Director of Public Prosecutions (Cth) v Barnes
[2023] VCC 147
•9 February 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT LATROBE VALLEY
CRIMINAL JURISDICTION
CR-22-01080
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| DEAN BARNES |
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JUDGE: | HIS HONOUR JUDGE SMALLWOOD |
WHERE HELD: | Latrobe Valley |
DATE OF HEARING: | 8 February 2023 |
DATE OF SENTENCE: | 9 February 2023 |
CASE MAY BE CITED AS: | DPP (Cth) v Barnes |
MEDIUM NEUTRAL CITATION: | [2023] VCC 147 |
REASONS FOR SENTENCE
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Cases Cited:
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APPEARANCES: | Counsel | Solicitors |
For the Commonwealth | Ms S. Holmes | |
For the Accused | Ms M. Greener |
HIS HONOUR:
1Dean Barnes, you have pleaded guilty to 15 charges of use a carriage service to solicit child abuse material, two charges of use a carriage service to transmit child abuse material and one charge of possess or control child abuse material. Those crimes all carry a maximum penalty of 15 years' imprisonment.
2You are now 35 years of age. I accept you pleaded guilty at the earliest reasonable opportunity, and I accept that you have deep and profound remorse for your offending. You must also get the utilitarian benefit of that plea of guilty, particularly in these times of Worboyes where any discount on a sentence for a plea of guilty must be seen to be appreciable, not simply lip service.
3The situation is that you have no prior convictions of any description and, I am told, no matters pending. Because of the nature of the offending for which you stand convicted or will stand convicted, you will be placed on the sex offender register for life, and I will ask you just to acknowledge receipt of those documents, and that will be given to you in a moment when it has been printed off.
4The prosecution opening was tendered on the plea, and I do not think I need to go into the great detail of it other than to summarise what this is about. Between 1 February 2020 and 14 May 2021, you communicated with individuals online, predominantly using the online platform Kik. You were aged 32 to 33 years of age at the time, and the victims presented at least as male children aged between 14 and 17. The bulk of them apparently said that they were 17.
5In any event, you posted a number of descriptions in the bio section of your profile which are of a depraved nature and seeking essentially, as I understood it, boys to be your slaves. You used the word 'boy'. I accept that you are a homosexual man, and that word may not have the same connotation to you as it does to me. I am not going to summarise those matters; they are available to anyone with a genuine interest. But in any event, the offending commenced.
6On 12 June 2020, you had an online chat with a person who identified as being sixteen years of age, and images were sent in response to those requests from you although they were not able to be confirmed as child abuse material as it was unclear, the age of the person.
7Now, that seems to be the situation in virtually all of these matters, that whilst the recipients of your questionnaires, if I can put it that way, all purport to be under the age of 18 years, there is no real proof one way or the other.
8There was a very helpful discussion that took place between myself and your counsel and counsel for the Crown. I cannot be sure in this situation whether there in fact was a victim at the end of each of these phone calls or whether or not it was other adults purporting to be teenagers. In any event, it is clear from the material that you certainly were of the belief that that is who you were talking to, and I am prepared to say it is intentional, not reckless, in that scenario, as I discussed with counsel yesterday.
9On 16 June, you sent a message to a person who was assumed to be an adult, making various statements about what you would be doing to rape a
13-year-old boy and all sorts of material like that. That gives rise to Charge 1 of transmission of that material, and again, as with a number of the other charges, there would appear to be no actual victim. I use the word 'actual' in inverted commas.10You then with that same person sent a photograph of a naked young male and certain assertions about what you had apparently – hypothetically, at least – done to him. That gives rise to Charge 3.
11What then occurred after that for the next 15 charges, as I understand it, up until the charge of possess child abuse material, was that in each of these situations you would ask questions describing, 'Are you hard?' asking them to perform indecent acts and all sorts of questions along those lines. Again, I do not need to go into the detail of all this. It is just – well, it is depraved. There is no other word to describe it, I think, what goes on over that period of time of about a year.
