Director of Public Prosecutions (Cth) v Cameron

IN THE COUNTY COURT OF VICTORIA

Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION (from Ballarat circuit owing to COVID-19 relisting protocol)
CR-19-02036

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

v

KANE CAMERON

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JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Melbourne
DATES OF HEARING:	6 May 2020
DATE OF SENTENCE:	18 September 2020
CASE MAY BE CITED AS:	DPP (Cth) v Cameron
MEDIUM NEUTRAL CITATION:	[2020] VCC 1506

REASONS FOR SENTENCE
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Subject: Use carriage service to procure sexual activity with child under 16 years. 18 years of age at time of offending in late 2017. Now 21; No criminal history at all and nil offending since 2017. Mild intellectual disability and serious bowel condition. Victim believed by offender to be 13. In fact, father of the 13 year old posed as the child in the course of the communications.
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APPEARANCES:	Counsel	Solicitors
For the Commonwealth	Mr A. Sim	Commonwealth Director of Public Prosecutions
For the Accused	Ms A. Burnnard (Plea) Mr J. Barreiro (Sentence)	Adrian Paull Criminal Lawyers

HIS HONOUR:

Kane Cameron, you have pleaded guilty to one charge of use of

a carriage service to procure a sexual act with a person believed to be under 16 years of age. The maximum penalty is 15 years' imprisonment.

You have no criminal history at all and nothing pending. You were born on 9 January 1999 and are 21 years of age now but were only 18 years of age at the time of the offending back in late 2017.

The prosecutor Mr Sim opened this matter to me on 6 May this year by placing before the court the written plea opening, dated 15 January 2020 but it was amended on 4 May 2020. That document was read aloud and was marked as Exhibit A on the plea, together with Annexure A.

Your counsel at that time, Ms Burnnard, told me it was an agreed summary so there is no need really for me to restate the full sentencing facts in these my reasons. I will not stray beyond the agreed summary. I will say something briefly as to the facts though.

Facts

Very briefly stated, between the 22^nd September and 5^th October 2017 you used the Instagram social media platform to communicate with a person you believed to be under the age of 16. The communications commenced on 22^nd September and those early communications were actually with a young girl named Ebony Gray[1]. She was only 13 years of age. As the summary makes clear, within a short space of time, the girl's father had grown concerned as to the communications and thereafter he posed as his daughter. The charge covers those ongoing communications by you where you sought to bring about a sexual act. You were not to know that he was posing as his daughter. You thought you were communicating with a 13-year-old and the chat logs disclose how the conversations turned to matters sexual, with you telling 'her' of the acts you wished to commit and your hope of her taking up your invitation to meet for sex. Annexure A sets out a summary of the chats. I have also read the full Instagram exchanges which are set out in the depositions. It is true to say there was a level of persistence by you even in the face of repeated reminders by the 'girl' (it was her father of course) of her age and yours, and the illegality of your conduct and what you proposed. You sent a single photograph of your penis. You were quite manipulative as you tried to persuade 'her' to send nude images to you.
[1] A pseudonym

The father reported the exchange to the police and members from the Ballarat SOCIT team came knocking on your door on 6 October 2017 and arrested you. Computers and other devices were seized. You were interviewed on 2 November 2017 and engaged mainly in a no comment interview, as was your right. Your devices were examined and the case against you was an overwhelming one.

I do not pretend to understand why so long was taken in settling this matter. The summary sets out a chronology of proceedings with no less than five committal mentions and two contested committal dates, where thankfully, no witnesses were called. On the first of the committal dates, the father of the young girl and two other witnesses attended but were not required to give evidence. The matter settled on the second of those dates being 9^th October 2019. All the while, you grew older and turned 21 earlier this year, losing forever the ability to receive a term of detention in a youth justice facility. An offender turning 21 is an important matter, especially when they may well be confined and are at least eligible for youth justice detention. That is a disposition which has the advantage of avoiding the more corruptive influences which exist in an adult jail. The County Court whether sitting in Melbourne or on circuit will always find a listing slot for a person who is turning 21 and where there is a risk of confinement and hence, the potential loss of youth justice detention as an option. The case really should have been finalised before your 21^st birthday. It was not and hence that disposition is lost forever.

You have ultimately pleaded guilty and you have spent no time in custody.

In Mitigation

The plea was conducted on 6^th May by Ms Burnnard who had prepared an excellent written plea outline which was marked as Exhibit 1. She conducted a very thorough plea on your behalf and detailed to me your family and educational background and your current personal circumstances. What is blindingly obvious is that she has been extremely dedicated and devoted in her preparation of your case and has taken her obligations as counsel very seriously indeed. Having seen her in other cases, I observe, that is just the way she conducts her cases. She had assembled, and then took the court to, a large range of materials touching upon your physical health concerns as well as material touching upon your level of functioning. It was plain also that these materials represented only a selection of the documents that she had obtained access to. She made submissions as to the level of the seriousness of the offence and the relevant purposes of sentencing. She made submissions also as to your rehabilitative prospects.

She relied upon a number of matters in mitigation principally:

· Your guilty plea;

· Some principles from the case of Verdins[2] being the reduction in your moral culpability, increased prison burden and moderation of general deterrence (so the 1^st, 3^rd and 5^th limbs);
[2] [2007] VSCA 102

· Your complete lack of any past or subsequent criminal offending;

· Your youth and the importance of rehabilitation;

· Your physical conditions and increased prison burden; and

· A COVID-19 increase in the burden of imprisonment.

She placed before me a handful of other sentences as well as calling Mr Ball on the plea and whilst conceding the seriousness of your offence, argued that you should not be imprisoned. She submitted that a suitably conditioned CCO with a justice plan attached could achieve the various purposes of sentencing in this case. Her secondary submission was that if a prison term was required that it could be the subject of an immediate release onto a recognizance release order, and finally if immediate release was not open, that your release should occur after as short a time in prison as was possible in all the circumstances.

Prosecution

The prosecutor Mr Sim made submissions as to sentence. He had filed a very detailed 18-page written outline marked as Exhibit B. It was in no way controversial and your counsel confirmed as much. It went to many matters of established principle in this area, principles derived from a variety of cases to which I was referred. I am certainly not going to work my way through every submission contained within that document. Those submissions included reference to a brief chart of so called comparable cases. I read them all and as I thought likely, was not greatly assisted by that process.

I was actually not much assisted by either party taking me to other sentences imposed by other courts upon other offenders. The prosecutor challenged some aspects of the Verdins submissions and cross-examined Mr Ball on the plea in that and some other areas, including Mr Ball giving evidence outside his expertise on medical matters. There was a challenge as to the adjective used to describe your prospects of rehabilitation. In the prosecution written outline, there had been some form of challenge to any claim of the increased burden on a Verdins basis, as well as a challenge to the increased burden flowing from the medical issues. Those challenges evaporated as there was the evidence from Mr Ball on the plea as well as an update report from your Gastroenterologist, Mr Elliot. The prosecutor queried your level of insight as well as your level of disclosure in your dealings with Mr Ball. They ultimately accepted that there was some engagement of the third and the fifth limbs of Verdins but did not accept that the first limb was enlivened in this case. The written submission hinted strongly at an immediate custodial submission - that is prison - but flagged that it would depend on the outcome of cross examination. Once Mr Ball was cross‑examined and the new medical report from Mr Elliot was considered, the Commonwealth Director called for a term of imprisonment but submitted that whether it was served or whether there was immediate release onto a recognizance release order was a matter for the court. This represented a softening of stance, with the Commonwealth Director reacting appropriately to this additional mitigatory material that had come to light.

