Director of Public Prosecutions (Cth) v Currah-Taylor
[2024] VCC 967
•20 June 2024
| IN THE COUNTY COURT OF VICTORIA AT MILDURA CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| SEXUAL OFFENCES LIST |
Case No. CR-22-00733
Indictment No. P10139992
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| DANIEL WAYNE CURRAH-TAYLOR |
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JUDGE: | HIS HONOUR JUDGE D. SEXTON | |
WHERE HELD: | Mildura | |
DATE OF PLEA HEARING: | 27 May 2024 | |
DATE OF SENTENCE: | 20 June 2024 | |
CASE MAY BE CITED AS: | DPP (Cth) v Currah-Taylor | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 967 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence
Catchwords: Failing to comply with reporting obligations (two charges) – using a carriage service to transmit indecent communication to a person under 16 years of age – use service to groom a person under 16 years of age for a sexual act – supply a drug of dependence (cannabis) to a child – attempted trafficking of a drug of dependence to a child – use a service to procure a person under the age of 16 for a sexual act (two charges) – summary offence of committing an indictable offence while on bail
Legislation Cited: Sentencing Act 1991; Crimes Act 1914 (Cth); Criminal Code Act 1995 (Cth), s474; Drugs, Poisons and Controlled Substances Act 1981, s71B(1); Sex Offenders Registration Act 2004, s46(1); Disability Act 2006
Cases Cited:Bugmy v R (2013) 249 CLR 571; R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269; Director of Public Prosecutions v Swingler [2017] VSCA 305
Sentence: State offences: total effective sentence of 18 months’ imprisonment; Commonwealth offences: total effective sentence of 28 months’ imprisonment
Section 6AAA declaration: Total effective sentence of five years’ imprisonment with a non-parole period of three years and six months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. O’Doherty | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr B. Thompson | Martin Middleton Oates Lawyers |
HIS HONOUR:
Introduction
1At the outset, I remind those listening that publication of anything likely to identify a complainant or victim in a sexual offences case is prohibited by an Act of Parliament. In my published remarks, a pseudonym will be used for the names of the victims.
2Daniel Currah-Taylor,[1] you have pleaded guilty before me to two charges of failing to comply with reporting obligations, which carries a maximum sentence of five years’ imprisonment; one charge of using a carriage service to transmit indecent communication to a person under 16 years of age, which carries a maximum penalty of 10 years’ imprisonment; one charge of using a service to groom a person under 16 for a sexual act, which carries a maximum penalty of 15 years’ imprisonment; two charges of supplying a drug of dependence (cannabis) to a child, which carries a maximum penalty of 15 years’ imprisonment; one charge of attempted trafficking of a drug of dependence to a child, which carries a maximum penalty of 20 years’ imprisonment, and two charges of using a carriage service to procure a person under the age of 16 for a sexual act, which carries a maximum penalty of 10 years’ imprisonment.
3You also pleaded guilty to the related summary offence of committing an indictable offence while on bail between 4 January 2023 and 18 January 2023, which carries a maximum penalty of three months’ imprisonment. You have also admitted your criminal history.
[1]While arraigned on 9 November 2023 in accordance with the name on the Indictment, through his counsel, Mr Currah-Taylor indicated his preferred name, which will be used in these reasons
Circumstances of offending
4
The circumstances of your offending were set out in the Prosecution Opening for Plea dated 13 October 2023, tendered at your plea hearing before me on
9 November 2023 and marked Exhibit 1. Your offending can be briefly summarised.
5Your offending occurred between 19 December 2022 and 18 January 2023, a period of one month. At this time, you were aged 31, and you were residing in the Red Cliffs area. You were at the time a Registered Sex Offender, having been convicted at the Mildura County Court on 30 May 2012 of five charges of sexual penetration of a child under the age of 16. As a result of that conviction, you had contact restrictions and reporting requirements pursuant to the relevant provisions of the Sex Offenders Registration Act 2004 for a period of 15 years.
6While your current offending commenced on 19 December 2022, on 4 January 2023, you were bailed from the Mildura police station in relation to offences against the Sex Offenders Registration Act 2004, namely, failing to report your absence from Victoria and failing to report the name of a child contact. At the plea hearing before me on 9 November 2023, I was informed that this conduct, for which you have now been dealt with, involved your travel to South Australia and having contact with the 18-month-old child of a woman. While you are not to be doubly punished for this conduct, the fact that a significant portion of your offending now before me occurred while you were subject to a grant of bail, elevates both the gravity of your offending and your culpability for it.
