Director of Public Prosecutions (Cth) v Conti
[2024] VCC 632
•9 May 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-00143
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEPHEN CONTI |
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JUDGE: | HER HONOUR JUDGE KARAPANAGIOTIDIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 April 2024 | |
DATE OF SENTENCE: | 9 May 2024 | |
CASE MAY BE CITED AS: | DPP (Cth) v Conti | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 632 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - Sentencing
Catchwords: Commonwealth and State sentencing - plea of Guilty – Recognisance Release Order – possess child abuse material - transmit child pornography - somatic symptom disorder – substance misuse – physical health – reasonable prospects of rehabilitation - general deterrence - sexual recidivism
Legislation Cited: ss 5(1), 5(2), 6AAA (Vic), 16A(2), 16(2)(k) Sentencing Act 1991
Cases Cited:DPP v Smith [2010] VSCA 215 - R v Gent (2005) 162 A Crim R 29 - DPP v Latham [2009] TASSC 101 - Worboyes v The Queen [2021] VSCA 169 - R v Verdins [2007] VSC 479 - R v Asplund [2010] NWSCCA 316 - R v Gajjar [2008] VSCA 268 - Arthars v The Queen [2004] VSCA 222
Sentence: Commonwealth matters – total effective term, 18 months imprisonment, pursuant to s.20(1)(b) released on recognisance after 6 months; good behaviour of 3 years; supervision of 2 years. State matters – total effective term, 6 months, concurrent.
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APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Dr D. Gang | CDPP |
| For the Accused | Mr P. Kounnas | Nelson Brown |
HER HONOUR:
1Stephen Conti, you have pleaded guilty to the following Commonwealth charges: two charges of use carriage service to transmit child pornography material; one charge of use carriage service to access child pornography material; and one charge of use carriage service to access, transmit, solicit and cause to be transmitted to yourself child pornography material. You have also pleaded guilty to one State offence of possession of child abuse material.
Circumstances of offending
2The circumstances of your offending are outlined in the prosecution opening marked as Exhibit A, and that is the basis upon which I sentence you.
3In brief summary, on 11 April 2019 police executed a search warrant at your home address. During the search, numerous electronic devices, including mobile phones and computers were found, as outlined in the opening. Whilst police were at the premises you made admissions regarding possession of child abuse material including by saying 'you will find child porn on the hard drives and laptop'. Following this, you were arrested.
4Police located numerous child abuse material images on the five seized devices. In particular, located on each device were images of the same male child taking 'selfie' type photographs. These images feature in some of the offending and are referred to as the 'Peter Braithwaite'[1] series.
[1] Pseudonym. Pseudonyms have been applied to all user names.
Charge 5 – knowingly possess CAM
5Police forensically examined the seized items and located child abuse material on the following devices referred to in brief -
i.Samsung phone, 343 images.
ii.Alcatel mobile phone, 289 images and videos.
iii.Toshiba Laptop, 102 images and videos.
iv.Desktop Towers, 321 images and videos, and 519 images and videos.
6The opening outlines the categorisation of the images found on each device.
Charge 1 – transmit child pornography material (re ‘Rebecca Hill[2]’)
[2] Pseudonym
7Police further analysed the Samsung mobile phone and identified a conversation between two users consisting of 44 text messages sent and received between phone numbers, one ending in 592 (+61432413592) belonging to a child named Rebecca Hill, and the other ending in 182 (+61411990182) belonging to you, on 14 June 2008 between 12:35 pm (AEST) and 12:56 pm (AEST).
8The messages are extracted in the prosecution opening. You use the name 'Peter' and claim to be 13 and send child pornography material, in the nature of two images of a naked young male approximately 10-12 years of age with his genitalia exposed; the image being from the Peter Braithwaite series.
Charge 2 – Access child pornography material
9This charge is comprised of screenshots that you took of conversations with several users on the teenager social networking website MyLOL. In each instance it is alleged that you are the unnamed user. The screenshots are extracted in the opening and include you encouraging and requesting the users to send images. When you screenshot these conversations, you used a carriage service to access the child pornography material. In summary the screenshots were as follows –
User – River [3]
[3] Pseudonym
10You took 6 screenshots on 7 March 2019 between 4.30 am and 4.37 am. Four screenshots contained Category 1 child pornography material and overall, there were five pornographic images of children.
User - Sarah[4]
[4] Pseudonym
11You took 4 screenshots of conversations with Sarah on 8 March 2019 between 12.51 am and 12.54 am. Two contained Category 1 child pornography material. Police also located emails sent from an email address, as referenced in the Prosecution opening, to an email address, as referenced in the Prosecution opening.
User - AB[5]
[5] Pseudonym
12You took 6 screenshots of conversations with AB between 5.39 pm and 6.05 pm on 17 March 2019. There were in total 8 child pornographic images that fell within Category 2.