However, that submission is in no way binding on me, no more than any submission made by your own counsel as to disposition. I have to make my own judgement as to the sentence to impose and whilst of course I pay regard to all submissions made, it falls to me to exercise my sentencing discretion. The prosecution argued that a Community Corrections Order was not open here owing to the seriousness of the conduct and argued that the justice plan condition being attached to such an order was not even available as an option in the Federal sentencing sphere. Further written submissions were filed on this topic by both parties and I was also alerted to some cases which provided some limited assistance or guidance. I normally pass sentence within days of a plea. The reason the case has gone off for so long is that in May I called for the various reports required under s.80 of the Sentencing Act for consideration of a justice plan. They were meant to be prepared and available by late July but COVID-19 had a serious impact upon those charged with the task of preparing these reports. So the case was further adjourned to today's date. Ms Burnnard who had conducted the excellent plea on your behalf was unavailable for the next six weeks owing to a family bereavement but I took the view it was appropriate to finalise the matter today.

Victim impact statement

Before turning to the various submissions, let me first deal with the impact of your crime. This was serious criminal conduct, of that there can be no doubt. I am not to approach my task by saying, 'Oh well there was no actual meeting and hence there was no harm done.' There was harm done. I am very glad that the father of this young girl had schooled his daughter as to what to do if there was any concerning online conduct and equally glad that she informed him. You are lucky those things occurred for had they not, you may well have met up in person. Sometimes people are not adequately schooled and sometimes even people who have been schooled in these dangers do not actually recognise them when they arise and ultimately meet up in person, with disastrous results. I am very glad also that your inappropriate and sometimes disgusting messages including the photograph were not seen by the young girl herself, despite your best efforts. At least she has been spared that. The father was not. He never thought this sort of thing would crop up and then it did. He was a stay-at-home father. His daughter was 13 and you had no business communicating with her at all, much less in the terms in which you did. Your communications have shocked him as they would shock any father. One can almost sense his growing anger and can entirely understand it. The shock that anyone could do as you did and deal with a young person, his daughter, in the way that you were and in the face of repeated cautions as to your conduct being against the law. Of course, he is glad the matter came to light. He is right to wonder what may have happened had you been talking to someone who had been uninformed as to the dangers of online communications. It is, I think, fair to say, he is not that impressed by your reliance on a mild intellectual disability and says there are millions of people in such a state who do not target children. That is no doubt true, but I am bound to decide this case on the evidence placed before me and that aspect of the impact statement is not one that I can act on. He says he hopes you can get psychological help so that you do not repeat this conduct and is pleased that at least you are no longer working amongst children as you had been at the Miner's basketball stadium. I take into account the impact of your crime.

Background

I will turn now to your background but I will do so only briefly.

Your background is set out in some detail in the report of Mr Ball dated 29 April as well as in the written submissions of Ms Burnnard. I accept the family and personal background that has been placed before me and see no need to restate it all now. These reasons will be quite long enough already.

A very brief thumbnail-sketch will suffice. You were born 9 January 1999. You are now 21 but as I say, were 18 at the time of this offending back in 2017. Your parents separated when you were very young and you have had no contact with your father for many years now. You grew up in Ballarat and were raised by your mother and grandmother. You have a younger brother also living at home. After primary school you went on to St Patrick's College up in Ballarat but as early as Year 7, it was plain that you were struggling, hence the psychological assessment and the report from Ms Justine Duncan dated 6 September 2011. You had and still have a mild intellectual disability. You always will. As a result of that assessment, you received additional support in class. You did what was described as your VCE but Ms Burnnard told me that it was in fact the VCAL at St Pat's. You then repeated by doing the VCAL the following year at a different school. That was in 2017. In 2017, you did some work experience at a sports stadium and continued on after that placement ended. You were working there and studying at the time of the offending. That work came to an end when you lost your Working with Children Check. There is a letter from Mr Eddy as to your efforts. Ms Burnnard spoke of that being one of the impacts of your crime and it is but it is not a matter of any great weight, in my view. On any view of it, you are not suitable to be liaising with children and that is reflected in the appropriate cancellation of your Working with Children Check. You have been unemployed for a sizeable period and you receive Centrelink benefits.

There is much material touching upon a long term and serious bowel condition which has plagued you from about 2014. I will describe it as an inflammatory bowel disease. There seemed to have been some issue for many years as to whether it was Crohn's disease or ulcerative colitis and in a way, it does not really matter, for the impact of the condition is what is important, not its labelling. But it seems apparent from the most recent report of Tim Elliot that it is Crohn's disease. The condition has been and is still quite serious and is likely to be serious in the future. It has been the subject of multiple hospital admissions and other investigations and medical interventions over the years and you take a range of medications. You are on a strict regime of medications including injections and immuno-suppressant medications.

You are supported by your family. Your mother and uncle sat in on the WebEx hearing on the plea date. Today, your mother has attended court with you.

You have no criminal history at all.

Guilty plea

I turn then to the various other matters that have been raised in mitigation.

Firstly, your guilty plea. You have pleaded guilty. You dithered around for a fair time, far too long for your own good actually. The first three mentions had a different firm of solicitors and then there were two more and then the two committal listings which thankfully did not go ahead. Ms Burnnard was frank in telling me that you perceived that you had some defence. Of course, you had none and perhaps it is connected up to an inability still to really understand the true seriousness of your conduct and the difficulties of giving advice to one with your level of functioning. Anyway, I am not going to delve deeper into the reasons Ms Burnnard advanced to explain the delay. It is unimportant. What is far more important is that you have actually pleaded guilty. I must reward that stance and there are many pleas that are far later than yours. It is still a relatively early plea, though it would not have felt like that to Mr Gray[3].
[3] A pseudonym

You have ultimately taken responsibility for your offending. There is a utilitarian benefit in pleading guilty. Witnesses have all been spared the experience of coming to court to give evidence. Now it is true Mr Gray and two other witnesses attended at the first committal listing but were then waved away. They, and all the other witnesses for that matter, have been spared the experience of actually giving evidence. The community has been saved the time, the cost and the effort associated with the conduct of a contested criminal hearing, either a trial up in this court or an actual committal hearing in the court below. I must reward you for facilitating the course of justice in the way that you have.

Contrition

A guilty plea is usually, although not always, indicative of at least some contrition or remorse. You have pleaded guilty and at a relatively early stage.

There are no other indications of any great contrition in this case that I can find. Ms Burnnard did not even suggest that you were remorseful and I am not that surprised. Mr Ball in his account does not suggest that there is remorse and in fact suggests that there is a significant lack of insight and either an incapacity or an unwillingness to give an account of why you acted in the way that you did. He said that when he saw you, you were having difficulty understanding the seriousness of your conduct and why you were in such trouble and this, it must be said, was still quite recently. You have given no account at all of your conduct to Mr Ball. None. That is, he said, a 'huge problem'. There is no evidence of any great insight into the potential damage of this sort of communication.

I cannot find the existence of any significant contrition in this case over and above any that I treat as evidenced by your plea. That is not a matter in any way in aggravation. It is just the reality confronting me.

Rehabilitation and youth

I turn now to consider your prospects of rehabilitation. Those prospects are intimately bound up with your youth so I will consider both aspects. It must not be forgotten that you were still at school and only 18 at the time of the offending and obviously quite immature going by the nature of some of the texts and the emotions expressed in them. You have no prior convictions at all and nothing since in the period of almost three years since this offending. The delay in the case being finalised was not relied upon in a mitigatory way in terms of any increased burden upon you as you have brought about most of that delay other than the period of about 12 months between being interviewed and being charged.

The delay can still be taken into account. It can only assist you that you have stayed out of trouble in that lengthy period whilst this matter has waited in the wings. That gives me some confidence that you can continue on in that way in the future. It is relevant to my assessment of your future prospects.

