Director of Public Prosecutions (Cth) v Nichols
[2018] VCC 1451
•6 September 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-18-00754
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| RICHARD KENNETH NICHOLS |
---
JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 30 August 2018 | |
DATE OF SENTENCE: | 6 September 2018 | |
CASE MAY BE CITED AS: | DPP (Cth) v Nichols | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1451 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr P. Darby | Commonwealth Director of Public Prosecutions |
| For the Accused | Ms K. McKay (Plea) Ms A. Beech (Sentence) | GTC Lawyers |
HER HONOUR:
1 Richard Nichols, you have pleaded guilty to one charge of accessing child pornography material using a carriage service, contrary to s474.19(1) Criminal Code 1995 (Cth). The maximum penalty applicable to that offence is 15 years’ imprisonment.
2 You have also pleaded guilty to knowingly possess child abuse material, contrary to s51G(1) Crimes Act 1958 (Vic). The maximum penalty applicable to that offence is ten years’ imprisonment.
3 These crimes arise out of events which took place between 15 October 2016 and 4 October 2017 referable to Charge 1, and being in possession of child abuse material on 2 November 2017 (Charge 2).
4 It is not necessary for me to recount in great detail the facts of this matter, as they are on transcript, the matter having been opened in some detail by the learned prosecutor consistent with Exhibit A. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient for present purposes to simply say that I regard the facts in this case as most serious and disturbing.
5 I turn then to a brief summary of your offending.
6 At the time of your arrest you were 29-30 years of age and living with your parents at Skye, Victoria. You were employed as a subcontractor for the Department of Health and Human Services as a residential youth worker. You are 31 years of age at sentence.
7 I turn to Charge 1. Between October 2016 and October 2017 you used the internet to access child pornography on a regular basis through two different platforms, imgsrc.ru and eMule. You predominately used your Asus PC tower computer in your bedroom.
8
Imgsrc.ru is a Russian-based photo-sharing website. To search and download images, a user has to create an account. Your username was "hepthestis", which was linked to your email address [email protected]. Analysis of your account showed you viewed albums including those referred to in
Exhibit A (paragraph 3).
9 Between 15 October 2016 and 23 November 2016 you downloaded seventeen images from imgsrc.ru that have been identified as child pornography material.
10 Between 1 May 2017 and 4 October 2017, using eMule, you downloaded 45 video files identified as child pornography material.
11 In order to locate child pornography material using eMule, you conducted keyword searches including those referred to in Exhibit A (paragraph 7).
12 The videos files downloaded by you included the titles referred to in Exhibit A (paragraph 8).
13 The various images and videos downloaded by you were classified using the ANVIL model, and contained 25 Category 1 images and videos, 27 Category 2 videos, and 10 Category 4 videos. A total of 62.
14 I turn to Charge 2. On 2 November 2017 police executed a search warrant at your home. You were present and co-operative with police. Your Asus PC tower, Asus R103B notebook, and Samsung mobile phone were seized.
15 Forensic analysis of the seized devices determined they contained child abuse material as referred to in Exhibit A (paragraph 11). A total of 2837 images and videos were located, 2798 being unique images and videos.
16 Descriptions were provided within the prosecution opening regarding the files included in each of the categories. I will not repeat that detail (see paragraphs 12-16). I discussed with counsel the need or otherwise for me to view this material in line with R v Hutchinson[1]. Neither counsel submitted that I should view the material.
[1] [2018] NSWCCA 152 at [47]-[50]
17 You were arrested and participated in a record of interview. You told police there were some photos and videos of child pornography material on your computer, and that there would be images and videos found on the hard drive.
18 You said you used the website imgsrc.ru to access child pornography with the username ‘hepthestis’. You stated you understood child pornography to depict anyone under the age of 18 in compromising positions.
19 You said you used a program on the computer to download the material on to those devices. You said when you downloaded images which looked a bit younger than normal, it would just go from ‘one click to the next’.
20 You usually just watched it or looked at it, but sometimes you would hit the download so you could watch it again. You would download child pornography to a folder called ‘Extra’. The program you used to download child pornography was eMule. I discussed the download process with the prosecutor, Mr Darby.
21 You said you tried to prevent files being automatically uploaded to others on eMule because you did not want to distribute the material.
22 You said you knew that child pornography was wrong and that "it hurts the kids". You said, however, it was:
"just an urge and I’ve tried ignoring it and tried pushing it aside and done what I could and I probably should have seeked help but I don’t wanna hurt the kids. I don’t wanna help others access it and all that stuff."
23 You said you did not like videos where it hurt the children or it was abusive. You had mainly gone to videos where it was "the kids on chats and they’re just doing it to themselves".
24 You agreed that as a youth worker you had a better understanding of the ages of the kids in the videos.
25 You said the files you looked at on the image source website were "mostly pictures of happy kids just doing things naked … mostly naturalism, and then sometimes selfies at home, but they always looked happy, with no one forcing them to be in that position".
26 You said you assumed the selfies would fit into the definition of child pornography because they are under 18. You stated your interest was in males or females aged between 12 and 18.
27 By way of chronology, there was a committal mention on 2 March 2018. The matter was listed for a committal hearing on 12 April 2018, however, it resolved prior to that occurring. I accept you pleaded guilty to these charges at the earliest opportunity and were co-operative with police.
28 The prosecution submitted Charges 1 and 2 are Class 2 offences within the meaning of the Sex Offenders Registration Act 2004 (Vic), and upon being sentenced in relation to those charges you become a registrable offender, and are required to comply with the reporting obligations in that Act for a period of 15 years. Your counsel, Ms McKay, who appeared on your behalf at your plea hearing, conceded such classification and duration applied to you.
