Director of Public Prosecutions (Cth) v Nouredinne

[2017] VCC 1052

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
 Suitable for Publication

Case No. CR-17-00345
Indictment No.  CR-17-00345

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

v

MOHAMED NOUREDINNE

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JUDGE:	HIS HONOUR JUDGE PARRISH
WHERE HELD:	Melbourne
DATE OF PLEA HEARING:	23 June 2017; 21 July 2017; 28 July 2017
DATE OF SENTENCE:	28 July 2017
CASE MAY BE CITED AS:	Director of Public Prosecutions (Cth) v Nouredinne
MEDIUM NEUTRAL CITATION:	[2017] VCC 1052

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:             Sentence – two charges of using carriage service to procure a person under sixteen years of age for sexual activity – offender interacted with covert operatives posing as young girls with intention of engaging in sexual activity – early plea to charges

Legislation Cited:     Criminal Code (Cth), s474.26(1); Crimes Act 1914 (Cth); Sex Offenders Registration Act 2004 (Vic).

Cases Cited:DPP (Cth) v Singh [2017] VSCA 146; Atanackovic v R [2015] VSCA 136; R v Gajjar (2008) 192 ACrim 76; Gifford v R [2016] NSWCCA 302; Rampley v R [2010] NSWCCA 293; R v Fuller [2010] NSWCCA 192; Hill v R (2010) 242 CLR 520; R v Nahlous [2013] NSWCCA 90; R v Asplund [2010] NSWCCA 316; R v Pham (2015) 256 CLR 560; Wong v R (2001) 207 CLR 584; Cameron v R (2002) 209 CLR 339

Sentence:                  Total effective sentence of 16 months imprisonment; 10 months to be served before being released on a recognisance release order.           

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APPEARANCES:	Counsel	Solicitors
For the DPP (Cth)	Mr A Albore	Solicitor for the Commonwealth Director of Public Prosecutions
For the Offender	Ms A Beech	Stephen Andrianakis & Associates

HIS HONOUR:

1       Mohamed Nouredinne, you have pleaded guilty to the following offences.

Charge 1 – that you, at Hadfield in the State of Victoria, between 13 January 2015 and 7 August 2015, being at least 18 years of age, did use a carriage service to transmit a series of communications to another person, being someone who you believed to be under 16 years of age, with the intention of procuring the person to engage in sexual activity with you.

Charge 2- that you, at Hadfield in the State of Victoria, between 14 May 2015 and 23 June 2015, being at least 18 years of age, did use a carriage service to transmit a series of communications to another person, being someone who you believed to be under 16 years of age, with the intention of procuring that person to engage in sexual activity with you.

2 The offences of using a carriage service to procure a person under sixteen years of age for sexual activity is contrary to s.474.26(1) of the Criminal Code (Cth) and carries a maximum penalty of 15 years’ imprisonment.

Details of your offending

3       Counsel for the prosecution tendered a “Summary of Prosecution Opening with attached Schedule” (see Exhibit 1), which sets out the circumstances surrounding your offending.  Such summary has been accepted by you and your counsel as an appropriate representation of such offending.  The important matters of such summary are:

(a)You were born in March 1987, and at the time of the offending you were between 27 and 28 years old, and living in Hadfield in Victoria.  You are now 30 years of age;

(b)Between 13 January 2015 and 7 August 2015, you engaged in online communications via the Facebook Messenger application with two victims, who you believed were either 12 or 13-year-old females.  The two “victims” were, in fact, undercover police officers which used the aliases
Summeah Taylor (Victim 1) and Jasmine (Victim 2).  Victims 1 and 2 purported to know one another;

Charge 1 – communication with Victim 1 (Summeah Taylor)

(c)On 13 January 2015, you sent a friend request to Victim 1 on the Facebook Messenger application and operated the user name of “Mike Powers” and purported to be 22 years of age;

(d)You commenced communicating with Victim 1 on 13 January 2015 when Victim 1 told you she was a twelve-year-old female from Glen Waverley.  You asked Victim 1 “Do you want a boyfriend?” and stated that you were twenty-two years of age.  Victim 1 responded “wow that’s a lot older, I don’t really know how to be a gf”.  You stated “it’s up to you, we can just hang out and do stuff”;

(e)On 15 January 2015, the conversation between you operating the user name Mike Powers ended when Victim 1 informed you that she had to travel to Queensland to attend a funeral;

(f)On 3 May 2015, Victim 1 sent a friend request to a Facebook account with the name “Moey Powers”, which was a profile operated by you.  You re-commenced communicating with Victim 1 on 3 May 2015, and at that time purported to be 19 years of age.  Victim 1 confirmed that she was now 13 years of age.  During the period that you were communicating with
Victim 1 using the Moey Powers’ account, you did not refer to any of the communications you had with Victim 1 when you opened the
Mike Powers account;

(g)On 5 May 2015, you asked Victim 1 if you could meet in person.  The following is a summary of the conversation:

·MN: I’d love to see you on the weekends, and since y have big tits, I have a thick dick

·V1: lol idk yet im a virgin lol

·MN: that’s kay, I won’t force you xx. Would u like a boyfriend?

·MN: when can you come out

·V1: I can probably do different days, easier when I stay at my dads place.

·MN: that’s cool I drive so ill just pick you up

·V1: a bf that drive would be amaze, ill c ur dick when we meet up?

·MN: well yeah, we can do things and go places

·V1 yayyyyy! Hey y did u say its bad were talking?

·MN: Well ur 13 and I am 19. That’s pedo

·MN: don’t tell anyone we are talking and I’ll treat u good.

·V1: kk. Wot would happen to us? Would I get in trouble?

·MN: ill go to jail for it. Bt lets keep this between us. Babe what u wear to bed?

(h)On 13 May 2015, you attempted to arrange a meeting with Victim 1 and you encouraged Victim 1 to insert a spoon into her vagina while she was masturbating.  Victim 1 agreed to insert the spoon in her vagina, and you stated to Victim 1 that you wanted Victim 1 to be ready “so we can have a lot of fun when we meet.”;

(i)On 17 May 2015, you confirmed with Victim 1 that you are talking with Victim 2, who was known to you as Jasmine.  You told Victim 1, “we should all meet up, me u and Jasmine.”  On 20 May 2015, you told Victim 1 “we can fool around and she [that is, Jasmine] can join in”;

(j)On 21 May 2015, you discussed with Victim 1 what you wanted to do with Victim 1 and Victim 2 in a hotel room, and further stated you can teach Victim 1 how to suck a dick.  The following is a summary of the conversation:

·MN: She [Jasmin Victim 2] can watch u [Victim 1] suck my dick or us [victim 1 and Offender] kissing and touching each other in a hotel room.