I give weight to the absence of any prior history as I must, but it is actually not that uncommon in this sort of case. I have your guilty plea and the presence of some limited contrition. I have the reports of Mr Ball and they do not actually give me enormous comfort. Nor does his evidence. He speaks of the challenges facing your safe management in the community but comments also on the reduction of risk that may be brought about by a tailored program including a sex offenders' program. That would depend to some extent though on your being truthful and meaningfully engaged in that process. He said the absence of information from you is a “huge problem” but on any view of it, he said your conduct had an aspect of deviancy to it and that treatment is critical. He agreed that he does not really know why you acted in the way that you did. He gave very strong advice to you as to the need for treatment and provided a referral and a phone number or email and insisted that you arrange immediate counselling and do as many sessions in the lead-up in to the court case. You gave what he described as a vague statement of intent but spoke of some logistical difficulties, as the other expert was in Melbourne. You did not attend that other psychologist/counsellor. I have the persistent nature of your conduct even in the face of strong communications alerting you to as how wrong it was. You knew that legally, it was wrong, of that I have no doubt at all.

However, you were so young at the time of the offending and very obviously immature. Your youth is of obvious importance to my task. I take into account those principles as set out in cases such as Mills[4] and Azzopardi[5]. Young people are more prone to error. Even when fully functioning, they are not fully developed. They can make very poor decisions without necessarily considering the consequences. They are more amenable to successful rehabilitation because they are young and less set in their ways. Youthful offenders are also far more vulnerable to the corruptive influences which abound in adult prisons. There is much said about that in the report of Mr Ball and I do not doubt it for one moment.
[4]R v Mills (1998) 4 VR 235 (“Mills”)
[5]Azzopardi v The Queen [2011] VSCA 372 (“Azzopardi”)

The law generally treats youth as involving some reduction in culpability and as leading generally to some moderation of the purposes of sentencing including the need to deter and to punish. There is, for good reason, generally, a much stronger focus on rehabilitation and less weight given to punishment. It should not be forgotten, but often enough it is, that the rehabilitation of a youthful first offender serves to actually protect the community. Investing in rehabilitation actually serves not just the offender but the community as well. A rehabilitated offender is not a threat to anyone. A prison term imposed to satisfy some of the other purposes of sentencing including punishment and deterrence can often even set back the rehabilitative prospects of a youthful offender and in that same way, impact negatively upon the community itself. The Sentencing Advisory Council ('SAC') released a lengthy paper late last year dealing with the complexities of sentencing young adult offenders. See the paper 'Rethinking Sentencing for Young Adult Offenders' (SAC, December 2019).

The benchmark then for sending a youthful first offender to prison is a high one indeed, as it should be.

The weight to be given to youth will necessarily vary though from case to case. Sometimes there is no choice but to send a youthful offender, even a youthful first offender, to prison. As judges, we do it often enough and that is owing to the gravity of the crime and the need to give weight to other purposes of sentencing. We cannot just focus on what is best for an offender. We cannot just focus on rehabilitation and youth. In fact, the more serious the crime the less weight can be given to youth and to rehabilitation and the more weight given to other purposes including community protection, deterrence and punishment. I do not lose sight of your youth. However, it is only one matter that I must consider and regrettably you have chosen to commit a serious crime indeed where other sentencing purposes must be given adequate weight.

Your family are supportive of you. That is a positive.

I am reasonably confident that the process of being arrested, charged and then being brought before the court for the first time in your life, as well as serving the sentence that I will soon pronounce, will to a degree serve to deter you into the future. I am prepared to find that you have quite decent prospects of rehabilitation. Ongoing treatment is obviously important and may well reduce your future risk.

Assessing your prospects in that way may sound a bit guarded. It is a bit. That is because of the complete silence in the report of Mr Ball as to why you have done what you have done. He has no answers and that is principally because you provide no full account. You deny any attraction to children and he says you do not meet the DSM‑5 criteria for paedophilia but that is owing to the limited duration of any attraction. Again, that is dependent on your account to him and there is an inconsistency between your denying any attraction to children and acting in the planned and persistent way that you did. Mr Ball said as much. Your conduct is not, in truth, explained and there is little evidence of any insight on your part and no evidence of any ongoing treatment or therapy as sometimes is placed before the court. I suppose at least your mother and grandmother are on notice and I very much doubt if you would look forward to coming back before a court again. They will do their best to avoid that. So as I say, I conclude that you do have decent enough prospects of rehabilitation but treatment and counselling is of real importance.

Intellectual disability and Verdins

I take into account the written materials filed on the plea. I had read all of it before the plea commenced. I have re-read it all more than once since. I see no need to descend to the finer detail of the reports of Ms Duncan and Mr Ball or the various medical materials relating to your physical condition. I have already spoken of some of the evidence from Mr Ball a moment ago when dealing with youth and rehabilitation and I shall not repeat it all now. I move then to the aspect of intellectual disability and the discussion of the case of Verdins. I could spend the next hour dissecting in these reasons the various materials placed before me which discuss your level of functioning. There is just no point in me doing that. This is not a case where some mental state or condition is being whistled up out of thin air after a 45-minute consultation with a tame expert and nothing objectively to support the opinion provided.

You actually have a mild intellectual disability. You have had it throughout your entire life and the assessment in 2011 confirmed that fact. That was not done in contemplation of a court case but rather because of your struggles in the first year of high school. Mr Ball confirms it upon his recent assessment. So you plainly function at a very low level. The fact of the intellectual disability is not in any way in dispute here, rather the weight to be attributed to it.

It is described as a mild intellectual disability, but that adjective 'mild' should not be misunderstood. It has a particular meaning when used by a psychologist. If someone has a mild cold, it might mean that it is a very minor illness as illnesses go. There is nothing mild or minor about having a mild intellectual disability. To be so described, there are significant deficits in functioning with the vast majority of people in the community performing at a superior level than you. The statement under the Disability Act speaks of your significant deficits in adaptive behaviour and significant sub‑average functioning.

I accept that the three principles relied upon from the case of Verdins can be given some weight in this case. But it is then always a question of determining what weight. That will always depend on the nature and the effect of the condition. I believe there can be some reduction in your moral culpability. I am not by the way assisted by Mr Ball breaching the Practice Direction and giving his opinion as to the existence of a reduction in moral culpability. It has nothing to do with him and he should not be expressing the opinion as to reduced culpability. It is for me to decide. Nor am I greatly impressed that he did not examine the actual communications sent by you, but rather acted on a summary of them.

He recognised that there were some problems in his assessment and the main one was your giving him so little material to go on. There was either an unwillingness or an incapacity to discuss the matter and that, as he said, was a “huge problem”. There was also the impossibility of disentangling the impacts of immaturity owing to your youth as opposed to the impacts of your limited functioning. Each would have a role to play here. Each would have contributed to a lack of consequential thinking and I have already made an allowance for reduced culpability owing to your youth.

I am not satisfied that your condition deprived you of the ability to understand what you were doing. You knew what you were doing and that it was wrong and illegal. I am satisfied of that beyond reasonable doubt. You were not acting under any delusion or truly clouded judgment in that respect. I am not satisfied on the balance of probabilities that your intellectual disability drove the decision to seek out this young girl. This is the sort of crime committed often enough by people who have no intellectual disability at all. Immature men also do silly things often enough.

Having said all that though, you were young yourself, immature and with the intellectual disability and with a low sense of self-esteem to boot. The texts, or at least some of them, had a very infantile and naïve tone to them and demonstrated very little understanding of the formation of a relationship or the social niceties or rituals in that regard. You had no real understanding of basic courtship or how to relate to or engage with an age-appropriate woman. You were using your true name and age and phone number. You were being told repeatedly how wrong it was and you recognised that fact. You tried to talk your way around that issue. It was certainly not impulsive behaviour and in fact it was accepted by your counsel that you were controlling this conversation and that there was an aspect of manipulation that you were engaging in.

