CDirector of Public Prosecutions v Radings
[2021] VCC 108
•19 February 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01252
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MATTHEW RADINGS |
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JUDGE: | HER HONOUR JUDGE TODD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 February 2021 | |
DATE OF SENTENCE: | 19 February 2021 | |
CASE MAY BE CITED AS: | CDPP v Radings | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 108 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Plea of guilty - one charge using a carriage service to transmit child
abuse material - one charge using a carriage service to solicit child
abuse material - one charge using a carriage service to transmit
indecent communications to a person under the age of 16 - one charge
possession of child abuse material
Legislation Cited: Crimes Act 1958 (Vic); Criminal Code Act (Cth)
Cases Cited:McEwen v Simmons (2008) 73 NSWLR 10; R v Clarkson (2011) 32 VR 361 ; R v De Leeuw [2015] NSW CCA 183; R v Edwards [2019] QCA 15; The Queen v Miao [2016] NSWDC 181
Sentence: Total effective sentence of seven months imprisonment on Commonwealth offences with immediate release on Recognizance Release Order and a Community Corrections Order of 24 months on the State offence.
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APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Ms L. Skoblar | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr P. Tiwana | Dribbin & Brown Criminal Law |
HER HONOUR:
Introduction
Pleas of guilty and maximum penalties
1 Matthew Radings, you have pleaded guilty to one charge of using a carriage service to transmit child abuse material[1], one charge of using a carriage service to solicit child abuse material[2], (both these changes carry a maximum penalty of 15 years’ imprisonment) one charge of using a carriage service to transmit indecent communications to a person under the age of 16[3] (the maximum penalty for which is seven years’ imprisonment) and one charge of possession of child abuse material, [4] the maximum penalty for which is 10 years’ imprisonment.
[1] Contrary to s474.22(1) Criminal Code Act Cth).
[2] Contrary to s474.22(1) Criminal Code Act (Cth).
[3] Contrary to s474.27A(1) Criminal Code Act (Cth).
[4] Contrary to s51(G) (1) Crimes Act 1958 (Vic).
Circumstances of the offending
2 The circumstances of your offending are set out in the Summary of Prosecution Opening which became Exhibit A on the plea. That document forms part of these reasons. I will not repeat it here, but refer to some of the facts giving rise to the charges.
3
Broadly, Charges 1 and 2 took place between 26 February 2020 and
19 March 2020. Charges 3 and 4 are tied to the single date of 30 April 2020. You were 25 at the time.
4 Charges 1 and 2 occur in the context of sexually intimate online conversations between you and the person named for the purposes of these proceedings as “Bella”. You were charged, and pleaded guilty, on the basis that during that series of conversations you both transmitted (Count 1) and solicited (Count 2) child abuse material.
5 Charge 3 relates to a single sexual conversation between you and another person named 'Hayley'; a record of this conversation was found on your mobile phone. Count 4 relates to images that are child abuse material that were found on your phone when the police seized it.
6
Bella (in relation to Counts 1 and 2) was 14 years old. One of her parents found the messages on her mobile phone; they were between Bella and a person with the Snapchat account named ‘mradings94’. Bella’s parent discovered the record of chat and told Police what they had found. On
30 April 2020 Police executed a search warrant at your house. They seized two mobile phones belonging to you.
7 To be clear, although Bella was in fact 14, the content of the chat discloses, and the Prosecution accepts, that you understood her to be 18. You told her your true age.
Charge 1: transmission of child abuse material
8 In the Prosecution Opening, the child abuse material the subject of Charge 1 is illustrated by 14 examples where you pose a number of possible sexual scenarios on the hypothetical basis that Bella was eight, nine or 10 years old. Here are five of them:
· 'Show me where you’d want daddy’s dick if you were 9';
· 'Would you want to slide my Dick inside your tight vagina if you were 11';
· 'Would you give me a hand job if you were 10';
· 'Would you jerk my dick and watch me cum on a 9 yr old’s face';
· 'What would you wear if you walked into my room right now if you were nine years old; school uniform. No panties';
9 As I said, is not in dispute that you believed Bella to be 18 years old. Each of the examples given involve the invocation, by your words, of a hypothetical scenario where Bella is not 18 but between eight and 10 years old.