·V1: “ive never sucked a dick before, where wold u get a hotel? Will we just come to us somewhere

·MN: Ill teach you.

·MN: if me u and jasmine (Victim 2) were naked, I will stick it in you first then her.

·V1: I dunno I haven’t done anything like this before

·MN: Ill be gentle.

·V1: Are u talking about sticking ur dick in my mouth? Or?

·MN: Yeah and your pussy also babe, what u think?

·MN: do u wanna fuck or just suck

·MN: It wont hurt babe;

(k)On 29 July 2015, you re-activated your Facebook account with the name Michael Simz and re-commenced communicating with Victim 1.  You advised Victim 1 that the reason you changed your Facebook account name to Michael Simz was that people were aware you were talking to Victim 1, who was 13 years old;

(l)On 30 July 2015, you told Victim 1 that you were interested in younger girls and attempted to organise a meeting.  The following is a summary of such conversation:

·MN: I hope u don’t give a fuck that  you are 13 and im 28, im free most weekends

·V1: I thought u were like 19 or something? I don’t care. I can probs get out on a weekend soon. Tell me what u want to do n we can sort it

·     MN: I’m 28 do u care?

·     V1 Nah, I don’t car, do u care I’m 13?

·MN: Not one bit, I have always wanted a younger chick, can u come out alone and I can pick u up from somewhere

·     MN: I like younger girls, I don’t find older girls attractive

·     V1: wot’s wrong with older chicks

·     MN:  I don’t like them tbh

·V1: ill come up with a place we can meet. How come u don’t want no one to see me?

·     MN: coz ur underage babe that’s why;

(m)On 7 August 2015, you discussed with Victim 1 that you are free to meet on the weekend and that you would teach the victim how to engage in sexual activity.  A summary of the conversation is as follows:

·MN: let’s met Sunday and ill teach u how to play with my cock xx

·      V1: cant sun soz xx

·      MN: near my house next week for sure.

·      V1: do you work every day

·MN: yeah but I don’t usually do weekends. Do you have a big ass.

·      V1:  um not real big

·      MN: show me please

·      MN: my cock is shaved

·      MN: do you want to feel it in u

·      V1: maybe, bit scared bcos im a virgin

·      MN: it wont hurt ill make you really wet

·      V1: I don’t want u to hurt me xx

·      MN: I wont, if u send me a pic of u ill show u my cock.

The conversations end on 7 August 2015 with you organising to meet Victim 1 the following Wednesday.

Charge 2 – communication with Victim 2 (Jasmine)

(n)On 14 May 2015 you, operating the user name "Moey Powers", sent a friend request to Victim 2.  You purported to be 19 years of age, and Victim 2 told you she was 13 years of age.  You and Victim 2 commenced communicating on 14 May 2015;

(o)On 14 May 2015, you asked Victim 2, “do you like guys that are older or nah”.  Victim 2 responded, “umm yep.”  You asked Victim 2 whether Victim 2 had a boyfriend and that “ive always wanted a younger chic xx.”  You asked Victim 2 whether Victim 2 would tell her parents you are older than Victim 2.  Victim 2 responded that she would not;

(p)On 14 May 2015, you stated to Victim 2, “in bed wanna join me?” 
Victim 2 responded, “ha nah I cant”.  You responded, “Why I’ll give u a massage and hold u.”;

(q)Between 15 May 2015 and 21 May 2015, you asked Victim 2 whether you, Victim 1, and Victim 2 could all meet up so you could teach Victims 1 and 2 how to pleasure guys.  The following is a summary of the conversation:

·      MN: hey do u know summeah Taylor

·      V2: hey yep

·      MN: Maybe us 3 can meet up when ur free?

·      V2: ha yep if ya like

·      MN: Yeah when (Wink emoticon)

·      V2: Is Summeah gonna come 2

·      MN: yeah when can u come out?

·      V2: um I dunno, wot r we gonna do

·      MN: hang out and fool around

·      V2: but like were r we gonna go

·MN: Can u send me a picture of you now. Ill teach u how to pleasure guys

·      V2: wher r we gona go?

·MN:  I know a nice spot where we can go. What would you wear?

·V2:  um not sure like depend were we go and like wot we r gunna do

·      MN: we are gonna play around touch each other;

(r)On 9 June 2015, you engaged in further sexually explicit communications with Victim 2 and referred to teaching Victim 2 how to engage in sexual activity.  The following is summary of the conversation:

·      MN: Come suck my cock. U will enjoy it.

·      V2: would I I neva have

·      MN:  U should try, how old are you again

·      V2: 13

·      MN: Girls are fucking at your age

·V2: sum at skool say they have but I don no. if they have or if its just mucking around

·      MN:  u need a big cock and I have a good cock u can fuck

·      V2: makes me nervus

·      MN: nervous about what

·      V2:  like wot ill happen

·      MN do u want to be fucked

·      V2: like one day I suppose I will with like my vf

·      MN:  You will never get tired of ficking.

·      V2: realy

·      MN: yeah but first let me teach u

·      MN: u will love my cock

·      V2:  I neva lik seen 1

·      MN:  u should meet up with me

·      V2: realy

·      MN:  u don’t have tits yet do you

·      V2: um like only a bit

·      MN:  I wanna fuck you tho;

(s)On 23 June 2015, you enquire with Victim 2 about meeting up and teaching Victim 2 how to engage in sexual activity.  A summary of the conversation is as follows:

·      MN: Maybe meet in the city

·      V2: kool wat do ya wanna do

·      MN: anything longs we meet ill teach a few things

·      V2: ha lik wot? Like skool??

·      MN: u can suck my dick

·      V2:  oh is summy gonna be there 2

·      MN:  u gonna bring her also??

·      MN: make it a surprise, bring her but don’t tell her

·      MN: what would ur parents say if they new u like big cock

·      V2: omg im not telli them

·      MN: do u like big dick

·      V2: I dono I never did anyin like that

·      MN: do u want to?

·      V2: um like if ya wanna, where do ya wano go, the city?

·      MN: I know a place ill book. But would u let me put it inside u

·      V2: um im a bit scared but will it really hurt

·      MN:  na it wont;

(t)     23 June 2015 is the final date that you and Victim 2 communicated.

4       A joint investigation was established between Taskforce Astraea and the Sexual Offences and Child Investigation Unit of Victoria Police to apprehend you.  Enquiries revealed your address, and on 22 September 2015 a warrant was executed at your address when you were present.  A computer and mobile phone was seized from you.