7Your offending relates to two young teenage girls, both of whom, at the time, were under the care of the Department of Fairness, Family and Housing, due to being considered high risk and vulnerable youth, at risk of child exploitation. Both girls had a history of meeting older men online or in person and being sexually exploited in exchange for drugs, alcohol and transport. Kelly Fletcher[2] was 14 years old and Sonia Green[3] was 12 years old.
8Charges 1 to 6 on the Indictment relate to your offending in connection with Kelly Fletcher between 19 December 2022 and 18 January 2023. During this period, you communicated with Ms Fletcher by making four phone calls and sending 55 SMS messages. These messages included those of an intimate nature and included you sending multiple images of cannabis and an image of Australian currency. Your contact with Ms Fletcher in this manner, without reporting the contact to Victoria Police pursuant to your Sex Offenders Registration Act 2004 obligations, forms the basis of Charge 1 on the Indictment.
9Your communications with Ms Fletcher between 19 December 2022 and
18 January 2023 form the basis of Charge 2 on the Indictment, using a carriage service to transmit indecent communications to a person under the age of
16 years. On 19 December 2022, you sent 14-year-old Kelly Fletcher a photograph of your penis. You also sent her multiple images of cannabis on21 December 2022 and an image of a $50 note the next day. Other messages sent by you to Ms Fletcher were set out at paragraph 10 of the Summary of Prosecution Opening for Plea. Those messages are highly offensive and indecent and include references by you to your genitalia, and hers; requests to see her vagina, and graphic references to sexual activity proposed by you. You also referred to Ms Fletcher obtaining money in the context of your possession of cannabis.[2] A pseudonym.
[3] A pseudonym.
10Your communications with Ms Fletcher during this period are also relevant to Charges 3 and 6 on the Indictment, using a carriage service to groom a person under the age of 16 for sexual activity and using a carriage service to procure a person under the age of 16 for sexual activity. At your plea hearing before me on 9 November 2023, Mr O’Doherty, who appeared on behalf of the prosecution, sensibly indicated that the conduct constituting the grooming and procuring charges, overlapped to the point that concurrency with regard to sentencing was warranted. In the messages sent by you, you engaged in a highly-sexualised dialogue, asking if Ms Fletcher had had sex before; inviting her to come and stay the night; asking her to send intimate pictures of herself to you; asking if she wanted to see what was in your pants; indicating that you wanted to see her vagina and ejaculate inside her in return for money; asking her if she wanted cannabis; asking her if she wanted you to book a room for the day or whether she wanted to come over. Specifically, on 21 December 2022, you offered
Ms Fletcher cannabis in exchange for sex, and sent messages to this effect.11On 21 December 2022, you smoked cannabis with Ms Fletcher and asked her whether she wanted cannabis the following day. Your conduct in this regard forms the basis of Charges 4 and 5 on the Indictment, supplying a drug of dependence to a child, and attempting to traffic a drug of dependence to a child. Again, Mr O’Doherty, on behalf of the prosecution, on 9 November 2023, conceded concurrency between these two charges, given the circumstances in which these offences were committed.
12Over a three-day period from 15 January 2023 to 18 January 2023, you sent forty-nine outgoing communications, comprising 28 phone calls and 21 messages, to 12-year-old Sonia Green, this conduct forming the basis of Charge 7 on the Indictment, failing to comply with your Sex Offenders Registration Act 2004 reporting obligations. Those messages included an image of cannabis sent by you; asking Ms Green if she was interested in some more; offering her money for her time and asking if she wanted to drive around with you. Your conduct in this regard forms the basis of Charge 9 on the Indictment, using a carriage service to procure a person under 16 for sexual activity. You also smoked cannabis with Ms Green, in the context of sending her pictures of cannabis and a message about smoking cannabis together. Your conduct in this regard forms the basis of Charge 8 on the Indictment, supplying a drug of dependence to a child.
13You were arrested in relation to these matters on 18 January 2023. In your police interview, while you initially denied knowing Ms Fletcher, you eventually admitted to having contact with both victims. You declined to comment on specific sexualised text messages and the image of your penis. You denied that you had, or intended to have, any sexual involvement with the victims.
14While neither of your victims exercised their right to complete victim impact statements in this matter, the harm to children with regards to their involvement in this type of offending is presumed. Clearly, both Ms Fletcher and Ms Green were very young and vulnerable, having been placed under the care of DFFH in regards to their high-risk vulnerability and risk of child exploitation, together with their history of meeting older men online or in-person and being sexually exploited in exchange for drugs, alcohol and transport.
