Director of Public Prosecutions (Cth) and Director of Public Prosecutions v Swingler
[2016] VCC 968
•7 July 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCase No. CR-16-00363
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) and DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RYAN SWINGLER |
---
| JUDGE: | HIS HONOUR JUDGE MCINERNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 26 May 2016 |
| DATE OF SENTENCE: | 7 July 2016 |
| CASE MAY BE CITED AS: | DPP (Cth) and DPP v Swingler |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 968 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – using a carriage service to groom person under 16 for sexual activity – using a carriage service to transmit indecent communication to persons under 16 years of age – using a carriage service to communicate with person under 16 with intention of procuring that person to engage in sexual activity – sexual penetration of a child under 16 – indecent act with a child under 16 – using a carriage service to solicit child pornography material – possessing child pornography – possession of drug of dependence (testosterone)
Legislation Cited: Criminal Code Act 1995 (Cth), Crimes Act 1914 (Cth), Crimes Act 1958 (Vic), Sentencing Act 1991 (Vic), Drugs, Poisons and Controlled Substances Act 1981 (Vic)
Cases Cited:DPP (Cth) and DPP v Garside [2016] VSCA 74, R v De Leeuw [2015] NSWCCA 183, DPP v O' Neill [2015] VSCA 325, DPP v Tokava [2006] VSCA 156, R v Merrett & Ors [2007] VSCA 1, DPP v Dalgliesh [2006] VSCA 148, R v Verdins [2007] VSCA 102
Sentence:Commonwealth; Convicted and sentenced to 1 year and 8 months imprisonment to be released after serving 12 months of the term of imprisonment upon recognisance of $2,000 to be of good behaviour for 4 years. State; Convicted and sentenced to 1 year and 11 months imprisonment. CCO of 3 years upon release from imprisonment.
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms. L. Dipietrantonio | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr. P. Tiwana | Dribbin & Brown Criminal Law |
HIS HONOUR:
1Mr Ryan Swingler is aged 28, was born on 19 June 1988, and is an apprentice electrician. Mr Swingler pleaded guilty on 26 May 2016 to a 14 charge joint Commonwealth and State Indictment.
2On that day, the Prosecutor who appeared for both Directors, was
Ms Dipietrantonio and Mr Tiwana appeared on behalf of Mr Swingler.3The summary, Exhibit A, was tendered, being the summary by the Prosecutor, of the 14 charges, that summary being dated 23 May 2016. That summary was accepted by Mr Tiwana as detailing the facts upon which I am required to sentence Mr Swingler.
4The victims here, in particular, in regard to Charges 1 to 12, are five young girls aged between 13 and 15 at the time of offending. At that time, Mr Swingler was aged between 25 and 26.
5The social media connection between Mr Swingler and the victims was via either Facebook or Snapchat. It should be pointed out, as was put by Mr Tiwana, that the offending with which we are concerned was a very small part of an enormous amount of “chats” between all of these parties, as seems to be the modern phenomenon of communication, albeit that it involved the alleged, and pleaded to, criminal activities.
6Insofar as such material was concerned, Mr Tiwana made the point that at all times there were no steps taken by Mr Swingler to hide his identity, and indeed, his own identity and phone number was given, differentiating himself from many who indulge in this behaviour, who within the bowels of the IT world, are able to disguise their identity.
7The next comment he made was obviously relative, but it was certainly - and
I accept, not the most depraved or graphic conversations that occur - of which this Court unfortunately is required to consider.8Albeit that Mr Tiwana did not resile from the fact that the plea was to the grooming which took place, his submission was that the material set out in the prosecution opening was indeed the high point of such grooming, such was important in regard to his comment that such was not to the most depraved or graphic degree of such material.
9The detection of these activities of Mr Swingler occurred as the victim Hayden’s mother, found a message concerning Mr Swingler and reported the matter to the police on 13 March 2015. Following that time on 16 April 2015, an arrest was made and Mr Swingler's home was searched pursuant to a search warrant.
10Further, in July of 2015, after a Court order, Mr Swingler provided access to his phone. The phone was then forensically analysed. There was a log of calls found involving Phoebe Hayden[1] and Eliza Mazure[2] and there were the series of SMS messages that I have already referred to, between Mr Swingler, Kayla Fergusson[3], Ava Lee[4] and Eliza Mazure.
[1] A pseudonym.
[2] A pseudonym.
[3] A pseudonym.
[4] A pseudonym.
11Further analysis of the phone found that there was child pornography images contained therein, two of Category 1 and two of Category 3, to which I will come to in more detail later.
12Forensic analysis of the computer tower seized also found a back-up of a large number of SMS's involving all of these victims, and in particular, message communication with Ms Fergusson and Ms Lee.
13Also on the computer tower was the child pornography, which I will come to later, however insofar as that was concerned, such child pornography did not concern any of the five victims to which I have referred to.
14The external hard drive was also forensically examined and produced three category four pornographic videos. Those are the videos that Mr Tiwana was just talking about that concerned activities between Mr Swingler and his then girlfriend, or female associate who was indeed at the time, aged 17.
15As part of the search warrant at the home, also seized at the time, at the property, were three glass vials which make up the circumstances surrounding the possession of the testosterone, being Charge 14.
16Following the warrant and the seizure and the forensic analysis, Mr Swingler was again arrested in November 2015, when he was offered the opportunity to undertake a record of interview and pursuant to his rights, he declined and as I said, he was arrested again at that stage. Subsequent to that time, and to all of the investigations I have referred to, the matters then resolved at committal mention in March of this year.
17Insofar as these offences are concerned, the serious sexual offender provisions apply, however there is no seeking, by the prosecution, of any disproportionate sentence as I am entitled to pass, under the Sentencing Act 1991 (Vic) in these circumstances.
18If I then come to the particular offences. Charges 1 and 2 involve the girl, Kayla Fergusson. This is a charge of using a communication service to groom a person under 16. The alleged age of the parties to this communication was that
Ms Fergusson had suggested she was 15 and Mr Swingler had said he was 21. In fact, Ms Fergusson was 12 and Mr Swingler was at the time, approximately 25.19Insofar as Charge 1 is concerned, the period involved was a period of three months. It went from September 2013 to November 2013. It involved the specifics set out, and I will not detail them, but for the purposes of understanding the specifics, they are precisely detailed at paragraph 4 of the prosecution opening.