To attract the first limb there has to be some realistic connection established and it is pretty thin in this case notwithstanding that I have no doubt that you had the disability. However, that disability is with you always and in combination with your level of immaturity, impacts to some degree upon the exercise by you of appropriate judgment and your ability to engage with others socially, as well as considering the consequences of your acts. No doubt, it had a role to play in this offending.

I do not believe there is any basis to allow for very substantial reduction in your moral culpability here, but I will still give the first limb some weight. I do not believe that there can be any significant reduction in the weight to be given to general deterrence. Again, I have to look at the condition and its impact. I am prepared to moderate that purpose to a degree, but it is far from eliminated here. So I give the third limb some weight. Finally, it is surely beyond dispute that in your case, there is an increased custodial burden posed by your intellectual disability in conjunction with your age, immaturity and appearance. Mr Ball speaks of those matters quite directly both in his report and his evidence. I will act on his opinion. So, I give some weight to the first, third and fifth limbs from the case of Verdins, consistent with your counsel's submissions.

Increased burden: physical health as well as the COVID-19 response

Quite aside from these Verdins-driven increase in the burden of imprisonment, I also have your physical health concerns. I have a number of reports placed before me from your treaters. I do not doubt for one moment, and nor does the Commonwealth Director, that the physical conditions spoken of would make your time in custody more onerous for the reasons advanced in paragraphs 10 to 15 of the written outline. In addition, we have your immuno-suppressed state and the reports from Dr Cruickshank and Tim Elliot in that regard. You have that increased vulnerability physically. Though I do not doubt that your condition can be managed medically in a prison setting, that is not to say it would not increase your prison burden. It plainly would. It would also distance you from the relationships you have formed with Mr Elliot. It would be a less pleasant experience still to have to leave custody under guard to have investigations or tests or ongoing management with new medical practitioners, especially with the current need to quarantine upon any return to a prison setting.

I accept also that the COVID-19 virus and the response to it by those running the prisons would increase your prison burden to a degree. Prison is currently a more stressful environment. Prisoners cannot make a decision to self-isolate. Social distancing is not easy. No doubt there is worry about catching the virus in such a setting where there is no level of autonomy. You have some added vulnerability owing to your immuno-suppressed state.

It is impossible for me to know precisely how the virus or the response to it by those running the prisons would impact upon you in the future, if I imprison you. There are some lockdowns but they do not exist across all prisons so I cannot conclude that they would necessarily apply to you in the future. Visits have already been suspended and so have some courses and programs. I cannot know how long those things will persist and I understand that alternative means of doing courses and programs have been established.

It is actually impossible for me to forecast the impact of this virus either on those in the community or those in prison. Some cases have been discovered in prison in recent times but not many. There has been a state of disaster declared since I first saw you and with an extension of the Stay at Home Directions. There is now a roadmap to reopening but it does not suggest to me that there will be any prospects in the short term of the prison conditions being returned to the pre-COVID-19 setting. So, prison life is tougher for those who are sent there and more so for one such as you, an intellectually disabled, first-time offender. I would expect there will be less time out of cells, hence more time in cells; less access to some programs and courses and no access to in-person visits for quite some time. Also, a 14-day isolation period if sent there. I accept then that there is an increased custodial burden in your case for these various reasons and I will take that into account in your favour.

Principles

I turn now to some of the general principles at play in this sort of matter.

The principles for sentencing in relation to this matter are just not in doubt. Some are referred to in the prosecution written submissions and in some of the cases to which I have been referred by both parties. The Court of Appeal in this State has frequently commented on the seriousness of sexual offences targeting children. So too other high level courts around the country. You sought to bring about or procure a sexual act with a child. After a time, you knew her age. You knew the proposed acts were illegal and knew also that the chat was wrong. There is a strong public interest in protecting children. These provisions exist to protect children from the considerable harm that may be done to them by communications on the internet by those seeking sexual involvement with children. It is a serious crime and that is so even if no sexual act occurs. Often enough there is a covert operative. Sometimes there is a reporting by a child or discovery by a parent or responsible adult but what of the other cases where it is not nipped in the bud in this way, as it was here by Mr Gray becoming involved? The seriousness of the offence is not to be underestimated. So said the Court of Appeal in the case of Singh [2017] VSCA 146. The conduct which the section prohibits is insidious and often highly damaging. Children are vulnerable to abusive predatory approaches which are of their nature, liable to be kept secret from third parties. The cases are clear that the offence usually merits a term of immediate imprisonment and that lesser sentencing dispositions should be very rare. They are generally the exception. See paragraph 64 to 65 of the case of Singh. No doubt the Court of Appeal were right when they said that. However, I have to be a little bit careful about just adopting that approach as a starting point in the plea. I am a sentencing judge exercising a discretion. There is no exceptional circumstance test set out in the Act applying to my task. Recent amendments in fact introduce a presumption of immediate imprisonment other than in exceptional circumstances, but those amendments do not apply to you, given the commission date of this offence.

I must not treat prison as the starting point or default position. To do that would be to import into the Commonwealth Crimes Act a provision that until recently did not exist and one that does not apply to my sentencing task. There is of course no default position or starting point in this case other than me coming on to the Bench, acting judicially and exercising faithfully my sentencing discretion. That is what I must do. Your counsel is right though to concede that this was inherently serious offending. It was.

It is not mitigatory that you were in fact talking to the girl's father. At least she has been spared the experience of seeing the chat and the image you sent. But you believed throughout the communications embraced by this charge that you were communicating with a 13-year-old girl. You were only 18 years of age yourself so the gap in age is nowhere near as large as most often is the case and at least you were not lying about that fact. You were also an immature 18-year-old. You were counselling secrecy in any meeting. It matters not who raised the physical act. Your counsel took me to a portion of the communications at around page 147 and what the father (posing as the daughter) had said in his communications to you. It was being suggested that the later graphic communications from you were to some extent precipitated by that process. That is not a fair reading of the communications at all in my view. There had been a vast array of communications up to that point where patently, you were leading up to that moment of suggesting physical contact. You had been suggesting illicit meetings and hugs, almost from the outset. You had declared her your girlfriend and conveyed your love for her. To say that in some way the father brought on the later graphic discussions is entirely unrealistic. He did not. You were heading there yourself, of that I have no doubt. So there is not much in that point at all. Your counsel said it could have been a longer period. Well, it could have been longer or it could have been shorter. It is what it is and I have to sentence you for what you have done. But in the four days, you were ramping up the pressure. It was persistent, repetitive and at times quite manipulative conduct over a number of days. You sent a photograph of your penis and requested that 'she' return the favour with an intimate photograph. You were bringing pressure to bear on that score despite the sensible explanations given as to why 'she' would or should not do so. You were seeking to meet as soon as was possible. This was not just talk. This was not some impossible event with people in different states or even different countries. You were pressing to meet and you hoped to. You were, in having these communications, seeking to procure a sexual act with a person you believed to be 13 years of age, who was living in your own town. Thankfully, it was nipped in the bud before it was taken to the next stage.

The internet has changed our lives forever and this sort of matter shows how it is not all change for the better. The cases show how prevalent this crime has become. Social media platforms are not without risk especially when there are people such as you online. The internet makes such connections between adults and children so much easier. Online, there is the ability to avoid the scrutiny that would occur, for instance, in going to the front door and knocking on the front door, and saying to Mr Gray 'I'm here to see your daughter.' He would tell you to scram. With the internet, responsible adults can be cut out of the equation and there can be direct unfiltered and damaging communications between adults and children. There must be a strong message sent by the courts to adults who use the internet for their own warped sexual purposes, as you did.

