

122(At 3.08 pm His Honour left the Bench.)

123(At 3.31 pm His Honour returned to the Bench.)

124HIS HONOUR:  All right, Mr Stanton.

125MR STANTON:  Your Honour should have received that draft order.

126HIS HONOUR:  I have.

127MR STANTON:  As Your Honour pleases.

128HIS HONOUR:  All right, look, I will get Mr Oost's oral acknowledgment of it.

129MR STANTON:  Yes, Your Honour.

130HIS HONOUR:  And just understanding that it will be signed by him in front of a prison officer.

131MR McPHIE:  If I might, just before that is done, sorry, Your Honour - - -

132HIS HONOUR:  Yes.

133MR McPHIE:  The only query I had raised with Mr Stanton was in relation to conditions necessary of the fact that the mandatory conditions being (g)
and (h).  If Your Honour deems them to be necessary, Mr Oost will not take issue, but I just simply raise with the court that I understand as required for him to engage with a probation officer, which is in fact the Community Corrections officer, but a need to report to a Corrections officer and notify a Corrections officer, I think it is covered by the mandatory conditions.  So I think it creates more onerous conditions than what is necessary to achieve the recognisance release order.  It is a matter for Your Honour as to what conditions Your Honour imposes but I just simply raise whether (g) and (h) are necessary.  I appreciate my learned friend has a different view.

134HIS HONOUR:  Thanks, Mr McPhie.  Just let me look.  Look, and I take your point, Mr McPhie.  There is overlap there but I can understand - I will perhaps anticipate what Mr Stanton's view would be.  My view is being subject to the supervision of a probation officer and obey all reasonable directions of the probation officer should embrace (g) and (h), but (g) and (h) just makes it clear.

135MR STANTON:  Yes, Your Honour.

136HIS HONOUR:  What the obligations are.

137MR McPHIE:  As Your Honour pleases.  I will not take it any further.

138HIS HONOUR:  All right, there is no - no, thanks, Mr McPhie, you are right to raise them but there is no - I mean the probation officer and the Community Corrections officer are effectively one and the same, are they not?

139MR STANTON:  Yes.  Yes, they are one and the same and it is just if it is
sought - - -

140HIS HONOUR:  Yes.  No, look, we will leave that as is.

141MR STANTON:  As the court pleases.

142HIS HONOUR:  Thank you.  All right.  As part of this order, Mr Oost, and this document is going to be provided to you for your signature, and this relates to the release once you have served the six months' term of imprisonment,
105 days of which you already have served, you will be released pursuant to paragraph 21B of the Crimes Act 1914, and after that period upon you giving security by recognisance of $500 to comply with conditions that you be of good behaviour for a period of two years; you be subject of supervision of a probation officer for a period of two years; that you obey all reasonable directions of the probation officer; you do not travel interstate or overseas without the written permission of the probation officer; and undertake such treatment or rehabilitation programs that the probation officer reasonably directs; you report to the Newcastle Community Corrections Centre; you report to, and receive visits from a Community Corrections officer or officers; you notify an officer at the specified Community Corrections Centre of any change of address or employment within two clear working days after the change; you attend for assessment and if assessed as suitable, treatment for sex offender programs or programs to reduce reoffending as directed by the probation officer. Do you acknowledge they are the conditions?

143OFFENDER:  Yes, I do, Your Honour.

144HIS HONOUR:  Is consent necessary for this, Mr Stanton, or it is just really an acknowledgment.  It is not like a CCO where they have to consent, is it?  This is part of the sentence, the prison sentence.

145MR STANTON:  No.  No, it is just to - as I understand it, it is just to indicate that they have understood, that Mr Oost has understood the conditions.

146HIS HONOUR:  Yes.  So you understood that, Mr Oost?  And what will happen is the hard copy of that will be provided to you and your signature will be required.

147MR McPHIE:  If it assists, if Your Honour goes down a page, Your Honour, of the recognisance release order, it has got the dot points and Mr Oost is asked to say he has understood if that - if Your Honour has a copy of that.

148HIS HONOUR: Yes, sorry. Yes, it does. Yes. Sorry, I should have read on. So, Mr Oost, when you come to sign the document you will also be signing a recognisance that you have had explained to you the purpose and effect of the order, the consequences that may follow if you fail without reasonable excuse to comply with the conditions of the order, that the order may be discharged or varied under s 20AA of the Crimes Act and you agree that you have been under in accordance with the order and agree that you have been given a copy of this order, that is what you will be asked to sign when you get the physical copy.  I will indicate to you now that the consequences if you, without reasonable excuse fail to comply with the conditions of the order is that you will; be brought back before me and that this is a period of imprisonment of 20 months,
14 months of which will be served pursuant to this recognisance release order, subject to you complying with it.  All right, do you understand all of that?

149OFFENDER:  Yes, Your Honour.

150HIS HONOUR:  All right.  That will be - the document itself will be put in front of you and you will be able to keep it so you will know those conditions and you will be asked to sign it to acknowledge that.  All right, any other matters,
Mr Stanton?

151MR STANTON:  No, Your Honour.

152HIS HONOUR:  All right.  Can I thank you, Mr Stanton, very much for your assistance throughout this matter in written and oral form and also you too,
Mr McPhie.  These are not straightforward matters and they have been dealt with very expertly and professionally by both of you, so the court appreciates that.

153MR STANTON:  As the court pleases.

154HIS HONOUR:  We'll adjourn the court.

155MR McPHIE:  As Your Honour pleases.

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