5       On 22 September 2015, you were arrested and conveyed to the Epping Police Station, where you gave a “no-comment interview” and stated “'Cause I’m innocent, I've done nothing wrong.”

6       On 24 February 2017, you pleaded guilty at a committal mention to the two charges present on the Indictment.

7       Your Victoria Police criminal history report was referred to, which revealed you have had a number of driving offences involving driving while disqualified or licence being suspended.  In 2007, you were found guilty of handling stolen goods and placed on a good behaviour bond.

Your personal, educational and vocational background

8       You will recall that your counsel tendered the following documents:

(a)Defence Plea Submissions (Exhibit “A”);

(b)Reports of the forensic psychologist, Mr Patrick Newton, dated 13 June 2017 and 20 June 2017 (Exhibit “B”);

(c)Letter from the payroll manager of your present employer, Calcorp Services Pty Ltd, dated 24 May 2017 (Exhibit “C”);

(d)A bundle of certificates pertaining to your Certificate III in Carpentry dated 20 November 2013 (Exhibit “D”).

9       Based on the contents of such documents tendered, together with the submissions of your counsel, I note the following in relation to your general background:

·You are the youngest of seven children and have three brothers and three sisters.  You were raised by your parents in the northern suburbs of Melbourne, with your father working as a tailor and your mother devoted to home duties.

·You attended King Khaled College for primary and early secondary school, until you were asked to leave in Year 8.  You informed Mr Newton that once you entered secondary school your behaviour deteriorated markedly, in part due to your reaction to teasing and harassment on account of being overweight.  You tended to affiliate with “disaffected” students and began to truant and engage in other disruptive behaviours.  You ultimately completed Year 11 at Box Street Secondary College in 2005.  Before leaving school, you worked in a panel-beating shop on weekends and on leaving school you began working at a shop full-time, and remained employed there for two-and-a-half years.

·From the age of fourteen you abused illicit drugs, mainly cannabis, speed and LSD.  In 2010, your father died quite suddenly of pancreatic cancer, which had an enormous impact on you, causing you to become depressed, and you commenced to abuse methylamphetamine (that is, ice).

·You remained “off the rails” until around 2012, when you commenced a Certificate III in Carpentry, which you completed, and then undertook further studies in Certificate IV in Building and Construction in 2014 (see generally Exhibit “D”).  Although you were able to complete the courses, drug use and depression remained major issues in your life, and you were living with your mother and remained fairly socially isolated.  During the middle of 2015, your family approached you with an ultimatum that you either had to get married (through an arranged marriage the family had secured) and clean up your life, or move out of your mother’s house.  You agreed to meet your now-wife in May 2015 and became engaged in June 2015, and ultimately married in October 2015.

·On 12 February 2017, you and your wife had a baby son called Zane, and your family continues to live with your mother.

·You ceased using drugs in August 2015, and have been employed as a pressure cleaner with Calcorp Services Pty Ltd, working full-time on night shifts from 10.00pm to 6.00am Sunday to Thursday.  In this respect, I refer to a letter from the payroll manager, Ms Toula Koutsoupias, who describes you as a “reliable and diligent employee and as a valued member of our crew” (see Exhibit “C”).

·Your wife is a qualified child care worker, and works as an early childhood educator and is aware of the subject charges, and remains supportive of you.  I note that she and your mother and brother were in court during the course of your plea.

The evidence of Mr Patrick Newton

10      The clinical psychologist, Mr Patrick Newton, initially interviewed you on
28 March 2017, at which time Mr Newton carried out a comprehensive evaluation of your mental status, including your mood, your thought processes, your personality functioning and your degree of insight.  Particular attention was paid to your sexual adjustment and mental health.  You were further interviewed on 1 June 2017, when you participated in an interview which focused on your insight and understanding of your offending, and further interviewed on 7 June 2017, when your intelligence was tested.  Mr Newton notes that you impressed as an immature, unsophisticated and mildly-eccentric man, whose emotional demeanour was euthymic and varied normally.  In particular, your answers to psychological testing were consistent with your presentation during clinical interview.

11      You informed Mr Newton that your parents’ relationship had been loving and free from serious conflict and although discipline was strict within the family, it was traditional and helped provide the structure around you.  You denied any significant childhood illnesses (other than suffering childhood eczema and an ongoing skin rash) and, in particular, you denied any family history of alcohol or drug abuse, mental illness, family violence or criminality.

12      You reported no experience of childhood sexual abuse, or having been the focus of unwanted sexual attention, or a victim of sexual violence.

13      You had relatively little experience dating women during your teenage years and early twenties, and your first relationships took place in the context of your drug use and were repeatedly quite unstable.  The most significant of these reportedly ended after two years in approximately 2014, after which you had not pursued any further relationships.

14      In particular, you informed Mr Newton that you began to utilise Facebook and other social media platforms as your main social outlet.  You would endeavour to “friend” women on the various networks and platforms you frequented and you would then seek to “flirt” or talk to them about sexual matters.  You acknowledged that you had used your social media activities to generate sexual fantasies which were subsequently used for masturbatory purposes.

15      You expressed to Mr Newton a firm bond to your wife and son, and your major concern was as to how they would cope if you were imprisoned.

16      You also informed Mr Newton that following the death of your father in 2010, you suffered severe grief which encompassed clear signs of depression which persisted for an extended period, and that you were unable to continue working and, on occasion, felt on the verge of suicide, causing you to resort to heavy use of illicit drugs.  You have also experienced reactive depression and anxiety following being charged with the subject offences.

17      You also confirmed that since mid-2015, you have ceased using all illicit drugs following the ultimatum from your family, although, as Mr Newton noted, your insight into drug-related matters such as relapse prevention and the risk of drug use to mental and physical health remains extremely limited.

18      In particular, you informed Mr Newton that you were “sorry for … [your] … conduct”, adding that you understood it was “not the right way to behave”.

19      When examined, Mr Newton thought you were mildly anxious, but such anxiety was consistent with the seriousness of the situation confronted by you, and ultimately he was of the opinion that you do not suffer from a primary Anxiety-Related Disorder, Mood Disorder or Adjustment Disorder.  Furthermore, he considered it was unlikely you were suffering from such a condition at the time of your offending conduct.

20      Mr Newton assessed your full-scale IQ score as 80, which places your overall functioning in the below average range.  Mr Newton was of the opinion that although the results indicate a relatively limited capacity for abstract reasoning, they are not sufficiently low to suggest that you are suffering from either a learning disability or a cognitive impairment.  You have no symptoms of Psychosis or Thought Disorder and reality testing remains intact, and you have a clear appreciation of right and wrong and, in particular, was always aware of the “wrongfulness of [your] conduct and could always appreciate its nature and likely consequences”.