10
It is the transmission of these written descriptions of a hypothetical child of
8-10 participating in sexual conduct that constitutes child abuse material for the purposes of the charge; this limb of the definition can be found in 473.1(e) Criminal Code (Cth):
"child abuse material" means:
(…)
(e) material that describes a person who is, or is implied to be, under 18 years of age and who:
(i) is engaged in, or is implied to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); or
(ii) is in the presence of a person who is engaged in, or is implied to be engaged in, a sexual pose or sexual activity;
and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive;
(…)
Charge 2: solicitation of child abuse material
11 This charge relates to the same ‘Snapchat’ conversation with Bella in the same period. The charge captures the occasions where you request that Bella respond to text based sexual chat about how she would have engaged in sexual activity if she were under 12 as well as requests you make of her for certain photographs. The context is that, at your request, Bella sent you an image of herself aged about seven. But this is not the content of the charge. Rather, the charge relates to your statements provoking replies from Bella in response to your descriptions of sexual conduct with her as her seven year old self, (or with her nine-year-old sister). You also make four attempts to get Bella to send you particular photographs of her nine-year-old sister.
12 The Prosecution Opening contains two particular examples; the first occurs after Bella sends a photo of herself aged seven. It commences with you saying 'you’d want my Dick in your hand at that age', to which Bella replies 'he he he yes'. You continue 'where else would you want my Dick?'. Bella replied 'in me', you say 'even at that stage' and Bella says ‘yes’. And so it continues.
13
In the chat, you focus for a time on Bella’s nine-year-old sister. You asked Bella about her. You say 'if I was laying in your bed and you are giving me a hand job would you let your sister watch'. In another part of the conversation you say: 'you to take me into your sister’s room and while she’s asleep you to pull my Dick out and start jerking me off'. You asked Bella to send you images of her sister’s vagina. The Prosecution Summary sets out
14 examples in this vein.
14 No explicit images of Bella’s sister were ever sent, and no sexual acts were ever performed on, or near, Bella’s sister. You and Bella sometimes met in face time video calls but none of these are recoverable, there is no criminal conduct alleged in relation to them.
Charge 3: transmit indecent communications to a person under the age of 16
15 This charge arises out of the analysis of the chat history obtained when your iPhone was seized. A Snapchat conversation dated 30 April 2020 was found. The conversation was between you and a person calling themselves “Hayley”.
16 Hayley told you she was 13 years old. Hayley told you she would not lie (about her age). There is a sexual conversation between you. In that conversation you talk about sexually penetrating Hayley including ejaculating in her mouth. You then turn the conversation to Hayley being hypothetically younger than her 13 years. You say, 'how much younger how much younger would you be comfortable giving me a hand job', Hayley says 'I DK' , you say '10 yrs old'. Hayley replies: 'wtfr u asking'. The conversation concludes some time after this.
17 Hayley has not been identified or located. There is no evidence of that person’s age (or indeed gender) at the time of this conversation.
Charge 4: possess child abuse material
18 When your phone was seized and analysed the Police found child abuse material on it. That material was categorised on a scale devised to place child abuse material in a scheme of comparative seriousness; level one is the lowest.
19 In total you are in possession of 243 images of child abuse material. There were 223 images at level 1 – the majority of this was of naked prepubescent children (mainly female between 8 to 12 years old) standing on the beach. Additionally there were 173 images of young girls between about four and 14 years old wearing swimwear. They appear to be images obtained from websites lawfully advertising children’s swimming costumes (and I note that these latter images are not the subject charges). Some of these images are referred to in the chat conversations you had with Bella; the sexual acts that you would perform with these girls are described.