12It is important to note that in this situation it was not just people purporting to be children that you were talking to. This type of conversation was taking place with, on my understanding, probably hundreds of adults. Accordingly, when I examined this – and it is difficult to do it without letting emotion come into one's perception of it, but in these circumstances, there is no contact, on what I have read. There are no attempts to meet any of these people.
13I find it unusual that in all the material that was sent back to you, none of it apparently allows confirmation to any degree of the age of the person, which makes me suspicious as to whether they were actually genuine photographs of those people. So I need to take all those matters into account.
14Your counsel described what you were doing over that period of time, because of various matters I will come to shortly – that you were living in an 'online universe' at one stage. Another stage, she said 'in an anonymous online world'. I think that is a fair description. It seems to me that it is very similar to what occurs, as I indicated during the course of the plea, with people who become addicted to pokies. That is why they have to put clocks in those sorts of venues and do all sorts of things to stop people just getting lost in this world.
15That does not ameliorate the offending. It is clearly gross offending. It is offending that you were aware you were committing, and whilst there is a whole raft of materials surrounding that, I will make it very, very clear from the outset that, in my view, a sentence of imprisonment is the only sentencing option available. The question is as to whether or not it should be – or if the circumstances justify you being released on a recognizance.
16There has now been something of a delay in terms of the matter coming on for trial. You have had to go through the process of not knowing what was going to happen to you. I am sure you have had advice about what the potentialities were.
17Obviously, in a situation like this, there are no victim impact statements. I make it very clear insofar as Charge 18 is concerned, of the possess child abuse material, there is a significant number. They are of naked teenage males, which would tend to support the Crown's assertion that you intended to do that, but I am not prepared to find that this was all specifically about targeting them.
18Where that came from and whether it relates to people who you were online with, I have no idea, but when I look at this, it seems to me that there are victims in that, clear victims. Every young teenager shown in a photograph is a victim insofar as that matter is concerned, and I regard it as the most serious of these 18 charges.
19If anything, it has to be regarded as serious. Obviously, general deterrence plays a massive part in all of this. Insofar as specific deterrence is concerned, I think in your situation it is highly unlikely that you will ever do anything like this again. There also has to be denunciation of the conduct. One has to be careful of doing that in an unemotive way, and accordingly, there must be an appropriate punishment.
20As I have indicated, I do not think I need to go into more detail on that. It must be one of a sentence of imprisonment, the question remaining whether or not that sentence is to be effectively suspended; in other words, you are to be released on a recognizance. The Crown submission is for a head sentence and non-parole period, but I think that is too much in this situation.
21But in any event, I then turn to matters personal to you. The submissions of your counsel succinctly outline the difficulties that you have faced in life. I take into account firstly a personal statement from you directed to myself which indicates clearly, and I accept it, that there has been very deep shame on your part involving this and very deep remorse. I also accept from that and from other reports that I have received that you now have a much clearer insight into what happens or the damage that is caused by such offending, and it simply confirms my view that your remorse is genuine.
22There is a report from your father, which I have read. It is clear that it was very difficult, but you were able to somehow get through VCAL for Year 12. During school, you had all sorts of problems. You were diagnosed with ADHD at a very young age, maybe three or four, and the difficulties went on from then. You were medicated, and you were prescribed Ritalin, dexamphetamine until you were the age of 16. He pointed out, as was pointed out in the medical reports, that the ADHD has impacted on your life significantly.
23Your father points out that you have issues managing finances, that he and his wife have to assist you keeping out of debt, as you have previously been bankrupt, and he goes through all those aspects that have been difficult for you. He points out that you have been on medication and that you have been seeing psychologists and psychiatrists and all those matters. Yours has not been an easy existence, and one could not gainsay that. He says that basically you have never been in trouble with the law before, and he was of the view that you have a strong understanding of what is right and wrong, and I accept that is so. But on the other hand, it is a little bit of a double-edged sword in this situation.
24Your mother died when you were about nine years of age and after a long battle with cancer. As I said, you completed Year 12. You have worked in a variety of retail jobs. Your ADHD symptoms have made it difficult for you to work when unmedicated. Apparently, you have difficulty applying rosters and roles and things like that. You do have a close relationship with your father, who clearly has come along here in court to stand by his son and has also provided the reference that I have referred to.