Nature and seriousness of the offending and level of responsibility for it
15Your offending in this matter is self-evidently serious, a matter sensibly conceded by your counsel, Mr Thompson, in both written and oral submissions. The gravity of your offending is, of course, reflected in the relevant maximum statutory penalties. Your offending extended over a period of some weeks. It involved two young, vulnerable girls. Your conduct with both girls was not limited to electronic or phone communications. In the context of those inappropriate communications, you physically met up with both girls in order to smoke cannabis with them. Acknowledging your cognitive impairments, you were, nevertheless, over twice their age. Their youth must have been readily apparent to you, and I note in relation to Ms Green, that you told police in your interview that you thought she was 12 to 14 years old. The communications sent by you to your young victims, which included references to your genitalia and on one occasion, a photograph of your penis, were clearly offensive, obscene and, in the circumstances, exploitative. Your reference to cannabis and money highlights that level of exploitation. Approximately halfway through the offending period, as I have explained you were bailed from the Mildura police station with regards to alleged offences against the Sex Offenders Registration Act 2004. This must have reinforced to you the illegality of your conduct with regards to unreported contacts with children, and the fact that you then continued to offend constitutes an aggravating factor in your offending, and highlights your level of culpability. In particular, the entirety of your offending with regards to Ms Green was committed while you were subject to this grant of bail.
16As appropriately conceded by the prosecution, there is an overlap in some of your offending warranting concurrency, as I have explained. Furthermore, while your second victim, Ms Green, was younger than the first, the offending involving Ms Green extended only over a period of three days and I accept your counsel’s submissions that the communications with Ms Green were more limited and less explicit.
17Overall, given your relevant criminal history and the nature of your offending, which involves two young, vulnerable victims, your offending must be seen as highly concerning and significant examples of the crimes in question. There is a paramount public interest in protecting children from the risks associated with sexual exploitation and, accordingly, the sentencing purposes of denunciation, general deterrence and protection of the community are prominent in the sentencing exercise in this case.
18In terms of your level of culpability for your offending, I note that, on four previous occasions, you have been sentenced in relation to failing to comply with your reporting obligations, including seven such offences in 2020 and three such offences in 2021. Your continued offending in this regard elevates your moral culpability for the current offences against the Sex Offenders Registration Act 2004. While you have a concerning prior conviction, on the face of it, dating from 2012 for five charges of sexual penetration of a child under 16 years, having read the decision of his Honour Judge Wood from 30 May 2012, it is clear that you were then only 18 years of age at the time of the offending and your victim was just a few years younger than you. I am satisfied, therefore, that the circumstances of this prior conviction are distinct from the current offending.
19I will return shortly to your personal circumstances and history; however, as conceded by the prosecution, on the basis of the psychological material tendered at your plea hearing, I am satisfied that your moral culpability for the offending is reduced due to your extremely disadvantaged upbringing pursuant to the Bugmy[4] principles and is reduced due to your mental impairment and its impact on your offending, pursuant to Verdins’[5] Principle 1.
[4] Bugmy v R (2013) 249 CLR 571
[5] R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269
Personal circumstances
20The details with regard to your personal history and circumstances were set out in some detail in your counsel’s Outline of Submissions document, dated 5 March 2024, Exhibit 'H' at your plea hearing, and the various reports tendered on your behalf.
21You are now 32 years of age. You were born in Mildura, with your mother being of Australian heritage and your father having Torres Strait Islander heritage, a fact apparently only reported to you at the age of 21 years. You have reported not having any connections to that culture. In a fairly complex family dynamic, you have one full biological sibling, a sister; as well as five half-brothers and one half-sister, to multiple fathers. You have described your mother as an alcoholic and have reported that your father has abused cannabis. Your parents apparently separated after your father went to gaol when you were six months old, although they have subsequently re-partnered and as at February this year, at least, they remained together. Unfortunately, during the sustained period of separation between your parents, your mother commenced a relationship with another man who allegedly was the perpetrator of physical and sexual abuse towards you and your siblings.
22In your assessment with psychologist, Christine Kennedy, whose findings were set out in her report dated 13 October 2023, Exhibit 'B' at your plea hearing, you reported a childhood in an abusive, chaotic and dysfunctional environment. You reported being placed in foster care from nine years of age until 14 years of age. You reported being sexually abused by one of your stepfathers, and Ms Kennedy referred to records from the Royal Children’s Hospital which documented treatment of you for sexually-transmitted diseases at the age of 12, while a client in the Parkville Youth Residential Centre. Documents from the Royal Children’s Hospital tendered at your plea hearing and marked Exhibit 'D', document treatment for a sexually-transmitted infection on 21 July 2004, when you were aged just 12.
