CDirector of Public Prosecutions v Ramos
[2024] VCC 305
•14 March 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. 23 00764
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| JOMARI RAMOS |
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JUDGE: | KARAPANAGIOTIDIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 March 2024 | |
DATE OF SENTENCE: | 14 March 2024 | |
CASE MAY BE CITED AS: | CDPP v Ramos | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 305 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – SENTENCING – COMMONWEALTH
Catchwords: Procure a child to engage in sexual activity outside Australia – use carriage service to cause child abuse material to be transmitted – possess or control child abuse material obtained or accessed using a carriage service.
Legislation Cited: Criminal Code Act 1995 (Cth), Crimes Act 1914 (Cth), Sex Offenders Registration Act 2004 (Vic),
Cases Cited:DPP (Cth) v Watson [2016] 259 A Crim R 327, Worboyes v The Queen [2021] VSCA 169, R v Yaldiz [1998] 2 VR 376, R v Gajjar [2008] VSCA 268, R v Verdins [2007] VSCA 102.
Sentence: Total effective sentence of 22 months imprisonment. To serve 5 months and then be released upon a recognisance release order in the sum of $1000 with conditions. Sex offenders registration.
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APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Mr S. Hogan | The Commonwealth Office of Public Prosecutions |
| For the Accused | Ms C. Hart | Victoria Legal Aid |
HER HONOUR:
1Jomari Ramos, you have pleaded guilty to one charge of procure a child to engage in sexual activity outside Australia, one charge of use carriage service to cause child abuse material to be transmitted to yourself; and one charge of possess or control child abuse material obtained or accessed using a carriage service.
2The maximum sentence for each offence is 15 years' imprisonment.
Circumstances of offending
3The full circumstances of your offending are outlined in the prosecution opening marked as Exhibit A on the plea, which represents the factual basis upon which I sentence you. The following is a brief summary only.
4You were 25 years of age at the time of the offending, born in November 1996.
5On 20 September 2022 police executed a search warrant on your home and seized your mobile phone along with several other electronic devices. You participated in a record of interview and were then charged and released on bail.
6The complainant is Susanne Sheppard[1], who was 14 years old at the time of the offending and resided in New Zealand. You met her in an online video game as early as January 2022, and the two of you communicated using a social media application called ‘Discord’, which allows users to exchange instant messages and media files, as well as on the Instagram application and on a video game called ‘Valorant’.
[1] A pseudonym.
Charge 1 - Procure a child to engage in sexual activity outside Australia, contrary to subsection 272.14(1) of the Criminal Code (Cth).
7The full text of the communications that are relevant to Charge 1, the charge of procuring between you, is contained in Annexure C.
8Between 2 April 2022 and 21 April 2022, you and the complainant communicated nearly every day via text messages on the Discord application. She told you that she was 14 years of age.
9The conversation began with the two of you discussing the complainant's family, school life, and quickly turned to the subject of sex. You encouraged Susanne to share her dreams pertaining to sex, complimented and reassured her that she could talk to you without judgment and that you could keep secrets.
10On 5 April 2022 you questioned her, in some detail, about her masturbation habits; a topic which you showed particular interest in and frequently returned to.
11On 10 April 2022 the communications became explicitly sexual in nature as you introduced the idea of the two of you engaging in sexual intercourse. You asked the complainant to send naked photos of herself and reassured her that any photos sent would not be kept. During one conversation she told you that she had not ever taken such a photo and she was not comfortable to which you responded ‘we won’t be saving the photo and we would be deleting it too to be more careful so if anyone goes in the chat they won’t see anything.’
12You also encouraged her to buy lingerie to show you. You described in detail what the two of you would do if in bed together, asked to see her naked, and urged her to masturbate, calling it 'pleasure time' or 'needy time'. The extracts in the opening indicate the depraved nature of the messages and their sexually explicit, detailed and directive nature.
13From this point the messages became more regularly focused on sexual activity, and you often redirected innocent conversation to sexualised topics. On 12 April 2022 you again encouraged Susanne to masturbate and detailed, using again the same highly sexualised, depraved and explicit language, the sexual acts that you wanted to perform.