20 There was a small number of more serious images (one image at level 2, 9 images at level 3, and 10 images at level 4) found on your phone.
21 Your Internet search history records you seeking images in the following categories:
· Nine year old girl in bikini;
· Bathing suits for 12-year-olds;
· Inappropriate kids swimwear;
and similar searches.
Arrest and interview
22 On 30 April 2020, after the execution of the search warrant you went with Police and took part in an interview. You were cooperative. You made many admissions. You told Police your username for Snapchat. You told them that if you started chatting to someone and then found out that they were underage you would stop communicating with them. You admitted to using images of girls of eight or nine in order to masturbate. You told Police that you could remember meeting Bella online and having video calls with her on Face Time. You told Police that you and Bella had exchanged sexual images and messages. You told Police that Bella said she was 18 and you told her that you were 25. You told Police about Bella’s sister who was ‘nine or 10 or something’.
23 You told Police that the chats about Bella’s sister were fantasy and that you never asked Bella to touch her sister; you did admit to asking for images of Bella’s sister.
24 You told Police that when you chatted to Bella about her taking you into her sister’s room that was all 'just fantasy stuff'.
25 Other examples appear at the prosecution opening at paragraph 8.
26 After making those admissions you were charged.
Prior criminal history
27 You admitted a short prior criminal history that records two court appearances and in both cases you were dealt with by way of an adjourned undertaking without conviction. There is nothing in them that is relevant to my assessment of the sentence in your case and there are no subsequent charges.
Procedural history
28 The warrant in your case was executed on 30 April 2020 and you were charged that day. A filing hearing was listed on 1 May 2020. And I note here that between 1 May 2020 and the committal mention date of 9 October 2020 Victoria, including the court system, was much affected by the COVID-19 pandemic and the public health responses to it. On 9 October 2020 you indicated a plea of guilty to the charges and a plea hearing was listed in the County Court.
Nature and gravity of the offending; culpability and degree of responsibility
29 I am obliged to analyse where your offending fits in to the landscape of similar offending.
30 There are some unusual aspects in this case.
31 In committing the offence that is Charge 1 it was conceded by the Prosecution that at all times you believed Bella to be over the age of over 18. You, in that context, were truthful about both your identity (you used your true initial and second name) and your age.
32 It is broadly accepted that the text based conversation that you had with Bella was fantasy. Many of the statements involved the words 'would you' or a hypothetical situation such as 'if you were nine…'. No actual child was involved to your knowledge, and for this charge, and the part of Charge 2 that relates to text based exchanges, the child abuse material is constituted by the definition under s.473.1(e), in that the offending was descriptive. The prohibition is on creating images from words describing children engaged in sexual activities that reasonable people would regard as being, in those circumstances, offensive.
33 In relation to Charge 2 (and there is a clear overlap between the content of Charges 1 and 2) you also solicited images - images that were both text based descriptions and images in the form of photos - this being your request for photographs of Bella’s younger sister. The latter of these requests (four in all) went unanswered; she did not send you any photos. She did to some extent answer your requests in terms of participating in the text exchange that described a child in an offensive sexual context.
34 As I have said, the Prosecution generally concurred with the proposition that the written exchanges were you fantasising. However the Prosecution urged a finding that the soliciting of images in Charge 2 was genuine, in that you hoped and expected you would in fact receive such images. The submission was on the basis that these requests were for specific images of a specific individual and should be seen in that light. Your counsel argued that your requests for those images should still be understood in the context of the fantasies: while you did request images you did not persistently do so. When Bella declined to send you such images your requests did not escalate. I accept this characterisation of those events, that is, they were part of a broader fantasy scenario that you were inappropriately exploring with Bella.
