CDirector of Public Prosecutions v Prowse
[2020] VCC 1761
•6 November 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-00911
| DIRECTOR OF PUBLIC PROSECUTIONS (Cth) |
| v |
| JAMES PROWSE |
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JUDGE: | Her Honour Judge Leighfield | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 November 2020 | |
DATE OF SENTENCE: | 6 November 2020 | |
CASE MAY BE CITED AS: | CDPP v Prowse | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1761 | |
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords: Sentence – use carriage service to groom a person believed to be under 16 years of age – gravity of offending – guilty plea – cooperation with police – impact of COVID-19 – general deterrence – prospects of rehabilitation
Legislation Cited: Criminal Code (Cth) s474.27(1); Crimes Act 1914 (Cth) s16A(1), s16A(2)(g), s16A(2AAA), s17A
Sentence: 12 months’ imprisonment, to be released forthwith on a recognisance release order in the sum of $500 to be of good behaviour for a period of 2 years, with conditions requiring supervision, assessment and treatment for drug and mental health issues, and engagement in offence-specific programs.
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APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Mr Iain Macdonald | Office of Public Prosecutions (Commonwealth) |
| For the Accused | Ms Morgan Brown | Victoria Legal Aid |
HER HONOUR:
Introduction
1 James Prowse, you have pleaded guilty to one charge of use a carriage service to groom a person believed to be under 16 years of age contrary to s474.27(1) of the Criminal Code (Cth). The maximum penalty for the offence is 12 years’ imprisonment.
2 This offence is a between-dates offence which arises from a series of text and image-based conversations which occurred between 24 September 2019 and 17 January 2020. You were 29 years of age at the time of the offending and had no prior convictions.
3 The ultimate issues for determination in this case are firstly whether a term of imprisonment is the only appropriate sentence open in all of the circumstances, and secondly, if so, whether that term of imprisonment should be served immediately.
4 For the reasons which follow, I am of the view that a term of imprisonment must be imposed in this case, however I propose to release you immediately today on a recognisance release order with a number of conditions attached. I will address the specifics of that sentence once I have announced the reasons for that decision.
Circumstances of the Offending
5 The full circumstances of the offending, arrest and record of interview are set out in the Summary of Prosecution Opening for Plea dated 1 October 2020 which was tendered as Exhibit A on the plea. However in shorter compass, on 24 September 2019, a police officer from the Joint Anti-Child Exploitation Team was conducting covert online investigation duties using ‘Kik’. She was purporting to be a 15 year old girl named Sienna Rose. You initiated contact with Sienna – initially not being aware of her purported age. Before becoming aware of her age, you discussed your prospective locations, transmitted an image of your penis, queried if Sienna would like to ‘hook up’, told her that you are 29 years old and also said that you are a ‘pretty shy dude just putting [yourself] out there to get experience with other girls’.
6 In response to those messages, Sienna advised you that she lives with her Mum and little brother, and that she is 15 and in year 9. Despite being given this information, you continued to ask Sienna to hook up, suggested that you would pick her up from her home so that the two of you could go somewhere quiet, and suggested that she should lie to her mother about where she was going. When Sienna resisted your suggestions, you said that you were not going to pressure her, that you just wanted some random fun, suggested she add you on Facebook, and continued to make a number of explicitly sexual comments to her about what you would like to do to her.
7 Following a few days of limited chat, on 30 September 2019 you asked Sienna if she was free for a ‘cheeky hook up’ and said that you would come to her. Sienna noted that she was looking after her younger brother to which you responded ‘no fun… that’s ok mabe another day when u free n I can take ur clothes off with my teeth’. Later on that same day you also sent a number of sexually explicit messages detailing sexual activity that you would like to undertake with Sienna despite her again reminding you that she is only 15 years old and saying that she had ‘neva been wit a guy like that’.
8 On 1 October 2019 you queried if Sienna was alone. On 2 October 2019 you said that you had asked if she was alone because you wanted her ‘to be naughty and come and ride [your] cock’ and you again sent her an image of your erect penis.
9 On 3 October 2019 and 17 October 2019 you sent her a further two images of your erect penis. There was then no communication for a few days.