23Having regard to the various reports tendered on your behalf and noting the disparity with regards to some of those details of your background, you do not appear to be a particularly reliable historian. In the neuropsychological report of Dr Linda Borg dated 28 February 2024, Exhibit 'I' at your plea hearing, Dr Borg refers to various disparities in your historical account. These disparities are perhaps understandable, given the chaotic nature of your upbringing and your cognitive impairments;[6] however, it does seem relatively clear that, in your childhood, you moved schools frequently and had to repeat school multiple times, with eventual placement at the Mildura Specialist School. Upon leaving school, you worked casually in some manual labour positions before obtaining the Disability Support Pension.
[6]By way of example, see paragraph 6 of page 3 of Dr Borg’s report with regard to timelines for placement into care
24You have a long history of alcohol and substance abuse. Again, there is a disparity of account between the psychologists with regard to your drug and alcohol history. You appear to have commenced consumption of alcohol in your teenage years, with a rapid escalation to regular use to concerning levels. You have referred to developing liver problems requiring regular blood tests. You have referred to several alcohol-induced blackouts. You also appear to have commenced smoking cannabis from the age of 13 or 14, with a rapid escalation to near-daily use. You also have a history of use of methamphetamine, which appears to have escalated in the period leading up to your remand in custody. You have also reported habitual use of heroin, MDMA and GHB. You have reported to psychologist, Ms Kennedy, that during the time period of your offending, you were using problematic quantities of methylamphetamine, cannabis and alcohol.[7] You have also reported that you were dealing with the unexpected end of an intimate relationship, one of only two such relationships in your life.
[7] Page 5 of her report
25You have an extensive criminal history, dating back to April 2011 in the adult jurisdiction; however, the extended Pre-sentence Assessment Report from Corrections dated 16 April 2024 also refers to your criminal history, commencing in the Mildura Children’s Court from 2004. According to that report, you have previously been afforded sixteen Community Correction Order opportunities, with twelve of those Orders being breached and four being completed. I have already referred to the prior conviction for sexual penetration of a child under 16, dating from 13 May 2012, for which you received a Community Correction Order. In addition to the prior convictions for failing to comply with reporting obligations, you have prior convictions for drug-related matters, make threat to kill and threat to inflict serious injury, weapons offences, driving offences, intervention order contravention and using a carriage service to harass. You have previously received therapeutic dispositions, which clearly have not succeeded in breaking your cycle of offending.
26In terms of the reports tendered on your behalf or made available to the court, the background reports from your childhood and youth paint a complex picture with regards to your cognitive functioning and mental health. A statement of intellectual disability pursuant to the Disability Act 2006 dated 15 May 2021 documents recognition of an intellectual disability in relation to general intellectual functioning and deficits in adaptive behaviour predating your eighteenth birthday. Documentation from the Mildura Base Hospital Mental Health Unit dating from 2004, Exhibit 'E' at your plea hearing, refers to previous contact for behavioural disturbance and intellectual disability, in a context of having been found unconscious due to excessive alcohol consumption. The accompanying documentation refers to historical difficulties with regards to managing anger. There are multiple references to suicidality on your part. When psychologist, Christine Kennedy, assessed you on 19 June 2023, she did not conduct any cognitive testing or psychometric assessments; however, she formed the view that you likely suffered from an intellectual disability and had impairment in your capacity for generally good judgment and your ability to plan and execute positive and self-sustaining behaviours. According to Ms Kennedy, you presented with minimal insight into your own general psychological functioning and offending behaviour, expressing only simplistic remorse. She recommended a full neurological assessment.
27That assessment was undertaken by neuropsychologist, Dr Linda Borg, with her findings set out in her report dated 28 February 2024, Exhibit 'I' at your plea hearing.
28According to Dr Borg, you have a full-scale IQ of 70, with a number of statistically-significant differences between perceptual reasoning and processing speed, as compared to verbal comprehension and working memory indices. Testing indicated significant impairments in literacy, with cognitive weaknesses in the areas of attention, memory and executive functioning. Dr Borg confirmed a diagnosis of an intellectual disability. She referred to a psychiatric history which revealed chronic emotional instability and engagement in self-harm behaviours. In terms of your executive functioning, Dr Borg concluded that you become more rigid and inflexible in thought with increasingly-complex information and you struggle to approach information in a reasoned and considered fashion. Your thinking tends to be impulsive and often without consideration to all of the information available to you.[8] You present with a language disorder and specific learning disorder, with additional deficits in keeping with a diagnosis of Attention Deficit Hyperactivity Disorder ('ADHD').