35 The duration of the chats giving rise to Charges 1 and 2 was relatively short, being about three weeks. You did not transmit further or profit from the transmission or solicitation of these text based descriptions. You did not receive any photographs. Your offending did not take place in the context of the wider market. There was no dissemination of the chat. No actual children were involved, but only described at least to your knowledge.
36 The conversation with the person named Hayley was of brief duration. Again, no images were exchanged. There is no evidence that “Hayley” was in fact a girl of 13 and you are charged in relation to one day for that offence.
37 In relation to Charge 4 I observe that the number of images, at 243 was comparatively low in the context of similar cases. All of them were stills rather than video. Two-hundred and twenty-three of them fell within category one of the classification scale. They related to still images of children standing unclothed on a beach. There is no particular focus on genital areas.
38 There was no dissemination of or profiting from your possession of those images - nor were they organised into folders or catalogued in any way. Your possession took place on one day for the purposes of this charge.
39 All of that said, the conversations tend to disgust; they are offensive to read. While it is significant that no actual children were abused, in the context of Charges 1-3, the legislation is directed at deterring the production of even this material. In dealing with cartoon images of child abuse, the court in
McEwen v Simmons (2008) 73 NSWLR 10[5] said the law in this area was ‘calculated to deter production of cartoon material because it could fuel demand for material that does involve the abuse of real children.’ In the case of R v Edwards [2019] QCA 15 the court said such conduct is not harmless but has the tendency to ‘normalise’ exploitative sexual activity. However, I also respectfully adopt the sentencing remarks of His Honour Judge Berman of the District Court of New South Wales in The Queen v Miao [2016] NSWDC 181 at [1] in a case where the accused had purchased a child sex doll.
His Honour said:
'This Court is not a Court of morals. Not all behaviour which is strange, or offensive, or even disgusting is criminal and sentencing judges have to be careful not to allow a sense of disgust to lead to an inappropriately severe sentence being imposed on an offender. What is required is that the judge evaluate the objective gravity of an offender’s conduct by considering well accepted factors which include of course the harm that an offender’s conduct causes to the victims of it'.
[5]McEwen v Simmons (2008) 73 NSWLR10; [2008] NSWSC 1292.
40 Of course the definition I referred to above renders your conduct illegal, however I am also conscious not to be overwhelmed by the offensive content of the images described in Charges 1-3.
41
In relation to Charge 4, I have had regard to the principles in the case of
R v De Leeuw[2015] NSW CCA 183 in relation to sentencing for child pornography offences and to the structures set out in that case for determining the objective seriousness of such offending.
42 The combination of these factors, and taking into account the principles set out above, bring me to the conclusion that your offending in each of the four charges can be characterised as of lesser gravity than many of the offences in this broad category.
Personal circumstances
43 You are now aged 26 you were 25 at the time of the offending. You live with your parents. Your father is a self-employed bricklayer layer and your mother works in hospitality and at a garden nursery.
44 You were raised with your two stepsiblings, children your mother had before she met your father. You also have a brother, Joseph, born in 1990. You completed your primary school education at Emerald Primary School and attended Emerald Secondary College before you left school halfway through Year 9 in 2009.
45 In her reference tendered on the plea, your mother writes of your preference for your own company. You played by yourself and avoided, as she puts it, the complexities of social interactions with other students at school. Whether it was for this reason or others you became the target of relentless bullying (physical and verbal) while you were at school. This continued throughout your high schooling, despite attempts to formally address it with school authorities. Your experience of high school was largely determined by this feature and the account of it is quite disturbing. It was constant. It appears to have profoundly undermined your self-confidence and made your experience of school completely miserable. In Year 9 you retaliated and punched one of the bullies; in this way your education came to an end. You left school permanently soon after. You had not finished Year 9.
46
In the final paragraph of a psychological report tendered on your plea,
Ms Matthews states that:
'Mr Radings aged 26 years, was bullied as an adolescent and arising from that history he lacks social competence social skills and further suffers from social anxiety as defined by DSM-5'.