21      Mr Newton records that you had considerable difficulty engaging in a general discussion of your sexual adjustment and more difficulty discussing your offending behaviour.  Mr Newton also undertook a risk assessment of re-offending.

22      In his report dated 13 June 2017, Mr Newton stated, in part:

“7)Mr Nouredinne had considerable difficulty engaging with a discussion of his sexuality in general and of his offending in particular.  A structured review suggested that while he expresses a clear orientation towards sexual contact with adult females, his understanding of the sexual development of young woman (sic) is problematic and distorted. He attributes to them a precocious sexual readiness and is unclear about the negative effects of sexualised interactions between adults and underage-people. 
Mr Nouredinne experienced a clear sexual response to the purportedly underage operative and believed that she was able to give consent to her participation in sexualised ‘chat’ with him.

8) These misunderstandings and distortions underpinned Mr Nouredinne’s offending and should be the focus of offence-specific treatment and education.

9) A comprehensive evaluation of risk for recidivism suggests that
Mr Nouredinne would be at Moderate-Low risk of re-offending.  There are no significant historical risk factors beyond the offending itself.  The main dynamic risk factors are a) his problematic response to the purportedly underage operative, b) his distorted understanding of the sexual development of young women, and c) his limited insight into his offending.

10) With participation in education and treatment and the deterrent impact of sentencing it is likely that Mr Nouredinne’s overall risk of recidivism will reduce over the medium term to fall within the ‘Low Risk’ range.”

23      Later in his report, Mr Newton notes that he considered that the completion of an appropriate treatment program would be the single most important factor in prevention of recidivism in your case.

24      In a later report dated 20 June 2017, Mr Newton sets out his responses to a series of questions posed by your solicitors.  These questions are:

(1)What impact might imprisonment have on Mr Nouredinne’s prospect for rehabilitation?

25      Mr Newton responds that consistent with his earlier report, a comprehensive sex-offender treatment program is required for significant rehabilitation and should take place as soon as practicable.  Although noting that sex-offender treatment programs are available within both a custodial and non-custodial sentence, he notes that the demand for places in custodial programs are heavy and typically outstrips the available rehabilitative places.  Ultimately, Mr Newton considered that treatment would be delayed if you were imprisoned.

(2)Would imprisonment weigh more heavily upon Mr Nouredinne given his level of cognitive functioning?

26      Mr Newton did not believe that your level of cognitive function would result in you experiencing prison any more onerous or burdensome than a typical prisoner.

(3)Would specialist sex-offender treatment be more effective if it were delivered in a community setting rather than in a custodial environment?

27      Mr Newton noted the relative ease in assessing treatment outside prison and the lower exposure to potentially compromising influence of more problematic group participants. 

(4)Would you consider Mr Nouredinne’s wife and child to be ‘protective factors’?

28      Mr Newton was of the opinion that the relationship with your wife has operated as a stabilising influence in your life and that you are highly motivated to care for both your wife and child.  Mr Newton considers this has apparently acted as “a significant motivator for … [you] to make sustained personal change”.

(5)Would you recommend drug and alcohol treatment in addition to sex-offender program?

29      Mr Newton was of the opinion that participating in  drug and alcohol counselling would be beneficial.  In this respect, he noted that you have reportedly been abstinent since October 2015, but your insight into drug-related issues remains very limited.

Submissions of your Counsel regarding mitigation of sentence

30      Your counsel submitted that the following matters are relevant in mitigation of sentence:

(a) On 22 September 2015, you were charged with the two offences and you entered pleas of guilty at the committal mention hearing on 24 February 2017. It is submitted on your behalf that this amounts to a plea of guilty at the earliest opportunity (see s.16A(2)(g) of the Crimes Act 1914);

(b)   Although you have prior convictions, none of the prior convictions are for similar offences;

(c)   That the principle of totality should be applied, having regard to the two offences for which you are to be sentenced were committed at overlapping time periods.  It was submitted that some concurrency is “just and appropriate” when one looks at your criminality as a whole.  Reference was made to Hill v R (2010) 242 CLR 520, wherein the Court held that common-law principles such as totality are accommodated by s.16A of the Crimes Act 1914;

(d)   Although the offending in relation to Charge 1 is pleaded to have occurred between 13 January 2015 and 7 August 2015, the extent of such offending in relation to Victim 1 is better understood to be from 13 January 2015 to 15 January 2015, from 3 May 2015 to 21 May 2015 and from 29 July 2015 to 7 August 2015.  There were various lengthy periods where there was no communication between you and Victim 1.  Similarly, whereas Charge 2 is pleaded to have occurred between 14 May 2015 and 23 June 2015, the extent of such offending in relation to Victim 2 is better understood to be from 14 May 2015 to 27 May 2015 and from 9 June 2015 to 23 June 2015.

It was submitted that throughout the course of such offending, there were no threats or any suggestion of violence in the communications; there was an absence of webcams, videos, photos and the like; and although there was a level of manipulation by you, such manipulation did not amount to “coercive bullying tactics”.  Your counsel also noted that in relation to any planned meetings, there had not been any booking of hotels or arrangement of tickets, or the like;

(e)   Although accepting that denunciation and general deterrence are important sentencing considerations in relation to the subject offences, it was submitted that your cognitive functioning reduces your moral culpability to some extent.  While your cognition does not amount to an intellectual disability, your limitations are clear and render you a “less than appropriate vehicle for general deterrence”;

(f)    Any term of imprisonment to be imposed on you, so it was submitted, would have a particularly significant impact, as you will be separated from your wife and child.  Whilst your counsel conceded that such hardship is not “exceptional”, it does make any term of imprisonment weigh more heavily upon you.  Your counsel noted that your wife does not drive, has some health issues, and that you financially support your family and your mother.  Furthermore, it was submitted, consistent with the opinion of
Mr Newton, that your work and family are protective factors for you (see generally s.16A(2)(p) of the Crimes Act 1914.

(g)   That you currently pose a “moderate lower risk of re-offending” according to Mr Newton, and that sex-offender specific treatment “will have a genuine protective benefit in this case”.  It was submitted that protection of the community will be best achieved by a community-based disposition requiring treatment;

(h)   That you have good prospects for rehabilitation based on the following:

·        your age;

·        ongoing family support;

·        availability of ongoing employment; and

·        no relevant prior history.