User – Emma Jones[6]
[6] Pseudonym
13You took 3 screenshots of conversations with Emma Jones between 3.09 pm and 3.11 pm on 4 April 2019. The screenshots attached two child pornographic images of a naked girl aged approximately 10-12 years which were Category 1 and 2 child pornography material.
User - Katie[7]
[7] Pseudonym
14You took 5 screenshots of conversations with Katie between 3.14 pm and 3.15 pm on 4 April 2019. Two of the screenshots contained child abuse material, Category 1 images of a naked girl aged approximately 8-10 years old.
User - EF[8]
[8] Pseudonym
15You took 2 screenshots of conversations with user EF between 3.15 pm and 3.17 pm on 4 April 2019 and both screenshots contained Category 1 child pornography material, images of a naked girl aged approximately 8-10.
Charge 3 – access, solicit, and cause to transmit child pornography material
16On the Alcatel mobile phone police located 8 screenshots taken of conversations between user ‘Cassandra’[9] and unnamed user – alleged to be yourself – again on the MyLOL website. You took screenshots of this conversation between 1.41 am and 4.39 pm on 8 March 2019. Three screenshots contained Category 2 child pornography material. When you screenshotted these conversations, you used a carriage service to access the material. The screenshots are extracted in the opening. Police further analysed identified emails sent between relevant email accounts referred to in the Prosecution opening.
[9] Pseudonym
17Further inquiries reveal that you provided Cassandra with the email address and asked her to email photographs of herself. The image emailed to you at this address – at your request - was child pornography material. Further emails were uncovered, including three where you email the email address images from the Peter Braithwaite series, two of them alleged to be Category 2 child pornography material. Further email communications are extracted in the prosecution opening from 8 and 9 March 2019 in which you request Cassandra send you nude photos.
Charge 4 – transmit child pornography (emails)
18Charge 4 relates to the analysis of the same phone where police identified emails sent from three identified addresses and you are alleged to be the user of these email accounts. On 14 March 2019 at 3.23 am an email was sent from an email address to another email address, as particularised in the Prosecution opening, attaching two Category 2 images of child pornography, from the Peter Braithwaite series. The images depict a young boy aged 10-12, naked and exposing his penis whilst taking a photo of himself in the mirror. You sent these emails, thereby transmitting child pornography. On 17 March 2019 at 5.55 pm an email was sent from the email referred to, to another email address, attaching 7 images, 4 of which were Category 1 child abuse material. You sent these images from one account to another, both of which you operated, thereby transmitting child pornography material.
Arrest and interview
19On 11 April 2019, Mr Conti, you were arrested and interviewed by police and your answers are extracted in the prosecution summary. Overall, you denied an involvement in the offending and stated that you had lived with others over time who used all of your stuff, including your devices.
Commonwealth sentencing regime
20In sentencing for Commonwealth offences, the Court is required to have regard to the matters set out in Part 1B of the Crimes Act 1914 (Cth), in particular, s16A(2) which sets out a non-exhaustive list of factors, where relevant and known. In determining the sentence to be passed, the Court must impose a sentence that is of a severity appropriate in all the circumstances of the offence, bearing also in mind the requirement in s16(2)(k) that a person be adequately punished for the offending.
21In sentencing for Victorian offences, the Court must sentence in accordance with the guidelines set out in s5 of the Sentencing Act 1991 (Vic). In addition, s.5(2) sets out matters the court must have regard to.
Gravity of offending
22The charges you have pleaded guilty to are inherently serious as reflected in the maximum penalties. Your offending conduct involved a discrete charge and four rolled-up charges, all involving the sexual exploitation of children. I take into account all the circumstances of your offending.
23In offending of this kind, general deterrence is the primary sentencing consideration, given the prevalence and ready availability of such means of offending and the vulnerability of children online. There is a paramount public interest in protecting children from sexual abuse and exploitation. In all the circumstances, your offending is serious.
24The objective seriousness of each charge must be assessed separately to determine the appropriate sentence on each count. Totality – and an assessment of your overall criminality taking into account any overlap and temporal connection between the charges - will then be reflected in the orders made as to cumulation and concurrency.
25In respect of Charge 5, the applicable principles and factors in sentencing for offending involving child abuse or child pornography material are uncontroversial and well established. They are outlined at paragraph [5] of the prosecution submissions and I use this as a framework to assess the objective seriousness of your offending. The cases collectively make clear that a term of immediate imprisonment will ordinarily be expected for such offending. Such offending is abhorrent because it supports a market for the production of images that involve the exploitation of children.[10] Although there is no victim impact statements these are not victimless crimes. The victims depicted in the material were real children who were exploited.