14The sexual communications continued on 14 April 2022 and 16 April 2022, as outlined in the prosecution opening, where you in summary: encourage Susanne; instruct her as to the sexual acts that she should perform on herself; and graphically detail the sexual acts that you will perform on her. You also tell her that she should 'come move to Australia'. The communications continued on 18 April 2022, with similar content.
15The complainant ceased responding to you on 18 April, when the conversation was discovered by Susanne's parents. You continued to send messages to her until 21 April. From 25 April to 3 May 2022 an undercover operative posing as Susanne engaged in communications with you via the Discord application. On 3 May 2022, you sent the message 'Is this you' followed by an image of a naked adult female and a partially naked adult male with the text 'say it again, we can go get food after' and a laughing emoji.
Charge 2 – Use carriage service to cause child abuse material to be transmitted to self, contrary to subsection 474.22(1) of the Criminal Code (Cth).
16In the course of the conversations with Susanne, you requested that she send nude images to you. The charge is constituted by 3 images that Susanne sent you.
17On 10 April 2022, you sent a message to her after receiving an image of her wearing a bra: 'oh they do look big baby. Now take it all off baby…Let me see once it’s all off baby. Let me see.'
18Following this request, Susanne sent you an image depicting her naked breasts. You replied, 'oooo baby'.
19On 12 April 2022, after the complainant told you that she was going to shower, you sent her a message, extracted in the opening, where you repeatedly asked her to 'see that body of yours'.
20Following these messages, Susanne sent you an image depicting her naked body from shoulders to thighs, with her breasts and pubic hair visible.
Charge 3 – Possess child abuse material obtained through carriage service, contrary to s. 474.22A(1) of the Criminal Code (Cth)
21Police analysed the contents of the seized Apple iPhone 12, Hard drive, PC Tower, Black Apple iPhone, and 2TB Hard drive, and classified relevant items as child abuse material.
22On the seized devices, Police located a total of 288 CAM files. The Interpol Baseline Scale (see Annexure A) was used to categorise the files, with the majority of images and videos falling within Category 2.
23The files identified as Category 1 material by police included material such as:
(a) A video depicting a female child between 8-12 years old masturbating over her clothing; and
(b) Two videos depicting female children between 6-10 years old naked, touching their breasts, exposing their vaginas, and masturbating.
24The files identified as Category 2 by police included material such as:
(a) A video depicting a female child between 13-16 years old penetrating her vagina with a hairbrush; and
(b) A video depicting two female children between 12-14 years old exposing their breasts and touching each other in a sexual manner.
25Of the 155 Category 2 images on your devices, 113 depicted Susanne.
26Of the 105 Category 2 videos on your devices, 29 depicted Susanne.
27On 20 September 2022 you participated in a record of interview. You admitted to communicating with Susanne; to engaging in sexually explicit conversations; discussing her moving to Australia 'one day', and to 'doing stuff that we shouldn’t have done' and 'exchanged photos that … shouldn’t have'. You admitted to knowing early on that she was 15 years old and that you had asked her to send you photos and videos and she had sent photos depicting her breasts and vagina and that you saved the photos to your mobile phone to a hidden folder. You stated that you 'can see it as being wrong'.
Commonwealth sentencing regime
28In sentencing for Commonwealth offences, the Court is required to have regard to the matters set out in Part 1B of the Crimes Act 1914 (Cth) in particular, subsection 16A(2) which sets out a non-exhaustive list of factors, where relevant and known. In determining the sentence to be passed, the Court must impose a sentence that is of a severity appropriate in all the circumstances of the offence.
Gravity of the offending
29Mr Ramos, the charges that you have pleaded guilty to are inherently serious, as clearly reflected by the maximum penalties.
30General deterrence is the primary sentencing consideration in offending of this nature, given the prevalence and ready availability of such means of offending via the internet, and the difficulty of detection. There is a paramount public interest in protecting children from sexual abuse and exploitation. Children are vulnerable online. They must be protected against adults using rapidly developing internet facilities to exploit and manipulate them and encourage their participation in sexual behaviour beyond their maturity.[2]. There are no victim impact statements before the Court. I accept that there is a presumption of harm that arises in such cases.
[2] DPP (Cth) v Watson [2016] 259 A Crim R 327.
