Director of Public Prosecutions (Cth) v D'Angelo
[2020] VCC 1097
•24 July 2020
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO SITTING AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-00616
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| FRANCO D'ANGELO |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Bendigo sitting at Melbourne | |
DATE OF HEARING: | 1 July 2020 | |
DATE OF SENTENCE: | 24 July 2020 | |
CASE MAY BE CITED AS: | DPP (Cth) v D'Angelo | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1097 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: One charge of using a carriage service to procure a person under the age of 16 years to engage in sexual activity and one charge of using a carriage service to transmit indecent material to a person under the age of 16 years – 41 year old offender with no prior convictions – offending on Charge 1 involved covert undercover operative posing as a 15 year old girl and included sexually explicit communications over a period of 2 ½ months, including an offer to meet up for sexual purposes – Charge 2 committed over two days, involved a girl whom the offender believed to be 15 years old but who was in fact 13 years old and included the offender sending two photographs of his erect penis and the victim sending explicit photographs of her breasts and vagina – two summary offences of failing to store a firearm in a secure manner and failing to store cartridge ammunition in a secure manner.
Legislation Cited: Firearms Act 1996
Sentence: Total effective sentence of 23 months’ imprisonment, to be released after 4 months on a Recognisance Release Order (with conditions) for a period of 3 years. s6AAA: 4 years’ imprisonment with a non-parole period of 3 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C Nicholson | Office of the Commonwealth Director of Public Prosecutions |
| For the Offender | Mr M Habib | Docherty Legal |
HER HONOUR:
1 Franco D’Angelo, you have pleaded guilty to one charge of using a carriage service to procure a person whom you believed to be under 16 years of age for sexual activity contrary to s474.26(1) of the Criminal Code (Cth). This offence carries a maximum penalty of 15 years’ imprisonment. You have also pleaded guilty to one charge of using a carriage service to transmit an indecent communication to a person under the age of 16 years contrary to s474.27A(1) of the Criminal Code (Cth), which carries a maximum penalty of 7 years’ imprisonment.
2 In addition, you have consented to two summary offences being uplifted to the County Court from the Magistrates’ Court and have pleaded guilty to those offences. They are: Being a person licensed to possess a firearm, you failed to store that firearm in a secure manner, and being a person licensed to possess cartridge ammunition for a firearm, you failed to store that ammunition in a secure manner. Each of these offences carries a maximum penalty of 12 months’ imprisonment or 60 penalty units.
3 The circumstances of your offending are detailed in the Summary of Prosecution Opening for Plea (Exhibit “A”).
4 Charge 1 involves offending conduct between 24 September and 10 December 2019. On 20 September 2019 you began to engage on the social media application known as Kik with a person who, unknown to you, was an undercover police officer from the Joint Anti-Child Exploitation Team. After you sent your first message, the covert operative replied on 24 September 2019. Shortly after that, there was a conversation between yourself and the covert operative about your respective ages. The covert operative told you that she was 15 years old and you responded that you were 40, but in later chats told her that it was a “typo” when you indicated that you were 40 and that you were, in fact, 25 years old. The covert operative communicated that she had never been with a guy before so she did not know whether she liked older guys. You told the operative that it did not bother you that she was fifteen. From 26 September 2019 you began communicating on WhatsApp using your mobile phone. You sent photographs of yourself and asked for photographs in return. When they were provided, you would give compliments, such as suggesting that she was “hot”. You suggested meeting up with the person whom you believed to be a 15 year old girl, and offered on one occasion to take her to the beach. You volunteered to take a day off to meet up with her. You said that you could pick her up and asked her if she wanted to kiss and cuddle and stated that you could go to your place or a motel. During the period of contact, there were a number of sexualised messages where you asked for “sexy full body” pictures and a picture of her in her school clothes. You made comments such as betting she had a “sexy, hot body” and asked whether she would like to feel you and make love and indicated that you could “go slow” with her.
5 From 11 October 2019, the conversation between the two of you became sporadic. Despite minimal responses from the covert operative, you made attempts to call her and would message her every few days. On 9 December 2019, the operative recommenced communications and the conversation quickly became sexualised. On 10 December 2019, you asked whether she had had sex yet and she responded “no”, and that she had never had sex before. You indicated that you wanted to have sex with her and asked whether she had touched herself, fingered herself and stated that you were “playing at the moment” and asked whether she liked it when she fingered herself. The conversation between the two of you ceased after you were arrested on 10 December 2019.