[8] Paragraph [41]
29According to Dr Borg, additional contributions to your presentation are as a result of your childhood trauma exposure, including neglect, as well as sexual abuse. According to Dr Borg, 'it does appear that [your] trauma exposure and childhood experience, has contributed to the development of maladaptive behaviours and personality traits'.[9]
[9] Paragraph 44
30In terms of the impact of your cognitive functioning and neuropsychological profile on your offending behaviour, Dr Borg concluded that your capacity for reasoning is highly unsophisticated and below functional ranges, which means that you struggle to communicate your decision-making and you interpret information in a very concrete or literal fashion. As a result of your criminal history, you have learned to appreciate the potential consequences of engaging in illegality; however, your ability to apply this understanding in the moment is likely to be compromised in comparison to others who do not have these conditions. Your application of reasonable problem-solving ability is likely impeded by moderate impulsive tendencies, combined with longstanding emotional dysregulation.
'… These factors mean [you are] more likely to respond disproportionately to triggers (perceived or actual) or to act based on immediate needs/wants when decision making. Furthermore, these underlying vulnerabilities would be likely more prominent when acutely intoxicated. Taken together, the available evidence indicates that [your] comorbid developmental disabilities, maladaptive personality tendencies and potentially acute drug intoxication are all likely triggers to [your] offending behaviour.'[10]
[10] Paragraph 46
31I indicated earlier in these sentencing remarks that your disadvantaged background and psychological profile warranted a finding that your culpability for your offending was reduced pursuant to the Bugmy principles and pursuant to Verdins’ Principle 1. Having regard, in particular, to the opinions and conclusions of Dr Borg, I am satisfied that your disadvantaged background has impacted upon your psychological development and personality structure, warranting a reduction in your moral culpability. Furthermore, I am satisfied that your intellectual disability and associated cognitive deficits impact on your executive functioning, problem-solving ability, ability to emotionally self-regulate and ability to learn from previous conduct, such that your moral culpability is reduced pursuant to Verdins’ Principle 1. Given this finding, I am also satisfied that the application of both general and specific deterrence must be sensibly moderated in your circumstances.
Applicable sentencing factors – principles and purposes
32I turn now to the mitigatory factors relevant to the sentencing exercise in your case. When formulating an appropriate sentence in your case, I have had regard to the matters contained in s5 of the Sentencing Act 1991 with regards to the State offences, together with the matters contained in s16A(1) and (2) of the Crimes Act 1914 (Cth) with regards to the Commonwealth offences.
33Having been arrested and interviewed on 18 January 2023, your matter resolved to a plea of guilty at the second committal mention at the Mildura Magistrates’ Court on 10 May 2023. In those circumstances, your plea of guilty must be seen as a plea entered at a very early stage in the proceedings, warranting a significant sentencing discount. In particular, your matter resolved at a time when the Court was still experiencing significant backlogs as a result of the COVID‑19 pandemic, and the utilitarian benefit of your plea is therefore enhanced. As a result of your plea, your victims have been spared the trauma of giving evidence, and your plea has saved Court time and associated costs. Your pleas of guilty demonstrate an acceptance of responsibility and your willingness to facilitate the course of justice, warranting a discount on sentencing.
34Any further mitigatory allowance on the basis of genuine insight and remorse is, however, not straightforward. Whilst your interview with the police ultimately did not contain outright denials, your level of insight into your behaviour was deficient. Psychologist, Christine Kennedy, referred to you expressing simplistic remorse for your actions.[11] According to neuropsychologist, Dr Linda Borg, whilst you stated that you had remorse for what you had done, you could not expand upon what this entailed, you considered your charges to be minor in nature and you made comments to downplay the seriousness of your conduct. In the recent extended pre-sentence assessment report from Corrections dated 16 April 2024, you were noted as not acknowledging the impact of your offending on those affected, and did not exhibit remorse, citing drug use as the cause, not yourself.[12] All of these sentiments must, in my view, be analysed in the context of your recognised intellectual disability and cognitive deficits. However, in the circumstances, any mitigatory allowance on the basis of remorse therefore is extremely limited.
[11]Page 5
[12]Page 2
35
You have been in custody since your arrest on 18 January 2023, a period of
519 days, with 51 of those days attributable to other sentences. This represents a significant period of time in custody whilst you await the outcome of these proceedings. Whilst a number of adjournments have been required since your initial plea hearing before me on 9 November 2023 to allow for the provision of all relevant plea material on your behalf, I accept that this matter has been hanging over your head for an extended period of time, and the anxiety caused by this delay warrants a mitigatory allowance.