29 You do not have any prior court appearances, nor anything subsequent or pending, and I am aware of this.
30 Ms McKay tendered a written outline of submissions (Exhibit 1) which she addressed during the course of your plea hearing.
31 Ms McKay adopted those written submissions, prepared by another counsel. She conceded that these were serious offences for which a sentence of imprisonment would ordinarily be imposed.
32 Despite that, her ultimate submission was that two Community Correction Orders, or a Community Correction Order in combination with a Recognizance Release 0rder, would be an appropriate disposition. In making those submissions, Ms McKay relied, in part, on your personal history and circumstances, lack of prior convictions, early plea of guilty, totality and your good prospects of rehabilitation. Further, that general sentencing principles, she urged, would be best achieved by a sentence which punished you and also allowed you to effectively rehabilitate into the community.
33 I turn to your background and history.
34 At the time of your arrest you were living with your mother and father in Skye, who are now aware of your offending and remain supportive of you and they were in court during your plea hearing.
35 You completed Year 12 then attended Swinburne University, where you obtained a number of qualifications (Exhibit 5). This was elaborated upon by Ms McKay in the plea hearing.
36 You received a Certificate in Forensic Science, however, became aware that to further that career path, you would need to join the police force, which was something that you were not attracted to at that time.
37 You then decided you would move into the public health sector, and obtained a Bachelor of Health Science. Following that, you had an internship with the Department of Health, but subsequently lost that job through no fault of yours. You were then in receipt of Centrelink payments for a short period of time, at which time you began to volunteer with Cranbourne Information & Support Services (CISS).
38 You were involved in regular volunteer work with that organisation, which included providing people with financial advice. It was suggested you had a talent for working with young adults and you then became a youth worker.
39 A reference was before me from Leanne Petrides, Cranbourne Information & Support Service Inc, dated 6 February 2018.
40
You applied to become a volunteer at that organisation in 2013, and volunteered as a community support worker at least once a week when you were there. Your role included delivering crisis support services to clients.
Ms Petrides described you as always professional in engaging and supporting clients.
41 After being charged, you approached her for assistance to find appropriate counselling.
42 With that qualification, you ultimately held a number of positions, most recently at the residential facility referred to in the material.
43 You are currently unemployed, however, instructed you had been actively looking for work.
44 At the time of your offending you were working as a subcontractor for the Department of Health and Human Services as a residential youth worker. You instructed that employment caused you significant stress (see paragraph 7, Exhibit 1). You said you used pornography as an escape from work-related stress.
45 I discussed that no doubt due to your employment, you were aware of the inappropriateness of your offending. There were other means available to you to deal with your ‘stress’ that did not involve this offending. I have no doubt you were aware of the extent of the illegality and inappropriateness of your offending.
46 Ms McKay referred to your plea of guilty being entered prior to the committal hearing and I accept, as I said, yours was a plea of guilty at the earliest possible opportunity. And I accept your pleas of guilty indicate remorse for your offending.
47 As I said, you have pleaded guilty to the charges and you are entitled to have that fact taken into account in your favour, and as I have said I do. By your pleas of guilty, the community has been spared the time and cost of a trial and I take into account in your favour you intimated early your intention to plead guilty to these charges. Your pleas have the utilitarian benefit.
48 As I said, I accept you were also co-operative with police making admissions to your offending.
49 You also came to the court with no prior convictions or subsequent for that matter and I am aware of that. I discussed with Ms McKay prior good character when sentencing for these offences. Whilst not eliminated, prior good character is of less weight.
50 I was told that between 12 December 2017 and your plea hearing you had attended 16 counselling sessions with a psychologist, Daria Sizenko. You felt the counselling was of benefit to you and that you would continue with it.
51 You told Ms Sizenko you felt sorry and remorseful for your offending, now having a better understanding of the abusive nature of child pornography. As I have said, I have no doubt as a youth worker you were well aware of the impact of the abusive nature of child pornography on the victims of it.
52 Ms McKay submitted you have been meaningfully engaged in treatment with Ms Sizenko, and had obtained a number of skills through that counselling.
53 Not surprisingly, you have ongoing anxiety in relation to this court matter being finalised. Whilst Ms McKay was not relying upon the principles in R v Verdins and Ors[2], she then nevertheless urged in her written submissions that your anxiety would make your term of imprisonment weigh more heavily upon you. I accept that is likely, consistent with general sentencing principles, and take that into account. I note you have not been prescribed medication for this, or at all.
[2] (2007) 16 VR 269
54 Ms McKay submitted the principle of totality applied when sentencing you. In my opinion some cumulation between the two charges is appropriate to reflect the different type of offending. I am aware all the images/videos referred to in Charge 1 form part of the pornographic material referred to in Charge 2.
55 Ms McKay conceded in her written submissions denunciation and general deterrence were important sentencing considerations in relation to offences of this nature. She is correct.
56 Regarding the need for specific deterrence when sentencing you, I note your repeated offending over the charge period. I note also that there was a ‘break’ in your offending between 23 November 2016 and 1 May 2017. You had the opportunity to desist and did so for some months, however, then re-offended. I discussed that at some length with Ms McKay.
57 Ms McKay referred to the report and conclusions of Pamela Matthews, and urged that there were a number of factors likely to reduce your risk of reoffending, citing your counselling for sexual offending, skill-building surrounding building new friendships and relationships, restrictions on a close monitoring of your use of digital technology, and engagement in treatment and support targeted at managing your issues.