[10]DPP v Smith [2010] VSCA 215 at [23]
26The objective seriousness of the offending is ordinarily determined by reference to a range of factors including[11]:
[11] R v Gent (2005) 162 A Crim R 29 at [65]; Smith Ibid.
i.The nature and content of the material;
ii.The number of items or images possessed;
iii.Whether it was for the purpose of sale or further distribution;
iv.Whether the offender will profit from the offence, which includes payments or other material benefit – although I note that the absence of such aggravating features do not mitigate the offending
v.The number of children depicted, and
vi.The length of time for which the pornographic material was possessed.
27You possessed a total of 1,574 images across your devices. Of this material, 125 unique images and 43 unique videos involved no sexual activity. Given the material was stored across several devices and including transmission of a series of child abuse photographs of a young male child adopted by you as a persona to obtain some of the images, the prosecution submit that this is an objectively serious example of offending of this type. I accept that the offending is serious though I do note that there are many examples of other cases which involve a greater volume of – and more depraved - material than what you possessed.[12] Also, I do note the absence of other aggravating features. While the charge is a rolled up one, I take into account that the possession relates in terms of the charge to a single date.
[12] DPP v Latham [2009] TASSC 101 at [35].
28On Charge 1, representing yourself as a 13-year-old boy named Peter - when in fact you were a 41-year-old man - you sent messages by SMS to a person purporting to be 16, who was later confirmed to be a real child. You sent images of a prepubescent child with genitalia exposed and asked, 'can I see you to'. I take into account that the offending occurred on one day and was confined to the transmission of the 2 images.
29On Charge 2, on four separate days between 7 March 2019 and 4 April 2019 you had conversations with six different users on a teenager social networking website. As outlined, you took screenshots of these screens or these messages, including screenshots showing child pornography images that were sent during the conversations, totalling some 21 images. You and the various users exchanged child pornography material and you encouraged and requested it. I consider this charge to be the most serious of the Commonwealth offences, given the period of the offending and the number of different users you engaged with, and the images exchanged.
30On Charge 3, over two days you had conversations with Cassandra which you screenshot. You asked her for nude photos, exchanged email addresses as outlined, asked for such photos to be emailed to you and exchanged emails attaching child pornography.
31On Charge 4, on two separate days you transmitted a total of 6 images of pornography, including to an unidentified user and also to an email account that you controlled.
32During the period of the offending, you told consultant psychiatrist Dr Donal Hanratty that you were using substances, including methamphetamine, every day. You were also smoking cannabis and drinking heavily. You explained you were feeling worthless, hopeless, and guilty about things, like you could have done better in life, and sometimes said that you felt like you wanted to die. At the time of your arrest, you had left the house where you had been living and started to live with a man, whom you describe as your friend and also your carer. You were also seeing a support worker at around this time. In respect of the offending, you said you were not good with technology, were unsure how to get the child pornography off your device, but that was your intention once you realized what it was. You denied communicating with minors, stating that others who you lived with were more likely to have used your devices. Dr Hanratty opines you 'have some emotional and interpersonal problems as well as dysfunctional coping, as evidenced by [your] substance use issues. This made [you] vulnerable to engaging in the behaviour at the time of the index offences, in the context of [what he assesses to be] a degree of sexual attraction to children.’[13]
[13] Psychiatric Report of Dr Donal Hanratty, dated 15 March 2024, para 121
33I accept that your substances abuse likely contributed to your disinhibition and exacerbated your poor judgment. Of course, this is no excuse for your offending and does not mitigate your moral culpability. Dr Hanratty states that you likely engaged in the offending for sexual gratification in the context of intimacy and emotional difficulties and that you found 'solace and a sexual escape or outlet for your sexual interest online'.[14]
[14] Ibid, para 126
Plea, contrition and co-operation
34You entered a plea of guilty after accepting a sentence indication on 22 December 2023, around the time your trial was due to commence. Your plea of guilty was not entered at an early opportunity, though I do note that you have pleaded guilty to a reduced indictment. Your plea of guilty also still does entitle you, Mr Conti, to an important sentencing discount. It has utilitarian value, which is heightened in accordance with the Worboyes principles, though this must be moderated as the criminal justice system returns to normal operation.[15] I accept that your plea of guilty does indicate a willingness to facilitate the course of justice, noting however that the case against you was a relatively strong one. I also take into account your cooperation with police when they attended your home including by providing them with a password to your laptop.
[15] Worboyes v The Queen [2021] VSCA 169
35As already noted, your case settled on provision of a sentence indication. Through this process there were several hearings in which Counsel made submissions. Both Counsel relied upon this material in the plea hearing and I have taken it into account. After you were arraigned, further time was allowed to obtain additional material and the report of Dr Hanratty was later filed. While a sentence indication has been provided and effectively sets a ceiling, I have carefully reflected upon all matters on this plea hearing to arrive at the just and appropriate sentence.