47 Happily, after leaving school you were able to immediately commence employment in your father’s bricklaying business. You completed an apprenticeship over three years and although you are only 26 you have already established 10 years full-time work in that industry. You are a confident bricklayer and good at it. You work five days a week, sometimes more, and live with your parents to whom you pay board.
48 When you are not working you spend most of your time at home. Although you had one brief relationship with a young woman when she was 18 (she was the daughter of one of your mum’s friends) this did not evolve into an enduring relationship. You have so far fulfilled your needs for sexual intimacy by viewing legal adult pornography. At one stage, curiosity led you to viewing images of underage people. Regrettably, you developed an interest.
49
After leaving school and the bullying that went with it you lacked confidence to make friendships and relationships in the community. Your parents encouraged you by getting you to join community organisations such as the
St John’s Ambulance Service where you served for two to three years as a volunteer. Your mother writes of her perception that your need for companionship grew but that you lacked the confidence to find relationships. You spend most of your time at home. You enjoy working on your car.
50 You eventually signed up to a legal dating app for over eighteens. The expectation on the forum was that the people you would meet would be all adults.
Circumstances of any victims
51 I am obliged to take into account the circumstances of any victims.
52 The courts have often said that there is an intrinsic harm caused by child abuse material.[6] Of course sexual activity with children is presumed to be harmful. It is difficult to assess the impact on victims in your case where the offending is substantially the creation of images with words in relatively private circumstances (with the important exception of the subject of Charge 4). In your case, it is perhaps only true to say that your offending contributes, to perhaps a very small degree given that there was an audience of one, to the broader creation of a distorted view of reality where children are viewed as appropriate sexual partners for adults.
[6]R v Clarkson (2011) 32 VR 361.
Matters in mitigation
53 The Indictment contains a hybrid of Commonwealth and Victorian offending. In relation to the Commonwealth offending I have taken into account the factors articulated in s.16(2) of the Crimes Act and the Victorian Sentencing Act factors set out there in s.5.
Plea of guilty
54 You pleaded guilty at the earliest possible stage and that not only significantly mitigates your sentence but also is indicative of your remorse. I also take into account the current circumstances surrounding the COVID 19 pandemic. Pleas of guilty have a special value in this context, where the court system faces significant trial waiting times.
55 You have also expressed your remorse to your parents and I take this into account. Through talking with you they appear to have gained a full and realistic picture of you and your offending.
Cooperation with authorities
56 Another aspect of how you conducted yourself in this case is that you have been cooperative with the investigators. You assisted Police when they searched your home. Some of your admissions allowed investigators not to pursue material that would otherwise have to have been obtained. All this saves the time of investigators and a broader cost for the community. It is also taken into account on your plea.
Psychological material
57 On your plea, a psychological report authored by Ms Matthews was tendered and I take its contents into account. Ms Matthews treated you while you were on bail. Matters in this report give context to your offending without excusing it. She describes you as struggling at first with entering treatment, and then your developing insight about the harmfulness of viewing child pornography. With her help you were able to articulate some habits of thought that support your offending. Ms Matthews stopped short of diagnosing you with a paraphilic disorder as defined by the DSM-5 but concludes that you likely have paedophilic sexual interest.
58 Ms Matthews goes on to write that you meet the DSM-5 diagnostic criterion for social anxiety disorder and that this disorder is intimately linked to your difficulty forming stable intimate and non-intimate relationships outside your family. She concludes that there is a connection between your social difficulties, and your difficulties with emotional and behavioural regulation, and your offending.
59 You withdrew from what was already a limited participation in the real world probably as a result of extreme social anxiety. You were lonely and increasingly isolated. All this gives some explanation for your offending without excusing it.
Prospects of rehabilitation
60 I must assess your prospects of rehabilitation in the sentencing process under both the Commonwealth and State regimes. Specifically, I’m obliged to consider the length of any sentence to provide for you to undertake a meaningful program of rehabilitation. And I was reminded by the Prosecution Submissions that sex offender treatment can only usually meaningfully take place within a period of about 24 months. I have also had regard to the following further aspects of your rehabilitation.