25You had been in a long-term relationship up until about May 2019 where you then moved to Sale where your father and stepmother also live, and you have continued to live in Sale since then. It was put in your submissions, and it is borne out by the reports, that you have experienced significant difficulty adjusting to living rurally, suffer from social isolation, loneliness, which in your mind was amplified on account of your sexuality. You are currently not on medication, and there is a reason for that, as I understand it. You have been working on a casual basis as a delivery driver.
26During the course of that offending period, you were taking Vyvanse or dexamphetamine to treat ADHD. You had not been taking stimulant medication since you were 16, and you have been prescribed this by two psychiatrists in the ACT. You reported to them that within two months of commencing that, you developed an all-consuming need to have sex without care for the consequences, and that hypersexuality led to the end of the
long-term relationship that I have already referred to. I understand that you stopped taking medication on the day that you were charged with this and say that the feelings and urges that had been within you have immediately gone away.27There is the report of Dr Darjee, and his report says that the ADHD medication would have had the effect or could have had the effect of symptoms of hypersexuality which you experienced at the time of the offending.
28At this point, I agree with the Crown. There is a difference between having hypersexuality and engaging in these sorts of conversations with people you believed to be under the age – well, in this situation – of 18 or 16 if it was a State law. I do not see that that takes you over into that area. You had plenty of adults you could live out these fantasies with without resorting to children.
29But in any event, he says that the stimulant medication was 'likely a significant contributory factor', and I accept it has some contributory value but not to the level that has been put to me. It has clearly had an effect on your history of – the breakdown of your relationship, your social isolation and those matters, and I do take that into account.
30It has been described as reckless behaviour. As I have said to you in the course of discussion, I do not think it is reckless. I think it is intentional albeit in a very, very strange and odd milieu and albeit without there necessarily being an active victim other than for Charge 18.
31Your counsel points out you have taken full responsibility for your offending, and I accept that. Treating psychologist, Mr McNulty – I will come to him in a moment – says you have a 'deep sense of shame and remorse and high levels of anxiety about the charges', and I accept that.
32I accept that you have pleaded guilty, as I said, at the earliest opportunity. You, when spoken to by police, willingly handed over your devices where the child abuse material was found, and you have done what you can since to right the wrongs of all this. You have been seeing a psychologist, Kim Dowse, and there has been a letter provided by her from the end of last year. It is anticipated that if you remain at liberty, you will continue to have treatment with her. She has found you to be highly remorseful with insight into the offending behaviour, and her view was that you would not reoffend.
33The reports of the various people involved – the one from Dr Rajan Darjee, the psychiatrist, basically sets out your history, how much trouble you had keeping jobs, the difficulties the ADHD has caused you over your 35 years, that your longest job has been for about two years because of the problems that you have when working with other people in those sorts of environments.
34I accept that in this situation, you were not targeting underage males as such and you did not seek them out. You said to him that you had exactly the same interaction with them as you did with the adults. I accept that, but the fact remains that they presented as underage, and there is nothing to suggest you did not believe that.
35Importantly, he points out that there is no evidence that there is a paedophilic disorder, bearing in mind the alleged ages and the appearance, apparently, of the visual images that were sent. Bearing in mind your risk profile, he said that your:
Response to the offences and his engagement in treatment, he has very good prospects for rehabilitation. He does not need to do further
offence-specific treatment to address his sexual offending behaviour. However, it would be useful for him to do some psychological treatment to develop healthy sexual relationships and to maintain non-risky sexual behaviour.
36Psychologist Kim Dowse essentially supports all the matters I have referred to and said:
Mr Barnes has been a very impressive client who is highly remorseful. He quickly developed insight into his offending, very keen to learn about his offending and how to avoid relapsing. He no longer took Vyvanse and was no longer hypersexual.
37And in her view, it was clear that you would not reoffend, but she would continue to see you over an extended period of time.