6 Your offending on Charge 2 involved communications between yourself and another person on the social media application Kik. From the outset, on 16 November 2019, your conversation was sexualised with references to “my cock is hard for you baby” and enquiries as to whether “you want it inside your pussy baby”. You asked whether she would like the two of you to be boyfriend and girlfriend, whether “you like to suck my cock” and “you like me to cum inside your pussy”. You made requests such as “let me lick and suck your clit” and “turn daddy on” and “you want my cock inside your mouth?”. You believed the person to whom you were speaking was 15 years old (although at the time of the communications she was actually aged 13 years). You sent her two photographs of your erect penis and she sent you a photograph of her face, as well as two explicit photographs depicting her breasts and vagina. After 17 November 2019, although you made further attempts to communicate with the girl, you did not receive a response from her.
7 On 10 December 2019, police attended your home with a search warrant and your mobile phone was seized. During the search, police located an air rifle and ammunition inside a rifle case, which was inside your wardrobe. At that time, although you held relevant licences under the Firearms Act, neither the rifle or air gun pellets were stored securely. This is the basis of the two summary charges.
8 When interviewed you told a number of lies to police. For example, you stated that the covert operative had said that she was 18 or 21 and you had found out that she was 15 only on the day of your arrest. You claimed that the operative had sent a couple of photographs of herself, but you could not remember whether her clothes were on or off and that these had come in response to a request from you so that you could try to work out her age. You claimed that you were trying to work out her age because she had said that she would like to meet you and you wanted to see if she was old enough to date. You maintained that it was a typing error when you had communicated that you were 25 years old and that the covert operative had indicated that she wanted to meet and wanted a boyfriend. You did admit that you asked whether she touched herself, using her fingers in any part of her body and whether she was looking for sex. You claimed that you had suggested going to your place or a motel because you did not like to walk the streets and would rather be at home “talking or whatever”.
9 Analysis of your mobile phone by police revealed that on 22 September 2019 you had used Google to search for “nude teen girl”.
10 You are currently aged 41 years, having been born on 31 August 1978. You come before the Court with no prior convictions. Having been arrested on 10 December 2019, you indicated your intention to plead guilty to the charges at a committal mention on 29 April 2020. These are early pleas of guilty which have significant utilitarian value, particularly as criminal trials have been suspended from March 2020 due to the COVID‑19 pandemic. I accept that your pleas show a willingness to facilitate the course of justice and have saved the time and expense of a trial.
11 In a plea in mitigation on your behalf, Mr Habib stated that you come from a loving, supportive family. Your parents were both present at the plea hearing to support you. You had attended school until the completion of Year 10, following which you undertook an apprenticeship as a fitter and turner. From the age of 16 you have been primarily employed in the family engineering business, along with your two older brothers. Yourself and your brothers purchased the business from your parents a couple of years ago. The business employs some 30 people. Your role includes supervising seven apprentice fitters and turners and mainly being on the factory floor to ensure that machinery is maintained, as well as being involved in the sale of spare parts and wiring new machinery.
12 Mr Habib stated that, when you were aged approximately 20 years, following the break up of your first significant relationship, you were diagnosed with anxiety and depression, for which you were prescribed Diazepam and Sertraline. He stated that, over the years since that time, you had periodically been treated for anxiety and depression. From approximately 2015 to early 2019 you were in a relationship and, when this ended, you began drinking alcohol more heavily and became more anxious and depressed. Apparently you were not taking medication at that time but, since being charged with these offences, you have again seen your general practitioner in Kyabram who, in turn, referred you to Mr Peter Powles, psychologist for counselling. As at the date of that referral on 10 January 2020, your general practitioner was prescribing Diazepam (2 milligrams per day) and Sertraline (50 milligrams per day).
13 A report from Mr Powles, dated 27 June 2020, was tendered as Exhibit “3”. He saw you for some nine face-to-face counselling sessions prior to the COVID‑19 pandemic. In addition, you have apparently completed two on-line mental health programs provided by Mr Powles. These have focussed upon anxiety and depression. The report notes that, as at 27 June 2020, you were taking an increased daily dosage of Sertraline (100 milligrams) for depression and anxiety, as well as Seroquel (25 milligrams) to assist with sleep.