Personal circumstances, character and antecedents
36Your personal circumstances were outlined by your Counsel and are well canvassed in the psychiatric and neuropsychological reports.
37Now, you are 46 years of age, and you were 41-42 at the time of the offending.
38You were born in Victoria. Your father worked as a mechanic and your mother looked after you and your four siblings. Your father passed away when you were in your mid-twenties. Sometime after your father died, your mother re-partnered and you stopped seeing your family around this time, as there was a family dispute concerning assets.
39You struggled at school and were held back in Grade 3. You were told that you had a learning difficulty and were assigned special teachers at school. You left school in Year 12.
40You worked for about 10 years in a butcher shop and then later at a bistro and a cabinetry company. You have not worked since around 2010 and you have been receiving the Disability Support Pension.
41You have had some intimate relationships in the past but are currently single and have no children.
42You first used cannabis and started to drink alcohol at 13. You drank alcohol heavily in your mid-twenties. From the ages of 18 to 39 you used methamphetamine and from your mid-thirties heroin but stopped using these drugs completely after your release on bail. From the age of 18 you also started to gamble which was a persistent problem up until about 5 years ago.
43As your Counsel put it, your history speaks of a degree of struggle and social isolation. Up until the time of your remand, you were living with your carer and another friend. You were paying her board and also assisting her around the garden and home. In more recent times, they appear to have been your main social supports and I note that they are both in their 70s.
44It seems that your multitude of health issues have impacted the quality of your life, in many ways. From November 2010 you commenced receipt of the Disability Support Pension, as I have already referred to, and in more recent times you have also received some supports through the NDIS.
45You do not have a criminal history.
Medical issues
46You present, Mr Conti, with a long and complex medical history. When you first appeared before this Court it was suggested that you suffered from cancer and were in palliative care. The healthcare records obtained did not indicate that you have ever had metastatic cancer. Upon further consideration, it was no longer advanced on your behalf that you do have cancer. As indicated at the previous hearings, I do not consider that there was an intention, on your part, to mislead the court. Instead, the instructions you were apparently providing should be viewed in the context of your diagnosed somatic symptom disorder, which causes you distress and likely manifests as disproportionate and persistent thoughts about the seriousness of your health or symptoms. I will return to this in a moment.
47Your medical records indicate that you have suffered from a range of medical issues including chronic pancreatitis, a hernia repair, a shoulder surgery, gastroesophageal‑reflux disease and a stroke in 2013. You also told Dr Hanratty that you have complex regional pain syndrome and that you have had three strokes, the last one being approximately 5 to 6 years ago. One of the strokes was particularly serious and you suffered from weak left arm and leg pain, requiring physio and speech therapy. You also explained that you have some hearing aids from the strokes. You attend upon your general practitioners regularly. The medical records for the period 2021 to 2022 indicate that you have presented with numerous medical symptoms that have not had a clear medical cause and they note 'chronic pain disorder'. They recommended consideration of anti-depressant medication and a referral to a psychologist. Currently you are on medication for your reflux disease, cholesterol and for pain relief.
Psychiatric/neuropsychological assessment
48In the past, you report only having limited contact with mental health services, having seen a psychologist twice in around 2020 and being referred for a mental health care plan by your general practitioner. You have also been prescribed various 'depression tablets' by a pain clinic, which you were also taking at the time of your offending up until November 2022.
49You were assessed by neuropsychologist, Dr Matthew Staios, in December 2023. Dr Staios considered that your neuropsychological profile appeared consistent with your history of learning difficulties exhibited through schooling, particularly given your depressed score on tasks assessing verbal knowledge. Overall, your level of general intelligence fell within the borderline range. There was no evidence to indicate the presence of cognitive impairment consistent with an episode of stroke. Dr Staios considered that you present 'as an individual with a very limited capacity for abstract reasoning and lateral thinking skills, indicating a tendency towards rigid thinking'. Further, he opined – 'his personal predispositions leave him vulnerable to episodes of distorted thinking and a limited understanding of appropriate boundaries, social rules, and consequential thinking.'
50Dr Hanratty assessed you and considered that you likely suffer from the following diagnoses –
a. Alcohol use disorder, noting that you continued up until your remand to drink every day.
b. Cannabis use disorder, in remission.
c. Methamphetamine use disorder, in remission.
d. Opiate use disorder, likely to be in remission.
e. Somatic symptom disorder – which means that you suffer from numerous somatic symptoms that are likely to be distressing for you. You have excessive thoughts, feelings or behaviours relating to the somatic symptoms or associated health concerns. As already noted, this likely results in disproportionate and persistent thoughts, and high levels of anxiety about the seriousness of your symptoms.
f. Gambling disorder, in remission.
g. While you present with possible symptoms of borderline personality disorder and schizoid personality disorder, such a diagnosis is however not clear, as these are also consistent with your challenging psychosocial circumstances along with your borderline intellectual functioning.