31      In general, your counsel submitted that you are a “very different man now” when compared to your status in mid-2015.  Whereas prior to mid-2015, you were abusing drugs and alcohol, living a lonely and isolated life, and were unemployed, all that has changed.  Since that time, you no longer abuse drugs and alcohol, and are now married with a child, born in February this year. 

32      As already recorded, you were charged on 22 September 2015 and over the period from then to now there has been no further offending, you have commenced employment and you continue to be so employed.  It was submitted that the Court can best protect the community on an ongoing basis by allowing you to receive the treatment as outlined by Mr Newton – that is, the 18-month sex offender program for which you would have great difficulty accessing if you went to prison.

33      Ultimately, although your counsel conceded your offending was “serious offending” the surrounding circumstances make it of a moderate degree of seriousness.  Furthermore, your counsel also conceded that generally, a sentence of imprisonment would ordinarily be imposed but in the circumstances of this matter, a community correction order, either alone or in combination with a recognisance release order, is appropriate because of the following matters:

(i)    Your personal history and current circumstances;

(ii)   The matters listed in mitigation, being your lack of prior convictions, your early plea of guilty, totality and your good prospects of rehabilitation; and

(iii)   General sentencing principles will be best effected by a sentence that punishes you whilst also allowing you to effectively rehabilitate.

The response of the prosecution

34      Counsel for the prosecution submitted that the only appropriate sentence is a term of imprisonment to be served.  The ordering of a community correction order would be “wholly outside range” although counsel for the prosecution accepted that there should be some degree of concurrency with partial cumulation given that there were different victims.

35      In particular, it was submitted that the offending was sustained, frequent and deliberate.  You persistently sexualised communications with both victims and the age of the purported victims were 12 and 13.  Throughout the course of your communications, you made clear that you would teach them certain sexual activities, attempting to arrange separate meetings, attempted a joint meeting with Victims 1 and 2.  You also made it clear that you had an interest in younger girls, and coerced the first victim to masturbate with a spoon.  It was submitted by counsel for the prosecution that the sexual activity proposed by you with both victims was salacious and explicit.

36      Counsel for the prosecution accepted that you did enter an early plea of guilty in relation to your offences and furthermore, given your cognitive inability, less weight should be given to general deterrence.  Counsel for the prosecution also stressed that notwithstanding that the purported victims were undercover officers, it does not detract from the seriousness of the offending (see Criminal Code (Cth) s.474.28 and s.474.29). Furthermore, he noted that the courts have made clear that an “offender’s conduct is to be regarded as no less morally reprehensible merely because the person to whom the communication was made was, unbeknown to [him], an undercover police office”. (See R v Gajjar (op cit) at [56].)

37      Counsel for the prosecution also tendered further Crown submissions on sentence (see Exhibit 2).  In particular, it was submitted:

(a)General deterrence is an important consideration when sentencing for offences of this kind.  Reference was made to R v Gajjar (op cit); R v Nahlous [2013] NSWCCA 90 and R v Asplund [2010] NSWCCA 316;

(b)That it is “now accepted” that offending of this nature (that is involving offences against children for a sexual nature), less or limited weight is given to an offender’s prior good character (again see R v Gajjar (op cit) [27]-[29]);

(c)Although Mr Newton noted that you denied any interest in sexual contact with underage partners, it was submitted this is contrary to the tenor of the conversations with Victims 1 and 2, where you made it clear to the victims that you had a sexual interest in young girls and was not attracted to women your age.  It was further submitted that you showed limited evidence of remorse, and reference was made to what you stated to Dr Newton – that is “I didn’t really think of her as being any different.  She was just another person on the net, her age didn’t make any difference really.”;

(d)Although, as already recorded, counsel for the prosecution submitted that your lessened cognitive function reduces your moral culpability to some extent, Mr Newton is of the opinion that you clearly knew that such conduct was wrong and, indeed, reference was made to the conversation between you and Victim 1, wherein you noted that you may be gaoled if persons became aware of their communication and referred to your own conduct as “pedo”;

(e)Counsel for the prosecution also submitted that, consistent with the High Court decision of R v Pham (2015) 256 CLR 560, it is implicit in Part 1(b) of the Crimes Act 1914 (Cth) that a court sentencing for a Commonwealth offence must have regard to sentences that have been imposed in other States and Territories. Consistency in Federal sentencing means that like cases are to be treated in like and different cases to be treated differently, and that comparable cases serve two purposes – first, they provide guidance as to the identification and application of relevant sentencing principles and secondly, achieve reasonable consistency in sentencing. To this end, reference was made to several comparative cases which were said to be of some assistance: R v Gajjar (op cit); Rampley v R (op cit); Gifford v R (op cit); and R v Fuller (op cit).  I have read all the cases referred to by counsel for the prosecution.

38 Ultimately, counsel for the prosecution submitted that in all the circumstances of this matter and in particular, bearing in mind the comparative cases, the only appropriate sentence is a term of imprisonment with actual custody to be served. In particular, it was submitted that pursuant to s.17A of the Crimes Act 1914 (Cth), no other sentence is appropriate in all the circumstances of the case. As already recorded, counsel accepted that there should be some measure of accumulation between the charges to reflect that the offending involved two victims.

39      On the day before the plea hearing the Victorian Court of Appeal handed down the decision of DPP (Cth) v Singh (op cit), which involved an appeal by the Commonwealth Director of Public Prosecutions submitting that a sentence handed down by the sentencing court was manifestly inadequate. The respondent to such appeal had pleaded guilty to one charge of using a carriage service to procure a person under 16 years of age to engage in sexual activity, contrary to s.474.26(i) of the Criminal Code (Cth), and following the plea hearing was sentenced to a three-year community correction order and ordered to pay a $2,000 fine.

40      Ultimately, the court dismissed such appeal and in the course of the judgment the court (consisting of Redlich JA, Beach JA and McLeish JA) referred to a variety of comparable cases, some of which were referred to by counsel for the prosecution in this appeal.

41      Since this decision would not have been available to counsel at the time of the plea, I made arrangements for both counsel (or their solicitors) to be notified of such decision and if any further submissions were to be made they could be done in writing or, if necessary, I would have arranged a further plea hearing.  No further submissions were received.

42      There are some similarities between the facts of the subject offending and the facts relevant to the offending of Singh.  Of course, Singh was only charged with one offence, and the period of offending was said to have occurred between 9 and 31 March 2016.

43      I refer to various excerpts from DPP (Cth) v Singh (op cit), which are instructive in relation to appropriate sentencing.  In particular, I initially refer to paragraph [44] and following, wherein it is stated:

“Section 474.28(9) provides that it does not matter that the recipient to whom the sender believes he or she is transmitting the communication is a fictitious person represented to the sender as a real person. In that regard, while the presence of an actual victim may aggravate the offence, the absence of a victim will not mitigate it.