10 On 23 October 2019, you sent a message to Sienna asking ‘can we fuck yet’.
11 After a further period of limited communication, on 1 November 2019 you again asked Sienna if she would like to catch up at some stage and detailed the property on which you live.
12
After a further period of communication silence, you again transmitted an image of your erect penis and a message saying ‘come fuck me’. At this point Sienna reiterated that she was 15 years old and doesn’t drive. On
4 December 2019, you advised Sienna that you would pick her up, take her somewhere quiet, and in your words ‘fuck the shit outta [her]’.
13 On Christmas Day you again transmitted an image of your erect penis together with a sexually explicit message to Sienna. On 13 January 2020, you sent her a further sexually explicit message. On 17 January 2020 you then sent your final message to Sienna which was ‘Let’s Fuck already’.
Arrest, Interview and Remand
14
You were arrested and interviewed on 26 February 2020. You cooperated with police providing names and passwords of internet accounts, and making substantial admissions during your record of interview in respect of your conduct. You admitted that your conversations with Sienna were explicit and that you had sent an image of your penis; that you would not have cared if Sienna had said she was underage as she was likely the only person responding to you at the time; that you sent images of your penis just for a reaction, and that whilst you had proposed meeting with Sienna, you did not ‘have the balls’ to meet up with her. You at one point stated that from
25 December 2019 onwards you had forgotten that Sienna was underage, but when you were shown conversations by the police you conceded that Sienna had reminded you of her age and that you would have realised that she was the same 15 year old you had spoken to previously.
15 During the record of interview you further stated that you only used Kik early in the morning after you had been using drugs, you were using approximately 3.5 grams of methamphetamine per week at the time of the offending, and that Sienna was the only underage girl who you spoke to on Kik.
16 Following the record of interview, you were charged and bailed.
Gravity of Offending,
17 Ms Brown on your behalf submitted that your offending should not be viewed as a particularly egregious example of grooming considering the lack of subtlety, lack of manipulation and lack of deception employed by you. In particular, Ms Brown pointed to the following factors as reducing the level of seriousness of your conduct:
· you did not adopt a false persona or lie about your age, sex or identity;
· you did not offer inducements or presents to Sienna;
· you did not make any actual arrangements for meeting in person despite the suggestion of meeting being made on a number of occasions; and
· your communications cannot be characterised as cunning or manipulative.
18 Mr Macdonald, on behalf of the prosecution, submitted that your offending is serious offending when the following considerations are taken into account:
· the period of time over which the offending spanned;
· the sexually explicit content of the communications;
· your knowledge of the purported age of Sienna from the outset;
· the fact that you encouraged secrecy and suggested that Sienna meet with you, but lie to her mother about what she was doing;
· your suggestions on multiple occasions that you and Sienna meet;
· your role in initiating and leading the sexual discussion;
· your supplementation of your messages with images of your erect penis; and
· your continued re-initiation of contact with Sienna after periods of no communication.
19 I accept that you did not adopt a false persona or make any threats or inducements towards Sienna, and that you did not request any reciprocity in terms of images from Sienna. I also acknowledge that, for these reasons, your offending is not at the very highest end of this kind of offending. However, I am of the view that your offending is still serious offending.
20 The fact that the person to whom you were speaking turned out to be an adult and a police officer does not lessen the seriousness of your conduct. It simply means that the harm that might have flowed if you had been speaking to a real 15 year old girl has fortunately not eventuated. The law specifically provides for the offence of grooming to be committed in this way, to enhance the prospects of detection, to deter offenders, and to minimise the use by offenders of internet-based contact for the corruption of children for sexual gratification.
21 Your offending occurred over a four month period, in circumstances where you sent numerous photographs of your erect penis, and spoke in a sexually explicit manner, to a person who told you on a number of occasions that she was only 15, and who advised you that she had never been with a guy like that. Consistently with authority, this conduct is serious and deserving of denunciation, and others in the community need to be deterred from acting in the same manner.
Personal Circumstances
22 You are now 30 years of age and you come before the court with no prior criminal history.
23 You are one of three siblings – with a younger sister and an older sister. Your parents separated when you were six years of age, and you remained living with your mother, whilst seeing your father on a fortnightly basis. Your mother re-partnered shortly after the separation from your father, and you have continued living with your mother and stepfather since that time. They have both been very heavily involved in the local football club over the years – as were you until approximately three years ago.