51Dr Hanratty considers that you probably suffer from generalized anxiety disorder. While you have taken antidepressant medication in the past for pain, there is no clear evidence that you have a major depressive disorder.
52Although he did not formally assess your cognition, your presentation and communication did not support a diagnosis of intellectual disability, but it was consistent with somebody who was in the borderline range of functioning, as assessed by Dr Staios.
53In custody you will not have the supports that are presently available in the community and Dr Hanratty opines that this may exacerbate your stress and cause your mental conditions to deteriorate, particularly your somatic symptom disorder and your generalized anxiety disorder.[16]
[16] Report of Dr Hanratty, para 127
54I take into account the reports of Dr Hanratty and Dr Staios. Your Counsel did not submit that the Verdins principles were enlivened in your case.[17] In sentencing you I take into account your somatic symptom disorder and other vulnerabilities, as identified, along with your medical issues and pain management challenges.
[17] R v Verdins [2007] VSC 479
55It seems reasonable to infer that without the supports you did have in the community, your somatic symptom disorder and generalized anxiety disorder may deteriorate, thus likely causing any term of imprisonment to weigh more heavily on you than a person in 'normal health', or without those conditions, and I have had regard to this.[18] Also, this period of imprisonment represents your first experience in custody, and I accept it is likely to be confronting and to have a salutary effect.
[18] Though I do note that Dr Hanratty also states that your alcohol use is likely exacerbating your stress and forced cessation may inadvertently ameliorate some of your anxiety).
Prospects of rehabilitation
56In all the circumstances, Mr Conti, I assess you as having reasonable prospects of rehabilitation. No prior criminal history is alleged against you, nor was it suggested that you have subsequently offended. After your arrest in 2019 you apparently stopped using drugs and you have not used illicit substances since, though alcohol use appears to still be an issue. You told Dr Hanratty that your mood had improved but you continued to experience some difficulties and instability mainly with your accommodation.
57Dr Hanratty also conducted a risk assessment using the available tools. While you deny harbouring paedophilic interests, your scores indicated that you are more likely to have a sexual interest in children and that you have some possible problems with sexual deviance. The results of the risk assessments of any sexual recidivism (including child pornography and contact offences), depended in part upon assumptions as to the composition of the relevant material. However, overall taking into account all circumstances, including that there is no evidence that you have reoffended since your release on bail in 2019, Dr Hanratty opines that you present a low risk of any sexual recidivism (including child pornography and contact offences) compared with other people who had convictions for child pornography offences.[19] At paragraph [122] he also states that you have 'a low likelihood of committing any future sexual violence'.[20]
[19] Report of Dr Hanratty, para.118
[20] Ibid, para 122
58Dr Hanratty considers that your generalized anxiety and somatic symptom disorders are probably better treated when you have regular engagement with healthcare workers known to you. He also considers that you may benefit from drug and alcohol treatment and that ideally you should engage with a psychologist. Further, you would benefit from a review of your NDIS and psychosocial supports and cognitive testing to best ascertain your current needs.
59Dr Staois considered that your neuropsychological profile and personality predispositions raise concerns regarding your level of risk moving forward and he suggested ongoing monitoring and treatment.
Sentencing principles
60As already noted, Mr Conti, general deterrence is a paramount factor in sentencing for these offences, and this usually requires personal mitigating factors, such as good character, to be given less weight than they might otherwise be given.[21] Offences of this nature require the imposition of sentences that will both deter others from committing similar offences and which will punish and denounce the conduct of the offender. In the circumstances of your offending, I do also accept that specific deterrence and community protection are important considerations. I must also have regard to the objective of rehabilitating you.
[21] R v Gajjar [2008] VSCA 268
61I have taken into account comparable cases and have considered in particular the cases referred to by the prosecution. While there are some discernible differences in these cases and each case is unique, they do provide guidance as to the relevant principles and posit a range of available sentences.
62I also accept, and take into account, the delay in your case and that it has caused some anguish. Also, as already noted, it is not suggested that you have re-offended within this time, and you appear to have made some efforts towards your rehabilitation.[22]
[22] Arthars v The Queen [2004] VSCA 222
63The Crown submits that no sentence other than an immediate term of imprisonment on each offence is appropriate in all the circumstances. On the Commonwealth matters, the Crown submit that this should be structured by way of a recognisance release order. Your Counsel submits that you will benefit from ongoing treatment either through a recognisance order or a corrections order and that an immediate term of imprisonment was not the only option. In all the circumstances and taking into account the principles of proportionality and parsimony, I do consider that the only just and appropriate sentence is an immediate term of imprisonment on both the Commonwealth and State offences.