31The applicable principles and factors in sentencing for offending involving child abuse or child pornography material and online child exploitation offences, such as procuring, are well established and helpfully summarised in the prosecution submissions from paragraphs [4] to [5]. I have adopted these principles as the framework in which to assess the gravity of your offending.
32Viewed as a whole your offending was serious. Your offending involved a real child with whom you commenced an online relationship with, despite being advised of her age multiple times throughout speaking to her. There was an age difference of 11 years between you. While there are cases certainly involving greater disparity in age, this is still a significant difference, representing an 'imbalance in life experience and maturity'.
33The objective seriousness of each offence must also be assessed separately to determine the appropriate sentence for each count.
34In respect of Charge 1, the conversations with Susanne were extensive and highly sexualised. During the conversations you persistently questioned Susanne about her sexual experience; routinely steered conversations back to sexual matters; often advised her to masturbate during conversations, directing her in detailed and explicit terms. I accept the prosecution submission that these conversations assisted in procuring Susanne's participation by introducing these concepts, normalising them and then testing the boundaries. It appears that over this time, and through your direction and encouragement, she became less inhibited. Also, the nature of your communications make clear that you were expressing that you wanted to engage in sexual intercourse with her.
35I do note and take into account the absence of aggravating features that are often seen in cases of this nature. It is not suggested that you sought out Susanne for sexually inappropriate exchanges; you met on a video game. There is no suggestion that the charges involve any inducements or threats on your part. Nor do you use any subterfuge or deceit to facilitate your offending, such as false identities or false details as to your own age. Also, while there is a suggestion that Susanne consider moving to Australia this suggestion lacks any real specificity or content and there is no evidence of any arrangements or attempts to meet.
36In respect of Charge 2, during the conversations the subject of Charge 1, you requested that Susanne send you sexually explicit photographs of herself, which she did on three occasions. I take into account that you requested, with some persistence, these images from Susanne herself and – whether or not you intended to deceive her - offered her some assurances in this respect, that is in telling her that the images would not be saved. I also take into account in respect of this charge that it involves the same time period as Charge 1.
37In respect of Charge 3, the material relates to 288 images depicting child abuse material, mostly falling within category 2, located across your devices that were seized. The number of the files falls within the lower end of the scale.
38This charge lacks the aggravating features of some other cases, where the material is more voluminous or depraved, or committed for profit or for the purpose of sale or further distribution. However, I accept the prosecution submission that it cannot be said to be 'the least serious example of offending of this type' given the circumstances of how you came to be in possession of the material and that
142 images depicted Susanne.39At the time of your offending you were living with your mother and sister and worked in food delivery. You told psychologist Simon Candlish that you could not remember your state of mind or personal circumstances around the time you offended. In respect of the child abuse material you stated that it only depicted the complainant, and when you were challenged in respect of this you said that police discovered other material on an 'old phone'.
40Your Counsel suggested that your persistent depressive disorder, as diagnosed by Mr Candlish, and your cognitive distortions were related and may have contributed to poor decision making. I did not understand your Counsel to be submitting that it reduces your moral culpability. On my assessment of the material, your distortions or depressive disorder do not reduce your moral culpability, which I otherwise assess as high. Your offending was persistent and given the nature of it, it was, at least in part, motivated by sexual gratification. I accept however that they may provide some context or insight into your relative isolation, disengagement and inclination to disconnect from the reality of your actions. At paragraph [95] of his report Mr Candlish states:
Mr Ramos’s mood issues have led to a more insular and avoidant lifestyle. He has sought sexual material in part to self-stimulate and avoid his negative mood states. His low mood and insular lifestyle might have contributed to a moral disconnection from the reality of his actions. He was aware that his actions were wrong and he justified that he was not harming the victim. His cognitive distortions are relevant in understanding his decision to offend.
Plea, contrition and co-operation
41The prosecution accept that your plea of guilty, Mr Ramos, was entered at the first reasonable opportunity. Your early plea of guilty entitles you to a substantial discount in sentence. Though I accept that, on the face of it, it was a strong prosecution case, I regard your plea of guilty as demonstrating your willingness to facilitate the course of justice. It also represents an acceptance of responsibility for your offending and some remorse, though your answers during your psychological assessment suggest that you do need to continue developing insight. Your plea of guilty is of utilitarian benefit and will also result in some further amelioration of sentence in accordance with the Worboyes principles [3].