58 Ms McKay submitted you had good prospects for rehabilitation based on your age, ongoing family support, your mother and stepfather were in court to support you. I note, however, you had family support at the time of this offending.
59 Whilst Ms McKay conceded the importance of general deterrence when sentencing for these offences, she urged that in your case it would not result in the need for you to serve an immediate term of imprisonment.
60 She referred to the decision of DPP v Garside[3]. As I discussed with counsel, facts vary enormously, case to case, as do all matters in mitigation of sentence and personal to an offender. Whilst I receive guidance and assistance from previous authorities, ultimately when determining sentence I must take into account all relevant sentencing considerations that are applicable in your case.
[3]DPP (Cth) and DPP v Garside [2016] VSCA 74
61 Regarding the need for specific deterrence, Ms McKay submitted that you did not have any prior history, and there was nothing subsequent, and that you were now seeking treatment, which gave you insight into your offending. I accept that is so, but also relevant is, however, when looking at specific deterrence, that this was repeated offending, and, relevant to Charge 1, after a significant number of months where you did not offend.
62 Regarding your risk of future sexual offending, Ms McKay relied upon the conclusion of Ms Matthews that whilst the RSVP assessment tool indicated you were a moderate risk of sexual reoffending, your counselling that you had recently been involved in was likely to reduce this to low risk.
63 Ms McKay referred to your cooperation with police, of which I am aware and accept. Ultimately, she urged you had ‘reasonable’ prospects of rehabilitation, evidenced by your lack of prior criminal history, ongoing treatment, and that you are relatively young.
64
Regarding your rehabilitation prospects, I consider them to be reasonable and am comforted to a degree by your assessment of risk as determined by
Ms Matthews. You do, however, have continuing thoughts of child pornography which need to be addressed and you have commenced that counselling. You also need to address your own "romantic" issues to assist your rehabilitation.
65 When sentencing you, I must seek to maximise your chances of rehabilitation as they may be.
66 Two reports were before me. From Daria Sizenko, Provisional Psychologist, dated 10 August 2018, who confirmed at that time you attended fourteen (now sixteen) counselling sessions. Ms Sizenko described the sessions as focusing on identifying internal factors that contributed to your offending, and developing your understanding of self and awareness.
67 Throughout the sessions, you identified feelings of stress in your employment, your financial situation and lack of successful romantic relationships as significant contributors to your offending.
68 Ms Sizenko noted you reported improvements avoiding thoughts about child pornography and a reduction in urges to watch adult pornography, reporting those thoughts had decreased. This statement it seems to me suggests the need for further work to address your thoughts regarding child pornography.
69 There was also a report prepared by Pamela Matthews, Forensic Psychologist, dated 16 August 2018. You reported understanding such materials were manipulating young minds, and that there was "no choice for the children" as to whether they wanted to participate in such activities. You said you were aware children were "being used and harmed" to produce such materials.
70 You stated previously you did not consider the consequences of such materials for the children. As I say, I find that difficult to accept given your past employment/study.
71 You described your work as a youth residential worker as at times being stressful, and also of having financial difficulties. You described having been assaulted by some of the young children at the housing where you work (confirmed in material tendered at your plea hearing (Exhibit 6)), and in particular I note reference to 26 August 2017, 3 October 2016 and 19 November 2016. You described being close to completing an occupational health and safety course as at the time of the report, I understand, since then has been completed.
72 Ms Matthews set out details of your personal history and circumstances including education. In the past, you had also completed a one-year youth work diploma in 2015, however, that work ceased upon you being charged with these offences. I also received a resume of your work history and qualifications (Exhibit 2).
73 You did not report excessive alcohol consumption, and denied involvement with any illicit drugs or gambling. I note as submitted by Ms McKay, you do not need to address any such issues. You did, however, have a history of pornographic use, as described in Ms Matthews’ report.
74 You described a limited relationship history, referred to within her report (page 6) and I will not outline that further here.
75 In terms of your mental state, at each of the appointments you appeared anxious and described being depressed. Your thought content was centred on this court case and your financial situation. Ms Matthews concluded there was no indication of any formal thought disorder, delusional constructs or other indications of psychosis.
76 Ms Matthews conducted a risk assessment relevant to future sexual offending (page 7 of the report). Using the Risk Matrix 2000 assessment tool, Ms Matthews concluded that placed you in the low risk category of reoffending. Ms Matthews concluded there was not a direct link between the nature of your early exposure to child pornography and the nature and form of your behaviour relevant to the offending before me. As I have stated, Ms McKay was not relying upon the principles in Verdins and that, in my opinion on the material before me, was an appropriate concession.
77 Ms Matthews concluded you met the DSM‑5 diagnostic criterion for paedophilic disorder (see p.11). She concluded that, overall, your risk of sexual reoffending in a similar way was estimated to be moderate, and with counselling likely to be ‘low’.
78 Ms Matthews observed you were likely to manage the prison sentence, although you may have some physical vulnerability in a prison environment.
79 Mr Darby, who appeared on behalf of the Commonwealth Director of Public Prosecutions, prepared a written outline of submissions on sentence (Exhibit B).
80 He observed in relation to Charge 1 the maximum penalty was increased from ten to 15 years in 2010, which reflected the legislature’s recognition "that the internet is creating ever greater demands for the new material of ever greater levels of depravity and corruption". He further noted the maximum penalty for Charge 2 had been increased from five years to ten years in 2015.
81 The prosecution submission was that an immediate term of imprisonment was the only appropriate disposition to reflect all relevant considerations in your case.