20It is clear form those specifics, that a number of text discussions were of Mr Swingler seeking this child at this time to provide photos of herself. That offence is an offence pursuant to s.474.27(1) of the Criminal Code Act 1995 (Cth), for which the maximum penalty is one of 12 years. She was in fact, 15.
21The second charge was pursuant to s.474.27A(1) of the Criminal Code Act 1995 (Cth) which brings with it a maximum penalty of seven years gaol. The charge is using a carriage service to transmit indecent communications to a person under the age of 16. These communications took place between the period September 2013 and May of 2014, and on two occasions through that time, involved naked photos of Mr Swingler.
22Insofar as Ms Fergusson was concerned, a victim impact statement was tendered as Exhibit F and that victim impact statement was dated 18 May 2016. She spoke of the counselling and flashbacks that she has required, and which she alleges is a result of these particular communications. She spoke of her reaction. Her reaction seems to me to be somewhat extreme insofar as these particular conversations are concerned.
23One is always hesitant to make those comments because it is very difficult to know what is the psychological make-up of a particular person and how particular crimes affect particular persons. However, clearly, as she describes herself, during this time “she was on the edge,” that is, psychologically. It seems to me that while you must always take a victim as you find them in common law terms, for Mr Swingler to appreciate the degree, if you read this victim impact statement, that this particular young girl was on the edge, would have been a very difficult task.
24There was a further victim impact statement tendered, insofar as Ms Fergusson was concerned, by her mother which was Exhibit G. She spoke of the restricted socialisation by her daughter after these matters came to light; the anxiety attacks that she observed that her child suffered, the requirement as confirmed by her daughter, of counselling and she was there fortunately supporting her daughter.
25Charge 3 concerned Ava Lee. This was also an offence against s.474.27(1) of the Criminal Code Act 1995 (Cth), for which the maximum penalty, as I have indicated, was 12 years. This was, again, a charge of using a carriage service to groom a person for sexual activity. Mr Swingler was again aged 26 at this stage. The conversations, if I use that word in this context, were alleged to have been taking place between a 15 year old girl and Mr Swingler describing himself as a person between the age of 18 and 19, which was essentially consistent in all of these conversations that he displayed himself as being of that age.
26It is noted that Ms Lee later, in these texts, told Mr Swingler that she in fact was 13.
27There are numerous conversations recorded over that 12 month period, from September 2013 to October 2014, and those conversations, as I said, occurred on both Facebook and Snapchat. Again the precise particulars of those conversations are recorded, insofar as they breach the provisions of s.474 of the Criminal Code Act 1995 (Cth), at paragraph 8 of the prosecution's opening and I will not go into the precise details, except that record those as being the conversations that make up this offence. Fortuitously, Ms Lee became aware of Mr Swingler having another, I think, IT relationship with another person and ceased their relationship. There was no victim impact statement filed in that matter.
28The third victim was Eliza Mazure. This involved Charges 4, 5 and 6. In regard to Charge 5, again the ages were that Mr Swingler had indicated that he was aged 20 at the time and Ms Mazure was aged 15.
29The first charge is using a carriage service to procure a person under the age of 16 for sexual activity. As I say, occurred when Mr Swingler was approximately 26 to 27. The period over which this particular exchange took place was from June 2014 through to April 2015, and again in November 2014 when there was a further discussion of Mr Swingler asking Ms Mazure for sex, after they had first met physically, that is, “in the real world.”
30The particulars, insofar as the discussion and the transmissions relied upon, are set out in paragraph 11 of the Prosecutor's summary and as I said, I will not specifically refer to those.
31Charge 5 is a course of conduct charge. It concerns the use of the carriage service to transmit indecent transmissions to a person under the age of 16. The first occasion occurred in the period June 2014 through to November 2014 and the transmission was of Mr Swingler's naked penis, such transmission occurred also on four other occasions between June 2014 and April 2015.
32Coming then to Charge 6, which is the State charge, a breach of s.45(1) of the Crimes Act 1958 (Vic), for which the maximum penalty is a period of ten years' gaol, such is a charge of sexual penetration of a child under the age of 16. Such occurred in the period between 1 January 2015 and 20 January 2015. The sex involved was sexual intercourse, in which a condom was utilised. The first occasion upon which Mr Swingler is to be sentenced is the occasion that I have referred to, however sex did occur on a second occasion between the period of March and April of 15.
33Exhibit D, insofar as Ms Mazure was concerned, was read to the Court by
Ms Mazure, such victim impact statement was dated 26 April 2016. It is clear, as a result of these matters coming to light, that she found it very difficult to deal with issues within her home and as a statement made to the Court shows, she became very distraught thereafter, to the extent that she was required, she felt, to leave the home. She found it difficult to communicate with her family and friends. Fortuitously it appears she has been able to enter into a relationship with a further boyfriend. As she said in her statement, she was at her boyfriend's. I take into account all those matters in sentencing.34The next victim was Brooke Blacklow[5]. This matter involved Charge 7, again use carriage service to transmit in indecent communications with a child under the age of 16. Again, an offence under s.474.27A(1) of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of seven years' gaol. The period in which such communication took place was from January 2015 to March 2015. The alleged age of Ms Blacklow was 14, as I understand, and Mr Swingler was communicating on the basis that he was of the age of 19.
[5] A pseudonym.
35The indecent communication involved a naked photo of himself. This is the charge of which I sought further explanation, which has been confirmed this morning. Though in the summary a subsequent transmission from the victim to Mr Swingler of a naked photo of herself is referred to, that of course does not encompass the criminality for which Mr Swingler is to be sentenced in this matter.
36Insofar as the victim impact statement filed by Ms Blacklow is concerned, that was dated 18 May 2016 and read to the Court by Ms Blacklow. She, to use her words, says that as a result of these circumstances, she was “sick to her gut.” She was concerned as to how she had been so stupid to be so involved and found it very hard to relate to people thereafter. Again, very difficult to understand the precise reactions, however none of that seems out of step with the circumstances of this matter.
37The fifth victim was Phoebe Hayden. The first charge that I am going to deal with in order, was Charge 8, which was a charge of grooming a child under the age of 16, an offence under s.474.27(1) of the Criminal Code Act 1995 (Cth), for which the maximum penalty is 12 years. The period of such grooming is from January 2015 to March 2015. Ms Hayden was aged 14 at the time, and the conversation proceeded on the basis that Mr Swingler was of the age of 19.
38The particulars of such transmissions are set out, in particular, at paragraph 27 and paragraph 31 of the opening by the learned Prosecutor. They involve what might be described as "sexual discussions" and a request to meet up, which led to them eventually physically meeting.