[3] Worboyes v The Queen [2021] VSCA 169.
42I also take into account the admissions that you made in your record of interview and your co-operation with police.
Personal circumstances, character and antecedents
43Your personal circumstances were outlined by your Counsel, Ms Hart, and are canvassed in the report of Mr Candlish of 8 November 2023.
44In brief Mr Ramos, you are currently 27 years of age and you were 25 at the time of the offending. While not a young offender, I take into account you are still relatively young at the time of your offending.
45You were born in the Philippines.
46You are an Australian citizen, having moved to Australia when you were seven years of age with your mother. Your mother separated from your biological father before moving to Australia. You have not had a close relationship with your father since your early teens and he has made little effort to engage with you over the years.
47Your mother remarried but has since separated from your stepfather. You continue to have a relationship with your stepfather which is amicable. You describe him as a 'hard worker' and your childhood growing up as relatively 'normal'.
48Your mother remains supportive of you and I note that both she and your
stepfather have attended Court. You continue to live with your mother and
half-sister.49There is ongoing communication with your extended family living in the Philippines and you last visited them in 2022.
50You completed Year 12 and commenced university at Western Sydney in a policing based degree. You attended this course for two years prior to returning to Victoria. While studying you worked as a fast food delivery driver.
51You have had casual jobs over the years but you are currently unemployed.
52You have engaged in social drinking and tried cannabis and 'party drugs' in your late teens but you do not present with any substance abuse issues.
53As for your intimate relationship history you have had one previous intimate relationship for approximately 12 months which ended in the context of her family's disapproval of you.
54You have no prior criminal history and, as accepted by the prosecution, you are to be sentenced as a person of prior good character and reputation.
Mental health
55In terms of your mental health, you refer to a history of experiencing depressive symptoms. You have not had previous contact with mental health services or been prescribed medications and you are currently unmedicated. At the age of 18 or 19 you suffered a 'cancer scare' and report having taken a range of medications in respect of this. This contributed to you feeling overwhelmed and depressed. Approximately 12-24 months ago you attended a GP appointment due to feeling low and you were prescribed sleep medication. A mental health care plan was apparently prepared but you do not recall the diagnosis.
56You were assessed by Mr Candlish on both 27 October and 3 November 2023. Relying on the report and opinions of Mr Candlish your Counsel submits that limbs 2, 5 and 6 of the Verdins principles are enlivened[4]. It was submitted in respect of limb 2, that the sentence imposed should 'pay regard to [your] mental health treatment' and specifically that a recognisance release order would provide the most certainty and alleviate the impact of custody upon you in light of your mental health. As to limb 5, your ongoing condition may mean that imprisonment will weigh more heavily on you as opposed to someone who does not have such a disorder. In relation to limb 6, Mr Candlish opines that are you likely to be a vulnerable prisoner, who is therefore likely to be impacted by the more unsavoury aspects of prison such as bullying and 'being influenced in a negative direction'. This, Mr Candlish opines, may cause your 'depressive symptoms' to worsen.
[4] R v Verdins & Ors [2007] VSCA 102 (‘Verdins’).
57The prosecution accept, to a limited extent, that limb 5 is enlivened based on the opinions of Mr Candlish, but otherwise submit that there is an insufficient evidentiary basis to enliven limbs 2 and 6. In respect of limb 2 Mr Candlish opines only that your 'low mood and insular lifestyle might have contributed to a moral disconnection from the reality of [your] actions'. The prosecution does not accept that a causal nexus between your mental impairment and the offending or that the condition should ultimately influence the kind of sentence imposed. In respect of limb 6, the report goes no further then stating that '[your] depressive symptoms could worsen' in the context of imprisonment.
58A sentencing court needs to direct its attention to how the particular condition is likely to have affected the mental functioning of the particular offender in the particular circumstances.[5] What matters is what the evidence shows about the nature and severity of the symptoms and their effect on the mental capacity of an offender at the time of offence and/or at the time of sentence.[6]
[5] Ibid.
[6] R v Yaldiz [1998] 2 VR 376.
59I accept, Mr Ramos, that you suffer from a mild depressive disorder and that you were suffering from this disorder at the time of the offending conduct, as outlined in the psychological report.