82 I was referred to s16A(2) Crimes Act 1914 (Cth). I have taken into account when determining the appropriate sentence matters referred to in s.16A(2), as far as are relevant and known when sentencing you.
83 Mr Darby also referred to s17A(1) Crimes Act 1914 (Cth) which provided that the court shall not pass a sentence of imprisonment on any person for a federal offence unless, having considered all other available sentences, the court is satisfied no other sentence is appropriate in the circumstances. I am aware of this. Imprisonment should always be the last resort of the court when sentencing.
84 Turning to Charge 2, the relevant statutory provisions when sentencing were found within s5 Sentencing Act 1991 (Vic).
85 Mr Darby referred to a number of relevant principles when sentencing child pornography offenders such as yourself and I did not understand Ms McKay to dispute any of these well established principles.
86 Mr Darby submitted when determining the appropriate sentence, I must take into account the objective seriousness of your offending, such ordinarily determined by the following factors:
(i)the nature and content of the material, in particular the age of the children and the gravity of the sexual activity depicted,
(ii)the number of items or images possessed,
(iii)whether the material is for the purpose of sale or further distribution – I note not the case here,
(iv)whether the offender will profit from the offence – I note not the case here,
(v)in the case of possession or access of child pornography for personal use, the number of children depicted and thereby victimised, and
(vi)the length of time for which the pornographic material was possessed.
87 In addition to these considerations, I discussed Hutchinson with counsel (paragraph 45).
88 Mr Darby correctly noted general deterrence was the primary sentencing consideration for offending involving child pornography, that less weight is to be given to an offender’s prior good character (again I note, not eliminated).
89 Mr Darby also referred to offending involving child pornography occurring on an international level. That it was becoming increasingly prevalent with the advent of the internet as a means of allowing people to access and obtain child pornography.
90 Further, he submitted offending involving child pornography was difficult to detect given the anonymity provided by the internet.
91 Further, the possession of child pornography material created a market for the continued corruption and exploitation of children.
92 He submitted there was a paramount public interest objective in promoting the protection of children. Possession of child pornography was not a victimless crime, children were sexually abused in order to supply the market.
93 The fact that an offender did not pay to access a child pornography website, or was not involved in the distribution or sale of child pornography, did not, he urged, mitigate the offending.
94 The above principles, as I have said, have been repeatedly stated by courts over the years and as I said, I did not understand Ms McKay to suggest otherwise.
95 Turning to totality, Mr Darby submitted and I accept whilst there is an overlap between State and Commonwealth child pornography offences, the two separate offences before me were directed at different vices. In my opinion, some cumulation is appropriate.
96 The duration of your offending is a relevant consideration. Charge 1 refers to regular use of the internet to access child pornography over roughly a twelve month period, specifically the two separate periods of time stated that was discussed during the plea. This is a lengthy period of offending and involved a course of conduct (s16A(2)(c)).
97 In sentencing you, I am also required to have taken into account your personal circumstances in determining the appropriate disposition (s16A(2) Crimes Act 1914 and s5 Sentencing Act 1991).
98
Mr Darby referred to four authorities, Miao v R[4], Fedele v R[5], R v Porte[6] and DPP v Zarb[7], relied on by him as ‘comparable cases’. It was accepted by
Mr Darby there were inherent limitations on the utility of comparable cases, and that each case turns on its own facts. That is so. I have read the cases relied upon by him and also Garside to which I had previously referred.
[4] [2017] NSWCCA 89
[5] [2017] VSCA 363
[6] (2015) 252 A Crim R 294
[7] (2014) 46 VR 832
99 Turning to your personal circumstances, it was accepted by the prosecution you did not have any prior convictions, were otherwise a person of good character, and had taken steps towards rehabilitation. I agree. Further, the prosecution accepted, as do I, you were co-operative with police and made extensive admissions in your record of interview.
100 Your prospects of rehabilitation and rehabilitative steps already taken, Mr Darby submitted must not be allowed to overshadow the objective seriousness of your offending, nor the need for a sentence to reflect general deterrence and denunciation.
101 Mr Darby submitted Garside was not comparable to the facts and circumstances in your case and noted that Court of Appeal in Garside determined that a Community Correction Order was an inadequate disposition in that case. There were reasons why the court did not alter that sentence, as I discussed briefly with him.
102 The prosecution maintained its submission that an immediate term of imprisonment to be served was the only appropriate disposition.
103 As well as matters personal to you to which I have referred, including your prospects of rehabilitation, which I find to be ‘reasonable’, I must also take into account matters such as deterrence, especially general deterrence, which is of considerable importance in a case such as this.
104 There is also the need for specific deterrence required when sentencing you, although I do note your lack of prior and subsequent offending. It was, however, repeated offending relevant to Charge 1, with an opportunity to desist not taken by you.
105 I must also consider the question of protection of members of the community from you and bear in mind the likelihood of your re-offending. I am comforted in that regard to the extent that you have already undergone some counselling (sixteen sessions) and your risk of re-offending as assessed by Ms Matthews.
106 I am called upon when sentencing to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
107 In relation to the dispositions urged by Ms McKay, I am aware of the decision of R v Boulton and Ors[8]. In my opinion, however, to accede to either of her sentencing submissions, as urged by Ms McKay, that is, either two community correction orders, or alternatively a community correction order with a term of imprisonment to be served by way of recognizance release order without the need for an immediate term of imprisonment imposed, would not, in my opinion, adequately address all relevant sentencing considerations in your case.
[8](2014) 46 VR 308
108 When sentencing you, I have, however, taken into account the principle of totality as discussed.
109 So I sentence you as follows:
110 Now, I will go through it with you just to see if we have got it right. I do not like accused/prisoners thinking I am negotiating. I do not negotiate. All right, so let us have a look at it and see if it reflects what I want. Let us see what it says.