36I accept that you have made the most of your time in custody, undertaking several courses through the Box Hill Institute, and various certificates attesting to these endeavours were tendered at your plea hearing and marked Exhibit G. I was informed, and accept, that you have undertaken several roles within the prison environment, undertaking part-time work as a billet, baker and gardener. You remain in receipt of methadone, and have established a significant period of enforced abstinence as a result of your current remand in custody. At your last appearance before me on 27 May 2024, you indicated that you had been in protection for a period of time. Neuropsychologist, Dr Borg, referred to your report of being assaulted in custody and having to attend at St Vincent’s Hospital for brain imaging and a chest scan following that incident. You have apparently suffered from flashbacks following that custodial assault, and you have reported instances of being bullied and threatened in the custodial setting.
37You have reported a desire, upon your release, to either return to Mildura where your mother resides, or to relocate to Bendigo, and in any event, to ultimately rely upon the supports provided through the NDIS, as a result of your intellectual disability, for housing and practical supports. At your last hearing before me on 27 May 2024, I was informed that you hope to reside for one month at your parents’ property in Mildura, following which time you will rely upon emergency accommodation through the NDIS. Otherwise, you have indicated that you wish to remain offence free, and perhaps wisely, have indicated a desire to avoid social media when using a phone. In the context of the offending for which you now fall to be sentenced, you have been assessed by psychologist, Ms Kennedy, to represent a moderate to high risk of recidivism.[13] According to Ms Kennedy, you are likely to present with a number of challenges in terms of your safe management in the community related to your intellectual disability, difficulties with anger management and history of offending. According to Ms Kennedy, the main protective factor would be the completion by you of a sex offender treatment program adapted to your intellectual functioning.[14] In those circumstances, your counsel has realistically, in my view, conceded that your prospects for rehabilitation are guarded, and tied to your ability to address your psychological conditions, abstain from illicit substances and re-engage with appropriate treaters and support services upon your release from custody.
[13]Page 7
[14]Page 7
38In formulating an appropriate sentence in your case, whilst neither counsel drew to my attention any specific authorities, I have had regard to current sentencing practices for the offences for which you now fall to be sentenced. Whilst I have taken into consideration current sentencing practices, and, in particular, I have had regard to previous sentences for commensurate Commonwealth offences, I acknowledge that current sentencing practices represent just one of the relevant sentencing factors to be considered.
39Charges 2, 3, 6 and 9 are qualifying offences for the Serious Sexual Offender provisions contained in Part 2A of the Sentencing Act. Pursuant to those provisions, upon being sentenced to a term of imprisonment on Charges 2 and 3 on the Indictment, you fall to be sentenced as a serious sexual offender on Charges 6 and 9, and community protection assumes the principal purpose for which a sentence may be imposed for those Charges. In order to achieve that purpose, I may impose a sentence that is longer than that which is proportionate to the objective gravity of those offences – though I note that the Prosecution did not submit that I should do so in this case. Pursuant to s 6E of the Sentencing Act 1991, there is a presumption of cumulation in relation to sentencing on Charges 6 and 9.
40Your counsel submitted that, having regard to the nature and circumstances of your offending and the factors in mitigation, a combination sentence involving a sentence of imprisonment followed by an appropriately constructed Community Correction Order was in range. In contrast, the prosecution submitted that the circumstances of your offending, and indeed the overall circumstances of this case, were far too serious for the imposition of a combination sentence, and submitted that a sentence of imprisonment incorporating a head sentence and non-parole period was the only appropriate penalty in your case.
41In the interests of obtaining all relevant information prior to sentencing, I ordered you to be assessed for suitability with regards to a Community Correction Order, with a Justice Plan component, given your intellectual disability. I subsequently received a helpful Disability Overview Report dated 23 April 2024 with an accompanying Justice Plan and Statement of Intellectual Disability. I also received a Suitability Report from Corrections dated 16 April 2024. Ultimately, you were found unsuitable for a Community Correction Order.
42Ultimately, I have concluded that a combination sentence involving a term of imprisonment, followed by a Community Correction Order is not appropriate in the circumstances of your case. The nature of your offending calls for any penalty to appropriately denounce your serious sexual exploitation of vulnerable teenage victims. Acknowledging the mitigatory aspect of your cognitive difficulties and mental impairment, a message must nevertheless be sent to the broader community that such serious misconduct will not be tolerated. Again, acknowledging your cognitive impairments, given your extensive criminal history and ongoing limited insight with regards to the gravity of your offending, any penalty I impose must appropriately seek to deter you from re-offending in this manner. Any sentence I impose must also reflect the important sentencing purpose of community protection. In those circumstances, and consistent with the parsimony principle, I have determined that a sentence of imprisonment incorporating conditional release in the future with appropriate specialist interventions is required.