60In my assessment of your circumstances, I take into account the opinions of
Mr Candlish however I do not consider that your mild depressive disorder, as canvassed in the report, has a bearing on the kind of sentence imposed or that it should exclude certain sanctions or render them inappropriate in your case. Having said that I do accept that limb 5 has application and that you are likely to be a more vulnerable prisoner for a number of reasons including your lack of psychological sophistication and proneness to low mood. In sentencing you I will take into account that the existence of your condition may mean that a term of imprisonment will weigh more heavily on you than it would on a person in normal health. I do not accept that limb 6 is enlivened or that there is a sufficient evidentiary basis to find that there is a serious risk of imprisonment having a significant adverse effect on your mental health.
Prospects of rehabilitation
61In all the circumstances I accept your Counsel's submission that you present with good prospects for rehabilitation. In my assessment of your rehabilitative prospects I take into account that you have no prior criminal history and that you have pleaded guilty and accepted responsibility for your offending. In the past you have engaged in pro-social activities, including paid work and a tertiary degree. Mr Candlish considers that you present as intelligent and that you show good prospects for rehabilitation based on your presentation and your history of otherwise prosocial behaviour[7]. You also continue to have family support.
[7] Ibid [102].
62Mr Candlish administered several tests that relate to the detection of psychopathology and that consider risk issues. There were no indicators of clinical psychopathology in your case and taking into account the risk outcome and structured professional judgement approaches, you were considered to fall into the 'low-risk category for sexual offending' of the nature outlined in the report (at [85]). He also did not consider that your access of child abuse material was indicative of 'a preferential deviant interest in children' (at [90]).
63In his case formulation, he states (at [92]):
Mr Ramos is aroused to adults. He does not reveal a history of anti-sociality or serious impulsivity and he does not reveal a broader disregard towards others. He has the capacity for stable employment. He shows a capacity for self-control in the absence of any detected further problematic behaviour since his arrest.
64In his report Mr Candlish makes various treatment recommendations including, psychological interventions and he considers that you might benefit from continuing to explore and develop further insight into the factors associated with your decision to engage in this sexual offending and to explore your own cognitive distortions (at [104]).
Sentencing principles
65In sentencing you, Mr Ramos, I must give effect to the principles of just punishment, general and specific deterrence, denunciation and protection of the community. I accept your Counsel's submission that specific deterrence is of reduced significance to the sentencing discretion, though given the nature of this offending I still regard it as relevant.Offences of this nature require the imposition of sentences that will both deter others from committing similar offences and which will punish and denounce the conduct of the offender.
66Also, in sentencing for a Commonwealth child sex offence the Court must have regard to the objective of rehabilitating the person and I have done so in formulating this sentence (s.16A(2AAA).
67Where general deterrence is a primary consideration, as it is in your case, personal mitigatory factors such as prior good character, must usually be given less weight than they might otherwise be given. As was stated in R v Gajjar[8], in a case of this nature:
…it is clearly appropriate…to give paramount consideration to the principle of general deterrence…that is not to say that less weight is to be accorded to good character in any absolute sense. It is rather to recognise that, when greater weight is attached in the balancing process to general deterrence, it necessarily follows, at least in a relative sense, that less weight will be accorded to what might otherwise be significant mitigating factors.
[8] R v Gajjar [2008] VSCA 268.
68I must also have regard to current sentencing practices for offences of the kind that you have committed and I have done so. I was provided with comparable cases, attached as Annexure A, that I have considered. Plainly each case will be different and will depend on the nature of the offending and the circumstances of the offender. Also, the way in which these particular offences can be committed are varied, making a comparison difficult.
69I am required to impose sentences that are of a severity appropriate to all the circumstances of the given offence. Section 16A(2)(k) emphasises the primary obligation of the court to 'impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence' and to 'ensure the person is adequately punished for the offence'.
70There is no dispute between the parties that an immediate term of imprisonment on each offence is appropriate in all the circumstances. Should the Court determine to sentence an offender to a term of imprisonment to be released on a recognisance release order, there is a presumption that he will serve some period of actual imprisonment, unless there are exceptional circumstances which justify the offender being released immediately on such an order. No such circumstances were advanced in your case, nor do I consider there to be exceptional circumstances justifying such an outcome.