General deterrence is still then an important sentencing consideration notwithstanding the Verdins moderation here.

The authorities make plain that past good conduct is to be given lesser weight than is often the case. That is because it is commonplace to have offenders with no criminal history. It is still obviously relevant to my task and I take into account your lack of any criminal history. I cannot just ignore that fact. But of course, because weight has to be given to other factors, less weight can be devoted to your past good character.

You are genuinely a youthful first offender. Not just that, but one with an intellectual disability as well as significant vulnerabilities in a custodial setting. I believe I must extend significant leniency to you on account of those matters and to some extent moderate the more punitive sentencing purposes which would be given full weight in a different setting. For instance, the setting of an older or more mature offender or for someone with a track record before the court. We would not be discussing community corrections orders or immediate release on a recognizance release order if you were 28 years of age engaging in this activity or if you had any relevant past criminal history. But you were not either of those things of course. You were 18 with no criminal history.

I take into account the matters that are set out within the relevant provisions of the Crimes Act 1914 (Cth), in particular s.16A(2). General deterrence is, as I say, plainly still important. So too denunciation. I must give weight to the need to punish you adequately and to also adequately reflect specific deterrence and protection of the community. I have mentioned your age and come back to it as I have when re-reading the materials in chambers. Rehabilitation is important here given your age, immaturity, intellectual impairment and your lack of any criminal history. Your conduct betrays a significant deficit in understanding how to make social connections. You plainly need counselling and treatment in that regard.

I take into account all the materials that have been placed before me and the submissions made by both counsel in this case.

I am required to impose a sentence that is of a severity appropriate to all the circumstances of the offence.

Prison is always a disposition of last resort. Adult prison is my only confinement option as you are now too old to be sent to a Youth Justice Centre.

Consistency of sentencing is also an important consideration. I must and I do pay due regard to current sentencing practices. But it is only one matter, not a controlling factor. I have looked at the various cases that I have been referred to by each party. The use of other cases, even comparable cases, has inherent and obvious limitations. That is because I have to pass an appropriate sentence in your case. No two cases is ever the same. No two crimes are ever the same. No two offenders are ever the same. As I said earlier, I was not greatly assisted by the process of wading through these other cases and looking at the sentencing outcomes in those other cases.

The principles are always far more important than the actual sentencing outcome.

Ms Burnnard was going, not so much to the matters of principle, but rather to the sentencing outcomes in these other cases.

All those sentencing decisions I was taken to represent no more than the sentencing discretion exercised by another court or judge, in relation to another offender. We have then different crimes, differing conduct, different personal circumstances, differing matters in mitigation and aggravation, even in some instances different maximum penalties. There was never any one correct sentence. Another judge may have passed a different sentence in relation to each one of those other offenders and been entirely within his or her rights to do so.

That is because there is no such thing as one appropriate sentence. These other sentences imposed on other offenders are in no way sentencing precedents to be followed by this court unless somehow distinguished. They are not precedents at all and they in no way bind me.

None of those outcomes in any of those other cases says anything at all about the outcome required in this case - your case.

I am growing a bit tired of being taken to sentencing decisions of judges of this court. The sentencing decisions of judges of this court do not even provide any particular matter of binding sentencing principle. The principles are what is important and as I have said, they are not seriously in dispute in this area and so much can be gleaned from cases in the higher courts. Incidentally, many of those other sentences referred to by Ms Burnnard pre-dated the Court of Appeal decisions in Singh [2017] VSCA 146 and Meadows [2017] VSCA 290. In each of those cases, the Court of Appeal made some pretty strong statements as to the seriousness of this offence.

What I have to do is pass an appropriate sentence in your case for your crime, taking into account the mitigatory matters in this case and taking into account your background.

CCO and Justice plan or prison

The plea was conducted on 6 May of this year. I called for the relevant reports under s.80 of the Sentencing Act. As I mentioned earlier, there have been delays in those reports being finalised owing to the impact of the COVID 19 virus. You have an intellectual disability and I have that statement under the Disability Act 2006. I also have a disability overview report and a statement as to available services.

I have also more recently had you assessed for your suitability for a community corrections order.

You have been assessed as suitable for such an order which is entirely unsurprising. I have read and I do take into account that assessment report and the other reports prepared under s.80 of the Sentencing Act.

There was a live issue as to whether I could, as a matter of law, attach a Justice Plan to a Community Corrections Order in the Federal sentencing regime. The Crown submit that such an option is not open as it is not specifically embraced as one of the prescribed dispositions available. Section 20AB mentions specifically a community corrections order but does not include a Justice plan. Section 2 of Part 3BA of the State Sentencing Act 1991 is not prescribed for the purposes of s.20AB of the Crimes Act 1914 (Cth).

The argument is that there are particular provisions set out in Division 9 of the Crimes Act 1914 (Cth) providing sentencing options for offenders suffering from mental illness or who have an intellectual disability. See sections 20BS to 20BY. The argument that those provisions cover the field and impliedly exclude the operation of alternative State laws relating to sentencing persons with an intellectual disability. Hence, the Director argues that whilst there may be no impediment to incorporating some aspects of a Justice plan as a condition of a recognizance release order, it is not open to actually impose a community corrections order and attach a Justice plan to such an order. I am not going to set out the full legal arguments of the parties. Even in discussions on the day of the plea, without any reference to the case of Cone[6], my provisional view was that the prosecution argument was misconceived.
[6]R v Oscar Cone (A Pseudonym) [2019] VCC 2241 (“Cone”)

I have considered the matter afresh and I am unchanged in that view. The argument elevates a Justice plan to a sentencing disposition. It is not a disposition. It can be attached to a sentencing disposition in some circumstances. The sentencing disposition here would be a community corrections order, with a Justice plan as one of the tailored conditions of such an order. I see no inconsistency at all in such a condition being attached to an order in the Commonwealth regime. I reject the prosecution submission. I note that Judge Fox of this court did so as well and I agree wholeheartedly with her reasons for doing so. It would be a strange outcome to find that this ‘implied’ inconsistency prohibited a Justice plan being attached to a community corrections order, whilst at the same time concluding that the aspects of the Justice plan could be made conditions of a recognizance release order. In any event, the provisions in the Crimes Act dealing with impaired functioning all require a causative connection. A Justice plan does not. It is designed to reduce the risk of future offending by linking an offender in to available services. It also is a means of ensuring better and more meaningful compliance with the actual sentencing disposition, being the community corrections order. The community corrections order is the sentencing disposition and that undoubtedly is a prescribed disposition under the Crimes Act. So, as I say, I reject the Crown submission.

That is not the end of the matter though. That disposition, a community corrections order with Justice plan being as a matter of law available, does not then lead unerringly to my selecting it. It has to be available to me in the sound exercise of my sentencing discretion.

I move to pass sentence in this case.

Your counsel argued that you could be released onto a community corrections order and not receive a prison term. That the last resort of prison had not been reached here despite the undoubted seriousness of your crime. That the alternative of a community corrections order with a Justice plan could achieve all the various purposes of sentencing whilst at the same time avoiding the corrupting influences of prison upon one such as you. In this way, it is said your interests and the communities interest in your rehabilitation can be well served.

I have thought long and hard about this issue and have obviously reflected on the gravity of your offending, the maximum penalty and the strong statements from those above me in the court hierarchy as to the seriousness generally of this offence and the usual court outcome for most offenders. However, I am not dealing with 'most' offenders. I am dealing with you. You are unusual in the sense that you were but 18 yourself, a genuine youthful first offender, immature and with an intellectual disability. You have a raft of issues which would undoubtedly increase any prison burden. Of course, I pay regard to the submission made by the Director of Public Prosecutions as to the need for a term of imprisonment here, albeit, not necessarily one to be actually served by you. I give due weight to that sentencing submission. Having done so though, I reject it.