111 Now, on Charge 1 (Commonwealth), you are convicted and sentenced to 18 months’ imprisonment. I will come back to that. That is going to be a Recognizance Release Order. All right? So do not panic. I will formally announce this after we go through it.
112 On Charge 2 which is the State offence, you are convicted and sentenced to 7 months’ imprisonment and I direct that 4 months of that seven months be served cumulatively upon Charge 1.
113 The State sentence should start today, being 6 September 2018, and the Commonwealth sentence then commences 4 months after that four-month period in the State sentence.
114 That results in a total effective sentence of 22 months’ imprisonment and after he has served the 4 months, he is then on a Recognizance Release Order for 18 months in the sum of $1000. And there are some conditions and things attached to it. Now, that is what I want to achieve.
115 MR DARBY: So that the total time to be served in custody is four months.
116 HER HONOUR: Four months.
117 MR DARBY: Yes.
118 HER HONOUR: Then straight after that - - -
119 MR DARBY: Yes.
120 HER HONOUR: - - - when he gets out, the 18 months' gaol is to be served by Recognizance Release Order.
121 MR DARBY: Yes. So in my submission, he should be released forthwith on the recognizance release order which would - - -
122 HER HONOUR: Well we have got to work that out. Why?
123 MR DARBY: Because in four months, the Federal sentence will commence and at that point, he is released.
124 HER HONOUR: My plan is he does four months.
125 MR DARBY: Yes.
126 HER HONOUR: We will come back to PSD. Let us put that to one side.
127 MS BEECH: Yes.
128 HER HONOUR: He does four months today - from today. Well, PSD - less a week.
129 MR DARBY: Yes.
130 HER HONOUR: Four months. As soon as we walks out the door, he is subject to 18 months' recognizance release. That is my plan. That is what I want to achieve.
131 MR DARBY: Yes.
132 HER HONOUR: And it is $1000 which he does not pay of course unless he breaches it. And I have noted there, there would be a condition that he participate in the sex offender program. We will come back to that in a minute.
133 MR DARBY: Yes.
134 HER HONOUR: There will be other conditions as well helpfully provided - as was discussed, Ms Beech - the prosecution were going to provide me with this blank form just - which refers to recognizance which I will come to in a minute. That is just see - you have seen one of those, have you not?
135 MS BEECH: Yes, I have. I have seen an email as well, Your Honour.
136 HER HONOUR: Good.
137 MS BEECH: Yes, thank you.
138 HER HONOUR: Well, fine for doing that. Now, is that going to achieve the purpose?
139 MR DARBY: I think the other issue I see is with the seven months. So if - - -
140 HER HONOUR: Now, that would mean it runs concurrent with the 18 months.
141 MR DARBY: Yes, but he cannot be released on the recognizance release order in relation to the State charge. That can only apply to the Federal - - -
142 HER HONOUR: So how will I achieve it?
143 MR DARBY: Well, you could reduce the State sentence to simply four months. And then - - -
144 HER HONOUR: Yes. And make it wholly cumulative?
145 MR DARBY: Then it would be wholly concurrent or - - -
146 HER HONOUR: No, cumulative, would it not? It is four months. He does four months first.
147 MR DARBY: Yes, yes.
148 HER HONOUR: Well, you know, I am not sure about that.
149 MR DARBY: And then the 18 months suspended after that or - - -
150 HER HONOUR: Well, why can I not do - which I have done in this sort of sentence before, not the same figures but this type of structure - - -
151 MR DARBY: Yes.
152 HER HONOUR: Why can the three months not run concurrently?
153 MR DARBY: Well, it could but he would be nominally released on the - it just means he would not be released for another three months because he - - -
154 HER HONOUR: I do not want that.
155 MR DARBY: No.
156 HER HONOUR: I want him released after four months.
157 MR DARBY: No, certainly. After four months.
158 HER HONOUR: So that is what I am aiming to achieve.
159 MR DARBY: Yes.
160 HER HONOUR: I suppose I could reduce the sentence but that is a bit of a give from seven months down to four.
161 MR DARBY: Yes - - -
162 HER HONOUR: Well, that is not what I had in mind.
163 MR DARBY: Or it may be that he could be subjected - I am just not sure of the non-parole period.
164 HER HONOUR: No, no. Non-parole - no, no.
165 MR DARBY: Yes.
166 HER HONOUR: It does not quite fit that way. So that is what I want to achieve. I am giving him effectively seven months on Charge 2.
167 MR DARBY: Yes.
168 HER HONOUR: But I only want him to do an extra four months.
169 MR DARBY: Yes, but they are just - - -
170 HER HONOUR: I only want him to do an four months.
171 MR DARBY: Yes.
172 MS BEECH: I think the issue is - - -
173 MR DARBY: But the difficulty is in the release mechanism and the Federal release mechanism cannot apply to the State charge.