24 You completed Year 10 at school, and left partway through Year 11. It was around this time that your younger sister – who you were very close to – met a male who ultimately became her husband. You also became close friends with him, and not long after leaving school you commenced working with his father’s transport company. You spent over 12 years working for that company. For the first ten years you worked as a truck driver. However approximately three years ago your brother-in-law tragically committed suicide and you ended up taking over his position at work as a manager supervising twelve staff. You were using your brother-in-law’s truck, his phone and his office which constantly reminded you of him and made it even more difficult for you to cope with your loss. You had been a user of drugs – both cannabis and methamphetamine – prior to the passing of your brother-in-law, but in the aftermath of his death your drug use greatly increased. According to your mother and stepfather you also became very withdrawn, stopped attending family functions and underwent a number of behavioural changes.
25 You ended up resigning your position with the company at the end of 2019 and then spent a short period of time out of work before taking on some casual work at a strawberry farm for a period of approximately 4 months.
26 In terms of your current situation, you are single and have no children. You are living with your mother, stepfather and two friends, who all continue to be supportive of you. You have also commenced a carpentry apprenticeship through a friend and are both working and studying.
27 Your aunt and stepfather, who provided written references on your behalf, and your mother who provided both a written reference and oral evidence on the plea, all acknowledge the difficult period you went through after the death of your brother-in-law and clearly do not condone either your drug use or the offending behaviour which has brought you before this court. However they all also speak very highly of your work ethic, your contribution to the family and your care of, and involvement in, your family. They also note the very positive changes you have made in the aftermath of both leaving your employment at the transport company and being charged with these offences. Your stepfather in particular noted in his reference that you now have a great job as a carpenter, have your old head back on your shoulders and have returned to being someone who is a pleasure to spend time with. Your mother confirmed this in her oral evidence.
Relevance of Drug Issues to Offending and Rehabilitation
28 As I have already noted, you have a history of drug use. You began using recreational drugs in your late teenage years, smoking cannabis regularly from 18 years of age. You then commenced using methamphetamine, in a social context, when you were 23 years of age. However after the death of your brother-in-law, the frequency of your use increased significantly.
29 A psychological report authored by Mr Simon Candlish and dated 6 October 2020 was tendered on your plea as Exhibit 2. During your assessment interview with Mr Candlish, you told him that whilst you initially used methamphetamine to experience euphoria and have fun with your peers, in the aftermath of your brother-in-law’s death you used it to numb yourself emotionally and mentally and to escape your thought processes. I note that you gave a similar explanation when you gave evidence in court on your plea.
30 After assessing you, Mr Candlish is of the view that you meet the criteria for suffering from cannabis use disorder (severe), and stimulant use disorder (severe to moderate, in early remission). He notes that your substance abuse appears to have worsened in the three years leading in to the offending, seemingly in response to your brother-in-law’s death. He is also of the opinion that your dependency and abuse appear to have contributed to greater disinhibition, diminished coping skills, emotional avoidance, social withdrawal, and a weakening of your moral judgment.[1]
[1] At [152].
31 It is not submitted, and I do not accept, that the impact of your drug use mitigates your offending, that is makes your offending less serious in any way. It does however provide some context for the offending, and also has relevance to matters which need to be addressed by you to ensure your ongoing rehabilitation, and also long-term protection of the community.
32 Insofar as your risk of sexual re-offending is concerned, Mr Candlish was of the view that you fall into the low risk category for sexual recidivism and that you have a high level of protective factors. Mr Candlish noted as part of that assessment that you displayed an awareness of the seriousness and potential harm of your actions, that you did not seek to minimise your actions, and that you do not have specific sexually deviant interests in underage females.
33 Despite being in the low risk category for re-offending, Mr Candlish recommended that your rehabilitative prospects would be further enhanced by treatment to address your substance abuse issues, as well as both offence-specific and behaviour-specific psychological intervention.[2] He further noted that whilst your cannabis use disorder and stimulant use disorder have a permanent quality, he is of the view that given your insight into your difficulties and willingness to engage in treatment, that these conditions are amenable to change.