38Mr McNulty, a psychologist who had seen you on approximately 15 occasions since April 2021, confirmed the ADHD disorder and described it as a 'neurological condition', which in itself has some interesting connotations. But in any event, he describes what the consequences of that are and what the symptoms of it are. He points out that some people with ADHD can become hyper-focused on a high-interest activity to the exclusion of all else going on around them for a long period of time. In this situation, I accept that that is what has occurred with you, that it was not something that you sought out; it was something that essentially you drifted into in a very strange state.
39I do not have to go into all the details contained in those reports. I think it is pretty self-evident. They have been tendered, and anyone with a genuine interest can see them.
40You said to Mr McNulty, 'My surroundings would all but disappear, and I'd become consumed by the conversation with the person'. He says that that suggests that you were hyper-focused on the interactions and some form of seeking sexual relief, and he says that you did not think of the consequences of having online interaction with underage people. So I have taken that into account, but I do not give it the weight that your counsel sought that I do, and I agree with the Crown in respect of those matters.
41So that is the situation. But your circumstances at 35 where you have had difficulties all your life with ADHD, obviously had difficulties with sexual identity – and I am not going to go into the detail of all that – a long-term relationship had ceased, you were in a sense isolated, living in a rural community, having previously been in a relatively expansive gay community within a capital city – and in all those circumstances, I can understand that your moral culpability is perhaps less – not 'perhaps' – is less than what otherwise would be the case.
42As I have pointed out, in terms of the objective seriousness of the offending, I could not be satisfied beyond reasonable doubt, other than Charge 18, that there is in fact a victim for any of the charges. It is your intention that you are being sentenced for. I have already indicated I take into account there is no contact, no meetings and no attempts to organise them. Objectively, I think they are at the lower end of such offending, though I am always very reluctant to put this sort of thing in ranges because it is, well, basically a dangerous thing to do.
43I have had very helpful submissions from both counsel - I make that very clear, it is appreciated – as to what occurs with the Commonwealth legislation. The situation here is that for the last 16 of the charges, the Commonwealth legislation says that there must be a custodial sentence unless there are exceptional circumstances. That concept is not defined within the legislation, as I understand it.
44Ms Holmes, on behalf of the Crown, was able to give me a Queensland decision of the Attorney-General v Tootell where in dealing with some Queensland legislation, their Court of Appeal said:
We must construe 'exceptional' as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional, a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.
45I understand what is being put to me insofar as that is concerned. It has always been my view that exceptional circumstances can be very much in the eye of the beholder.
46Of relevance in this matter is, as I have pointed out to counsel, that in Victoria and in the State legislation, attempts have been made to effectively impose mandatory sentences. There is no other way of describing them. But in this situation, one of the tests in Victoria has been put in that there are substantial and compelling circumstances why a court may choose not to impose an active custodial sentence.
47I am not going to try and transpose the Victorian provisions of s10A of the Sentencing Act across, but it has been interpreted by the Court of Appeal in Victoria in a matter of R v Fariah [2021] VSCA 213. Now, it is my view that this is the way I should look at it. They said from paragraphs 24 and 25:
In our view, the judge erred in considering that the applicant bore an onus to satisfy the court that there were substantial and compelling circumstances that were exceptional and rare [which is the test interpolated by me, test in Victoria] that justified not making an order [that is, a sentence of imprisonment]. We accept the submission of the applicant's counsel that s5(2H)(e) [of the Victorian legislation] does not impose a burden on an offender to prove on the balance of probabilities the existence of substantial and compelling circumstances that are exceptional and rare. That is an evaluative judgment for the judge to make once the relevant underlying facts have been established in accordance with settled principle.
48With the greatest of respect, I totally agree with what our Court of Appeal said there. They then went on to say:
We also consider that the mere fact that some individual circumstances may commonly be encountered by sentencing judges in the County Court will not by that fact alone necessarily deprive them of their character as substantial and compelling and exceptional and rare. Every case will necessarily depend on its particular facts. Circumstances which individually are relatively common may in combination enliven the exception in s5(2H)(e).
49They went on to say:
Indeed, in our view, the applicant's appalling childhood experiences, coupled with his youth and other factors relied upon, were sufficient in combination to engage s5(2H)(e).