43
The degree of complexity that arises from sentencing in cases involving both Commonwealth and State offences is now well known. Unfortunately, even adopting the methodology articulated by the Court of Appeal in this State,[15] there remains a considerable degree of complexity in the sentence I am about to impose. In the interests of clarity, I will now indicate that I intend to announce the sentences for the State offending first. That sentence will essentially be a straight sentence of imprisonment, with no parole eligibility component given the circumstances of this case. Pre-sentence detention will be declared in relation to the State offending only. The construction of the sentences for the Commonwealth offending takes into account the considerable period of
pre-sentence detention on the State offending, which has moderated the sentences to be imposed on the Commonwealth offending. A measure of appropriate cumulation, having regard to the nature of the Commonwealth offending and the fact that there are two victims, will be reflected in the commencement dates of each of the Commonwealth sentences.
Mr Currah-Taylor, I now turn to the sentences to be imposed.
[15] Director of Public Prosecutions v Swingler [2017] VSCA 305
Sentences to be imposed
44Turning, firstly, to the State offences, Charges 1, 4, 5, 7 and 8 on the Indictment:
45On Charge 1, failing to comply with reporting obligations with regard to Kelly Fletcher, you are convicted and sentenced to eight (8) months’ imprisonment.
46On Charge 4, supply a drug of dependence to Kelly Fletcher, you are convicted and sentenced to six (6) months’ imprisonment.
47On Charge 5, attempted trafficking of a drug of dependence to Kelly Fletcher, you are convicted and sentenced to ten (10) months’ imprisonment. This is the base sentence with regards to the State offences.
48On Charge 7, failing to comply with reporting obligations with regard to Sonia Green, you are convicted and sentenced to four (4) months' imprisonment.
49On Charge 8, supply a drug of dependence to Sonia Green, you are convicted and sentenced to six (6) months’ imprisonment.
50In relation to the related summary offence of committing an indictable offence whilst on bail, you are convicted and sentenced to one (1) month’s imprisonment.
51I order that four (4) months on Charge 1, two (2) months on Charge 7 and two (2) months on Charge 8 be served cumulatively upon each other and upon the base sentence imposed with regards to Charge 5, making a total effective sentence with regard to the State offences of eighteen (18) months’ imprisonment.
52Pursuant to s18(4) of the Sentencing Act 1991, I declare a period of 468 days pre-sentence detention, and order that this period be deducted administratively from the eighteen-month sentence.
53Turning now to the Commonwealth offences:
54On Charge 3 on the Indictment, use service to groom Kelly Fletcher for a sexual act, you are convicted and sentenced to twenty (20) months’ imprisonment. This sentence commences today.
55On Charge 6 on the Indictment, using a service to procure Kelly Fletcher for a sexual act, you are convicted and sentenced to twenty (20) months’ imprisonment. This sentence commences today.
56It is my intention that the sentences imposed on Charges 3 and 6 be served concurrently.
57On Charge 2 on the Indictment, using a carriage service to transmit indecent communications to Kelly Fletcher, you are convicted and sentenced to eighteen (18) months’ imprisonment. I direct that this sentence commences seven months after the date of sentencing. It is my intention that the delayed commencement of this sentence will amount to a five-month period of cumulation upon the sentences imposed on Charges 3 and 6.
58On Charge 9 on the Indictment, using a service to procure Sonia Green for a sexual act, you are convicted and sentenced to twelve (12) months’ imprisonment. I direct that this sentence commence sixteen months after the date of sentencing. It is my intention that the delayed commencement date of this sentence produce a further period of cumulation, of three months, upon the sentences imposed on Charges 3 and 6, making a total effective sentence on the Commonwealth offences of twenty-eight (28) months’ imprisonment.
59In relation to the Commonwealth offences, and the total effective sentence of twenty-eight months, I direct that you be released after serving ten (10) months’ imprisonment, upon you entering into a recognisance in the sum of $1,000, to be of good behaviour for a period of two years. As a condition of the Recognisance Release Order, made pursuant to s20(1)(b) of the Crimes Act 1914 (Cth), I direct that you be under the supervision of the Deputy Commissioner, Community Correctional Services, and Sex Offender Management, or their nominee, for two years. You are to attend for assessment, and if assessed as suitable, treatment in the Sex Offender Program, or programs to reduce offending as directed.
60There are other standard conditions applying to Recognisance Release Orders in addition to the Sex Offender Program condition/s, as I have described them. Those conditions are:
·That you are to report to the local Community Corrections Centre within two working days of your release from custody. I will check with counsel, but I would assume that will be Mildura Community Corrections.
·That you are to report to and receive visits from a Community Corrections Officer/s.