39The second matter is Charge 10, and that involves a course of conduct charge under s.474.27A(1) of the Criminal Code Act 1995 (Cth), for which the maximum penalty is one of seven years. Again this is a transmission of an indecent communication to a person under the age of 16. There are two occasions when a photo of Mr Swingler's genitals was sent to Ms Hayden, the second occasion occurred on 22 March 15.
40Then, insofar as Charge 11 is concerned, which was a charge of using a carriage service to solicit sexual material under s.474.19 of the Criminal Code Act 1995 (Cth), the seriousness of which is indicated by the fact that the penalty in this matter is one of 15 years. This involves two occasions on which a photo of Ms Hayden was conveyed, a naked photo, to Mr Swingler. That photo displayed, it was the same photo on each occasion, her breasts and vagina.
41The two State charges concerning Ms Hayden involve firstly Charge 9, which involved an indecent act charge with a child under the age of 16. The acts in this case involved kissing and holding hands. This is an offence under s.47(1)(d) of the Crimes Act 1958 (Vic), the maximum penalty for which is a period of ten years' gaol.
42The final charge involving Ms Hayden is a charge of sexual penetration of a child under the age of 16. This sexual penetration was by way of sexual intercourse, which took place on 25 March 2015. This is an offence against s.45(1) of the Crimes Act1958 (Vic), for which the maximum penalty prescribed is one of ten years.
43One of the difficulties when you are dealing with a combined Commonwealth/State prosecution, is to correlate the maximum offences, as against the seriousness of the offending. For example, in this case, the using carriage service to solicit the photographs, Charge 11, carries with a maximum penalty of 15 years, under the relevant provision, compared to the offence for sexual penetration under the Crimes Act 1958 (Vic), carrying a maximum penalty of ten years. That is an incongruity, which the Court simply has to deal with.
44Exhibit H was the victim impact statement tendered by the mother of Phoebe Hayden, dated 28 February 2016. It speaks of the impact of the disclosure of these matters, the impact within the family, the upset that the relationship caused to such a young child, and the matters spoken of by the mother seemed to me to be quite understandable and nothing out of the ordinary, in the sense that the reactions seemed quite appropriate.
45Ms Hayden’s own victim impact statement dated 16 May 2016 was Exhibit F. Following, no doubt, some notoriety about these matters, she had difficulties with continuing her schooling. Initially she moved out of home. Fortunately she is now back. She continues to be subject to counselling and it is to be hoped that such will overcome the distraught that she has suffered as a result of these crimes.
46As I say, these matters in total were finally detected on - that is the transmission matters, on 29 March 2015.
47As was put by Mr Tiwana, and as is obvious, in each of these transmission offences, Mr Swindler had used his own name Because of Ms Hayden’s mother's report to the police, these crimes came to light, as did the warrant, as did the forensic access to the various technical objects held by Mr Swingler. They led to the laying of Charge 13, which is the possession of child pornography charge, which is an offence against s.70(1) of the Crimes Act 1958 (Vic), for which the maximum penalty is one of five years. It is noted the maximum penalty was amended by the Parliament to 10 years in December 2015. The possession relates to one single date, which is 16 April 2015. The sample, Exhibit B was provided to the Court for me to be able to ascertain its level. As confirmed today, none of the persons depicted in the sample were the victims that I have earlier described.
48I thank the learned Prosecutor for the detailed categorisation set out in paragraph 48(b) of her summary, and the categorisation of the 21 images involved.
49Albeit that this is a State charge, I refer to the comments in regard to pornography sentences recently made by the Court of Appeal in DPP (Cth) and DPP v Garside [2016] VSCA 74, in particular, to the summary of sentencing principles [18]-[24], and in particular [24], to the general principles detailed by the Court, numerated one through to six, applicable across all Australian jurisdictions, and to the expansion thereof in [25] by the New South Wales Court of Criminal Appeal, in R v De Leeuw [2015] NSWCCA 183, to which the learned Prosecutor has referred.
50I take all of such principles into account. It was put, insofar as Mr Swingler was concerned, by his counsel in regard to the possession of child pornography, the following: 1) That in the particulars of this case, none of the five victims were involved. 2) The numbers of the images and the video involved were small by comparison. There is no doubt about that. I would not like to describe the large numbers and amounts of pornography that is the “joy” of Judges in this Court to have to look at, clearly by way of comparison, we are talking here about
a relatively small amount. 3) Having viewed Exhibit B, albeit the classification level as detailed, it is clear that the nature and content of this material concerning these children, is at the lower end of depravity, by way of both its nature and content.51I do not, in making that comment, neglect that there are two girls committing fellatio in the two Level 4 images that are detailed, nor do I exclude from such summary, an appreciation of the depravity, the material being the three Category 4 matters disclosed in the external hard drive.
52We then come to Charge 14, which, as I indicated, was the possession of the testosterone. There was no suggestion that this was involved for any trafficking purposes. It is an offence against s.73(1) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic), which in the circumstances, has a penalty of a fine and/or a maximum penalty of one years' gaol.
53On the plea, Mr Tiwana tendered Exhibit 1 as his sentencing submissions. The personal background, of course, of Mr Swingler, is very important in this case, not only for general sentencing purposes, but to understand or try to understand and indeed explain why Mr Swingler was involved in these offences over such
a period on the internet. It is clear that he has had particular difficulties as a child. There was, in his case, a very early diagnosis, as a child, of ADHD hyperactivity disorder, requiring the prescription of Ritalin at a very early age. He has, in addition, had significant hearing issues as a child, involving some three operations.54There is, on the material before me and as put by Mr Tiwana, evidence that he was both a shy and a late developer. It appears as a combination of all of that, he was, during his childhood days and in particular at school, a person who was belittled and picked upon. It is only in more recent times that our community has come to understand the effects of such behaviour upon a child. As a way to illustrate the degree of such, Exhibit 7 was tendered, which are photos of the results of a beating he received in such circumstances in February 2004.
55As a result of those matters, it would appear that he has adopted behaviours that are self-harming, both by way of cutting, burning and the development of anxiety issues.
56In regard to his background, by way of offending, he came before the Children's Court in 2006, and the Magistrates' Court in 2008 and 2010. Albeit for an offence in December 2010, for which he received an ICO for a charge of recklessly cause injury, during that period he did not receive any sentence of gaol.
57It is clear that he has been abusing drugs and alcohol.