64As already noted, given the circumstances of your offending, totality is an important consideration. The aggregate sentence imposed must be just and appropriate however must also reflect the existence of separate instances of discrete and distinct offending.
Sentence
65Synthesising all relevant matters, including the gravity of your offending, the relevant sentencing principles, and the mitigatory factors advanced on your behalf, including your lack of prior criminal history and your plea of guilty you are convicted and sentenced as follows –
66Charge 1, four months' imprisonment.
67Charge 2, 14 months' imprisonment.
68Charge 3, seven months' imprisonment.
69Charge 4, eight months' imprisonment.
70Charge 5, six months' imprisonment.
71On the Commonwealth matters, Charge 2 is effectively the base sentence, and I will come to commencement dates in a moment, but I might do it in both ways to be entirely clear. Charge 2 is the base sentience. Orders for cumulation are as follows: Charge 1, one month; Charge 3, one month; Charge 4, two months.
72That should arrive at a total period of 18 months' imprisonment, and I note that is the indication provided.
73Do counsel agree that is 18 months?
74DR GANG: Yes.
75MR KOUNNAS: Yes.
76HER HONOUR: The total period and term imposed on the State sentence is six months. The State sentence obviously is to commence immediately and will do so, and is to be served concurrently with the Commonwealth sentence.
77On the Commonwealth charges, Charge 2 is to commence immediately; Charge 1 is to commence three months prior to the expiry of Charge 2. That should reflect the one month cumulation. Charge 3 is to commence six months prior to the expiry of Charge 1, which ought to reflect the one month cumulation; and Charge 4 is to commence six months prior to the expiry on Charge 3, which ought to reflect the two months' cumulation.
78Do counsel agree?
79DR GANG: It makes sense, thank you.
80HER HONOUR: Yes. The orders will reflect both the actual cumulation and commencement dates, and if there is a problem with this then the court should be advised. Sentence Calculation Management Unit usually does, but if there is a problem, it should be returned to me but I will do it in both ways to make it abundantly clear that the Commonwealth total effective term is 18 months' imprisonment and the State effective term is six months' imprisonment.
81MR KOUNNAS: Your Honour has been very clear about that. I have had difficulties in the past with Commonwealth sentences to commence on the day of sentence, as opposed to the day of remand, which is - - -
82HER HONOUR: He is going to get his declaration of PSD - - -
83MR KOUNNAS: He will, yes.
84HER HONOUR: - - - so that should deal with that issue. It commences today, because I have to set a commencement date.
85MR KOUNNAS: Yes.
86HER HONOUR: Dr Gang, do you agree?
87DR GANG: Yes, Your Honour.
88HER HONOUR: But he is entitled to his PSD - - -
89DR GANG: Yes, he is.
90HER HONOUR: - - - in respect of all matters.
91DR GANG: Yes.
92MR KOUNNAS: Yes, Your Honour.
93HER HONOUR: Yes, all right. But again, Mr Kounnas, if you have had problems with that, if there is a problem it should be brought to my attention.
94MR KOUNNAS: Thank you, Your Honour.
95HER HONOUR: Now on Charges 1, 2, 3 and 4 I direct that after serving six months imprisonment, Mr Conti, you are to be released on a recognisance under s21B in the amount of $2,000 to be of good behaviour for a period of three years.
96Now, Dr Gang, I can do that up to five years, can't I, so three years is well within range - - -
97DR GANG: Yes, Your Honour, it is.
98HER HONOUR: - - - and it was in accordance with my indication. In addition, for a period of 24 months – and again I am entitled to do this, as I understand it – two years. You are to be subject to the supervision of a probation officer.
99Dr Gang, again, two years is available to me, and again it is in accordance with the indication.
100DR GANG: Yes, Your Honour.
101HER HONOUR: You are not to travel interstate or overseas without the written permission of the probation officer. And you are to undertake such treatment or rehabilitation programs that the probation officer reasonably directs, and are to be under the supervision of the probation officer.
102They are effectively the terms of the recognisance order. And Dr Gang, as I understand it, your instructor – and you have got a couple of them with you today – is probably quite diligently drafting them now.
103DR GANG: I have draft orders, yes. Yes.
104HER HONOUR: Can they be emailed through?
105DR GANG: Almost, quite soon, yes, Your Honour.
106HER HONOUR: Because what I propose to do is while we have Mr Conti on the link, I propose to just take him through it word for word - - -
107DR GANG: And get it done today, yes.
108HER HONOUR: - - -and then it will be delivered to the prison.
109DR GANG: Yes, Your Honour. The draft is available. The conditions are being put in as we speak and so it should be soon.
110HER HONOUR: Excellent, thank you. I will continue then while that is being done. Is it nine days in pre-sentence detention?
111MR KOUNNAS: Yes, nine days.