50It is important to note that that test is one of 'substantial and compelling' and 'exceptional and rare', which seems to me to be a much more difficult test to satisfy than that of exceptional circumstances. I intend to follow and use as a guide those very helpful remarks from the Victorian Court of Appeal.
51I then look at: what are the circumstances here? I have already indicated I regard the offending as the probably lower to middle range of offending of this nature because of the matters I have pointed out. There was, I do not think, targeting of children. There were no attempts to meet anybody. I have some doubts as to whether all or any, in some respects, of these victims were in fact under the age of 18 - you have pleaded to it, so that is the end of that – and there are no attempts to meet anybody or anything along those lines.
52I take into account previous good character. There are no prior convictions, which obviously is relatively common. I have taken into account an early plea of guilty and indeed the plea of guilty in any event. I take into account what I regard as exceptional remorse. I take into account that rehabilitation has already occurred and should reoccur in the future. You have had enough common sense to get treatment in regard to it. You have responded well to that, and I think you are very, very unlikely, if not – well, I will say very, very unlikely to offend in this way again.
53I also take into account the strange situation that the exceptional circumstances test is not applicable to the first two charges but is applicable to the next 16. That is arguably exceptional in itself, that one is caught in the situation where I do not have to apply the test to Charges 1 and 2 but have to apply it to the rest. That is simply a fact I take into account. It is not determinative, and others may need to decide that one day.
54I take into account the ADHD and the hypersexual activity, the hyper-focusing not as a justification of it but certainly putting this offending into a context, which does not have the often connotations of the decision to actually exploit children that is sometimes made, very often made, by people in this situation.
55I am basically finding, I suppose, that at the time all this occurred, life had effectively swamped you. You started doing this in relation to talking to other adults. These are a dozen or so instances out of hundreds that involve children. I am also a bit concerned with Charge 6 of double punishment, but I am not going to go down that path.
56I think that having seen the material and having seen you, I think you would be extremely vulnerable in a gaol, which is a matter that the Court of Appeal has taken into account in Victoria, certainly, in Farmer, I think, the decision of Farmer, so I take that into account.
57I take into account the ages being 17, if that is what they in fact were, being at the outer end or the higher – to describe that, being outer limits of the offending. Under State law, it would not have even been an offence for a number of them.
58For what it is worth, I will take into account the neurological aspect of ADHD, which is referred to in the Victorian legislation, but I am trying to be careful. I am not to simply transpose that across.
59So I have taken all those matters into account, and in my view, when they are taken in combination, as pointed out in Fariah, that they do amount to exceptional circumstances. One or two of them may do it by themselves, but I am comfortably satisfied that they do so when added up in their entirety.
60What I intend to do is give you a significant custodial sentence but release you on a recognizance which will start immediately. That recognizance will be for three years. I put a figure on that, do I not? Five hundred dollars. Now, what I want to do is have a period of 14 months. Now, how do I go about that, ladies, on an 18-charge indictment? What is concerning me is I do not want to be sitting here for an hour and a half. I cannot aggregate them, can I?
61MS HOLMES: No, Your Honour.
62HIS HONOUR: Each one is individual, so I am going to impose a sentence on each one. My intention was to have moderate cumulation on each one, with Charge 18 being the head sentence – but moderate cumulation for all the others on that. Now, do I have to go through that 'starts two weeks from' stuff, or not?
63MS HOLMES: No, no, no, Your Honour. My ‑ ‑ ‑
64HIS HONOUR: I cannot just describe it as 'cumulative', can I? I am not allowed to do that.
65MS HOLMES: No, actually, I think you do have to say whatever the base sentence is, and then the others, and then go through and say when the start dates are for each of the others ‑ ‑ ‑
66HIS HONOUR: Yes, all right.
67MS HOLMES: ‑ ‑ ‑ which then gives you 14 months to be released forthwith on a recognizance for three years.
68HIS HONOUR: Right, all right. Well, I will do this. If it is wrong, I will fix it later, and everybody knows what I am trying to do.
69MS HOLMES: Yes, Your Honour.
70HIS HONOUR: Yes, with conviction, obviously, all right. Charge 18, six months, all right. Now, trying to do the mathematics for this. That is to commence today. I say that, do I not?