58As a result of the totality of those difficulties and in handling Mr Swingler as a boy, unfortunately the impact upon his own home was such that his mother, in 2008, had to ask him to leave the home, after he had committed a burglary. Fortunately, the impact of such, the bringing of him back into the home in 2010, has led to a situation where there has been no further offending, but for a driving offence, since that time.
59In 2011 he was very much involved in what is called "track racing" or "car racing" endeavours and had a girlfriend. Unfortunately in 2013, that relationship broke up. At that time he was not working. He had a low self-image, hence the use of the testosterone to try to build up his own body image and what appears to be as a result of all the psychological material, the use of Facebook, and an inability to be able to have complete physical relationships. This appears to relate to his own immature personality, and perhaps best demonstrated, as I said earlier, by what appears to be, in summation, him over the internet, describing himself as of the age of 19.
60In Mr Tiwana's plea, he stressed that there are no relevant priors, in the sense of any previous offences of this type, or any sexual matters involving - at all.
61An important exhibit in this matter was the statement made by Diane Swingler, his mother, Exhibit 2. It seemed to me that in trying to understand why Mr Swingler, as I said, without any such priors, was involved and so involved. Her statement is important in understanding and confirming the history that I have briefly detailed, the immaturity that is expressed by her son and has been demonstrated in his life, the attempts subsequently at rehabilitation and the family's ongoing support and current offers of ongoing support.
62Equally was the confirmation of that material in Exhibit 3, by Mr Swingler's father. The importance now of Mr Swingler finally settling down and undertaking an apprenticeship. And I note, in particular, the comments from Mr Swingler's father, as to the importance now of his son in the business, and indeed to the continuation of the business, given Mr Swingler Senior's age and the fact that he is looking to slow up, so to speak.
63There are similar strong support been tendered on behalf of Mr Swingler by his auntie, Ms Raelene Eddington and by a previous friend, Matthew Choong.
64Also important, of course, in regard to this matter, is Exhibit 6, which is the psychological report of Pamela Matthews. That report is dated 23 May 2016, Pamela Matthews being a forensic psychologist. What is important about that report, as one sees from pp.1 through to 3, is the full medical history, of which Ms Matthews apprised herself. It is obviously concerning when one notes that these self-harming issues that I have referred to, started in Year 9, and as I have already remarked, these issues with the Children's Court started
late-Year 10/Year 11.65Also confirmed was the ongoing impact of ADHD by Grade 2, and the treatment by Dr Chandran from 1996 through to 2006, and also the work done by the child psychologist, Dr Luk from 1998. I note the assessment of high/average intelligence of Mr Swingler and the questions of body image and the reference to the anti-social mood traits that make up part of his personality.
66Insofar as his mental state analysis, I refer in particular to p.11 of the report, where the following is stated:
"Mr Swingler has attended all of his sessions with his mother's support and for most of these session, his mother has sat in on the session and prompted when Mr Swingler has been vague in regard to his behaviour and attention to implementing behavioural strategies. She has been positive and encouraging of improvements in behaviour. Mr Swingler has also undertaken sessions of his own, particularly in regard to addressing his offence behaviour. Mr Swingler has been, in all instances, immature in his demeanour and emotional function and could readily be mistaken for a 15 to 20 year old. His mood fluctuates from eurythmic when successes are discussed and rapidly drops to depressed when treatment returns to his offending. Sleep and appetite have been reported as disturbed, on and off, depending on Mr Swingler's focus on his legal matters."
67Insofar as the risk assessments were concerned, these matters were referred to in pp.12 through to 13. She refers to the issue of chronicity, in the sense that the offending occurs over approximately a two year period, from January 2013 through to March 2015, and notes that there was no prior offences of this type.
68She also notes, at paragraph VI on p.13, that albeit Mr Swingler was frank in reporting his behaviour associated with the sexual penetration of two of the complainants, he was somewhat vague in regard to the nature and quality of his online behaviour and there was, according to Ms Matthews, some indication that Mr Swingler continues, at least partially, to minimise such behaviour.
69At paragraph X, she states as follows:
"Mr Swingler evidenced some problems resulting from child abuse, and that he reports no history of sexual abuse, but reports developmental exposure to bullying at school, which in turn, in the writer's opinion, has impacted significantly on his self-esteem and also his capacity to trust anyone with whom he has relationships, this criteria is met."
70She notes, in paragraph XI,
"That he does evidence sexual deviance, a current behaviour before the Court and the ages of the complainants would indicate a clinical diagnosis of hebephilia, with a sexual preference for females between the age of 13 and 16, again that criteria being met."
71The final matter on p.14 as XVI, where she noted that:
"Mr Swingler evidences problems in establishing and maintaining intimate relationships."
That really goes to the matters that I referred to earlier, as the type of personality that one often finds in these cases, that is behind where you have these types of communications over the internet.
72Insofar as his risk of re-offending, at p.15, Ms Matthews stated this:
"His estimated risk of offending is moderate to high, however with his engagement in treatment this year, being an ameliorating factor, reducing risk to the more moderate end of the moderate to high spectrum."
73Her opinion is expressed at pp.16, 17 and 18, to which I will read, from p.16:
"In regard to development and mental state issues impacting upon the behaviour before the Court, Mr Swingler presents with a well- documented history of attention deficit hyperactivity disorder, ADHD, and conduct disorders. It is the writer's view that Mr Swingler continues to meet the full diagnostic criteria for ADHD."
74The next matter I think is particularly important in appreciating the explanation for this criminality. At p.17, Ms Matthews says a follows:
"In the writer's view, Mr Swingler's emotional immaturity, including gravitation to a younger peer group, not just younger females, his constant need for attention, occupation, stimulation, poor impulse control, which are significant, are significant in his offending before the Court and are a direct product of his attention deficit disorder."
75She goes on:
"In the writer's view, anti-social personality disorder features arising from childhood conduct disorder, including poor impulse control, symptomatically arising from ADHD, development disregard for and violation of the rights of others, failure to conform to social norms with the respect of lawful disorders and consistent irresponsibility, are also contributing factors to Mr Swingler's offence behaviour, with symptomatic features of ADHD being the more prominent contributing factor."
76There is a further comment at the bottom of that page as to risk, which I have already referred to. As I say, the estimate at risk of re-offending was moderate because of the steps taken by way of rehabilitation since the time of this offending.
77Insofar as those steps are concerned, which Mr Tiwana put to me,
Ms Matthews says as follows:"The writer is of the view that Mr Swingler has made a genuine effort over this year to control impulses, to take on adult responsibilities for work, his education, his own expenditures, his peer relationships, his offending, and to treat his parents with greater respect."