174 HER HONOUR: Yes. So it would have to be four months' gaol.
175 MR DARBY: Yes, unless - - -
176 HER HONOUR: That is a big give.
177 MR DARBY: There may be another way.
178 HER HONOUR: I do not feel that generous.
179 MR DARBY: There may be another way of doing it if you start the Federal sentence first but I have to - - -
180 HER HONOUR: But that is 18 months' recognizance. The 18 months is all by way of recognizance.
181 MR DARBY: Yes.
182 HER HONOUR: So what I do at this stage, when we get to this tricky stage is I get you to go away and make a few phone calls and see how - - -
183 MR DARBY: I can. Yes, I just have to - - - -
184 HER HONOUR: - - - when it is clear what I am trying to achieve and I think it is - - -
185 MR DARBY: I think - yes.
186 HER HONOUR: Worst case scenario, it is back to four months on Charge 2 but I do not like that. That is not my plan.
187 MR DARBY: Yes. That would achieve the - - -
188 HER HONOUR: It might but then that - - -
189 MR DARBY: But it may not be the best option.
190 HER HONOUR: Yes. So just find out.
191 MR DARBY: Yes. But I can - - -
192 HER HONOUR: And I do not want to be met with the - now, I could be met with - if I did reduce it to four months, to a submission, "Well, you've made it all cumulative and not part concurrent." Ms Beech might try to argue that whereas in fact she has had a drop from seven months down to four only because of the structure.
193 MR DARBY: Yes. Certainly. It does. It is just that is the only solution that comes to mind. But I am happy to think about it.
194 HER HONOUR: All right. Well, that is what happens at this stage of the proceedings. So what I will do is I will let you go and try and sort that out. Now, Ms Beech, is there anything you wanted to say about that? We are not negotiating here. It is just the structure.
195 MS BEECH: No, Your Honour. I think the issue is if Your Honour intends to order come concurrency then the Commonwealth sentence has to start the same time as the State sentence, otherwise they are not concurrent. They are not overlapping. So I think that that is the difficulty. But then if Your Honour were to increase the Commonwealth sentence, that would be artificial - just as it would be artificial to reduce the State sentence.
196 HER HONOUR: Yes. No, so I am just trying to find out a way that can - somehow I can achieve this result.
197 MS BEECH: Yes.
198 HER HONOUR: I want him to serve four months.
199 MS BEECH: One option might be, Your Honour, that Your Honour indicate that you would - that you have by virtue of totality reduced the seven-month sentence to a four-month sentence. Because of the principles of totality and because of the way that the State and Federal sentences overlap.
200 HER HONOUR: That might be my last resort.
201 MS BEECH: Yes.
202 HER HONOUR: I would like to see if we can do it this way first - - -
203 MS BEECH: Yes, certainly.
204 HER HONOUR: - - - because that is more reflective of what I have intended.
205 MS BEECH: We will have a discussion between us and see if we can - - -
206 HER HONOUR: Yes. No, that is all right. I will just pop outside.
207 MS BEECH: Yes.
208 HER HONOUR: Now, I will just explain this to you, Mr Nichols. Do not worry about what is going here at the moment. All right? The bottom line is, subject to this being worked out the correct wording. It is very tricky where there is a State offence and a Commonwealth offence. It is just the way it always is. We have got to get the structure right, the wording right. But my intention is that you do four months' gaol then you will be out on a recognizance release order. All right? Out in the community for the 18-month period. But I will come back to that in a minute. So what we will do is we will just get you to pop outside there. Do not go downstairs if you can avoid it otherwise it could take forever this time of the day. So if you could just wait outside there and we will get back to you as soon as we can. All right? Let us see if we can sort this.
209 (Short adjournment.)
210 HER HONOUR: All right. Solution is at hand?
211 MR DARBY: Unfortunately, we have had to go to the last resort.
212 HER HONOUR: What is that? I hate that.
213 MR DARBY: Yes. In our view, the State sentence would have - if he is to be released in four months, the State sentence would have to be reduced to four months because there is no - the Federal release mechanism cannot apply to that sentence and there is otherwise no release mechanism on the seven months.
214 HER HONOUR: Yes. So are you going to complain about that, Ms Beech? A reduction from seven months to four months? He still does his four months.
215 MS BEECH: No, I do not think I have any complaint about that, Your Honour. As I indicated earlier, we understand Your Honour is doing it because of the mechanisms available.
216 HER HONOUR: That is the only reason. We are not - yes, it still remains four months inside - - -
217 MS BEECH: Yes.
218 HER HONOUR: - - - followed by 18 months' RRO.
219 MS BEECH: RRO. Yes, Your Honour.
220 MR DARBY: And so the way that would be achieved is - - -
221 HER HONOUR: So on Charge 1 - - -
222 MR DARBY: Yes.
223 HER HONOUR: - - - it is as it is. Let me have a look.
224 MR DARBY: Well, in my submission, 18 months' imprisonment to be released forthwith with that sentence commencing in four months.
225 HER HONOUR: So hold on. So on Charge 1, as it currently reads, convicted and sentenced 18 months' imprisonment - to be what?
226 MR DARBY: Yes, to be released forthwith - - -
227 HER HONOUR: On that.
228 MR DARBY: Yes. With that sentence to commence in four months.
229
HER HONOUR: To be released forthwith, to commence in four months from
6 September 2018. That is today's date by the way.
230 MR DARBY: Yes.
231 HER HONOUR: Charge 2, convicted and sentenced to four months.
232 MR DARBY: Yes.
233 HER HONOUR: Is that right?
234 MR DARBY: Yes.
235 HER HONOUR: Imprisonment to commence today.
236 MR DARBY: Declaration of pre-sentence detention.
237 HER HONOUR: Hold on. Do not get ahead of ourselves.
238 MR DARBY: Yes.
239 HER HONOUR: So it is to commence today being 6 September 18 and Charge 1, he will be released forthwith in four months' time. Now, that is not the wording you normally use. It is - - -
240 MR DARBY: No.
241 HER HONOUR: - - - normally "at the completion of" - because they might be locked out, he might get credits.
242 MR DARBY: Well, yes, completion of the pre-release period but there is not one in this case.
243 HER HONOUR: So in four months.
244 MR DARBY: Yes. Or "at the completion of the State sentence".
245 HER HONOUR: That is better.
246 MR DARBY: Yes. And that should allow for the - yes.
247 HER HONOUR: To commence at the completion - - -
248 MR DARBY: Of the State sentence.
249 HER HONOUR: - - - of the State sentence. Well, that makes sense because you - - -
250 MR DARBY: And that - - -
251 HER HONOUR: - - - cannot actually nominate a day in case there is lockdowns or - - -
252 MR DARBY: Yes.
253 HER HONOUR: - - - in case he goes out rioting and gets days added on. I am not suggesting he will but there are ways that can go - administrative either way, you know.