112HER HONOUR: All right. Now the order pursuant to s34 is mandatory and the mandatory reporting period is life. Do counsel agree?
113DR GANG: Yes, Your Honour. This was discussed on the last occasion.
114HER HONOUR: That is right and you both agree?
115MR KOUNNAS: Yes, actually I may be wrong, I think it might be eight days, not that I want to - - -
116HER HONOUR: No, no. Just give me the correct calculation.
117DR GANG: Pre-sentence detention was Tuesday 30, 1 May, 2, 3, 4, 5, 6, 7, 8 and then he comes today, so not including today it would be nine days.
118HER HONOUR: Eight days not including today?
119DR GANG: Nine days not including today - - -
120HER HONOUR: Not including today is nine days?
121DR GANG: - - - at that is the usual position of the AGS in these matters.
122HER HONOUR: Yes, that's how I calculated it. Mr Kounnas, I presume that you have no difficulty with that, do you?
123MR KOUNNAS: No, no, I don't.
124HER HONOUR: All right. Mr Conti, I am going to explain a couple of things while we have the documents printed out, because we have limited time on the link.
125First of all, pursuant to s34 of the Sex Offenders Registration Act I order that you are a registrable offender and that period is for life. Pursuant to s15 of the Act you will be given a written notice of your reporting obligations today specifying the reporting period, and that will be provided to you in custody. That is a mandatory order and it was one that I also indicated at the Sentence Indication Hearing.
126Now I am also required to explain the following. In basic terms, Mr Conti, what I have done is, it has been very consistent with the sentence indication that I provided, but I have reflected further and for your purposes the seven month period that I had indicated you would serve, I have reflected further and you are going to serve an immediate term of six months. Do you understand?
127Can we unmute Mr Conti please. I can't hear you, just one moment. Do you mind if I just find out what he is trying to say?
128MR KOUNNAS: Absolutely.
129OFFENDER: No that's all right, it's gone now. Can you hear me now?
130HER HONOUR: Yes.
131OFFENDER: It's just come up with a square 'muted' 'unmuted' but it had something else written on it, I wasn't sure what it said.
132HER HONOUR: Okay that's all right.
133OFFENDER: Because I haven't got - - -
134HER HONOUR: What I am saying to you - - -
135OFFENDER: Yes, sorry, Your Honour. It's just I haven't got glasses so I can't read what it's saying, it's all blurred.
136HER HONOUR: You don't need to read that, that doesn't concern you, don't worry about that. I'm just letting you know that the immediate term that you have to serve is six months, okay.
137OFFENDER: Yes, thank you, Your Honour.
138HER HONOUR: So that's the immediate term. What it means though, what I have done is with the Commonwealth matters, after serving the six months and then the six months concurrent on the State sentences, you will be released on a recognisance order. Now I am required to explain to you in language that you understand, the purpose and effect of this order.
139OFFENDER: Yes, Your Honour.
140HER HONOUR: Now you'll serve the six months. I am declaring nine days, so that's taken away. You will be released on the order on the terms stipulated. The $2,000 operates as a type of surety. You don't have to pay that in order to be released, okay.
141OFFENDER: Okay.
142HER HONOUR: So that payment is not to be made forthwith or to be made, certainly not at this stage. You will be released after serving the period and effectively you will have a further 12 months hanging over your head, because the entire term is 18 months, and you are required to be of good behaviour for a period of three years. And for two years you are going to be subject to supervision and the need to follow all the directions of the probation officer; not to travel interstate or overseas without their permission; and to undertake programs that they consider are appropriate. Do you understand?
143OFFENDER: Yes, I do, thank you.
144HER HONOUR: I am required to inform you that a recognisance order can be discharged or varied. Further, if you fail to comply with the conditions of a recognisance order the court has a number of powers, including the power to have you serve the outstanding portions. In other words, the 12 months. Do you understand?
145OFFENDER: I understand that, thank you, Your Honour.
146HER HONOUR: All right. I will otherwise cause those who are instructing, Mr Kounnas to also explain to you the effect of the order. But counsel, do you accept that that is a sufficient explanation for Mr Conti?
147DR GANG: Yes, Your Honour.
148MR KOUNNAS: Yes.
149HER HONOUR: Yes, all right.
150OFFENDER: Your Honour?
151HER HONOUR: Yes.
152OFFENDER: Your Honour, thank you for putting it in simpler words for me to understand, thank you.
153HER HONOUR: Yes, thank you, Mr Conti. Just give us one moment and I expect that we will have the written document in a moment. I am going to go through that with you and expect that you will receive documentation at the prison today in relation to these matters, all right?
154OFFENDER: Okay, thank you.
155HER HONOUR: Counsel, have I dealt with all matters?
156MR KOUNNAS: Yes, Your Honour.
157HER HONOUR: Were there other ancillary orders sought, I can't recall?