78She further opines as follows:
"Further treatment over at least a further 12 to 24 month period, is likely to reduce his risk of re-offending further. It is obvious also that a structured, supervised drug and alcoholic intervention is required."
79Insofar as the issue as to a custodial disposition, she stated as follows:
"In regards to a possible custodial disposition, Mr Swingler's very evident emotional immaturity is likely to make him vulnerable in regards to emotional and behavioural manipulation in an adult prison environment. Separation from family is likely to exacerbate his current mild/moderate symptoms of depression and there would be a need, if he is sentenced, for psychological support in such circumstances, and of course, continued family support."
80It is quite clear, not only from what was put to me by way of Mr Swingler's background by Mr Tiwana, but from those conclusions and opinions of
Ms Matthews, that the sentencing process here is one, insofar as the individual is concerned, that presents the Court with a very difficult picture.81As Mr Tiwana put, the diagnoses of personality disorder and ADHD do not attract the principles in R v Verdins [2007] VSCA 102. However, clearly in considering the moral culpability of Mr Swingler, I do take into account the opinion of Dr Matthews in the manner as detailed at [96] of DPP v O' Neill [2015] VSCA 325, referred to by both counsel in this matter.
82Clearly to use the O'Neill terms, Mr Swingler has a complex personality matrix with an associated ADHD diagnosis. This personality, I find, demonstrates why he became involved in such criminal behaviour in using the carriage services. He is, I find, and was very immature in demeanour and emotional functioning, suffered no doubt, from the totality of that matters that I have referred to, from reduced self-esteem and issues, insofar as establishing himself with, and maintaining sexually intimate relationships in a normal manner.
83I find such issues, and his own personality makeup, must be seen as attracting a degree of mitigation of culpability in regard to all of these crimes, albeit not to the level that would attract a larger degree of mitigation, had the Verdins principles been established.
84Mr Tiwana stressed, in his submissions, the early plea, the particular utilitarian benefit to the community, but in particular to the five members of the community which were the victims here, the relative youth of his client, in the sense of the age when these matters were committed, that he is still only at the age of 28 and of course his immaturity, the remorse demonstrated, not only by the plea, but the steps taken by way of rehabilitation since that time, and his character, insofar as, in particular, no such similar offences, that he has never been in gaol before, albeit the particular issues that I have spoken about.
85Mr Tiwana stressed the issue of rehabilitation, that there has been no attempts since, his attendances upon Ms Matthews and the associated termination by
Ms Matthews, as to the reduced risk of recidivism, the genuine attempts over the last year, as reported by his family and confirmed by Ms Matthews of his attempts to take control of his own impulses, take upon himself responsibilities as an adult, and the steps taken to try to stabilise his own employment, in particular the matters referred to by his father, and his undertaking of the apprenticeship.86It is also clear that from Ms Matthews' report, there is need for further treatment. In her opinion at least for a period of 12 to 24 months, insofar as the current treatment regime is concerned.
87Mr Swingler appears, despite some difficulties and perception and appreciation, to be developing insight in the sessions he has had with Ms Matthews, since February of this year. Of course I take into account all the matters set out in the plea, the written plea, at p.8 of Mr Tiwana's documentation.
88The issue of rehabilitation is obviously a matter of importance to the community, as the President of the Court of Appeal said in DPP v Tokava [2006] VSCA 156, [21]-[24], and in R v Merrett & Ors [2007] VSCA 1. The President spoke of the importance to the community, even when dealing with serious matters such as we are dealing with here, of not disregarding the importance of rehabilitation to a relatively young man. I am always at pains to recognise and reward steps that persons take, insofar as have been taken in this case, towards rehabilitation and I take those matters into account.
89I was provided with the sentencing statistics, Sentencing Statistics No.181, which essentially is the matter that relates to the two charges of sexual penetration of child under the age of 16. I note the median sentence in that matter is one of three years and nine months, with a non-parole period set of two years and two months.
90Mr Tiwana, insofar as his final plea was concerned, submitted, as did the family to me very strongly, that I should consider a sentence which did not involve imprisonment. He asked me to look at the Commonwealth offences as being essentially, or albeit not in any way resiling from their seriousness, as being at the lower end, asked me to take into account all of the personal factors that
I have spoken about, and in regard to the Commonwealth offences, sought a recognisance release order, which would involve no immediate imprisonment and a - insofar as the State matters, a community correction order. His alternative proposition to me was that if immediate gaol was to be imposed, there should be a combination of gaol and/or a community correction order.91As I say, insofar as consideration of that matter, Exhibit J has been tendered today, which was a report from the Community Correction authorities, for whom I thank such officer for the manner in which that was done so quickly, and I also note, which no doubt Mr Tiwana takes on board, the positive nature of such report.
92As against that submission, of course, it was the submission of the prosecution that the serious nature of these crimes was such that an immediate period of imprisonment was called for.
93As I say, it has been a very difficult balancing process to determine the appropriate sentence in this matter.
94Unfortunately, Mr Swingler, and I say this to your family who are here to support you, the totality of your criminality, in particular Charges 6 and 12, together with the three grooming offences, and the possession of pornography, means that it is not possible to avoid the imposition of an immediate period of gaol in your case. However, given your background and the reduced culpability which I have found, to the degree that I have found, and the positive steps which you have taken by way of rehabilitation, I consider that I should take steps to ensure that such period is, that is of immediate imprisonment, the minimum period which is appropriate in all the circumstances.
95In coming to such conclusion, I do not disregard the last paragraph of
Ms Matthew's report as to the issues with you if you are placed in a prison environment, and I intend to ensure that all steps are taken to reduce your vulnerabilities, when you are in gaol.96If you would stand please.
97Now, I do not want to complicate your life, but I am going to pronounce a sentence and providing I have got it right, that will be fine. If I have not, then we will have to discuss the matter, but there are complications. It might sound strange to the public sitting here and indeed your family, given the serious nature of these matters that there could be any issue with sentencing, however I assure you it is not just me. The correlation of the sentencing requirements for Commonwealth and State offences in this country is absurdly difficult and the Court of Appeal have called on a number of occasions for this to be overcome, indeed most recently, in Garside, to which we have referred to in this case.
98Insofar as Charge 1 is concerned, the grooming matter, you will be sentenced to a period of imprisonment of 18 months.
99In regard to Charge 2, the transmission matter, a period of six months.
100In regard to Charge 3, the grooming matter, you will be sentence to a period of imprisonment of 18 months.