These provisions, and related provisions prohibiting the use of the internet and other forms of communication for the purpose of seeking sexual involvement with children, are designed to protect young people from the considerable harm that may be done to them by such communications, even if physical sexual activity does not ensue. It is well established that persons who use the internet for such purposes will ordinarily expect to receive an immediate term of imprisonment. Deterrence, both general and specific, is the paramount sentencing consideration. It follows that less weight, relatively speaking, will be accorded to what might otherwise be significant mitigating factors.

That is not to say that an immediate term of imprisonment must be imposed in every case of offending against s 474.26. Nor did the Director contend for that position. It is clear that there will be some cases where it is open to a sentencing judge not to impose a term of imprisonment. Section 17A of the Crimes Act 1914 (Cth) provides that a court shall not pass a sentence of imprisonment for a federal offence unless it is satisfied, after having considered all other available sentences, that no other sentence is appropriate in all the circumstances of the case.”

44      The Court of Appeal in DPP (Cth) v Singh (op cit) emphasised the submission made by counsel for the prosecution that comparable cases played an important role in advancing the underlying value of equality under the law and the search for unifying principles in the task of sentencing.  Again, reference was made to Wong v R (2001) 207 CLR 584. After reviewing a large number of cases, the court stated:

“The cases show a very wide range of offending and sentencing dispositions for the offence under s.474.26(1) and like offences. Some of the aggravating features found in the authorities were absent in the present matter. In particular, as counsel for the respondent emphasised, the respondent did not actively seek out children for sexually inappropriate exchanges. In that sense, his behaviour was not ‘predatory’. It also lacked the degree of cunning displayed by some offenders. The respondent did not send or solicit any pornographic images or video recordings. The communications, while wholly inappropriate and obscene, were not of the especially depraved kind found in some of the other cases.

At the same time, it was a highly aggravating feature that the offender arranged to meet with the officer and attended that meeting having equipped himself to engage in sexual activity with her. In addition, he persisted in arranging such a meeting after she had cancelled the first proposed encounter. While he did not initially seek out the officer, once they were in communication, he did not require any coaxing on her part in order to offend.

The seriousness of the offence under s.474.26(1) is not to be underestimated. The conduct which it prohibits is insidious and often highly damaging. The offending is calculated to harm children who are vulnerable to abusive, predatory approaches, which are of their nature liable to be kept secret from third parties. The maximum penalty for the offence is very substantial. The authorities are clear that the offence usually merits a term of immediate imprisonment. Lesser sentencing dispositions should be very rare. While there are a number of instances of non-custodial sentences having been upheld after appeal, several of them turned on features peculiar to Crown appeals. None of them should be seen as anything other than exceptional.

The sentencing judge plainly gave the appropriate sentence anxious consideration and so have we. Were we exercising the sentencing discretion ourselves, we would have imposed a term of immediate imprisonment. For our part, the case did not display sufficient mitigating features to take it out of the ordinary kind of offending in this area which demands an immediate term of imprisonment. However, this Court’s role on appeal is not to substitute the sentence it would itself have passed, unless specific error is shown in the sentence imposed or it finds that the sentence was not reasonably open. With some hesitation we have come to the conclusion that the disposition at which the judge arrived, while remarkably lenient, was not wholly outside the range of sentences available in this instance.”

45      At the plea hearing in this matter the Court ordered that you be assessed for a community correction order – although it was made plain that such was undertaken only to have available information from the relevant authority as to whether you would be suitable for such an order if the Court was so minded to order the same.

46      You were assessed on 23 June 2017, and pursuant to a report of the same date I note that you have been assessed as suitable for a community correction order with the following conditions of performing community work, treatment, and rehabilitation involving programs reducing offending, and supervision. 

47      I also note that the community correctional services assessed you as being medium risk of re-offending according to the level of Service Risk Assessment Tool.  The author of the report noted that you presented well and engaged during the assessment, and answered all questions directed to you in a reasonable manner.  Furthermore, you presented as remorseful for your offending and you acknowledged the gravity of your offending behaviour.

Conclusion

48      The recent decision of DPP (Cth) v Singh (op cit) amplifies that the seriousness of the offence under s.474.26(1) of the Criminal Code (Cth) is not to be underestimated. As noted by the Court of Appeal in DPP (Cth) v Singh, the conduct which it prohibits “is insidious and often highly damaging”.  Furthermore, the seriousness of the offence is manifest bearing in mind that the maximum penalty for the offence is 15 years’ imprisonment.

49      Your offending involved two “victims” and extended over a period from about mid-January 2015 to early-August 2015.  However, it is to be noted that an examination of the communications between you and Victim 1 demonstrate they were limited to the periods from 13 January 2015 to 15 January 2015, from 3 May 2015 to 21 May 2015 and from 29 July 2015 to 7 August 2015.  And your communications with Victim 2 were more immediately over the periods from 14 May 2015 to 27 May 2015 and from 9 June 2015 to 23 June 2015.

50      I accept in general terms that the nature of the communications between you and Victim 1 and Victim 2, although wholly inappropriate and obscene, were not of the especially depraved kind found in other cases.  In particular, your behaviour was not particularly “predatory” and perhaps lacked the degree of cunningness displayed by some offenders.

51      However, it is to be noted that:

(a) You repeatedly stated to Victims 1 and 2 separately that you would teach each victim how to engage in sexual activity involving both oral and penetrative (that is, vaginal) sex;

(b)You attempted to arrange meetings between Victims 1 and 2 separately for the purposes of engaging in sexual activity;

(c)You instructed Victim 1 to masturbate using a spoon;

(d)Bearing in mind that Victims 1 and 2 purported to be friends with each other, you attempted to arrange a joint meeting with Victims 1 and 2 for the purpose of engaging in sexual activity in a hotel room with both Victims 1 and 2.  You stated to Victim 1 that you would teach her how to suck a dick and that you would “stick it in” Victim 1 first, before “you stick” it in Victim 2;

(e)You communicated to Victims 1 and 2 that you did have an interest in younger girls;

(f)You also asked Victim 1 to shave her pubic hair for you (conversation on 7 May 2012 contained in the Schedule, part of Exhibit 1).

52      Although I do not find that your offending is at the highest level of this type of an offence, I do consider it reasonably significant offending.