Family support
61 Your parents Joseph and Angelique both wrote about you in references tendered on the plea; they also attended the plea hearing with you. You have devoted and affectionate parents who are insightful about your struggles and unwavering in their commitment to you. I regard this support as being an invaluable pillar of your rehabilitation.
Work history
62 Moreover you have a strong work ethic, stable and consistent employment and a long history of being regarded as a valuable employee. You are qualified, skilled and experienced in the building industry.
63 You have complied with strict bail conditions prior to your plea including being unable to use the Internet for social media file sharing and viewing any pornography.
Engagement with treatment
64 While on bail you have voluntarily engaged with treatment with Pamela Matthews. It is clear that you did not find that very easy but you nevertheless persisted and the report of Ms Matthews describes an unfolding insight.
65 Ms Matthews has concluded that you fall into the low to moderate risk category in terms of reoffending and notes that your presentation suggests you are a 'fantasy driven offender' focusing on intending to engage in sexual activity alone while online as opposed to seeking actual real-world sexual contact. (I note that the Corrections Assessment put you at a low risk of reoffending.)
66 These factors, along with your relative youth and matters going to the low objective gravity of the offending which I have already noted, allow me to conclude that your prospects of rehabilitation are very good.
Relevant sentencing principles
67 I am obliged, pursuant to s.16 of the Crimes Act to impose a sentence of a severity that is appropriate in all of the circumstances taking into account the need to ensure that you are adequately punished. I am required to take into account a number of matters pursuant to s.16A of the Crimes Act and the similar provisions in the Sentencing Act (Vic).
68 The courts have repeatedly stated that a term of imprisonment will ordinarily be expected for offences involving child abuse material.
69 I understand and accept that general deterrence, that is, the ability for this sentence to deter somebody else from engaging in similar behaviour, to be the most important sentencing consideration; there is a paramount public interest in promoting the protection of children. In general, offences involving child abuse material involves the abuse of actual children to supply the market and the existence of that market in turn creates the need for children to be exploited and degraded. I sentence you in this landscape but am very careful to note that most of your offending occurred at a level of abstraction from the real experience of actual children. I say so while being mindful of the images in Charge 4.
General deterrence, specific deterrence, just punishment and community protection
70 I must impose a sentence that punishes you for what you did and that denounces your offending.
71 I do not regard your case as calling for emphasis to be placed on specific deterrence. I regard the protection of the community to be best served by your rehabilitation.
72 As your case straddles both commonwealth and state sentencing regimes, I can apply the approach articulated in Boulton to Charge 4. That is, that the Victorian scheme contemplates the imposition of community corrections orders for offending that might previously have been the subject of intensive corrections orders and suspended sentences. In the case of Charges 1-3, I conclude in that Commonwealth sentencing context that the only appropriate sentence for these charges, (having regard to the requirement in s.17A Crimes Act (Cth) that I must be satisfied that no other sentence is appropriate), is imprisonment. However there will be no requirement for you to serve that time immediately.
Regard to current sentencing practices
73 I am obliged to have regard to sentencing practices both in Victoria and across Australia. I have looked at sentencing practices generally and I have looked specifically at the cases referred to in the submissions. None of them are individually good comparators with yours, but I sentence you in that landscape.
Disposition
74 I am now reaching the disposition. I will first deal with the three Commonwealth charges and then finally I will come to the Victorian charge.
75 Mr Radings, the normal process at this point is that you are asked to stand to listen to the sentence but I am not going to ask you to do that today because it does not make sense, you are on video. So just so you know we're coming down to the numbers.