14 Mr Powles noted that, prior to seeing your general practitioner recently, you had been treating your depression and anxiety by excessive use of alcohol. He stated that, at the time of offending, your self-esteem was low. You felt like a failure, lonely and isolated, as you were having trouble forming relationships with people outside your immediate family due to suffering social anxiety. When he first saw you, he assessed you as being in the extreme severe range for anxiety and depression and diagnosed you as suffering a Persistent Depressive Disorder (dysthymia), as well as an Alcohol Use Disorder. However, he considered that you had engaged well with himself and undertaken a cognitive behavioural therapy program for anxiety and depression so that, now, you are in early partial remission. He stated that you had shown pleasing improvement in your symptoms and, provided you continue medication and reduce your reliance on alcohol, a serious relapse of your anxiety and depression is unlikely.
15 Also tendered at the plea hearing was a report from Mr Jeffery Cummins, forensic psychologist, dated 23 June 2020 (Exhibit “1”). Notwithstanding that Mr Cummins’ report referred to him having read the Summary of Prosecution Opening for Plea, the body of his report seemed to refer to only Charge One, some aspects of which seemed to be conflated with aspects of Charge 2. In the light of this factor, I permitted your legal representatives to obtain a supplementary report from Mr Cummins to clarify matters.
16 A supplementary report from Mr Cummins dated 2 July 2020 was subsequently tendered as Exhibit “6”. In that report, Mr Cummins clarified that he had read the Prosecution Opening and was aware that there were two charges, and in his first report where he had recorded that you had stated “well, I’m completely guilty of the charges”, he had understood that to apply to both charges. He confirmed that you had understood that, in order for a person to use the social media application, Kik, one had to be aged 18 or older. However, you had told him that, even though the person or persons with whom you had communicated had stated that they were under 18, you had not known whether to believe this and, hence, had been reckless.
17 In his first report, Mr Cummins had noted that, after applying the Static‑99R tool for risk of sexual reoffending, he placed you in the low to moderate risk category. After applying the RSVP assessment tool, which takes into account both static and dynamic risk factors, Mr Cummins did not state any altered view as to your category of risk. However, he noted the following in relation to the five domains which are considered as part of an RSVP assessment:
· Sexual violence history: Mr Cummins noted chronicity and some diversity, and some escalation insofar as you had indicated that you wanted to meet up with one of the people to whom you believed you were communicating, and your offending represented a breach of trust and an abuse of power.
· Psychological adjustment: Mr Cummins considered there was no attempt on your behalf to minimise or deny your offending and you did not express any attitudes condoning sexual offending, and you have no history of being physically or sexually abused as a child. He stated that you had acknowledged that you were drinking more alcohol than usual in circumstances where you had recently brought an intimate relationship to an end.
· Mental disorder: Mr Cummins did not assess you as displaying any sexual deviance or major mental illness or history of violent ideation.
· Social adjustment: Mr Cummins did not assess you, generally, as having problems with intimate relationships, although you did state a wish to find an age appropriate partner with whom you could form a long-term relationship. He also noted that you had always been fully employed and had no prior convictions.
· Manageability: Mr Cummins stated that he would not expect you to have problems with planning and that you had stated your preparedness to participate in offence specific treatment.
18 In his second report, Mr Cummins stated that he placed some weight on the fact that, when your mobile phone was forensically analysed, there was no child pornography material found on it. Had that been the case, your risk of reoffending would have been elevated. Although he expressed the view that your level of insight at the time of offending was limited, he considered that your level of insight is now somewhat higher. He assessed you as being genuinely remorseful and he adhered to his assessment expressed in his first report that you had already learned your lesson in relation to having committed the sexual offences to which you have pleaded guilty. Nevertheless, he thought it would be appropriate for you to participate in offence specific treatment.
19 Mr D’Angelo, it is plain that you come from a law abiding, decent, hardworking family who are aware of this offending and who continue to love and support you. In addition to being present at the plea hearing, your mother provided a reference on behalf of herself and your father dated 26 June 2020 (Exhibit “4”). She stated that she and your father were having trouble grasping that you had committed these crimes because this is not the man whom they had raised, a person who has always been there for them and the entire family. She stated that you admit that you have done the wrong thing and are extremely remorseful. You have been seeking help with your depression through counselling and they have noticed a vast improvement in your temperament, behaviour and wellbeing generally.