53      In mitigation of any sentence, I accept that you pleaded guilty at the earliest opportunity (at the first committal mention).  Consistent with the principles enunciated in Cameron v R (2002) 209 CLR 339 at paragraphs [11]-[15] and Atanackovic v R (op cit) at paragraph [67], you ought get credit for a willingness to facilitate the course of justice.  Although I consider that you do have some degree of remorse about your offending, it is disturbing that according to the psychologist, Mr Newton, your understanding of the sexual development of young women is problematic and distorted.

54      Furthermore, I consider that your prior convictions – none of which involve any type of sexual offending – should not impact on what should be an appropriate sentence.  However, I do note that prior good character does not have the same force as a mitigating factor in this type of offending.

55      I consider that the principles of denunciation and general and specific deterrence are important considerations in reaching an appropriate sentencing disposition.  I do accept, consistent with the submissions of both counsel, that given the opinion of Mr Newton of your limited cognitive ability, general deterrence, in particular, should be moderated to some extent due to your reduced moral culpability.  However, it is plain enough also that Mr Newton considered that you clearly understood what was right and wrong at the time of the offending and, indeed, you made plain during the course of your offending that you were concerned about being found out in relation to your various communications.

56      I note that Mr Newton considers you to have a moderate to low risk of re-offending, whereas the report from Community Corrections considers that you have a medium risk of re-offending.  Certainly, Mr Newton was of the strong view that you, either in prison or otherwise, should undergo an appropriate program in relation to your offending.

57      I also accept that on the material before me, it would appear that you have not re-offended since about August 2015, that you have a settled family life, and have demonstrated the ability to hold down a job over the last couple of years.  Clearly enough, given the opinion of Mr Newton, you are still a potential risk to the community.

58 In relation to these offences, I am required to determine an appropriate sentence in according with Part 1B of the Crimes Act 1914 (Cth). Section 16A(1) of that Act directs that the Court must impose a sentence that is of a severity appropriate in all the circumstances of the offence. In particular, s.16A(2) of the Act directs that the Court must take into account various matters which are relevant and known to the Court. Many of those matters have been canvassed in my foregoing comments.

59      After consideration of all the material, I have come to the view that the only appropriate sentence is one of immediate imprisonment.  I intend to convict you of both offences.  I consider that your offending with Victim 1 is more serious than your offending with Victim 2.  In this sense, although such offending for both victims have common elements, the offending with Victim 1 was over a longer period of time and the communications between you and Victim 1 were more obscene and salacious than those with Victim 2.

60      I do accept that given the nature of the offending with a variety of common elements, there should be a degree of concurrence, although there must be some cumulative aspect given that there were two victims.

61      I also intend to release you at a date in the future pursuant to a recognisance order which will contain, in part, a condition that you undertake the course recommended by Mr Newton for sexual offenders.

62      Please be upstanding. 

(a)In relation to Charge 1, you are convicted and sentenced to 12 months’ imprisonment from this date, being 28 July 2017;

(b)In relation to Charge 2, you are convicted and sentenced to eight months’ imprisonment, with such sentence to commence eight months after the commencement of the sentence of imprisonment in relation to Charge 1;

(c)The total effective sentence is 16 months;

(d)Pursuant to s.19AC(1) of the Crimes Act 1914 (Cth), in relation to the 16 months’ imprisonment, I direct that you serve ten months of that sentence before you are then released on a recognizance order for the balance of that sentence for a period of 15 months on the following conditions:

(i)A recognizance being in the sum of $500;

(ii)That you be of good behaviour once you are released from custody through the period of 15 months and, in the event that you breach your undertaking to be of good behaviour, you face the option of your recognisance being revoked or cancelled, forfeiture of the $500 and/or a fine, but the most likely result is that you will be sent to prison for the balance of the sentence;

(iii)That immediately on your release from prison you commence and complete the sexual offender’s course recommended by

Mr Patrick Newton.

63 You have pleaded guilty to two registrable Class 2 offences as identified in Schedule 2 of the Sex Offenders Registration Act 2004 (Vic). Pursuant to s.34(1)(b)(ii) of the Act, you will be registered as a sex offender and required to comply with reporting obligations for a period of 15 years.

64      Anything to say?

65      MS BEECH:  No Your Honour. 

66      HIS HONOUR:  Now, as I would understand it, your client has to agree to that recognisance, does he not?

67      MS BEECH:  That is right Your Honour, he needs to sign.

68      HIS HONOUR:  And indeed, as I understand it, the Crown - the prosecution have a standard form, do they?

69      MR BUCKLEY:  Yes, I am in the process of just putting in Your Honour's orders now.

70      HIS HONOUR:  Yes, look I will just adjourn for a few minutes, I will be outside.  Do you actually require me any further about this?

71      MR BUCKLEY:  Yes we will Your Honour, Your Honour needs to sign the recognisance.

72      HIS HONOUR:  Right, well I will just be outside.  I will leave you to prepare the form, explain to your client.  I will allow - in the presence of my tipstaff, his wife and mother just to speak to the man briefly.

73      TIPSTAFF:  Yes Your Honour.

74      MS BEECH:  As Your Honour pleases.

75      MR BUCKLEY:  Just before Your Honour leaves the bench, I have the preform that includes a reference to a sex offender management program.  It is at the direction of the Deputy Commissioner.  I note in Your Honour's reasons you referred to the program outlined by Mr Newton.

76      HIS HONOUR:  Well, when I say outlined by Mr Newton, he identified that the accused had to undergo a sexual offenders' program.  Correct me if I am wrong, I do not think he actually nominated a particular program, did he, other than a generic - - -

77      MS BEECH:  No, no, no, he was referring to a program that Corrections Victoria runs, or the - yes, yes.

78      HIS HONOUR:  Yes, that is what I understood.

79      MR BUCKLEY:  And on that basis Your Honour, this order will be sufficient, so I will write that up.

80      HIS HONOUR:  Yes, all right.  Well look, I will adjourn - yes, I will be outside, if I can sign something outside.  If not, I will come back in, all right?  I will not be far away.

81      TIPSTAFF:  Yes Your Honour.

82      (Short adjournment.)

83      MR BUCKLEY:  I am grateful for that time, Your Honour.  I can hand up a draft recognisance release order.  The process is that Your Honour signs it, it is taken to the accused and he signs it, and then Your Honour signs it again, acknowledging the fact that the accused has done so.  Your Honour also has to explain the purpose and effect of the order, and the consequences if there is failure to comply.

84      HIS HONOUR:  Yes.

85      MR BUCKLEY:  To an extent, Your Honour has already done that in the course of your reasons.

86      HIS HONOUR:  Well, I will do it again.  Ms Beech, how much have you said to your client so far?

87      MS BEECH:  I have explained Your Honour's orders to Mr Noureddine.  He understands the consequences of a breach of the conditions, and he understands what each of the conditions are.