71When sentencing an offender for multiple Commonwealth child sex offences there is a presumption in favour of cumulative sentences. It is the Crown's position that some degree of cumulation is necessary to reflect this presumption and the different forms of offending in each charge. The prosecution submit that the resultant Commonwealth sentence should be such that a non-parole period is required to be fixed. Your counsel submits that the presumption of cumulation does not apply if the Court is 'satisfied that imposing the sentence in a different manner would still result in sentences that are of a severity appropriate in all the circumstances'. With reference to the Explanatory Memorandum to the Bill which inserted these provisions, 'discretion is retained for the court to consider the outcomes for all the offences in totality and, if appropriately satisfied, order the sentence in a different manner provided that the sentence overall is still of a severity appropriate in all the circumstances'. Your Counsel submits that a term of imprisonment, with an appropriately timed recognisance release order should be imposed.
72On my assessment, Mr Ramos, the imposition of individual sentences of imprisonment, along with appropriate orders for cumulation and concurrency is capable of producing an overall sentence that is of a severity appropriate in all the circumstances. It is important to reflect the principle of totality through such orders, given the temporal connection between the charges and most of the offending relates to the one victim.
73Synthesising all relevant matters, I have concluded that, given the gravity of your offending, the only just and appropriate sentence in your case is one of imprisonment. I have determined that the term of imprisonment should be imposed pursuant to a recognisance release order, with an immediate term to be served, and that this can adequately reflect the punitive, deterrent, denunciatory and rehabilitative purposes of sentencing.
74Given you have no prior criminal history and your circumstances, I do consider that this will operate as a significant punishment on you. Mr Ramos, if you could stand please.
Sentence
75On Charge, 1 you are convicted and sentenced to 17 months imprisonment. This will be the base sentence and will commence from today.
76On Charge 3, these are somewhat out of order but there is a reason for that, you are convicted and sentenced to 12 months' imprisonment. This sentence will commence 9 months before the expiry of the sentence imposed on Charge 1. The intention, counsel, is to order 3 months' cumulation. It has that effect.
77On Charge 2, you are convicted and sentenced to 8 months' imprisonment. This sentence will commence six months before the expiry of the sentence imposed upon Charge 3. The intention is to cumulate 2 months' imprisonment. I will have counsel check those commencement date to ensure that the total effective sentence imposed is 22 months' imprisonment. I am going to pause there for a moment and give counsel an opportunity. It ought to be 3 months cumulatively on Charge 3, 2 months cumulative on Charge 2, the base sentence 17 months, should therefore result in 22 months.
78MS HART: Yes, Your Honour.
79MR HOGAN: That's correct.
80HER HONOUR: And the commencement dates produce that result, Mr Hogan?
81MR HOGAN: Yes, Your Honour.
82HER HONOUR: All right, thank you.
83Mr Ramos, that totals a period of 22 months. Pursuant to s.20(1B) of the Crimes Act I order that you are required to serve a period of 5 months from today before being released upon a recognisance release order in the sum of $1,000 with a condition that you be of good behaviour for a period of two and a half years; along with the following conditions (that will apply for a period of two years): …
a) Be subject to the supervision of a probation officer, appointed in accordance with the order;
b) That you obey all reasonable directions of the probation officer;
c) That you not travel interstate or overseas without the written permission of the probation officer; and
d) That you undertake such treatment or rehabilitation programs that the probation officer reasonably directs specifically being the sex offender treatment program, if deemed appropriate. You can take a seat.
84The end result and what I have intended here, which I am required in law to explain to you, is the following. I have sentenced you to a total term of 22 months. I have ordered that after you serve a period of five months' imprisonment, which will commence today, that you be released upon a recognisance release order in the sum of $1,000 with a condition that you be of good behaviour for two and a half years, and that you comply with the conditions that I have just outlined for a period of two years.
85I am required to explain to you the order. I have done that in part
86So your counsel will also assist in this regard but I am ordered that you serve the five months in custody. So what that means then is you will do that today. I am also going to note custody management issues, that he suffers from mild depressive disorder and this is his first experience in custody. All right, so I will have those two matters noted. Is there anything else, Ms Hart?
87MS HART: No, Your Honour.