101In Charge 4, a period of imprisonment of 18 months. That is the procuring matter.
102In Charge 5, a period of imprisonment of six months. That is the transmission matter.
103In regard to Charge 7, a period of - these are all Federal offences, obviously, a period of six months, being the transmission matter.
104Charge 8, a period of 18 months, being the grooming matter.
105Charge 10, a period of nine months, being the transmission matter.
106And Charge 11, a period of 18 months, being the soliciting matter.
107The sentence in regard to Charge 1, being one of 18 months, is to begin today.
108The sentence in regard to Charge 4, being also of 18 months, is to begin one month from today.
109The sentence in regard to Charge 8, also being 18 months, is to begin one month from today.
110That makes a total sentence under the Federal sentence of 20 months.
111All other Federal offences are to commence today.
112Pursuant to s.19(a)(c) of the Crimes Act 1914 (Cth), a recognisance release order is to apply after the service of 12 months, in regard to Charges 1, 3, 4, 8 and 11.
113Pursuant to s.20(1)(A) of the Crimes Act 1914 (Cth), I set as the conditions, a recognisance of $2,000 and a requirement for you to be of good behaviour for a period of four years.
114Therefore for the Federal offences, the total effective sentence is 20 months, to commence today, with a recognisance release order to come into effect in 12 months from today.
115Coming then to the State offences. Insofar as Charge 6 is concerned, or
Charge 6, the sexual penetration offence, I sentence you to a period of 22 months.116In regard to Charge 9, I sentence you to a period of two months. That is the indecent act matter.
117Having been sentenced to gaol on those two offences, the serious sexual offender provisions apply.
118The Crown does not seek a disproportionate sentence, however, I must regard the protection of the community as the primary purpose of sentencing, pursuant to such regulations. I am required to cumulate such offences, as detailed in s.6E and I will come to that in due course.
119Insofar as Charge 12 is concerned, you will be sentenced to a period of 20 months, that is the sexual penetration charge.
120In regard to 13, a period of 18 months, that is the pornography charge.
121In regard to 14, that is the drugs charge, a period of three months.
122However, given the Federal penalty already imposed, and as recently remarked in DPP v Dalgliesh [2006] VSCA 148 [59], a Judge should not undermine the intent of Parliament in this regard, as to cumulation.
123However, the tension here is paramount between the requirements of s.6E and the need for totality, especially as I intend to impose a community correction order in regard to Charges 6, 9, 12 and 13.
124On the basis of totality, I order that one month on the sentence in regard to Charge 12, be served cumulatively upon the sentence on Charge 6.
125The sentence imposed in regard to Charge 6, will commence one month from the date of the commencement of the sentence on Charge 1, being the Commonwealth charge.
126The sentence imposed in regard to Charge 12, will commence three months from the date of the commencement of the sentence on Charge 1, being the Commonwealth charge.
127The sentences imposed in regard to Charges 9, 13, 14, are to commence three months from the date of the commencement of the sentence on Charge 1.
128Hence, the total effective State sentence is 23 months, to commence one month after the commencement of the sentence on Federal Charge 1.
129Pursuant to the provisions of s.44 of the Crimes Act 1958 (Vic), in regard to Charges 6, 9, 12 and 13, in addition to the imprisonment imposed, I impose a community correction order for a period of three years. Such community correction order to commence upon the date that Mr Swingler is released from the service of imprisonment for the State offences, which nominally should be 24 months from today's date.
130The conditions of which I would impose in regard to such community correction order to apply from that date, would be as follows: Supervision under 48E, treatment and rehabilitation under 48D(3), including drug and alcohol treatment, offender behaviour program, and any treatment required for any psychological or psychiatric issues.
131There is no pre-sentence detention involved in this matter.
132I am required to state, pursuant to the provisions of s.6(f)(1) of the Sentencing Act 1991 (Vic), that Mr Swingler, you have been sentenced as a serious sexual offender in regard to Charges 6, 9, 12 and 13.
133I believe I have signed the disposal and forfeiture order.
134The global effective period of imprisonment is 23 months.
135Insofar as s.6AAA of the Sentencing Act 1991 (Vic) is concerned, it seems to me that it is almost impossible to comply in circumstances such as this, but to the extent that I am able, all I can say is that without the plea of guilty, Mr Swingler certainly would not have been getting the recognisance release order or the community correction order he has got, nor the combined imprisonment and community correction order involved in the State offences.
136As I said, and I apologise for the length of this sentence, but the combination of a Commonwealth and State offence is very difficult. Perhaps in layman's language, I can say to you and your family what I have sentenced you to, for which I am required to detail to you under the Commonwealth legislation.
137You have been convicted upon all 14 offences. You have been sentenced to
a period of gaol for all such offences.138I have rejected your counsel's submission that a community correction order or a recognisance release order without immediate gaol should be imposed.
139On the Commonwealth offences, I have sentenced you to a period of gaol for 20 months, commencing today, with an order that you be released after the service of 12 months of that gaol period, upon a recognisance release order, to be of good behaviour for a period of four years, upon giving a recognisance to this Court of $2,000, or entering into a recognisance.
140On the State offences, to begin one month from today, I have imposed a period of imprisonment of 23 months. The total period of imprisonment imposed will therefore be 24 months. You will therefore be left with a CCO thereafter of three years, and upon the conditions which I have detailed.
141Just take a seat please.
142Do you want some time to consider this?
143MS DIPIETRANTONIO: Yes, Your Honour.
144MR TIWANA: Yes, Your Honour.
145MS DIPIETRANTONIO: Unfortunately in an effort to take the notes, I'm not sure I can read my writing, so I'd appreciate some time - - -
146HIS HONOUR: All right, well I will stand down. Mr Swingler, I am sorry, but you will just have to stay here while we confirm this. Did you want to know anything specifically, Mr Tiwana?
147MR TIWANA: No, Your Honour, I was simply going to say that it might take more than a few minutes.
148HIS HONOUR: Yes, right, I understand that.
149MS DIPIETRANTONIO: There you go.
150MR TIWANA: Yes.
151HIS HONOUR: It took me more than a few minutes to draft it. Yes.
152(Short adjournment.)
153HIS HONOUR: Yes, what is the combined wisdom of the Bar table? Tell me.
154MR TIWANA: Your Honour, there's a couple of matters that we need to make enquiries about.
155HIS HONOUR: Yes.
156MR TIWANA: Just check and I'm going to ask Your Honour for a little more time. In relation to the Commonwealth matters, Your Honour said 18 months on Charge 1.