[2] Ibid, [165]
34 I note that you have made some attempts to start addressing your issues prior to coming to court for this matter, in that you have obtained a mental health care plan from your GP and attended one session of counselling with a treating psychologist. However, this has not progressed any further to date due to you failing to form a rapport with the psychologist and then having some difficulty, due to COVID-19, in linking in with a new treatment provider. You also gave very candid evidence during the plea where you conceded that you are still using methamphetamine, however in a much lesser amount and with significantly less frequency than at the time of your offending. You acknowledge that it is important for you to continue to work towards completely ceasing use of illicit drugs.
35 Despite the limited progress made to date with psychological counselling, and your continued limited use of methamphetamine, I do accept that you have good prospects of rehabilitation taking into account your lack of criminal history, strong social and emotional supports, history of employment, insight into the potential harm of your offending, low risk of re-offending, your willingness to engage in ongoing treatment.
Guilty Plea
36 You entered a plea of guilty in this matter at an early opportunity, being at committal mention on 23 July 2020. You did not, at any stage, seek to cross-examine any witnesses.
37 Section 16A(2)(g) of the Crimes Act 1914 (Cth) provides that the Court must take into account the fact of the plea, the timing of the plea, and the degree to which the fact and timing of the plea resulted in any benefit to the community, or any victim of, or witness to, the offence. As already noted, you entered your plea of guilty at an early opportunity. It has significant utilitarian value in avoiding the cost and delay of trial – especially with the current unprecedented disruptions to the smooth running of the criminal justice system caused by COVID-19. Furthermore, I am satisfied that your plea, especially considered in light of your cooperation with police, your extensive admissions in your record of interview, and your denunciation of your own behaviour as expressed to forensic psychologist Mr Candlish and in evidence in court on the plea, is both indicative of remorse and also a willingness to facilitate the course of justice.
38 In the circumstances I have given you a substantial discount for your plea of guilty.
Impact of COVID-19
39 In determining the type of sentence to be imposed, defence counsel submitted that I should take into account that the burden of a period of imprisonment will be increased by reason of the COVID-19 restrictions which are currently in force. At minimum, you would be subject to a 14 day period of quarantine, would be unable to have any face to face contact with your family and friends, and would have limited ability to access courses, programs and work opportunities whilst in custody. Further, any term of imprisonment during the current pandemic would lead to an increased anxiety on your part as to not only your own health in custody, but also the health of your family in the community – although I note that if numbers of new cases continue to stay low, this anxiety may be somewhat lesser than it would have otherwise been.
40 I do take these considerations into account.
Sentencing Principles Applicable to Sexual Offences against Children
41 It has long been held that general deterrence and denunciation are paramount sentencing considerations in respect of sexual offences against children. That is, other like-minded individuals must know that engaging in such serious criminality will result in significant punishment. There is a need to deter others from committing such offending, given the need to protect children from sexual exploitation and the increasing prevalence of internet-based sexual offending which provides a measure of anonymity for offenders.
42 Further, when sentencing for this kind of offending, an offender’s subjective circumstances including prior good character and prospects of rehabilitation must not be allowed to overshadow the objective seriousness of the offences for the purpose of sentence, and accordingly attract less weight than they might otherwise be given.
43 I have taken each of these principles into account.
44 I have already referred to your prospects of rehabilitation, and the recommendations of Mr Candlish in relation to ongoing treatment to facilitate your rehabilitation. In formulating an appropriate sentence in your case, I have had regard to s16A(2AAA) of the Crimes Act 1914(Cth). That section requires me to have specific regard to the objective of rehabilitating you. In that regard, I have considered whether appropriate rehabilitation and treatment options are available and I have considered the need to structure any sentence to enable sufficient time for that rehabilitation to be achieved. I note however that the requirement to have specific regard to this objective does not override the requirement that the sentence must be of a severity appropriate in all the circumstances of the offence. Accordingly I have been careful not to impose a sentence which is disproportionately severe in pursuit of the objective of rehabilitating you.