20 Also tendered as Exhibit “5” is a letter from your two older brothers, Gino and John. They describe this offending as being totally out of character as you are a genuinely nice, helpful and respectful person. They refer to you having experienced “a period of being lost” and believe that the break-up of previous relationships had a big effect upon you, however your mental health has improved through counselling. They describe a very close-knit family who regularly have meals together and stated that the three brothers work closely each work day in the family engineering business. They stated that you are an integral part of the business. You have 20 plus years of knowledge of the agricultural machinery produced by the business and also supervise the machining section of the business and are responsible for hydraulic issues and spare parts. Your brothers state that you are extremely remorseful for what you have done and understand that your actions have consequences.
21 Mr D’Angelo, the Court accepts that this offending occurred in the context of a low period of your life following the break-up of a relationship and in the context of you having struggled on and off with anxiety and depression over some 20 years. Apparently, you were not medicated for your anxiety and depression during the period of offending but, instead, relied upon increased usage of alcohol. This can never excuse such offending and, indeed, it is plain that your phone revealed evidence that you had used Google to specifically search for nude teen girls. You should be in no doubt about the seriousness of this offending. The law provides special protection for children. This is because they are still developing, both physically and emotionally. In relation to each charge, you believed that you were communicating with a 15 year old girl. A girl of that age is still working out who she is and coming to terms with her own sexuality. Unhappily, girls of that age are too regularly preyed upon on the internet, which has made it easy for unscrupulous adults to invade the lives of children. The offending to which you have pleaded guilty is presumed to cause harm to victims by exposing them to conduct which is morally repugnant and humiliating because it treats them as sex objects. The long term erosive effects that such offending can cause to children’s self-esteem and general wellbeing are now well known. The reason that these are criminal offences is because children need to be protected from depraved communications like the ones in which you engaged and, also, in many cases from their own immaturity.
22 The offences to which you have pleaded guilty are prevalent and difficult to detect. Thus, notwithstanding that the person with whom you were communicating in relation to Charge 1 was an undercover police officer posing as a 15 year old girl, the offence is no less serious than if the person had, in fact, been a child. Although there is no presumption of harm as there would be in relation to an actual victim, the crime to which you have pleaded guilty is designed to prevent harm to children and such crimes need to be detected. One of the ways of detecting them is through the use of undercover police operations. The depraved invasion of the lives of young girls on the internet cannot be tolerated. Your behaviour in committing both offences must be denounced by this Court. In sentencing you, emphasis must be placed upon general deterrence so that others who are minded to act in a way that debases children by crudely treating them as sexual play things before they have the maturity to deal with such conduct will know that they will be appropriately punished.
23 There is also some need for emphasis upon specific deterrence as your offending, overall, took place over a period of some 2 ½ months. Although there was reduced contact between the covert operative and yourself between 11 October and 9 December 2019, it is concerning that the lack of response from the person with whom you were communicating on Charge 1 coincides with you beginning to communicate with your victim on Charge 2.
24 Although your offending on Charge 2 took place over only 2 days, your indecent communications were quite intensive over that short space of time. Your conduct in transmitting a significant number of sexually explicit suggestions and photographs of your penis, together with your request for indecent images (with which your victim complied) is abhorrent. The photograph of your victim’s face was obviously that of a very young teenager, as was the photograph on the profile of the person with whom you were communicating on Charge 1.
25 I am satisfied beyond reasonable doubt from the content of your communications on both charges that your motivation for the offending was to obtain sexual gratification in circumstances where there was a very marked age disparity (25 years) between yourself and the persons with whom you believed you were communicating, who had made their age (purportedly 15 years) known to you. I have already mentioned that your offending on Charge 2 ceased only because your victim ceased responding to you and your offending on Charge 1 ceased because you were arrested. I note that you somewhat minimised your offending on Charge 1 in stating to Mr Cummins that you “got sucked in by the undercover operative”[1] and nowhere have you acknowledged the potential adverse impact of your offending upon victims. Thus, although you have accepted responsibility for your offending by pleading guilty to the charges and I accept that you are truly ashamed and have some remorse, I agree with Mr Cummins that you should undertake a Sex Offenders Program to increase your insight. It is to your credit that you expressed your willingness to undertake such offence specific treatment when you spoke with Mr Cummins on 15 June 2020.