71MS HOLMES: Yes, Your Honour.
72HIS HONOUR: Right. Charge 17, three months, to commence today. I might work up the indictment, I think. Charge 16, three months, to commence – well, how am I going to express that? Well, what I want to do is have two weeks of each of the others cumulative.
73MS HOLMES: All right. Two weeks of each of the others cumulative.
74HIS HONOUR: It just seems - I mean, I do not want to give a false – I mean, I could just give 18 months and make them all concurrent, but that just seems to me to be misleading.
75MS HOLMES: Yes, Your Honour.
76HIS HONOUR: I could give 14 months for the possession and make them all concurrent, and these sentencing remarks could indicate what I intended to do, but I just think that the 14 months for Charge 18, when they are category 2, is too much.
77MS HOLMES: Yes, Your Honour.
78HIS HONOUR: Yes.
79MS HOLMES: You would have to say that they are to commence so that if you – three months – sorry, two months and two weeks after ‑ ‑ ‑
80HIS HONOUR: I see what you are saying, yes.
81MS HOLMES: No, that is not right either, though, is it, because it is six months.
82HIS HONOUR: No, no, it is not going to work either way. Look, I think what I might do is this. That is going to get way too complicated, and I am bound to get it wrong.
83MS HOLMES: Sorry, Your Honour. So Charge 18 is the base, for six months, and you have got three months for Charge 17, and you did not want to cumulate on that.
84HIS HONOUR: That is starting today.
85MS HOLMES: So that was just ‑ ‑ ‑
86HIS HONOUR: No, look, I reckon what I will do is ‑ ‑ ‑
87MS HOLMES: That is starting ‑ ‑ ‑
88HIS HONOUR: What I will do is this, right. Now, it is going to be clear from the transcript what our concerns are. I just do not want it to be an invalid sentence. What I will do is this – and because of the ages is why I have done this, and it will become apparent to anyone looking at it. The ones I am giving the higher sentences for are 14, 15, all right, as opposed to the 17. What I will do is this: I will read out what I am going to do on each, and then I will – yes.
89So Charge 1, three months; Charge 2, three months; Charge 3, three months; Charge 4, three months; Charge 5, three months; Charge 6, three months; Charge 7, three months; Charge 8, four months; Charge 9, four months; Charge 10, four months; Charge 11, three months; Charge 12, three months; Charge 13, three months; Charge 14, three months; Charge 15, three months; Charge 16, three months.
90I will direct that the sentence of four months imposed on Charge 8 commence upon the conclusion of the six months imposed on Charge 18, and the four months imposed on Charge 9 commence on the conclusion of the four months imposed on Charge 8. All other sentences will commence today. I think that gives you 14 months, does it not? Yes.
91MS HOLMES: Yes, Your Honour. That is ‑ ‑ ‑
92HIS HONOUR: Yes. Look, if there is any dispute about it afterwards, people can see why I was concerned about it, and I know I will make a mess of it if I do not do it that way.
93MS HOLMES: No, Your Honour, that seems fine to me.
94HIS HONOUR: Yes.
95MS HOLMES: So Charge 8, the four months commences at the expiration of the ‑ ‑ ‑
96HIS HONOUR: Six months.
97MS HOLMES: ‑ ‑ ‑ six months of the base charge of Charge 18. Charge 9, four months, commences after the four months of Charge 8.
98HIS HONOUR: Yes, and that ‑ ‑ ‑
99MS HOLMES: So that is six, six and four. That is ‑ ‑ ‑
100HIS HONOUR: No, six, four and four. That is 14.
101MS HOLMES: Six, four and four, yes, yes.
102HIS HONOUR: And every other sentence commences today.
103MS HOLMES: Yes.
104HIS HONOUR: Yes – no, that ‑ ‑ ‑
105MS HOLMES: And so that makes a total effective sentence of 14 months, to be released forthwith on the recognizance.
106HIS HONOUR: That is 14 months, right, to be released forthwith on a recognizance.
107MS HOLMES: Yes.