76 On Charge 1: using a carriage service to transmit child abuse material, you are convicted and sentenced to four months' imprisonment. On Charge 2: using carriage service to solicit child abuse material, you are convicted and sentenced to five months' imprisonment. On Charge 3: using a carriage service to transmit indecent communications to a person under the age of 16, you are convicted and sentenced to two months' imprisonment.
77 I direct that the sentence on Charge 2 will begin today. The sentence on Charge 1 begins two months from today and the sentence on Charge 3 begins five months from today.
78 My intention is that one month of the sentence in relation to Charge 1, one month of the sentence on Charge 3 are to be served cumulatively upon each other and upon the sentence on Charge 2, making a total effective sentence of seven months' imprisonment.
79 On Charges 1-3, pursuant to s.20(1)(b) of the Crimes Act 1914, I direct that you be released forthwith upon giving a recognisance in the amount of $2,000, and your undertaking to be of good behaviour for a period of three years.
80 I will come back to that in a moment, Mr Radings, and explain more about what your obligations are.
81 In terms of the Victorian charge, on Charge 4: possession of child abuse material, you will be convicted and placed on a community corrections order for a period of 24 months. The community correction order will have punitive and therapeutic components and it will be onerous.
82 On that community corrections order you will be required to complete 100 hours of community work and engage in programs to further address your offending, including the Sex Offenders Treatment Program. And I will explain your community corrections order in more detail in a moment.
83 I want to explain something about the sentence of imprisonment on the first three charges. I imposed a sentence, a total effective sentence of seven months' imprisonment on Charges 1-3, Mr Radings. But you are going to be released from having to serve that today. I will do so upon your promise to not get into any other trouble for a period of three years. That means if you commit any other offence during the three year period you may be resentenced for this offending and you may forfeit $2,000. I am going to ask you whether you have understood that sentence in relation to the first three charges. If I could just have an indication and I am sure you will get a chance to speak to Mr Tiwana about that but it is my job to at least explain that sentence in a way that makes sense. It is essentially you have got imprisonment, Mr Radings, but if you are of good behaviour for three years and do not get into any other trouble then you do not have to go and serve any of that sentence immediately. You do not actually have to go to gaol today but you do have to promise to be of good behaviour. Are you able to just indicate that you have understood that?
84 OFFENDER: Yes, Your Honour.
85 HER HONOUR: All right.
86 Now I am going to explain to you your obligations on the sentence on
Charge 4, which is the community corrections order. Now this runs alongside all of that.
87 You will first be subject to the 'standard conditions' of a community corrections order. That means, importantly, that you must not commit any other offences that are punishable by imprisonment during the 24 month period. If you do, you will be brought back before court, before me and resentenced.
88 You must report to the Pakenham Community Corrections Service - you will get some documents that summarise all this - within two days of today by telephone.
89 You are required to advise your supervisor in the Corrections office of any change of address where you are living or working, and you must do so within two clear working days.
90 It is a term of all community corrections orders that you must submit to visits as directed and you must obey all of the instructions and directions of the community corrections order. You are not able to leave the State of Victoria without permission.
Special conditions
91 Here are some special conditions for the order.
92 You must report for supervision as directed.
93 You must submit to assessment and treatment for alcohol and drug dependence. I am doing that on the recommendation of Corrections.
94 And I require you to perform 100 hours of unpaid community work over the term of this order. Pursuant to s.48CA of the Sentencing Act, I direct that time spent in treatment and rehabilitation programs be credited towards those hours.
95 Pursuant to s.6AAA of the Sentencing Act 1991, (and this is a particularly artificial task in this instance), if not for your plea of guilty I would have sentenced you to a period of 14 months to be released on a recognisance release order after serving a period of 7 months. For the Victorian charge I would have sentenced you to two months' imprisonment on that charge, with orders for commencement immediately on the state charge and the commonwealth charges commencing one month from that time, making a total effective sentence of eight months of actual imprisonment.