254 MR DARBY: They prefer us to avoid specific dates, yes.
255 HER HONOUR: Right. So Charge 1 (Commonwealth), convicted and sentenced to 18 months' imprisonment to be realised forthwith at the completion of the State sentence.
256 MR DARBY: Yes.
257 HER HONOUR: And Charge 2 (State), convicted and sentenced to four months to commence today being 6 September 2018.
258 MR DARBY: Yes.
259 HER HONOUR: Now, before we move on, do not worry, I have not finished yet. Do not be concerned.
260 That still results in a total effective sentence of 22 months' imprisonment and after he has served four months, he is released on a Recognizance Release Order of a sum of $1000 for a period of 18 months with a condition he participates in the sex offender program. So I am going to send this order back down to you. Have you completed it?
261 MR DARBY: I have got a draft which I can fill in or - - -
262 HER HONOUR: Good. Well, what I am proposing is after serving four months - you can see it there. Recognizance, $1000. Good behaviour for the whole period on the recognizance. That is 18 months by the way.
263 MR DARBY: Yes.
264 HER HONOUR: Under the supervision, yes. And sex offender management, yes, for 18 months. So I am up to (b). Have you got it there?
265 MR DARBY: Yes.
266 MS BEECH: My instructor has it, Your Honour.
267 HER HONOUR: (c) is in which is attend assessment and if assessed as suitable, treatment with sex offender programs. That is in.
268 MR DARBY: Yes.
269
HER HONOUR: Report to the Frankston community corrections centre,
431 Nepean Highway, Frankston by 4 pm within two working days of release. We cannot set a date because it might change administratively.
270 MR DARBY: Yes.
271 HER HONOUR: Yes. And is to report to and receive visits from a community corrections officer or officers. The next one remains in as well. (f), change of employment. I will explain them in a bit more detail in a minute. The next is not leave Victoria et cetera and the other, obey all lawful directions and instructions.
272 MR DARBY: Just one thing, Your Honour.
273 HER HONOUR: Sure.
274 MR DARBY: In terms of the release, in my submission, that should be not after four months.
275 HER HONOUR: No, I follow that.
276 MR DARBY: It should be forthwith. Just for the reasons discussed.
277 HER HONOUR: Yes, forthwith. After serving - so how long? So should the order read? Have you got a draft there?
278 MR DARBY: Yes, the court orders the release of the defendant under paragraph 21B forthwith.
279 HER HONOUR: Yes.
280 MR DARBY: So cross out "months of the term of imprisonment".
281 HER HONOUR: But hold on. I want that to start in four months' time.
282 MR DARBY: Yes, so the record of orders achieves that.
283 HER HONOUR: It will? Does it?
284 MR DARBY: But it just - yes.
285 HER HONOUR: All right.
286 MR DARBY: Because this order only deals with the single Federal charge so the four months is from the State charge so we can forget - - -
287 HER HONOUR: Of course, of course. Yes.
288 MR DARBY: - - - that for the purposes of this form.
289 HER HONOUR: Now, have I still to - I find this wording quite bizarre. "Use language that is not offensive." What does it say? A language you are likely to understand. I will do my best. If Mr Nichols can understand Commonwealth sentencing, he deserves a gold medal. But anyway, having said that, let us move on. All right. Now, do you agree with that is the appropriate structure, Ms Beech?
290 MS BEECH: Yes, I do, Your Honour.
291 HER HONOUR: Yes, I am not asking if you agree with the sentence. I am just asking you about the structure, all right?
292 MS BEECH: Yes, I agree, Your Honour.
293 HER HONOUR: You have had a win.
294 MS BEECH: Yes.
295 HER HONOUR: Which I am sure you will pass on.
296 MS BEECH: I will.
297 HER HONOUR: Now, Mr Nichols, could you just stand for the minute and I will try and formally announce the sentence as best I can so that you follow it, all right? Ms Beech is on top of it and she will no doubt explain it all to you.
298 I sentence you as follows. Charge 1 (Commonwealth offence), you are convicted and sentenced to 18 months' imprisonment but to be released forthwith at the completion of the State sentence. So you do not have to do the 18 months yet. All right? Hopefully you never will but yet, all right?
299 Then on Charge 2 (State offence), you are convicted and sentenced to four months' imprisonment and that starts today's date. All right? Do not worry, I will calculate the PSD in a minute. Your seven days is not lost. All right? But it starts today, this sentence.
300 Now, what that means is that is a total effective sentence of 22 months. That is 18 plus four and after you serve four months of the State sentence, you are going to be released on a Recognizance Release Order for the other 18 months which means you go back into the community. Now, it is in the sum of $1000 for 18 months. You have effectively to be on your best behaviour for 18 months. You will not have to pay the $1000 unless you come back before me for breaching the order. All right? So if you do not breach it, then you do not pay. There will be a number of conditions attached to the order which I will come to in a minute but one of them certainly will include you participating in a sex offender program.