45 Insofar as specific deterrence is concerned, that is deterring you, it is of course important that you are deterred from acting in this manner again in the future. However, you have no prior criminal history, you have been assessed as a low risk of re-offending, have a supportive family structure, insight into your offending behaviour, have acknowledged responsibility for your offending and have good prospects of rehabilitation. Each of those matters in combination mean that the weight which might otherwise need to be given to specific deterrence is considerably lessened.
46 Finally I note that in formulating an appropriate sentence in your case, I have considered the need to impose punishment for the offence which reflects the gravity of your offending.
Current Sentencing Practice
47 I was provided with a table of comparative cases by prosecuting counsel – that is other cases where sentences have been handed down for similar offences. I was also provided with a further case to supplement that table by Ms Brown. However as conceded by both counsel, strictly comparative cases are hard to find and the cases in the table provided are not factually the same as your case. At best, they are examples of the application of the relevant sentencing principles applicable in this area, and can be used as yardsticks that may be able to illustrate (although not define) the possible range of sentences available.
48 Ultimately, whilst I have had regard to the previous sentences imposed and the issue of comparative sentencing and current sentencing practices more broadly, I have sentenced you in this case on the basis of the application of the principles to the specific facts of you and your case.
Sentencing Submissions
49 Turning now to the submissions made by each party as to sentence.
50 Mr Macdonald, emphasised that a term of imprisonment would ordinarily be expected to be imposed for this kind of offending. He submitted that there is nothing about the facts of this case – either in respect of the offence, or in respect of you as the offender – to take it outside the sentence which would ordinarily be expected. Accordingly he submitted that a term of immediate imprisonment is warranted.
51 Whilst Ms Brown conceded that ordinarily persons who plead guilty, or are found guilty of this offence, can expect a term of imprisonment to be imposed, she submitted on your behalf that in this case a term of imprisonment is not warranted. Ms Brown referred me to two passages in R v Nahlous [2013] NSWCCA 90 where Justice Adamson, with the Chief Justice and Justice Davies agreeing, stated:
[s]entencing is a matter of discretion and judgment. The objective seriousness of the offence or offences actually committed by the offender, as well as subjective circumstances, each play their part. The public mischief which the statutory amendments that introduced the offences and made such conduct criminal is a serious and substantial one. However that, of itself, does not have the consequence that every sentence imposed on every offender must reflect the general seriousness of such offences, as distinct from the particular crime committed by the particular offender… [72]
The purpose of general deterrence would not be enhanced by requiring a custodial sentence to be imposed in every case, regardless of the objective seriousness of the offence under consideration. [84]
52
Ms Brown submitted that given the combination of factual circumstances of this offending and mitigating factors pertinent to you, a community correction order would be an appropriate disposition in this case. In the alternative,
Ms Brown submitted that I should consider sentencing you to a term of imprisonment but with an immediate release on a recognisance release order.
Sentence
53 Section 16A(1) of the Crimes Act 1914 (Cth) requires me to impose a sentence which is of a severity appropriate in all of the circumstances of the offence. Section 17A of the Crimes Act 1914 (Cth) provides that a Court shall not pass a sentence of imprisonment on any person for a federal offence unless the Court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.
54 Despite the significant mitigating factors in this case, I am of the view that a term of imprisonment is required in respect of this offence to reflect the gravity of the offending, and to adequately address principles of general deterrence and denunciation. As I have already said on a number of occasions now, despite the absence of aggravating features, the offending which you have engaged in is serious offending. However, I am also of the view that taking into account the mitigating features including your lack of criminal history, your co-operation with police, your pleas of guilty, and your low risk of re-offending, combined with the need for ongoing mental health and offence-specific treatment to ensure long term rehabilitation and community protection, it is appropriate for you to be released on a recognisance release order, with rehabilitative conditions, forthwith. That is today.
55 Mr Prowse can you please stand up.
56 On charge 1, using a carriage service to groom a person believed to be under 16 years of age, you are sentenced to a term of imprisonment of 12 months.