108HIS HONOUR: Now, the next thing I need to know with that recognizance, what – because I am also taking into account – and this will be reproduced in full. I am also taking into account that a recognizance has far more significance to an accused than it did a few years ago. There are those conditions I have to have put on, are there not, about not leaving the State and having a parole officer and all sorts of things?
109MS HOLMES: Your Honour, I confess I am not – I will just bring up the draft that my instructor has sent me.
110HIS HONOUR: Yes, if you could, because I got caught out with this the other day. This is very recent, and I am not even sure if it covers this offending.
111MS HOLMES: Yes, that is right, that is right, Your Honour. So, yes, mandatory conditions are pursuant to s20(1B).
112HIS HONOUR: Yes.
113MS HOLMES: Be subject to the supervision of a probation officer, obey all reasonable directions.
114HIS HONOUR: Yes, which will be someone from Sale Corrections, yes.
115MS HOLMES: Yes. Obey all reasonable directions, not travel interstate or overseas without the permission of that probation officer, undertake such treatment as provided by that officer and then, yes, the necessary conditions to give effect to that, so to report to Community Corrections within two clear days and then conditions of the sex offenders' program.
116HIS HONOUR: Right, yes, yes. It seems to me ‑ ‑ ‑
117MS HOLMES: So, yes, Your Honour, there are ‑ ‑ ‑
118HIS HONOUR: Yes, sorry. It seems to me ‑ ‑ ‑
119MS HOLMES: They are all on my draft order that my instructor has prepared.
120HIS HONOUR: Yes, I think that is what I have to do.
121MS HOLMES: Yes.
122HIS HONOUR: And then it is a matter for Sale Corrections. I would anticipate that they will simply continue the treatment that he is already undergoing.
123MS HOLMES: Yes.
124HIS HONOUR: I think that is what will occur.
125MS HOLMES: Yes, Your Honour.
126HIS HONOUR: Yes. So does your client ‑ ‑ ‑
127MS HOLMES: My instructor is completing that draft recognizance to send through to your associate now.
128HIS HONOUR: If that could be sent through to my associate, I would very much appreciate it, thank you. Your client understands all those matters?
129MS GREENER: Yes, I will make sure he does, Your Honour.
130HIS HONOUR: While that is being done, I will get your client to acknowledge the documents.
131MS GREENER: Yes, Your Honour.
132HIS HONOUR: Do I need to do a 6AAA?
133MS HOLMES: Yes, Your Honour, please.
134HIS HONOUR: Three with a two.
135MS HOLMES: Thank you. Not far away, Your Honour. My instructor is getting it done.
136HIS HONOUR: No, that is all right. We are just getting this acknowledged, so that will be all good. And I will make sure when it comes back for revision that this entire discussion is contained within it, not just the sentencing remarks, yes, all right. Now, are there any other orders? Have we got any disposal orders of phones or anything like that?
137MS HOLMES: Your Honour, that has been done by consent.
138HIS HONOUR: Yes.
139MS HOLMES: So I am not seeking any other orders.
140HIS HONOUR: All right, I have got you, yes, thank you. I just want you to acknowledge it, Mr Barnes (indistinct words) you can read it later.
141OFFENDER: Okay.
142MS HOLMES: I understand that is being sent through now, Your Honour.
143HIS HONOUR: Yes, ta for that. If we could just print that off, that would be good, all right. I will ask you to sign this in a moment. You understand it is a recognizance for a period of three years. Do you understand the conditions that are involved, Mr Barnes?
144OFFENDER: Yes.
145HIS HONOUR: Yes, all right. It has not arrived yet. I have had a couple of different associates. It has gone to the right associate, has it, chambers email?
146MS HOLMES: I believe so, Your Honour.
147HIS HONOUR: Yes.
148MS HOLMES: My instructor is online and listening, so I think she is aware.
149HIS HONOUR: Yes. Who do you want it sent to? Judge Smallwood chambers, yes.
150MS HOLMES: Yes, I believe it has been sent to everyone that has been receiving all of the materials in the matter, including Your Honour's chambers, so ‑ ‑ ‑
151HIS HONOUR: All right, yes, yes, thanks for that.
152MS HOLMES: Just sometimes it does take a little while to come through.