88HER HONOUR: All right. The remaining period of time, so the remaining 17 months effectively is going to be hanging over your head, all right. And you are subject to conditions that you be of good behaviour for two and a half years, and also that you comply with mandatory conditions for a period of two years. What that means is upon your release you are going to have to attend upon the relevant and the closest correctional service and they will require of you - there are certain obligations. You are going to have to, for example not travel interstate unless you get their permission. You are going to have to undertake courses that they may recommend, and it may be a sex offender's program, all right, but you must comply with those directions.
89The surety that I have noted, the $1,000, it is not payable immediately but if you are breached on this order by not being of good behaviour, or not complying with the conditions that I have imposed, or committing a further offence within that period of time, then you may be called upon and that money will be forfeited and a recognisance release order is capable of being discharged, varied or breached and there will be consequences.
90And they include a likely consequence of being required to serve all or some of the period I have imposed. Do you understand? All right.
91Mr Hogan, is that sufficient for the purposes of explaining the recognisance release order?
92MR HOGAN: Yes, Your Honour and I believe there's a Ringwood Community Corrections Centre.
93HER HONOUR: Ringwood, is it.
94MR HOGAN: Yes.
95HER HONOUR: All right. Ms Hart, do you agree with that?
96MS HART: I was trying to find the nearest one, Your Honour. That sounds right.
97HER HONOUR: All right.
98MR HOGAN: I am just sending through the recognisance now.
99HER HONOUR: Thank you very much. Look at the end of the day if it is not Ringwood, you attend Ringwood to begin with and the condition there is two days, after your release from custody you go in there within two days. If it is not the appropriate one they will tell you, they will direct you and they will transfer you, all right.
100I am also required, just moving on, pursuant to section 34 of the Sex Offenders Registration Act[9], having pleaded guilty to one class 1 offence and two class 2 offences, you will be required to comply with the reporting obligations set out in that Act for life. That is the agreed position of the parties, as I understand it from the last occasion, it is mandatory and the period is life.
[9] Sex Offenders Registration Act 2004 (Vic) s 34.
101MR HOGAN: Yes, Your Honour.
102HER HONOUR: Thank you. So Mr Ramos, that is a mandatory order. I must impose it and I must impose it for that period of time and you will find, because you will receive documents in respect of this, that additionally this registration on the Sex Offenders Registration Act imposes on your ongoing obligations, all right. They are onerous but you must be very aware of them. They will be explained to you in full, that you will attend an assessment appointment and you need to proactively advise the agency of such things as your registration, your phone numbers, your address, your employment and so forth, all right. That is not an exhaustive list but you have appointments with them over a period of time and the obligation is on you to advise them of such matters. Do you understand? You will have a full complete explanation of that in paperwork. Thank you.
103I am just waiting for that order to be printed, so that I can have a look at it and then I will come to my s6AAA declaration, which I presume Mr Hogan, you seek. I do not know whether it is mandatory in Commonwealth matters but I will provide it. I can indicate that had you not pleaded guilty I would have imposed a sentence of some three years with a recognisance release order and I would have ordered that you serve a period of 12 months[10]. All right, so what the purpose of that indication is, Mr Ramos, is really to let you know and to indicate that by pleading guilty early, as you did, and by accepting responsibility you have received a discount. And in very practical terms you have saved yourself additional prison time, all right.
[10] Sentencing Act (n 20) s 6AAA.
104Can I just check here in terms of this order, Mr Hogan.
105MR HOGAN: Yes.
106HER HONOUR: Do you have a copy of it Ms Hart? Can we email it to Ms Hart if it hasn't been?
107MR HOGAN: I have emailed it.
108MS HART: I have got a copy, Your Honour.
109MR HOGAN: Your Honour, there is one further and I apologise for not raising this earlier. It's just with respect to forfeiture of the devices that contained the child abuse material.
110HER HONOUR: Yes, was that agreed upon? I don't recall.
111MR HOGAN: I apologise, I haven't raised it with my learned friend.
112HER HONOUR: All right.
113MR HOGAN: It is a requirement in the Act that they are forfeited. The order has to be made.
114HER HONOUR: Is there an order that is before the court?
115MR HOGAN: I can prepare an order, Your Honour.
116HER HONOUR: All right. Look in respect of that would there be any difficulty, particularly if it's, I mean it's a requirement and it seems I would have thought to be relatively straight forward that it ought to be made, but once that is prepared, Ms Hart, could you indicate your position and if there's agreement, I could sign that order administratively.