57 Pursuant to s20(1)(b) of the Crimes Act 1914 (Cth), I order that you be released forthwith, which means today, upon you entering into a recognisance in the sum of $500 to be of good behaviour for a period of 2 years. There will also be conditions attached to that order as follows:
(a)
that you report to Lilydale Community Correction Centre, at
23-29 John St, Lilydale, within 2 business days of today, so that is by 4pm on Tuesday;
58 OFFENDER: I used to take my house mate there, I know.
59 HER HONOUR: Sorry?
60 OFFENDER: I know where it is, I used to take my house mate there.
61 HER HONOUR: Okay, so you have got to report there by 4 o'clock on Tuesday.
(b) that you be under the supervision of the Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee for 2 year period that you are on the order;
(c) that you attend for assessment and, if assessed as suitable, treatment for mental health as directed by the Deputy Commissioner, Community Correctional Services and/or his or her nominee;
(d) that you attend for assessment and, if assessed as suitable, treatment (including testing) for drug abuse or dependency as directed by the Deputy Commissioner, Community Corrections Service and/or his or her nominee;
(e) that you attend for assessment and, if assessed as suitable, treatment for sex offender programs or programs to reduce re-offending as directed by the Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee. So just to explain that to you in a little bit simpler language, you are going to have to report within the two days, you are going to be under supervision of Corrections for the entire two years so that means you will have a case worker who works with you. You will need to do any assessment and treatment for mental health that they direct you to do. You will need to do any assessment and treatment for drug issues including if they ask you to go and do urine testing to check whether you are taking drugs. You will need to do that as they direct you to do. You will need to attend for assessment and, if suitable for programs, attend for programs in relation to sex offender programs or any other programs to reduce re-offending. All right?
62 OFFENDER: Yep.
63 HER HONOUR: So they are the treatment aspects. There is then some just further aspects to it:
(f) that you report to and receive visits from a community corrections officer or officers;
(g) that 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;
(h) that you not leave Victoria except with the permission of an officer at the specified community corrections centre; and
(i) that you obey all lawful instructions and directions of community corrections officers.
64 OFFENDER: Yep.
65 HER HONOUR: So the purpose and effect of that release order is to grant you conditional freedom from today for a period of two years. If you commit an offence in breach of that order, so if in the next two years you commit an offence or if you fail to comply with any of the conditions that I have put on that order you can be brought back to court, then unless you can show a reasonable excuse for the further offending or the breaching, you will be dealt with for that breach and be re-sentenced. You may have to pay the $500 I have referred to but more importantly for you to think about, you may have to serve the entirety of that 12 months' imprisonment straight away. Do you understand this?
66 OFFENDER: Yes, I just have one question about checking in. Just at the moment with my bail I'm meant to be checking in but I don't check in just cause of COVID.
67 HER HONOUR: Yes, so what will happen is when you get the recognisance release order, a copy of it will be provided a little bit later today - Mr Macdonald I understand you will get onto that and get that to us fairly quickly or do you want us to do it from the draft you provided yesterday?
68 MR MACDONALD: I am happy to amend the draft that I sent through yesterday reflecting what Your Honour said today and I will send it through to make sure that it does accurately reflect the conditions imposed.
69 HER HONOUR: That would be helpful. So when you get it in any event it will have a phone number. What I recommend you do is call them first and then they will tell you whether they want you to come in in person or whether they want to do a Zoom meeting with you, all right? And then they will tell you from that point on what appointments you need to go to and how you need to go to them, all right?
70 The other thing I need to inform you that you, or an authorised person, may apply to the court to vary or discharge the recognisance in accordance with the legislation.
71 Just before I move onto other orders and aspects of the sentence, is there anything, Ms Brown or Mr Macdonald, that you want to raise in relation to either the sentence or the remarks so far?
72 MS BROWN: No, Your Honour.
73 HER HONOUR: Mr Macdonald?
74 MR MACDONALD: No, Your Honour, the only thing would be your requirement to say what the penalty would have been.
75 HER HONOUR: Yes, I am heading to that, I just wanted to check there was nothing wrong with the order so far.
76 MR MACDONALD: No, nothing wrong.
77 HER HONOUR: That is all right.
s6AAA Declaration
78 Pursuant to s6AAA of the Sentencing Act 1991, I indicate that had you pleaded not guilty to the charge for which I am giving you the sentence today and you had been convicted of it, you would have been sentenced to a total effective term of imprisonment of 18 months, with release on a recognisance release order after a period of eight months, so you would have had to have served eight months prison, you would have a total sentence of 18 months and when you were released on that recognisant release order it would have gone for a period of 30 months and it would have had treatment aspects and conditions attached to it. So you have received a significant discount for that plea of guilty.