[1]Exhibit 1, p. 4, para 23
26 Although deeply concerning, your illegal acts of procurement and indecent communications are not as extensive in their gravity as one often sees in these types of cases. Nor do they have aggravating features of bullying or intimidating conduct or threats to blackmail a child with the indecent photographs of herself which she had been prevailed upon to send. I note, too, that whilst using the social media application, Kik, you used an account in your own name and, when communicating on WhatsApp, you used your own first name and your own mobile telephone number. To my mind, this demonstrates that you are not an experienced, sophisticated predator upon children, as offenders who fall into that category tend to take steps to disguise their real identity. In relation to both charges, you sent photographs of yourself of a non-pornographic, “everyday” nature in which you are very clearly identifiable. This is distinct from offenders who deliberately take steps to avoid detection by sending “fake” photographs which purport to be them or photographs in which their face is not readily visible. I also note that when your phone was analysed, no child pornography images or videos were found, other than the ones relating to Charge 2. Mr Cummins placed considerable weight on this factor in assessing your risk of re-offending. Had such material been discovered, he stated that this would have elevated your risk to being “at least Low-Moderate and most probably Moderate-High or High.”[2]
[2]Exhibit “5”, p. 2, paragraph 4
27 This Court must impose a sentence of a severity appropriate in all the circumstances of the offences.[3] In arriving at such a sentence, I have taken into account the maximum penalties and the circumstances of offending, as well as the matters put in mitigation on your behalf and those factors listed in s16A(2) of the Crimes Act 1914, as are known to me. I have already referred to most of these factors. They include your early pleas of guilty, which I have accepted do show some contrition for your offending. Such pleas entitle you to a significant discount on the sentence which, otherwise, would have been imposed. You come before the Court with no prior criminal history and, hitherto, have led a blameless life. Unhappily, quite a number of offenders who come before courts for this type of offending have no criminal record. The nature of this serious offending is such that less weight is given to prior good character than might otherwise be the case. That does not mean that no weight, at all, will be accorded to it, but it is a question of the Court undertaking a balancing process and, for offences like this, the most significant weight in sentencing must be given to the principle of general deterrence.
[3]Section 61A of the Crimes Act (Cth)
28 Your lack of prior offending is relevant to your prospects of rehabilitation. You also have an excellent vocational history and a close supportive family. You did have the benefit of these two prosocial factors at the time of offending, however, it seems that your family may not have been aware of the extent of your depression and anxiety and the fact that you were self-medicating your low mood with alcohol, both of which factors I consider contributed to your offending. Since the offending, you have voluntarily engaged in counselling with Mr Powles and been compliant with mood stabilising medication. These two developments, together with reduction of your alcohol intake, have resulted in your Persistent Depressive Disorder with anxious distress moving into early remission, according to Mr Powles. In my view, that is a significant rehabilitative step which, together with Mr Cummins’ assessment, give this Court some comfort that you are likely to have good prospects of rehabilitation. In particular, I note that Mr Cummins assessed you as not displaying any sexual deviance and as having “already learnt (your) lesson in terms of committing the sexual offending to which you have pleaded guilty”.[4] In his second report, he opined that, although at the time of offending your insight was “unquestionably limited”, your level of insight is “now somewhat higher” and you spoke to him “in a genuinely remorseful manner.”[5]
[4]Exhibit “1”, p. 5, paras 31 and 34
[5]Exhibit “5”, p. 2, para 5
29 Although the gravity of your offending is such that the only appropriate sentence is a term of imprisonment, my overall assessment is that you are a quite vulnerable person who has struggled with depression and anxiety since shortly after you reached adulthood, over two decades ago. My impression is that these offences arose out of a sense of personal inadequacy associated with your Persistent Depressive Disorder with anxiety, for which you were inappropriately medicating yourself by drinking alcohol to excess. You have taken steps to address both those issues and there is no evidence before the Court from either Mr Powles or Mr Cummins that you suffer from any other psychiatric or psychological disorder which would be a barrier to your rehabilitation.