117MS HART: Yes, Your Honour.
118HER HONOUR: Mr Hogan, is that something you're able to do today?
119MR HOGAN: Yes, yes, of course, yes. Thank you.
120HER HONOUR: All right. I will enter into the orders of the court also the reasons for my cumulative concurrent order. I think I have stated them sufficiently.
121MR HOGAN: Yes.
122HER HONOUR: But I will enter them into the record of the court. The forfeiture matter is outstanding. I am just going to go through this order now. I am going to ask for Mr Hogan to send through the amended one, you probably have already.
123MR HOGAN: No. No, I'll just now, I will.
124HER HONOUR: All right, if you could now please.
125MR HOGAN: Yes.
126HER HONOUR: And I'll have, Ms Hart, your instructing solicitor approach Mr Ramos and go through the conditions of this order with him.
127MS HART: Yes, Your Honour.
128HER HONOUR: Mr Ramos, while this is being done I will read them out to you, all right, but you will be able to do that with your lawyer as well. So the order reads that I have ordered your release after serving five months' imprisonment upon giving the security that I have already referred to, the $1,000, to comply with the following conditions. Okay, these are the conditions that you must comply with.
(a) that you be of good behaviour, it says here 2.5 years, that's effectively for two and a half years, all right;
(b) that you be under the supervision of the Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee for two years; and
(c) if so directed, that you attend, undertake and complete the sex offender's program within the period of two years;
(d) that you report to Ringwood Community Correctional Services by 4 pm within two days of your release;
(e) you report to and receive visits from Community Corrections;
(f) you notify an officer of any change of address or employment within two clear working days;
(g) that you not leave Victoria except with the permission of an officer;
(h) that you obey all lawful instructions and directions.
Do you understand that conditions?
129OFFENDER: Yeah.
130HER HONOUR: All right. We will have those before you in a moment. Ms Hart, you don't wish to be heard in respect of any of these conditions?
131MS HART: No, Your Honour.
132HER HONOUR: All right, thank you. There is no pre-sentence detention?
133MS HART: No, Your Honour.
134HER HONOUR: All right. Would you like me to also facilitate or have the report of Mr Candlish provided to the authorities?
135MS HART: Yes, yes, Your Honour.
136HER HONOUR: All right. We will have that done, along with the custody management issues. Was there anything further you wished to add?
137MS HART: No, Your Honour.
138HER HONOUR: All right. That's the only amendment made to the document?
139MR HOGAN: Yes.
140HER HONOUR: All right. And you have that, Ms Hart?
141MS HART: I do, Your Honour.
142HER HONOUR: We'll have your instructor approach Mr Ramos please.
143MS HART: Thank you, Your Honour.
144HER HONOUR: And Selin, if you could approach too please. All right, Mr Ramos, as I can see you have signed the order confirming that you have had explained it's purpose, effect, consequences, that it can be discharged or varied as I have stated, and you agree to be bound by it. Correct?
145OFFENDER: Yeah.
146HER HONOUR: All right, thank you. We will have copies provided to Mr Ramos now please. They will be provided electronically to counsel.
147MR HOGAN: Thank you, Your Honour.
148HER HONOUR: The sex offender registration material will be printed. Court officers, I propose my associate to approach Mr Ramos and to provide him with a copy of the order, all right.
149VOICE: Yes, Your Honour.
150HER HONOUR: We will also have provided to Mr Ramos the notice of reporting obligations.
151MR HOGAN: Your Honour, just to confirm I have also provided the draft forfeiture order.
152HER HONOUR: You've provided?
153MR HOGAN: Yes.
154HER HONOUR: All right, Look I will look at that, Ms Hart can look at it and I expect that I'll be in a position to make the order today.
155MR HOGAN: Thank you.
156HER HONOUR: Ms Hart, you'll let us know, confirm one way or another please, by emailing chambers.
157MS HART: Yes, Your Honour.
158HER HONOUR: Mr Ramos, you have those copies, that completes your sentence. I will have Ms Hart remain for just a couple of minutes and for you to remain in court, your lawyer can also approach you and you can have a moment to have a talk with them. Thank you, we will adjourn for just a few moments.
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