Registration pursuant to the Sex Offenders Registration Act 2004 (Vic)
79 The other thing I need to tell you about is that as a result of your conviction and sentence on charge 1, you have become a registrable offender under the Sex Offenders Registration Act (Vic) so you are required to comply with the provisions of that Act. Charge 1 is what is called a class 2 offence under the Act. As you have been found guilty of one ‘class 2 offence’ the length of the reporting period is eight years.
80 The delegate of the Secretary of the Department of Justice, in these circumstances my Associate, will give you notice of your obligations under the Act in a moment. I just want to check, I do not need to make any ancillary orders, that was sorted out was it?
81 MS BROWN: It was, Your Honour, and I have a signed consent for retention instruction order which will be scanned and provided to my learned friend today.
82 HER HONOUR: Thank you and there was no other ancillary orders sought, Mr Macdonald?
83 MR MACDONALD: No, Your Honour.
84 HER HONOUR: In that case, Mr Prowse, you can have a seat. My Associate will approach you to give you your obligations under the Sex Offenders Registration Act. Mr Macdonald, I do not know whether you can start working on the order from there or if I need to excuse you to do that?
85 MR MACDONALD: I am starting to at the moment but it might just take me a little bit longer.
86 HER HONOUR: That is all right. I am happy for you to turn your video off if you wish to while you work on that and we will just - I will pop outside the court room once Mr Prowse has signed the SORA or once he has received the SORA obligation and then once you are ready I will come back in and we will get the recognisance release order signed?
87 MR MACDONALD: Thank you, Your Honour.
88 HER HONOUR: So Mr Prowse, you have signed an acknowledgement in receipt of the paperwork that I have just referred to and that paperwork will be handed back to you in a moment because I have just signed it. Do you agree that is your signature?
89 OFFENDER: Yes.
90 HER HONOUR: Thank you. We will get a copy of that for the file as well. What I am going to do is I am going to stand down for a moment while the recognisance release order is just being finalised.
91 What happens, Mr Prowse, you're probably wondering why it was sent through yesterday. The prosecutors send through a draft with every possible condition that could possibly ever be on an recognisance release order with nothing else filled in in terms of whether gaol needs to be served or anything else and so that provides a basis to be able to determine or to be able to then create the order after I've made it. So the prosecutor actually types up the order and then I sign it so that's why we had the paperwork sent through yesterday. What he is doing is just updating that paperwork so it actually reflects what I've said is going to happen.
92 Once he has done that it will come back to the court and we will just make sure it is all correct and then we'll get you to sign that? All right? Ms Brown, I'm happy for you to have any further discussion you need to with Mr Prowse whilst I'm stood down.
93 MS BROWN: Thank you, Your Honour.
(Short adjournment.)
94 HER HONOUR: All right, that recognisance release order has been prepared, I've looked at it and I'm satisfied that it reflects what I have said. The conditions are in a slightly different order from how I announced them but they are all the conditions that I indicated.
95 What I will do is I will have that brought over to you, Mr Prowse, to have a look at and I will ask Ms Brown to come along as well to make sure that you understand what you are signing and I will get you to sign that order. I note that I said this would have the phone number on it, it doesn't. We will make sure that we provide the phone number for the correction centre.
96 MS BROWN: Thank you, Your Honour.
97 HER HONOUR: I will just get you to date it as well, Mr Prowse. My Associate will just sign to say that you have signed as well and then we will make sure that you get a copy of that and we will also ensure that you get a copy of the phone number for the Lilydale Corrections Centre.
98 Mr Prowse, in the nicest possible, I hope I don't see you back here again.
99 OFFENDER: Yeah, I won't let you down, I promise, thank you.
100 HER HONOUR: Good. Anything further?
101 COUNSEL: No, Your Honour.
102 HER HONOUR: Thank you.
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