I have ultimately decided that I can convict you and admit you to a community corrections order and attach a Justice plan to that disposition and that such an outcome does achieve the various purposes of sentencing in this case.

I do not want this case cited back to me or to other judges of this court at future pleas as being the sort of disposition generally open for this style of offending. As can be seen from the cases I have referred to, it plainly is not. The usual outcome will be a prison term. A non-custodial outcome is available here for the reasons that I hope I have adequately spelt out, and they involve a combination of features which are really unlikely to arise all too often. Even if they did, they would do so in the setting of a much stricter legislative provision in the future which spells out a presumption as to actual imprisonment in the absence exceptional circumstances. That provision does not apply to my task, but it would apply to future offenders.

I can only put you on a community corrections order, Mr Cameron, if you consent. So I am going to have you remain seated up there and I want you to listen carefully. I am going to explain the order. I know I have been talking for a long, long time. I am going to explain what I am going to do. I am not sending you to prison. I hope you understand that.

ACCUSED: Yes, I heard it.

HIS HONOUR: So you are shortly going to be leaving the court. You will be going home with your mum. But I have got to explain this order because I need to know that you understand it and that you consent to entering into the order. At the end of my explanation, I will get Mr Barreiro to go down and have a chat to you and if you have got any questions, have a chat to him. Because I want to make sure you understand, all right?

ACCUSED: Yes, Your Honour.

HIS HONOUR: So just listen carefully and I will go through this in some level of detail. Mr Sim, while I am just waiting for a copy of the order, there are no ancillary orders in this case other than the Sex Offenders Registration Act issue?

MR SIM: No, Your Honour.

HIS HONOUR: All right, thank you. So now, you spoke to the assessment officer and no doubt these things have been explained. But I just want to go through in a bit of detail because you are a stranger to the courts and I want you to understand what this order actually involves. I do not want you to breach it and I need you to understand what can happen if you do breach it as well.

Standard or mandatory conditions

As you have probably been told, I am not sure how much of this you would have understood but these orders have what are referred to as mandatory terms. Everyone who gets them has the same things that apply to them, all right? Whether it is you or anyone else. These are some core terms that apply. And the first of those is you must not commit another offence for which you could be imprisoned during the time that the orders is in force.

It is going to be an order for two years from today's date. So it runs from today and it will run till September 2022. You will get a copy of this too by the way. So that is the start. You must not commit another offence. Well, that has not been a problem for you for your whole life really until you committed this offence. It should not be a problem. But if you commit any offence for which you could be imprisoned in the two-year period of this order you will breach it. Just to explain that, it does not mean you have got to commit the same offence. Any offence for which there could be in theory a term of imprisonment imposed. That will breach this order.

To further explain it, and I am not suggesting you are going to do this and no reason for me to think you would. But if you snuck into a milk bar or supermarket and stole a 30-cent lolly, no Magistrate in their right mind would lock someone up for that sort of crime of theft but that would breach this order because it is punishable by a term of imprisonment. You understand? In other words, you stay out of trouble. It should not be a problem. It has not been a problem for your whole life. So that is the first of the terms.

You have got to turn up on time, totally unaffected by alcohol or drugs - well, that is not going to be an issue for you, and ready to do whatever you are asked to do under the order. You must report to and receive visits from the community corrections officer.

Now a lot of this is - in the early phase of the order - will be done over the phone I suspect because of COVID-19. But you are going to have to report within two working days of this order starting. So it starts today. Normally, in the past, people have to turn up physically at the community corrections office. Here it is the Ballarat Community Correctional Services in Mair Street up in Ballarat. But at the moment, again because of COVID-19 there is a phone number on the document. Ring the phone number. Do it later today or do it on Monday. And they will give you further directions. So that is the next thing you must do. You must report within two clear working days. There is that number. Ring it.

You must let them know within two clear working days of any change of address or job. That should not be an issue. There is no suggestion you are moving. You are going to be with Mum, you are with your grandmother. But if at any stage you are moving address, you let them know. Let them know in advance. Likewise if you get a job, hopefully you can get a job. And if there is a change of job, you let them know about that as well. You just keep them informed in other words and do so immediately.

You also must not leave Victoria without first getting permission to do so from - I do not think any of us can leave Victoria at the moment. It is impossible. But for the period of this order, you cannot just get up and leave. No suggestion that you are going of course. And I want to make it plain, if there is a good reason to be travelling interstate, you might have an interstate holiday. You might be lucky in that respect, I do not know. Well, you would apply to get permission. And they will probably give it to you if you are doing well on the order. They will probably give it to you. But you do not just get up and leave. If you do, you breach the order.

Finally, you must obey all the lawful instructions from the community corrections officer. So these are the mandatory conditions that apply. You breach any of those, you breach this order.

Tailored conditions

Then there are the tailored conditions that I apply from case to case and I am going to select particular conditions that will meet the needs of the offender, you. But also the needs of punishment and deterrence and these other sentencing purposes.

Now, the first of those is unmistakably punitive. It is unpaid work. Now, at the moment, unpaid work is not available or very, very rarely available. They are doing some of it remotely at home and there is not much going around. So they are suggesting that I not select that condition. But I believe I have to.

I ordinarily would use unpaid work as a clear means of punishing a person. It is unmistakable, the aspect of punishment. As I say, currently there is very little unpaid work available owing to the COVID-19 virus. I do have some reservations about imposing unpaid work, not owing to the current suspension of it but more connected up to the concerns I hold as to you meeting perhaps the wrong person or type of person in that sort of setting. You have to be really careful about that. I have no doubt that prison would be very corruptive for you and I have some concerns that there may be some process of corruption or you being brought into contact with undesirable influences in an unpaid work setting. But I do not think I have got any choice in this case. I have to, I believe, impose some unpaid work. I am going to keep the numbers of hours down and as I say, initially you will not be able to do any of it. As soon as you get the green light to do unpaid work, get it done and dusted. Do it. And do not have that sort of wagging its tail at the end of this order. You want to get it done as soon as you can. It is going to be 150 hours of unpaid work, all right? That is over the two-year period of the order. So I am keeping that total down for the various reasons I have announced.

One other reason of course is I think treatment for you is an important aspect of this order. But I would rather there be more time devoted to treatment. But as I say, I believe there has to be unpaid work and so there will be that 150 hours of unpaid work.

You have got to be under supervision of a community corrections officer for the full period of this order for two years. Then there are some treatment and rehabilitation conditions. You must undergo any mental health assessment and treatment as directed. The actual condition is much longer than that.

You must participate in programs or courses that address factors related to the offending as directed by the regional manager, including participation in forensic intervention services. That would contemplate for instance the direction to do a sex offender program. So that is also required here.

I am going to monitor you. So we are going to meet again. Given your age, given the nature of this matter, I want you to know that this case is not over. You are coming back to see me again and I want you to understand that and to bear that in mind. And so, the best way I think for that is for me to schedule a hearing probably three months from now and we will meet again. So I am going to monitor this order. So judicial monitoring - you must attend for review. This is all on the document by the way.

You must attend for review on 17 December at 9:30 am at Melbourne County Court.

Then there is a Justice plan. There was a lot of talk about the Justice plan. You heard me deal with aspects of the legal argument. The prosecution were saying the Justice plan was not available in the Commonwealth sentencing regime. Your counsel was saying it was. I have taken the view that it is. I am going to attach the Justice plan to this order. You must participate in the services specified in a Justice plan for two years and to avoid any doubt, I am actually putting in the actual order itself what those recommendations are. You must follow the Justice plan recommendations dated 1 September 2020 namely to engage with a Disability Justice coordinator from the Department of Health and Human Services; and that you agree to any supports and treatment that are identified by the Disability Justice coordinator.