157HIS HONOUR: Wait on. Eighteen months, yes.
158MR TIWANA: Yes, six months on Charge 2.
159HIS HONOUR: Yes.
160MR TIWANA: Eighteen months on Charge 3.
161HIS HONOUR: Yes.
162MR TIWANA: Eighteen months on Charge 4.
163HIS HONOUR: Yes.
164MR TIWANA: And Your Honour said that that sentence on Charge 4 commences in one months' time from today.
165HIS HONOUR: Yes.
166MR TIWANA: Charge 5 was six months.
167HIS HONOUR: Yes.
168MR TIWANA: Charge 7, six months, and Charge 8 was 18 months.
169HIS HONOUR: And that is to commence also one month.
170MR TIWANA: Yes, so that, Your Honour, on that basis the sentence is actually 19 months and not 20.
171HIS HONOUR: Sorry, 8 should have been two months.
172MS DIPIETRANTONIO: Yes.
173HIS HONOUR: Yes.
174MR TIWANA: All right.
175HIS HONOUR: I apologise.
176MR TIWANA: So 18 - - -
177HIS HONOUR: Is that right? Because we got to the total of 20, so if it is 18 plus one, plus one, you get 20.
178MR TIWANA: Twenty, yes.
179HIS HONOUR: Very well.
180MR TIWANA: Yes, so - and then a recognisance release - to be released after serving 12 months.
181HIS HONOUR: Twelve months.
182MR TIWANA: - - - on a recognisance release order, period of five years - sorry, was it four?
183HIS HONOUR: Four years.
184MR TIWANA: Four years, and the sum of 2,000. So that's fine, Your Honour.
185HIS HONOUR: That is fine.
186MR TIWANA: That was the only issue with that.
187HIS HONOUR: Right. State?
188MR TIWANA: In relation to the State, I'll just go through it, Your Honour. Charge 6 was 22 months.
189HIS HONOUR: Two months.
190MR TIWANA: The base sentence.
191HIS HONOUR: Yes.
192MR TIWANA: Charge 9, two months.
193HIS HONOUR: Yes.
194MR TIWANA: Charge 12, 20 months.
195HIS HONOUR: Yes.
196MR TIWANA: And one month cumulative on Charge 6.
197HIS HONOUR: I will just finish them first. So - - -
198MR TIWANA: All right.
199HIS HONOUR: - - - 20 months.
200MR TIWANA: Thirteen, 18 months.
201HIS HONOUR: Yes. Fourteen, three months.
202MR TIWANA: Fourteen, three months. And then, in terms of cumulation, one month of Charge 12 cumulative on the sentence on Charge 6.
203HIS HONOUR: Yes. Totality, one month on the sentence in regard to
Charge 12 to be served cumulatively upon the sentence imposed in Charge 6. Hence the sentence imposed in regard to Charge 6 will commence one month from the date of the commencement of Charge 1. Sentence imposed in regard to Charge 12 will commence three months from the date of the commencement of Charge 1.204MR TIWANA: Yes. Your Honour, essentially I think - is this correct? Your Honour's saying that one month of Charge 12 is cumulative on - - -
205HIS HONOUR: Making a total of 23 - - -
206MR TIWANA: Twenty-three months. Yes.
207HIS HONOUR: Yes, and it has to commence, therefore three months - - -
208MR TIWANA: Your Honour - - -
209HIS HONOUR: Because I have commenced the State one month.
210MR TIWANA: Your Honour, my - in relation to State offences, the State sentence, it has to commence today. It can't be postponed.
211HIS HONOUR: I thought it had to commence a month after. Well - - -
212MS DIPIETRANTONIO: State offences, Your Honour?
213HIS HONOUR: Yes.
214MR TIWANA: No, Your Honour.
215HIS HONOUR: It has to commence today.
216MR TIWANA: Today. So effectively the - perhaps - - -
217HIS HONOUR: Well, if it has to commence today, then it commences today.
218MR TIWANA: So, that's 23 months - - -
219HIS HONOUR: The maximum I am giving is 23.
220MR TIWANA: Yes, 23 months commencing today.
221HIS HONOUR: No, it does commence today. I am sorry, you have said I have commenced it one month from the date of Charge 1.
222MS DIPIETRANTONIO: Yes.
223MR TIWANA: Yes.
224HIS HONOUR: Very well, so 22 months and one month in regard to Charge 6. All right, which makes 23 months.
225MR TIWANA: Yes.
226HIS HONOUR: So they all commence today and I simply order that one month of the charge on Charge 6 be cumulative with the charge on - with the sentence imposed in regard to Charge 6. Sorry, one month in regard to the sentence imposed on Charge 12.
227MR TIWANA: Yes.
228HIS HONOUR: Will be served cumulatively upon the sentence imposed in Charge 6, making a total of 23.
229MR TIWANA: Twenty-three - - -
230HIS HONOUR: Yes.
231MR TIWANA: - - - three months, yes. Followed by a three year community correction order.
232HIS HONOUR: Community correction order.
233MR TIWANA: Yes. Well that would also solve the other issue I have. That related to whether or not - it was earlier on, Your Honour, it was a month longer, it was 24 months.
234HIS HONOUR: Yes.
235MR TIWANA: And whether or not you could have a sentence of 24 months and a CCO.
236HIS HONOUR: Well it is a Federal sentence.
237MR TIWANA: Well no, a State - in relation to the State offences.
238HIS HONOUR: Yes, State - you cannot have a 24 - - -
239MR TIWANA: That is right.
240HIS HONOUR: Yes.
241MR TIWANA: So Your Honour - if Your Honour changes that in the matter that we've discussed, 23 months.
242HIS HONOUR: Yes.
243MR TIWANA: I think that solves - - -
244HIS HONOUR: Yes, it is always meant to be 23 months. A question of just when did it start.
245MR TIWANA: Yes.
246MS DIPIETRANTONIO: Yes.
247HIS HONOUR: Yes.
248MR TIWANA: Let me - I think I'm happy with the sentence otherwise.
249HIS HONOUR: All right. So the Federal sentence is right.
250MS DIPIETRANTONIO: Yes.
251HIS HONOUR: The State sentence, we just have the sentences that I have pronounced, all to commence - - -
252MS DIPIETRANTONIO: Today.
253HIS HONOUR: - - - today.
254MR TIWANA: Today, yes.
255HIS HONOUR: But the sentence in regard to Charge 12, to be one month cumulative on the sentence imposed in regard to Charge 6, making a total of 23.