30 Given that you are now 41 years old and have had no prior or subsequent involvement in criminal activity and certainly have never served an immediate custodial sentence, I consider that you will find serving a term of imprisonment very challenging. In my view, it is likely to have a far more punitive effect upon a person like you who has suffered long term psychological fragility in terms of anxiety and depression than for a person without such history. I hold very real fears that you are the type of person who may well be crushed by a prison environment if you are incarcerated for a very significant time and that, not only may your mental health deteriorate, but the rehabilitative gains that you have made may be lost.
31 In all of the circumstances I consider that the primary sentencing objectives of denunciation, general deterrence and just punishment can be served by ordering a term of imprisonment with release upon a Recognisance Release Order. The prosecution has acknowledged that such a disposition is within range. I do not believe that your release solely on a Community Correction Order, which was the primary submission of your counsel in his written submissions, would be a sentence of severity appropriate in all the circumstances, particularly given the prevalence of these internet offences against children and the need for courts to send a clear message to those who might be minded to engage in such offending that they will meet with appropriate punishment.
32 In arriving at the sentences which I propose to impose, I have had regard to comparable cases in jurisdictions throughout Australia, being mindful that no two cases are ever identical and that other cases are simply useful as a yardstick in determining an appropriate sentence. I have also taken into account that you have been taken into custody for the first time during the more onerous conditions of imprisonment which have been operative during the COVID‑19 pandemic. I remanded you in custody on 1 July 2020 and you have been compelled to endure 14 days of isolation, which I acknowledge would be very confronting for someone of your age entering a prison environment for the first time. Up until recently, at Ravenhall, where you have been on remand, the out of cell time permitted for prisoners was significantly reduced in order to facilitate social distancing. As from 21 July 2020, that prison, along with five other prisons, has had prisoners locked in their cells for 23 hours each day. This was implemented following the detection of an active case of COVID-19 in order to try to contain the spread of the virus. Whilst four of those prisons have now ended their respective lockdown regimes, Ravenhall Correctional Centre is one of two prisons which remains in lockdown indefinitely. This is a very onerous way for any person to serve a term of imprisonment. Also, all contact visits with family and friends outside the prison have been suspended. In addition, the availability of rehabilitative programs in custody is very significantly reduced and face-to-face programs are almost non-existent. From 8 July 2020, the government of Victoria imposed Stage 3 lockdown in the general community for a period of at least six weeks. At the time of imposing this sentence, there is no end in sight for the more onerous conditions of imprisonment associated with the pandemic. Doing the best I can, I have taken into account these onerous conditions in sentencing you and reiterate my concern about their impact upon you, an already psychologically vulnerable person. I note that, at the time of being remanded in custody, you were taking a number of prescription medications, namely, Sertraline (100mg, 1 tablet each morning), Quetiapine (25mg, 1-2 tablets at night) as well as Valpam (diazepam 2mg, 2 tablets as required) in order to manage your psychological state. I am aware that diazepam is not prescribed in prison and it is likely that you will need a period of readjustment in relation to your prescribed medication.
33 As far as the summary charges under the Firearms Act are concerned, I consider that each of them are towards the lower end of the scale of seriousness for these types of offences. The firearm was not left casually around the house and nor was it loaded. Although ammunition for the firearm was in proximity to it, both the firearm, itself, and the ammunition were actually contained within a closed rifle case which, as far as I can glean from the photographic material, was not readily on display but in a shelf in the very bottom of a wardrobe in your bedroom. In your residence, there was a dedicated cabinet for firearms and you held the relevant licence for the firearm and ammunition. I accept your counsel’s submission that you and your brothers legitimately had used firearms over many years for control of rodents and that you had assisted in firearm training programs for police in the Kyabram area for the last 10 to 15 years. The explanation which you provided to the Court through your counsel was that you had finished cleaning the firearm and returned it to its case and put it in the wardrobe, but had not returned it to the secure cabinet in the house prior to the time when police attended your home on 10 December 2019. In these circumstances, I consider that an aggregate sentence by way of a fine is an appropriate disposition.
34 On Charge 1, procuring a child under the age of 16 years to engage in sexual activity, you are convicted and sentenced to be imprisoned for a period of 18 months.