Further, that you agree to assessment and treatment of your sexual knowledge and you agree to referrals to access disability and generic supports that assist with your skill development. So these are useful things for you. They are useful for the community because they will hopefully prevent you from ever coming back before a court. But they might be useful in many other aspects for your life hopefully. So I would hope that you could actually get some benefit out of this order as well in a social setting, maybe in a work setting. Maybe some access to programs that might give you some entry into the workforce even.

Let me just see if I have gone through all of those matters. I think I have. They are the full list of mandatory terms and conditions. If you breach any of those, then you breach this order. Now, I do not know exactly what is going to happen in terms of unpaid work. Is it going to be opened up before Christmas? I do not know. But it will be opened up. Once it has opened up, as I say get it done. I have seen enough people who I have put on these orders who do not do the work and the order keeps running and they are getting close to the end and then it becomes a massive rush and worry to get it finished. Get it done. Get it done as early as you can. You have got a lot of time on your hands. Better use it. As I say, it might actually give you some sort of entrée into paid work. You never know. One thing might lead to another. As I say, get that done.

I do not know what they are going to be suggesting in terms of where you are going to be doing the unpaid work. What I know is whatever they tell you to do, you do. It is not an option. You do not say, 'Oh, I don't think I'll do that.' You do what you are told to do. Likewise, in terms of the mental health assessment and treatment, I do not know what they are going to ask you to do. But again, whatever direction they give, that is what you are required to do. And the same with the Justice plan. Whatever the community corrections officer tells you to do, you must do.

Now, you have never had one of these orders before. You have no idea really how it is going to unfold. There will be a community corrections officer who will be appointed to you. There might be a change from time to time. I do not know. I hope they can maintain one officer for you but sometimes it does not occur. Form a decent relationship with that person. That is important. I have no reason to think you would not actually. Be respectful to them. Do not muck them around. Unpaid work is meant to be a nuisance for you. It is a punishment, unmistakably a punishment. People do not enjoy it. It is sometimes inconvenient. It might be clashing with other things you would rather do. Well, tough luck. You just do it.

Do not, do not play games with your community corrections officer. They have heard every excuse under the sun. They know what a legitimate excuse is and one that is not legitimate. If you do not turn up at the unpaid work, you will be in breach of this order. If something crops up, say it is a medical issue, you have got some serious medical issues, if there is a medical issue that crops up that makes one of these attendances under this order hard, get on the phone and speak to them. It is amazing how many people do not and then they get into massive trouble by breaching the order. Get on a phone, reschedule an event if it is something that clashes with - for instance - a specialist appointment. Well, just reschedule the unpaid work. They will do that. They are not going to muck you around. If you get a job, a paid job, they are going to be very excited about having you in the paid workforce. They are not going to want to jeopardise your paid employment by having you do unpaid work. So if there is a clash, get on the phone to them or get Mum on the phone with them and just let them know and they will reschedule. If something crops up urgently on the day, again, get on the phone. Do not just do what so many people I have seen do and that is do nothing and bury your head in the sand and not turn up on the next occasion and before you know it, you are brought before the court in breach. Do not be one of those people.

So as I say, form a decent relationship with your Corrections officer. Do the things that are requested under the order. It is not a particularly onerous order. It has got 150 hours. It has got these various conditions. Many of these are designed to assist your rehabilitation. So the best way is to comply with everything that is being requested and you will not run into any trouble. It is amazing how many people breached these orders. I have been sitting as a judge for more than a decade now and I think I have probably ceased to be amazed at this point. But I have seen every imaginable breach. I have seen people who have not bothered to report within two working days. People who have just left the State, left the country, not been bothered about unpaid work. These are people who have been greatly relieved to be placed on the order, as I am sure you will be. You had no idea what was happening here today - whether you would be going home with your mother or whether you would be going out the door to prison. Well, you are going home. So I am sure you will be greatly relieved but I have seen other people who have been greatly relieved to be on these orders who have then breached them. It is incredible that that happens but it does. Do not be one of those people who breach the order.

I should tell you then what happens if you do breach the order because that is important. Well, breaching one of these orders is itself a criminal offence. That is punishable by a term of three months' imprisonment. But that is not the real sting. The sting is it comes back to this court. It does not go to the Magistrates' Court. It does not go to just another judge in this court. It comes back in front of me. So I would be coming onto the Bench, you would be down in the dock of the court again. I will come onto the Bench with all the materials that I have received. I would have viewed these remarks that I am delivering to you now. But if you come back before me in breach, I have very limited options open to me out in the Commonwealth regime. I can fine a person 10 penalty units which is about $1500.

But far more importantly, and this is what you need to bear in mind, I can revoke the order and then deal with you afresh for this crime. I would resentence you. So they are really the options. Or I can do nothing. Do not expect that would occur. Do not expect that you would be fined a monetary penalty if you breach this order.

I cannot tell you exactly what I would do if you breach this order. What I would have to do is what I have done in this case - come onto the Bench, listen to what is said on your behalf. I would need to assess the nature of the breach, the nature of your effort on the order, the nature of your compliance and then make some judgments as to what to do. But just to give you this as a word of warning, do not think there will be a second chance waiting for you, all right? Do not think that you will come back and get a second chance on an order. I am giving you a chance today. The Crown are urging me to impose a term of imprisonment. They are not suggesting it necessarily needs to be one to be served by you. I take a different view of this case for the reasons that I have advanced. I am going to admit you to this community corrections order. I am giving you your chance. It is being given to you today. So take that chance.

If you breach this order, what you should expect is that you will be brought back to court and you will not be going home out that door. You will going down that other door which leads down to the cells. The cells lead to a prison van, the prison van goes to an adult prison. I do not think you can have any idea what that would be like, actually. Do not put yourself in that position. So they are the terms and conditions of the order that I propose to admit you to. I will get you to speak to your counsel in one moment to see whether you consent to that. But what is critical is that you do not do what so many people seem to do when they get a community corrections order, think the case is over. It is not. We are going to be meeting again in three months. I am going to be looking to see what your effort is like on this order. If there is any issue, I will be raising it there and then. If there are worrying signs, I will be raising them there and then with Corrections and with you.

This case is not over for two years. That is what it amounts to. It will be over when you have complied with this order and this order runs for two years. As I say, I will get your counsel to go down in a moment but not just yet.

Sex Offenders Registration Act2004

I also need to tell you about some obligations that you have under the Sex Offenders Registration Act 2004. Any failure to comply with any of those obligations is itself a serious criminal offence and it is one punishable by a term of imprisonment. If it occurred in the next two years, if you breach that Act in the next two years, you would be breaching this community corrections order. So you need to understand what your obligations are and I will explain some of them, but there is going to be a very long piece of paper coming down to you, and I will discuss that in a moment. Do not come back before me and say that you were not aware of this risk. It seems to me sitting up here that the greatest risk of you breaching my community corrections order is by not complying strictly with your obligations under the Sex Offender Registration Act. I want you and I want your mother to understand this: My experience shows that people with an intellectual disability very often fall foul of these provisions and breach them. And if you were to do that, you would breach my order if it occurred in the next two years. So do not do that.

So do not come back saying you had not been warned on this issue. I am warning you of it right now.

You have been sentenced in relation to a charge that is a registrable offence under the Sex Offenders Registration Act2004. Pursuant to the provisions of that Act, you must comply and continue to comply with your reporting and various other obligations under that Act for the next eight years. I have no discretion in relation to that. It is the law.