256MR TIWANA: Correct, Your Honour.
257MS DIPIETRANTONIO: Yes.
258HIS HONOUR: And that therefore when that sentence is completed, the CCO will then begin.
259MR TIWANA: Correct, yes.
260HIS HONOUR: Yes.
261MR TIWANA: Correct. So the overall sentence effectively, it's 23 months with - followed by a CCO.
262HIS HONOUR: By a CCO.
263MR TIWANA: Yes.
264HIS HONOUR: But it cannot be done like that, it is a Commonwealth offence with a - - -
265MR TIWANA: Yes.
266HIS HONOUR: - - - recognisance release order plus the State offence, 23 months, with the CCO. Yes.
267MS DIPIETRANTONIO: Your Honour, I have the Commonwealth recognisance order - - -
268HIS HONOUR: Prepared?
269MS DIPIETRANTONIO: Yes, Your Honour.
270HIS HONOUR: Thank you.
271MS DIPIETRANTONIO: Thanks to the Commonwealth representative.
272HIS HONOUR: Thank you.
273MS DIPIETRANTONIO: And if I can just confirm, that's to start in 12 months.
274HIS HONOUR: Twelve months.
275MS DIPIETRANTONIO: That is right, he'll still be in custody when this becomes into play.
276HIS HONOUR: Yes.
277MS DIPIETRANTONIO: Thank you, Your Honour. The only other matters, Your Honour, is there was a disposal order, a forfeiture - - -
278HIS HONOUR: I thought I had signed all those.
279MS DIPIETRANTONIO: Yes, Your Honour. Thank you.
280MR TIWANA: Your Honour, in relation to the computer - - -
281HIS HONOUR: Well it would not be my - it is not my normal practice to sign it a computer, as long as I can be assured that all the material has been removed.
282MR TIWANA: There was a discussion at the plea that that should be returned, once the offending material is removed.
283HIS HONOUR: Yes.
284MR TIWANA: Yes.
285HIS HONOUR: And I am happy for that, but as long as the Crown authorities are happy that it can be removed.
286MR TIWANA: Yes, thank you, Your Honour.
287HIS HONOUR: Well why don't we exclude the computer for the moment - well, I don't know. Often it can't be. It depends where it is.
288MS DIPIETRANTONIO: Excuse me for one moment, Your Honour. Excuse me, Your Honour.
289HIS HONOUR: Madam Associate, I will hand back that material. Thank you, Madam Prosecutor, are you - I will give that into your hands.
290MS DIPIETRANTONIO: Thank you, Your Honour.
291HIS HONOUR: It didn't come in an envelope or anything, I think, it just came as that, so - - -
292MS DIPIETRANTONIO: I think it wouldn't have an envelope, Your Honour, but all right.
293HIS HONOUR: Well, you can have an envelope if you want it.
294MS DIPIETRANTONIO: Yes, please, Your Honour.
295HIS HONOUR: All right. Probably a better idea.
296MS DIPIETRANTONIO: Yes, thank you.
297HIS HONOUR: We don't have any record here of me signing any disposal orders. I am happy - if you want to see if you can work that out and I'll sign them in due course, but - - -
298MR TIWANA: Yes, Your Honour, I - - -
299HIS HONOUR: I am not - I always think it's a bit stupid to take a person's computer away, but as long as the material can be removed.
300MS DIPIETRANTONIO: I am instructed, Your Honour, that the only way that Victoria Police can be certain that the offending material is deleted, is to delete everything from the hard drive. So the only thing that will be returned will be
a computer - - -301HIS HONOUR: Hard drive with nothing on it.
302MS DIPIETRANTONIO: - - - with nothing on it.
303HIS HONOUR: No.
304MS DIPIETRANTONIO: Now, if my learned friend is happy with that - - -
305HIS HONOUR: As long as you're accepting of that, I won't make an order in regard to the computer.
306MR TIWANA: Yes, I've taken instructions.
307HIS HONOUR: Righto.
308MS DIPIETRANTONIO: Thank you.
309HIS HONOUR: All right, so I can sign the document, can I, if you've got it?
310MS DIPIETRANTONIO: Yes. I thought it was handed up, Your Honour, but
I have a new instructor and it's been causing some difficulties - - -311HIS HONOUR: Well I had the same feeling, but - - -
312MS DIPIETRANTONIO: I thought I handed up the disposal order, the forfeiture order and the 464.
313HIS HONOUR: And I thought I'd signed it, because that's what I say.
314MR TIWANA: There was no 464.
315HIS HONOUR: It is the retention - be by a statute now, wouldn't it?
316MS DIPIETRANTONIO: Yes, that's correct, Your Honour.
317HIS HONOUR: Yes.
318MS DIPIETRANTONIO: Excuse me, Your Honour, while I'm just trying to sort through - - -
319HIS HONOUR: We don't have anything on file, so I'm not quite sure of my view.
320MS DIPIETRANTONIO: Could I then, Your Honour - - -
321HIS HONOUR: I think - you can then - - -
322MS DIPIETRANTONIO: - - - email it to Your Honour's associate?
323HIS HONOUR: - - - forward one and I'll sign it.
324MS DIPIETRANTONIO: And as soon as possible - - -
325HIS HONOUR: Yes.
326 MS DIPIETRANTONIO: - - - given that we only have one day. Thank you, Your Honour.
327HIS HONOUR: If you did it before tomorrow, it would be a good idea.
328MS DIPIETRANTONIO: Your Honour, it will be done - - -
329HIS HONOUR: It doesn't matter, but it would be a good idea.
330MS DIPIETRANTONIO: It will be done before the close of proceedings today, Your Honour.
331HIS HONOUR: Righto, thank you. All right, we're all ad idem.
332MR TIWANA: Yes, thank you, Your Honour.
333HIS HONOUR: All right, well Mr Swingler, all the best. The whole purpose of me adding the CCO to you and the material, is to hopefully continue the treatment that you've got, all right?
334OFFENDER: Yes, Your Honour.
335HIS HONOUR: But it is important that the time that you are in gaol, that you make sure you continue whatever help you can get in there, all right?
336OFFENDER: Yes, Your Honour.
337HIS HONOUR: All right. Yes, thank you.
338MS DIPIETRANTONIO: As Your Honour pleases.
339HIS HONOUR: We will excuse you. Will we stand down? Wait, I've just got to get a signature, I think, Is that the CCO?
340ASSOCIATE: Yes, Your Honour.
- - -
0
7
0