301 OFFENDER: Yes, Your Honour.
302 HER HONOUR: Now, I have to tell you a little bit about this order in language you understand, I hope, so that you understand. Basically, if you commit another offence, it does not have to be child pornography, it can be any other offence while you are on this Recognizance Release Order. You can be brought back before me. Not another judge, it will be before me. I deal with you for breaching the order. I can impose a penalty for breaching the order and I also will re-sentence you for that offence, Charge 1 – Commonwealth, and I have to think of another sentence then. You see?
303 OFFENDER: Okay.
304 HER HONOUR: I have given you a chance in the community. The options really run out. And it is highly likely- I do not say you will - that you would get a further term of imprisonment to serve. So you do not want to do that. All right? So the 18 months is really - another way of putting it is you have got to be on your best behaviour. It goes for 18 months and if you do the wrong thing, that is when you worry. You do the right thing, you will be all right.
305 You can also be fined. You can be given a fine for breaching the order. So you have got a lot of problems. You owe your $1000. You can be fined if you come back for breaching and I can re-sentence you. So it is not a good place to be - position to be in. All right? You have got to be extra careful and you have to do any of the programs that you are asked to do. Corrections monitors the recognizance release order. Office of Corrections. They will give you certain instructions and you have got to follow them. If you do not follow them, you run a risk of breaching the order. Back before me and the system then continues on. All right?
306 Now, just so you know what the order is because you have to sign for this saying you agree, you have to be effectively of good behaviour for 18 months. You will be under the supervision of the Community Corrections Service and also the Sex Offender Management Branch for the full 18-month period. And they might tell you to do a program, they might not. It is up to them. And if they tell you you have to, you have to. All right?
307 You have to attend for assessment and if you are assessed as suitable, treatment for sex offender programs to reduce your risk of reoffending in that way.
308 You have to report to Frankston community corrections centre, in this address here in Frankston - it is on the document, you will know the address - by 4 pm within two working days after your release. I am not setting a date of release because that can vary a bit. You might get a couple of days off. It may be, I do not know. No promises, all right? So the sooner - you have got to just remember within two days you have got to get down there. Otherwise, you have breached the order, back before me and you do not want to be back before me.
309 Now, you are to report to and receive visits from a community corrections officer or officers. So if they want to come into your house, you have to let them. You have to notify an officer at the community corrections centre if you change your address or employment within two days after the change. Got to let them know. You are not to leave Victoria except with the permission of an officer at the community corrections centre. There probably will not be a problem if you are heading overnight somewhere but I cannot promise. It is up to them not to me. But you just cannot have a holiday, go away unless you check first. That is for the next 18 months after the four months you do. So it is actually - it starts in a few months' time. And you are to obey all lawful instructions and directions of community corrections officers.
310 Now, before I move on, do counsel say that I have adequately described the obligations on the order?
311 MR DARBY: Yes, very - - -
312 HER HONOUR: In a language that is simple - is appropriate?
313 MS BEECH: Yes, Your Honour. Thank you.
314 HER HONOUR: Well, you can just explain that again, can you not, anyway? I hope.
315 MS BEECH: I can. Yes, Your Honour.
316 HER HONOUR: Now, while you are still there. Pursuant to s6AAA Sentencing Act 1991, had you pleaded not guilty to those two charges and had you been found guilty of them, I would have sentenced you to a term of imprisonment of 4 years' gaol with a non-parole period of 3 years. So a big discount for pleading guilty. Follow? Yes, I have to give you that direct declaration. You are not serving that, all right?
317 Pursuant to s18(4) Sentencing Act 1991, I direct you have spent 7 days in custody so far, that is up to and including yesterday, 5 September 2018 by way of pre-sentence detention, and I direct that that be entered into the records of the court. Is that correct?
318 MS BEECH: Yes, Your Honour.
319 HER HONOUR: Yes, seven days. So even though your four months starts today, you have done seven of them already. Makes sense?
320 OFFENDER: Yes.
321 HER HONOUR: You are not getting double. It is part of the four months. Now, Charges 1 and 2 are what we call Class 2 offences and pursuant to the Sex Offenders Registration Act 2004. You have are to comply with that Act for a period of 15 years and such is mandatory and Ms McKay agreed that such classification and duration applied to you as I have previously said. And
Ms Jackson in a moment is going to come down to see you with Ms Beech. She will go with you to sign the order, the recognizance release order, which I have just explained to you and also ask you to sign for the paperwork about the Registration Act. She is not asking you to sign to be on it. I have made that order. It is just she is giving you the paperwork and she has to ask you to sign for the paperwork. If you do not want to sign, that is your business but she has to ask you, all right? Now, anything that is unclear?
322 MR DARBY: No.
323 HER HONOUR: No? Ms Beech, before you go back?
324 MS BEECH: No, Your Honour.
325 HER HONOUR: All right then. Well, you can head back with your instructor if you want to and have a word to him. Ms Jackson, can you go and assist? Check that that is all right. Have you had a look at that, Mr Prosecutor?
326 MR DARBY: Yes, I have.
327 HER HONOUR: All right, well, this is coming down now to - you have to pop downstairs later and see him if you would not mind, rather than here. That is all right.
328 MS BEECH: Yes.
329 HER HONOUR: Yes. Now, all under control? Is there anything you needed clarification of?
330 MS BEECH: No, no difficulties, thank you, Your Honour.
331 HER HONOUR: Great. Right, Mr Nichols, then pop down. Counsel will come and see you downstairs I would assume. Thank you both for your assistance.
- - - - - -
0
5
0