I am going to have handed to you shortly a document that explains your many obligations under that Act. It details your reporting requirements. There are also a number of prohibitions, including the prohibition upon your gaining any employment in any child-related activity. That is very widely defined under this Act . It would even pick up unpaid or voluntary work. It would pick up any type of service or activity in connection with children. It is a very detailed list of matters.

You will need to familiarise yourself with these provisions and it will not be easy.

It is a lengthy document. It would be impossible for you to sit there now and to study it now and to fully understand it. Not just for you, impossible for anyone actually. So I am going to have you sign a form to acknowledge receipt of these materials but then what you are going to need to do is you are going to need to familiarise yourself with your obligations and you need to do it pretty swiftly too.

You have been very lucky. You have got a very good legal team. Speak to your legal team about it, both today and at any later stage if you or Mum have got any doubts about whether you should be doing what you are doing. If you have got doubts as to whether the Act applies in a particular setting, it is far, far better to raise those doubts and get some guidance from your lawyers. I am raising that because I have seen people charged with breaching their obligations under this Act in extremely technical ways. Do not be one of those people because I say if you breach your obligations under the Sex Offenders Registration Act in the next two years that would be a breach of the community corrections order. You will see there is an obligation to - within a certain time frame. It might even be seven days, to let the authorities know of any change in your appearance - if for instance there is a tattoo. I am not suggesting you go off and get tattoos but I have had people who have breached these order by getting a new tattoo and not advising the relevant authorities. I have had people who have breached it by changing their internet service provider and not reporting that fact. You have got really read it and understand it and comply.

Now, Mr Barreiro, I am sure you will have seen these documents before. They are very lengthy. I am not for one moment expecting he is going to sit down there now and read it all. He will not. But he is going to need to do that in his own time of course and he will need to do it carefully. He will need some assistance in that respect. What I am getting him to do at the moment is to simply acknowledge receipt of his reporting conditions. So I will have that document go down with you in a moment. If you would be good enough to go down with it and explain to him a couple of things. Firstly, are you satisfied that I have adequately explained the community corrections order?

MR BARREIRO: I am, Your Honour. Yes.

HIS HONOUR: So first, I want you to go down and talk to your client about that. See if there are any issues with that. See if there are any things he needs explained. And if that is all under control, have him sign that order and consent to that order when the document is signed. But secondly, just if you would have the Sex Offenders Registration acknowledgment signed by him as well.

Mr Sim, you have heard the details of the community corrections order? If you were physically in court, I would hand you a copy of this as well and have you run your eyes over it. But are there any other matters that I need to deal with? I will deal with the s.6AAA in a moment. But any other matters then at this stage from you?

MR SIM: No, nothing, Your Honour. Your Honour has set out all of the conditions. You have identified and you have in my view properly explained the consequences of any breach that the Act requires Your Honour to do.

HIS HONOUR: All right. A copy of this will be provided to your instructors anyway. So I will have that go down then, Mr Barreiro, together with the acknowledgement in terms of Sex Offenders Registration Act. Thank you.

MR BARREIRO: Thank you, Your Honour. I have explained that to my client. He has signed where he needs to sign. And for the court's benefit, we will take him through it really carefully. There has been a lot of information that my client has had to digest. And we will take him through it after this hearing and in the coming days.

HIS HONOUR: Yes. Well, and really there had got to be real attention paid to a couple of aspects. Firstly, his need to contact Corrections within the two clear working days. That is easy enough. There is a phone number there. But the requirements in terms of reporting - that really needs to be attended to.

MR BARREIRO: They are extensive and they last for eight years so that is understood, Your Honour.

HIS HONOUR: Yes. Thank you for that.

MR BARREIRO: Thank you, Your Honour.

HIS HONOUR: Your client has signed that acknowledgment anyway. And the community corrections order likewise has been signed. I will just formally ask your client about that. Mr Cameron, can you just stand up very briefly then please? Do you confirm then that you consent to being placed on this community corrections order for this two-year period?

OFFENDER: Yes, I do, Your Honour.

HIS HONOUR: I have spent a lot of time explaining the order but you understand what it is that you are consenting to?

OFFENDER: Yes, I do.

HIS HONOUR: You have signed that order under the words: 'I understand the effect and the conditions of this order and consent to it being made.' Grab a seat then.

Section 6AAA

I have told you that I have taken into account your guilty plea and that is true. Had you been found guilty following a contested hearing, following a trial, I would have sentenced you to two years and four months' imprisonment. I would have had you released by way of a recognizance release order after serving a period of 16 months. So you would have served 16 months' imprisonment if you had run a contested hearing. That declaration is to be entered into the records of the court.

A final word from me. I have already said something along these lines. But it would be a big mistake, as I say, to breathe a sigh of relief and to leave this court and think the case is over. It is not over. I am seeing you again in three months for a start, in December. And this order will be over in two years after you have complied with it. No doubt you will breathe a sigh of relief that you are not going to prison today. But that can so easily change in the future if you breach this order.

The only advice I really can give you is to stay out of trouble and to comply. Never, ever use the internet in this fashion again. Never ever try to engage in an inappropriate relationship with a child. You need to buckle down on this order and I want you to speak honestly and openly with those providing counselling to you. You need treatment. Accept it and do not muck around. Never, ever forget how you got into such big trouble using the internet in the way that you did in this case. If you try to communicate with a child in the future, there is every chance that the chid is not a child. It is likely to be an undercover police officer posing as a child or even as it was in this case, a parent concerned about their child's internet use, or for that matter a child who tells her parents. Each of those settings would result in the police knocking on your door again. Do not ever do this again for if you do, you will most certainly end up in an adult prison and as I said earlier, I do not think you can even imagine what that would be like for you.

You heard me discuss some recent amendments that had been made to the Crimes Act 1914 (Cth). They have been made and some of them are referred to as second strike provisions. It would bring into play - listen carefully - a four-year mandatory minimum prison term for any repeat offending of this type by you. Four years.

I hope I do not see you in the future in breach of this order. If I do, as I hope I have conveyed, you should not expect a second chance. You would best come prepared to be sent to an adult prison.

I will see you again at the first monitoring in three months from now on 17 December of this year at 9.30. And when I see you, what I will be expecting is an A1 compliance from you. I expect a report that says that you have done everything asked of you under this order. So do not let me down or yourself down for that matter.

Let me just see if there are any other matters I need to deal with? Anything from you, Mr Sim?

MR SIM: Nothing, Your Honour, other than just a query as to whether Your Honour will require the prosecution to attend the judicial monitoring in December.

HIS HONOUR: Look, unless there is something that has gone haywire then no. But I will - - -

MR SIM: Perhaps my instructor can liaise with Your Honour's associate the week before. Thank you, Your Honour.

HIS HONOUR: Correct. Yes. It may be that even the days before because we - until we have the report, we will not really know how he is travelling.

MR SIM: Yes, Your Honour.

HIS HONOUR: But I will be calling obviously for a report to be prepared for that process.

MR SIM: Thank you, Your Honour.

HIS HONOUR: Mr Barreiro, anything from you at all or not?

MR BARREIRO: Nothing further. As Your Honour pleases.

HIS HONOUR: All right. Well, that completes the matter and I am sorry I have taken so long to get through those matters but I needed to explain to all concerned including your client and many others, why I have done what I have done. I believe I have done that at this point. Adjourning the court 10am on Tuesday then.

- - -

Citations

Director of Public Prosecutions (Cth) v Cameron [2020] VCC 1506

Most Recent Citation

Cases Citing This Decision

3

Director of Public Prosecutions v Conway [2024] VCC 445

Director of Public Prosecutions v Cameron-Kiely [2023] VCC 618

Director of Public Prosecutions (Cth) v McDonald [2021] VCC 1740

Cases Cited

5

Statutory Material Cited

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[2020] VCC 1506

18 September 2020