158DR GANG: Your Honour, the parties had discussed forfeiture by consent and now I don't have it at the top of my mind whether a draft order was filed, but that will be sought.
159HER HONOUR: Look immediately I can't see one. That doesn't mean it wasn't filed but given the fragmented nature of this hearing, I don't have it before me. If it's not been filed can it be filed and if parties confirm by email that it is not opposed, then I will make the order administratively.
160DR GANG: Yes, thank you, Your Honour, we will do that. I am instructed that for consent, forfeiture, a formal application is not required but if Your Honour does require one, then it can be filed.
161HER HONOUR: Really, you don't need to file one?
162DR GANG: Those are my instructions. In my experience of these matters an ancillary draft order has always been filed (indistinct words) Your Honour.
163HER HONOUR: Yes. I must say, can we just have one filed so I know what the order relates to.
164DR GANG: Yes, yes.
165HER HONOUR: I can imagine what it relates to.
166DR GANG: Yes.
167HER HONOUR: And I can understand why it's not opposed - - -
168DR GANG: Yes.
169HER HONOUR: - - - so there's not going to be a difficulty - - -
170DR GANG: No.
171HER HONOUR: - - - but there does need to be some precision. I am just going to go through this order. As I read it, Mr Kounnas, please indicate if there's any issue with it. Do you have it?
172MR KOUNNAS: My learned friend's instructor, Mr Hogan's just indicated to me that he's put Frankston as the closest Corrections officer, based on the previous place of residence, as I think was canvased a couple of times during the course of this hearing he moved up to near Seymour, but it doesn't look like he'll have a fixed abode on his release so I don't have a - - -
173HER HONOUR: He can change that. Why don't we leave it?
174MR KOUNNAS: There's no difficulty with that.
175HER HONOUR: Mr Conti, these are the conditions that you, as I have indicated, after serving six months, taking away the nine days that you have done, and giving security of $2,000, as I explained you don't need to pay it, you are of good behaviour for three years.
176You will be under supervision of Community Corrections for a period of two years. You attend, undertake and complete any treatment for that report. You report to – it's Frankston Community Corrections Centre by 4 pm within two days of your release. You are going to get a copy of this okay.
177If that needs to change, if you end up moving somewhere else, speak to Corrections about that and they will change it for you, okay?
178OFFENDER: Okay.
179HER HONOUR: But that is where you must initially report. You are to report, receive visits from Corrections. You are to notify an officer of Corrections of any change of address or employment within two clear working days.
180You are not to leave Victoria except with their permission.
181You are to obey all lawful directions and instructions of them.
182They are all the conditions. You have been sentenced to an effective term of 18 months. You will be released after six. And do you agree to be bound by, in accordance with this order?
183OFFENDER: Yes, Your Honour.
184HER HONOUR: All right, do you understand the conditions of the order?
185OFFENDER: Yeah, I do. I've just got one question to ask you.
186HER HONOUR: Yes.
187OFFENDER: I'm a little bit confused, sorry, because I've been under medication all week (indistinct words)
188HER HONOUR: Yes.
189OFFENDER: So I've got massive migraines and everything. You said six months. Do you take off the nine days I've already done here?
190HER HONOUR: Yes.
191OFFENDER: Okay, thank you. Sorry, I'm, just I can't hear you properly. I couldn't, I couldn't understand (indistinct).
192HER HONOUR: No, no, that's all right. So after six months, take away nine days, you'll be released but you're released on this order, okay. So do you understand the conditions I have gone through?
193OFFENDER: Yes, I do, thank you, Your Honour. Thank you.
194HER HONOUR: All right. You'll have an opportunity, no doubt your lawyers will speak to you too. Yes, Mr Conti?
195OFFENDER: I was just gonna say, thank you for putting it in simpler terms for me, thank you. I appreciate that.
196HER HONOUR: All right, thanks Mr Conti.
197Counsel, does that – Mr Kounnas, any difficulty with this recognisance order?
198MR KOUNNAS: No.
199HER HONOUR: They are all the – that covers obviously treatment, because he is to follow their lawful directions.
200MR KOUNNAS: Yes.
201HER HONOUR: Anything further counsel? Aside from that outstanding email and I will make the order once it's confirmed that it's not opposed. Nothing further?
202DR GANG: Nothing further, Your Honour.
203HER HONOUR: Mr Conti, the link is now about to end but Mr Kounnas, I presume that somebody will speak to him?
204MR KOUNNAS: Yes, my instructor, Mr Brown, will be.
205HER HONOUR: Your lawyer will be in contact, just to ensure that you understand the order of the court, all right. Thank you very much.[23]
[23] Subsequent to the hearing and before the signing of orders, the Court raised with Counsel that the s6AAA declaration was a total effective term of 3 years and 2 months with a minimum non-paroled period of 2 years
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