35 On Charge 2, using a carriage service to transmit indecent communications to a child under the age of 16 years, you are convicted and sentenced to be imprisoned for a period of 10 months.
36 The sentence on Charge 1 is to commence immediately this day and the sentence on Charge 2 is to commence 13 months after the commencement of the sentence on Charge 1. For the avoidance of doubt, it is my intention in applying the principle of totality to make 5 months of the sentence on Charge 2 cumulative upon the sentence imposed on Charge 1.
37 The total effective sentence is thus 23 months’ imprisonment.
38 I order that you be released pursuant to s20(1)(b) of the Crimes Act (Cth) 1914 after serving a period of 4 months of the term of imprisonment upon you entering into a recognisance in the sum of $1,000 to comply with the following conditions:
(a)that you be of good behaviour for a period of 3 years; and
(b)that you be under the supervision of the Deputy Commissioner, Community Correctional Services and Sex Offender Management or his nominee for the duration of the good behaviour period; and
(c)that you attend for assessment and, if assessed as suitable, undertake a sex offender program or programs to reduce the risk of re-offending as directed by the Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee; and
(d)that you report to the Bendigo Community Corrections Centre by 4.00pm within two clear working days of your release from custody; and
(e)that you report to and receive visits from a Community Corrections officer or officers; and
(f)that you notify an officer at the specified Community Corrections Centre of any change of address or employment within two clear working days after the change; and
(g)that you not leave Victoria except with the permission of an officer at the specified Community Corrections Centre; and
(h)that you obey all lawful instructions and directions of Community Corrections Officers.
I declare a period of 23 days’ pre-sentence detention to be reckoned as time already served under the sentence imposed this day.
39 Mr D’Angelo, the amount of $1,000 which I have mentioned in the order which I have just made does not have to be paid by you unless you fail to comply with a condition of the order. In the event that you do fail to comply with a condition of the order without reasonable excuse, then the order could be discharged or varied and that could involve you being ordered to serve a further term of imprisonment. In the event that you comply with the order during the period of 3 years, then you will have honoured your obligations under it and there will be no further consequences for you.
40 In order for me to be able to make this order, you need to enter into the recognisance, which is another word for undertaking, by signing a document which acknowledges that you have had explained to you the purpose and effect of the order, the consequences that my follow if you fail without reasonable excuse to comply with the conditions of the order and that the order may be discharged or varied and also that you agree that you are bound in accordance with the order and that you have been given a copy of the order which will be supplied in due course. Are you prepared to entered into a recognisance or undertaking that I have just described to you?
41 PRISONER: Yes.
42 HER HONOUR: Is that your signature on the Recognisance Release Order?
43 PRISONER: Yes.
44 HER HONOUR: By signing that document, do you agree to comply with the conditions which I have just described?
45 PRISONER: Yes.
46 HER HONOUR: On Summary Charge 2, being a licenced person who possessed a firearm who failed to store that firearm securely, and on Summary Charge 3, being a licensed person who possessed cartridge ammunition who failed to store such ammunition securely, you are convicted and sentenced to pay an aggregate fine of $200. Mr D’Angelo, I will allow a stay of 6 months on payment of the fine.
47 PRISONER: Thank you.
48 HER HONOUR: Charges 1 and 2 on the indictment are Class 2 offences under the Sex Offender Registration Act 2004 and are registrable offences.[6] Upon being sentenced for these offences you become a registrable offender as defined in that Act.[7] As you have pleaded guilty to two Class 2 offences, you are required to report for a period of 15 years.[8]
[6]Sex Offender Registration Act 2004 (Vic) Schedule 2, Items 28A(v) and 28A(vii)
[7]s6(1)
[8]s34(1)(c)(iii)
49 Mr D’Angelo, you will be provided with a document which sets out your reporting obligations under the Sex Offender Registration Act. I will ask the custody officer to put that with your personal belongings so that it can be given to you when you are released from custody after serving the period of 4 months, less 23 days. I won’t trouble you to sign an acknowledgment that you have received that document, as it is difficult to have it transmitted back to the Court during the pandemic.
50 Pursuant to s6AAA of the Sentencing Act 1991 (Vic) I state that, had it not been for your pleas of guilty to Charges 1 and 2 on the indictment, the total effective sentence imposed would have been 4 years’ imprisonment with a non-parole period of 3 years.
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