88      HIS HONOUR:  All right, look I will say it again briefly.

89      MS BEECH:  Thank you Your Honour.

90      HIS HONOUR:  Perhaps - do you want me to sign that initially now?

91      MR BUCKLEY:  I can hand up the order Your Honour, yes.  And in fact the first page, there are two options, and the effect of Your Honour's order was the second of the two.  So I will just strike out - - -

92      HIS HONOUR:  Well that is fine, so I just sign on the - where, the second page, do I?

93      MR BUCKLEY:  On the bottom of the second page, Your Honour, yes.

94      HIS HONOUR:  Yes, that is fine, well I will do that now.  Ms Beech, you are happy with this, obviously?  Well, not happy, but are you - - -

95      MS BEECH:  Yes, absolutely Your Honour.  I have checked the - yes.

96      HIS HONOUR:  Mr Noureddine, as it has no-doubt been explained to you, you have been convicted of both these offences, and although I have ordered that the offence is combined, I have given you a sentence of 16 months' imprisonment.  But what I have said is after ten months, you can leave prison on these conditions.  And what the conditions are, essentially, are these.  That you have to be of good behaviour for 15  months.  During that 15 months, you also have to do the sexual offenders' course that Mr Newton wants you to do, or something similar to that.  And also, there has to be what is called a recognisance of $500.  I take it that is paid upfront, is it, now?

97      MR BUCKLEY:  Yes, that is my understanding Your Honour, yes.

98      HIS HONOUR:  Now, at the end of that 15 months, if you have been of good behaviour, and you have undertaken the course, you will get the $500 back, and that will be the end of the matter.  However, the important thing to remember when you are released in ten months is you have to do the right things for the next 15 months.  If you do not do that, if you do not go to the course, or finish the course, or you offend again, any type of offending, that would mean not certainly, but nearly certainly, you would have to go back to prison for the balance of the sentence, do you understand?

99      OFFENDER:  Well aware, Your Honour.

100     

HIS HONOUR:  So the important thing is, for you - and I might say to

Mr Noureddine, you have done a lot of good things thus far.  You know, you have cleaned yourself up a lot, and I think that is to the good.  But unfortunately for you I suppose, but it is my job, I have to assess whether or not how serious these offences are, and I consider they were pretty serious.  So the best thing I can say to you, put your head down, the ten months will go reasonably quickly I hope, for you.  Then set your sights on coming out, being of good behaviour, doing this course, and at the end - if you get through that, it is all over, the 15 months.  But I stress to you, it is very important this, that if you are not of good behaviour during that period of time, either because of other offending, or you do not start this course, or do not finish this course, that has the probability - I would say almost certainty - almost certainty that you will have to return to prison to finish your sentence, do you understand?

101     Now, the other thing which I have to tell you is this.  Because of the type of offending which you have been convicted of and now sentenced, you have to go on the Sexual Offenders Register, and a document which I am signing now - you will be given, which explains the type of things which that involves.  But what is important, at least initially, as soon as you get out of prison, tells you you have to report somewhere.  So after you are released on that ten months, you have to go - and it will tell you where - precisely where you have to go, and there are certain things you have to do.  So you have to do that too.  So all that will occur after the ten months.  So I think Ms Beech has explained that, probably, to you also.  Do you understand all that?  Yes.  Anything you want to ask?

102     OFFENDER:  No Your Honour.  (Indistinct words).

103     HIS HONOUR:  All right.  Well let me sign all this.

104     MS BEECH:  Your Honour, may I just address you on one issue?  With that $500 recognisance, my understanding is that it is not paid upfront.

105     HIS HONOUR:  Well I must - I thought that too.

106     MR BUCKLEY:  Yes, I apologise Your Honour.  In certain circumstances I have seen magistrates order that it is, but in the ordinary course, it is not. 

107     HIS HONOUR:  No.

108     MR BUCKLEY:  It is forfeited upon a breach of the order, as distinct from a surety, which would be paid upfront.  So I apologise for that, Your Honour.

109     HIS HONOUR:  Exactly, that is - look, well do not apologise, I should have known better, but I just have not been involved in one of these Commonwealth ones for quite a while.  All right, well - yes, I was wrong with what I told you in part, you do not have to pay the $500 at the end of the ten months.  It is only if you breach - if you do something wrong after you get out during those 15 months, you may be called upon to pay the $500, do you understand?  So the important thing is, get through these ten months.  You will be released from prison.  You have  got 15 months to be of good behaviour, and by that, no more offending of any type.  And you must do this course.  If you get all that done in the 15 months, that is the end of it, all right?  All right. 

110     MS BEECH:  May I approach the dock with this form Your Honour?

111     HIS HONOUR:  Yes, by all means.  Yes, now - I have to re-sign again do I?  After the - yes. 

112     MR BUCKLEY:  And I have one final administrative matter just at the conclusion of the signing.

113     HIS HONOUR:  Right.

114     MR BUCKLEY:  Your Honour, the administrative matter that I was referring to - rather than pursuing forfeiture in these matters, the Crown prepare consent forms.  One has been prepared and signed by the offender, I would seek to just have a copy of that placed on the court file.

115     HIS HONOUR:  Sorry, a consent form to what?  Who consent - - -

116     MR BUCKLEY:  The retention and destruction of items used in the commission of the offence.

117     HIS HONOUR:  What is that?

118     MR BUCKLEY:  In this case it was a computer tower and a phone, as I understand Your Honour.  The offender has consented to the AFP retaining and destroying those items.

119     HIS HONOUR:  What is the practical result of - obviously it is done, but what is the practical result of this?

120     MR BUCKLEY:  It often arises in cases of child exploitation, because the material itself is on those devices, so in this case - - -

121     HIS HONOUR:  I see, so it is just - it is really getting rid of the memory, as it were?

122     MR BUCKLEY:  That is so, Your Honour.  It is that the authorities are not able to return the items.

123     HIS HONOUR:  Yes.

124     MR BUCKLEY:  Because of what is stored on them.

125     HIS HONOUR:  Because obviously a recidivist is going to be off to a - you know, discount store today. 

126     MR BUCKLEY:  That is the reason, Your Honour.

127     TIPSTAFF:  Do we need to make a copy of this?

128     MR BUCKLEY:  No, I have a copy, just for completeness on the court file, thank you.

129     HIS HONOUR:  All right, look, thank you for your assistance, and - a bit of excitement, yes.  Yes, we will adjourn sine die.

- - -