·That you are to notify an officer of the specified centre of any change of address or employment within two clear working days after the change.
·That you are not to leave Victoria except with the permission of an officer at the specified centre; and
·That you are to obey all lawful instructions and directions of the relevant officers.
61I am required to explain the purpose and consequence of the making of the Recognisance Release Order that I have just made. The Order reflects the gravity of your offences, but also mitigating factors which I have referred to in the course of these reasons. If you are of good behaviour over the following two-year period after your release, and comply with the conditions, that is the end of the sentencing process in respect of those charges as far as the Court is concerned. If you are not of good behaviour, by way of example by committing further offences, in all likelihood you will be brought back before this Court and depending on the nature and seriousness of the transgression, the Court may either take no action, impose a fine, extend the period of your good behaviour, impose a different penalty, revoke the Recognisance Release Order, or send you to prison for the balance of your sentence.
62I will not ask you to sign the Order because you are remote. In due course you will be asked to sign the Order and indicate that you have had explained to you the purpose and effect of the Order, the consequences if you do not comply, and the signature will constitute your agreement to be bound in accordance with the terms of the Order.
63Pursuant to s 6F of the Sentencing Act 1991, in relation to Charges 6 and 9, I declare that you have been sentenced as a Serious Sexual Offender, and I order that this fact be entered into the records of the Court.
64Charges 2, 3, 6 and 9 are Class Two offences pursuant to Schedule 2, clause 28D of the Sex Offenders Registration Act 2004. Pursuant to s 34(1)(c)(iii) of that Act, having been found guilty of three or more Class Two offences, you must comply with the reporting obligations contained in the Act for the remainder of your life. You will shortly receive paperwork on this issue, and you will need to sign to acknowledge receipt of this documentation.
Section 6AAA declaration
65Pursuant to s 6AAA of the Sentencing Act 1991, I declare that had you pleaded not guilty but been found guilty of the State offences, I would have imposed a total effective sentence regarding the State offences of two years and two months' imprisonment, as part of a global total effective sentence of five years' imprisonment with a non-parole period of three years and six months.
66That completes my sentencing remarks. Starting with yourself, Mr Thompson, any issues, ambiguities? I appreciate that's been a complex sentence.
67MR THOMPSON: No, Your Honour. I think Your Honour was very clear in your remarks. Just in relation to the SORA, I do believe it is 28D.
68Is the appropriate Corrections Centre Mildura?
69MR THOMPSON: Your Honour, it is hard to say. It is his intention to reside in Mildura.
70HIS HONOUR: Yes.
71MR THOMPSON: The NDIS is making endeavours to get him accommodation in that area.
72HIS HONOUR: Yes.
73MR THOMPSON: In the immediacy, at the very least, it will be Mildura because he will be transitioning to a week's accommodation in a motel before the month at his parents.
74HIS HONOUR: Yes.
75MR THOMPSON: And then of course he can notify Corrections of any change.
76HIS HONOUR: All right. On that basis I will make it Mildura. To make it as clear as I possibly can, the sentencing incorporates an 18 month sentence on the State offences. My calculations with regards to pre-sentence detention, he has about two and a half months left on that sentence. The Commonwealth sentence however starts today, therefore incorporating a degree of overlap between the two, the State sentence and the Commonwealth sentence. The Commonwealth sentence starts today with delayed commencement dates. It essentially constitutes a total effective sentence of 28 months to be released however after 10 months from today, on a Recognisance Release Order essentially focusing on the Sex Offender Treatment Program that is clearly essential in this case.
77Mr O'Doherty, any issues from your perspective so far with regards to the sentence I have just imposed? Any ambiguities? Have I missed any orders or anything?
78MR O'DOHERTY: No, no Your Honour. No issues from our end.
79HIS HONOUR: All right, thank you. Given the complexity of the order I will certainly give the parties liberty to apply should they subsequently notice something awry with regards to the sentence. It is obviously important that it is procedurally and legally correct, given the Commonwealth State interrelation.
80Mr Currah-Taylor, can I just have him un-muted for a moment. All right, Mr Currah‑Taylor, I am going to leave the Bench momentarily. I am going to leave the link open so that you can speak with Mr Thompson, who can hopefully go through the sentence with you to ensure that you understand it. There is a document that needs to come to you for signing. That is what we call the Recognisance Release Order. That document will be forwarded to the prison in due course for signing and then sent back to the court. You will also receive the Sex Offender Registration documentation, which you will need to sign an acknowledgement of receipt in due course. Otherwise I am going to leave you with Mr Thompson after I leave the Bench.
81HIS HONOUR: Yes, thanks.
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