Pre-sentence detention
96 I note that there is no presentence detention to be recorded.
SORA
97 All four counts on the indictment are class II offences for the purposes of the Sex Offender's Registration Act. Accordingly I am obliged to place you on the register, pursuant to s.34(1)(c) of the Sex Offender’s Registration Act 2004 for life.
98 I make the forfeiture order sought in relation to the seized iPhone, which is the subject of the offending.
99 So there is a bit of paperwork to do now first. Firstly, I just want to go to you, Ms Skoblar. In terms of my intention on Charges 1-3, I hope I have made my intention clear. Is that found in terms of the orders?
100 MS SKOBLAR: It is, Your Honour.
101
HER HONOUR: All right. Then next what we have to do is to get Mr Radings' verbal consent to the making of the community corrections order. Now,
Mr Tiwana, what I might do is just leave the Bench for a moment so that you might have a moment to obtain Mr Radings undertaking, in terms of the recognisance release order and make sure he has understood the content of that, and also to the community corrections order so that I can return to the Bench and get audiovisual consent so that we do not have to do this by paperwork. So what I am going to do is briefly rise - actually before I do that I will just check in also about whether we can do the Sex Offenders Registration Act by AVL consent as well.
102 All right, there are essentially three things you will need to raise, will need to have both understood and give his consent to (indistinct) make sure that he is in agreement to. Mr Tiwana, can I just leave that to you and Mr Radings for a moment.
103 MR TIWANA: Yes, Your Honour.
104 HER HONOUR: All right, so I will just leave the Bench for a moment and we'll come back in and just check Mr Radings understood each of those matters.
105 (Short adjournment.)
106 Yes, Mr Tiwana, have you had an opportunity to explain to Mr Radings his obligations first in relation to the recognisance release order?
107 MR TIWANA: Yes, Your Honour, I have, yes.
108 HER HONOUR: And does Mr Radings make that undertaking to be of good behaviour?
109 MR TIWANA: He does, Your Honour, yes.
110 HER HONOUR: Now in relation to the community corrections order imposed under Victoria law, does Mr Radings understand his obligations in relation to that order?
111 MR TIWANA: He does, Your Honour.
112 HER HONOUR: All right. And finally in relation to the Sex Offender's Registration Act order that I have made or will make, does Mr Radings - it is a lengthy piece of material and I am sure that he will take your advice further on it, Mr Tiwana but does he understand that he now has obligations pursuant to the Sex Offender's Registration Act?
113 MR TIWANA: Yes, Your Honour, he does and after the hearing I will explain those obligations in some more detail.
114 HER HONOUR: All right. I will just confirm whether we need to obtain any written confirmation. All right.
115 I will like to thank both counsel for their assistance in this matter. Is there anything arising out of the sentence at this point?
116 MR TIWANA: No. No, Your Honour, not from defence,.
117 HER HONOUR: Ms Skoblar?
118 MS SKOBLAR: Only with respect to the signing of the recognisance release order. Would Your Honour be assisted by my completing the details of that order and sending it to all parties and then it can be signed?
119
HER HONOUR: We would. We would be very much appreciative of that,
Ms Skoblar. And if you could communicate with my associate on those lines I would be grateful.
120
MS SKOBLAR: Thank you, Your Honour. Can I just confirm that it's
Your Honour's intention that the sex offender treatment program be included as a condition of the recognisance release order?
121 HER HONOUR: The sex offender program is attached to the community corrections order.
122 MS SKOBLAR: Thank you for that indication, Your Honour.
123 HER HONOUR: I did not think it was necessary that I needed to put it on the recognisance release order.
124 MS SKOBLAR: Thank you.
125 HER HONOUR: All right, is that clear then?
126 MS SKOBLAR: It is. I'll draft the order in those terms and send it to everyone for signatures with instructions on where it is to be signed.
127 HER HONOUR: I appreciate it, thank you for your assistance.
128 MS SKOBLAR: Thank you.
129 HER HONOUR: All right, we will rise until Monday.
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