153HIS HONOUR: Yes. Look, what we might do, rather than everybody sitting here – if it is on its way, all he is going to have to do is sign it. I think we have complied with everything else. So rather than have you sitting there, Ms Holmes – you have probably got other things you are supposed to be doing.
154MS HOLMES: Yes, Your Honour, thank you for that. It is not a workday for me, so ‑ ‑ ‑
155HIS HONOUR: No. Well, what we can do is – I will just stand the matter down. I will ask Mr Barnes to remain, and when it arrives, we will get him to sign it, and we will make sure a copy is sent to your instructor. Or do you need the original, do you? Well, there is no such thing as an original anymore, is there?
156MS HOLMES: No, I do not need an original, Your Honour.
157HIS HONOUR: No, I will just - all right.
158MS HOLMES: And I have just received it. I am not sure if everybody else has, but it has certainly just come through for me. So I have received it twice now. I am not sure if everybody else has received it yet.
159HIS HONOUR: No, we have not got any.
160MS HOLMES: My instructor sent it again because she was concerned at how long the first one was taking.
161HIS HONOUR: We have got it, we have got it. It has arrived, thank you.
162MS HOLMES: Great, thank you, Your Honour.
163HIS HONOUR: Yes.
164MS HOLMES: Sorry about that.
165HIS HONOUR: No, that is all right. We will just get that signed. I must admit, Ms Holmes, when I saw that Queensland decision that you sent to me and I saw the name of the accused, you would never guess what he was charged with, would you?
166MS HOLMES: No. Your Honour, I am just looking at the recognizance release order.
167HIS HONOUR: Yes.
168MS HOLMES: And I am not sure that it is right.
169HIS HONOUR: No, 'released immediately' not 'after serving'. Yes, it is wrong.
170MS HOLMES: Yes, it should be 'released forthwith', is the language that is normally in the orders.
171HIS HONOUR: All right. Well, if you like, I will just – I am not going to ‑ ‑ ‑
172MS HOLMES: Are you happy to ‑ ‑ ‑
173HIS HONOUR: I will just change that.
174MS HOLMES: Yes, thank you, Your Honour.
175HIS HONOUR: 'Defendant forthwith'. I will put it after the word 'defendant', and I will delete the words 'after serving 14 months'.
176MS HOLMES: Yes, thank you, Your Honour. But otherwise, I think it appears to be right. The reference to the 14 months goes in the box on the second page.
177HIS HONOUR: That is right, yes.
178MS HOLMES: And again, 'after serving 14 months' needs to be crossed out and the 'forthwith' remain on that second page at paragraph (c) in the second box.
179HIS HONOUR: Yes, I have got you, yes, yes, yes, got you.
180MS HOLMES: Yes, thank you.
181HIS HONOUR: Look, I will just take out 'after serving 14 months of the sentence', yes.
182MS HOLMES: Yes, so – yes.
183HIS HONOUR: All right. Well, I will ‑ ‑ ‑
184MS HOLMES: And then it says ‑ ‑ ‑
185HIS HONOUR: No, I will ‑ ‑ ‑
186MS HOLMES: ‑ ‑ ‑ before you in the third box where Mr Barnes is to sign. I think that normally Your Honour's associate signs there.
187HIS HONOUR: No, she can just take it down to the dock, and I can watch it from here.
188MS HOLMES: Yes, thank you, Your Honour.
189HIS HONOUR: Yes, so that is all good. I have changed that and initialled it.
190MS HOLMES: Thank you, Your Honour.
191HIS HONOUR: So if you want to get him to just sign that, and I will witness it, yes.
192(Recognizance order signed and acknowledged.)
193All right. I have witnessed that, all done. We will send copies to the Crown. Yes, thanks, Ms Holmes. Thanks, Ms Greener.
194MS GREENER: As Your Honour pleases.
195MS HOLMES: Thank you, Your Honour. Apologies for not being wigged, Your Honour. I left my wig in chambers.
196HIS HONOUR: That is what they all say. Can I say too, I appreciate very much the assistance of counsel in this matter. It has been very helpful, and I appreciate it, thank you.
197MS HOLMES: Thank you.
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