Director of Public Prosecutions (Cth) v Power
[2015] VCC 133
•6 February 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
Case No. CR-14-01966
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| VINCENT POWER |
---
| JUDGE: | HIS HONOUR JUDGE McINERNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 5 February 2015 |
| DATE OF SENTENCE: | 6 February 2015 |
| CASE MAY BE CITED AS: | DPP (Cth) v Power |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 133 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – use carriage service to make available child pornography – use carriage service to access child pornography
Legislation Cited: Commonwealth Crimes Act 1914; Criminal Code Act 1995 (Cth), Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:Director of Public Prosecutions v Smith [2010] VSCA 215; R v Gent (2005) 162 A Crim R 29; Director of Public Prosecutions (Cth) v D’Alessandro (2010) 26 VR 477; Director of Public Prosecutions (Cth) v Zarb [2014] VSCA 347; Boulton v R [2014] VSCA 342; Director of Public Prosecutions (Cth) v Guest [2014] VSCA 29; Hasan v R (2010) 31 VR 28; Hudson v R (2010) 30 VR 610; Director of Public Prosecutions v Tokava [2006] VSCA 156; R v Merrett, Piggott & Ferrari (2007) 14 VR 392
Sentence:Convicted and sentenced to a Community Correction Order for a period of four years.
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J McGillvary | Solicitors for the Commonwealth Office of Public Prosecutions |
| For the Accused | Ms K Ballard | Doogue O’Brien George |
HIS HONOUR:
1Yesterday, Mr Vincent Power who is now aged 66, being born on the 15th day of April 1948, pleaded guilty to three offences in Indictment C01401966. The first two charges are laid under the Commonwealth Crimes Act Criminal Code, both being under clause 474, and 19(1), where, firstly, through the use of a peer site, Mr Powers is charged with making available child pornography.
2The maximum sentence for this offence is one of fifteen years, and that in itself, especially since it was a recent pronouncement of Parliament to increase the maximum from ten to fifteen years, is indicative of the serious nature of which such offences are deemed by the Parliament, and indeed, the serious nature in which the community deems such offences. That view was taken because of the depravity of such images and the ongoing victimisation of the unfortunate persons who are either forced or innocently take part in these recordings.
3Insofar as the circumstances as to the making available the child pornography, there was no evidence, as there often is, of any direct transmissions, or any chatting associated with these crimes, but the matters were set out in particular by the learned prosecutor in paragraph 8 of the Opening, which was tendered by consent of both counsel as an appropriate representation of the facts in regard to the matters pleaded to.
4The availability comes about by way of the particular nature of this peer site. It was admitted in the record of interview, and was part of the summary, that Mr Power had observed people uploading from this particular site, and indeed it was submitted that he had chosen the particular folders which could be so operated. The period of the offence in regard to Charge 1 is 18 days, being from 2 February 2014 through to 7 March 2014.
5The second charge relates to accessing child pornography, again, under the same provision and subject to the same penalty. The period involved here is somewhat longer, being some six months from February of 2014 through to August of 2014. I cannot help but think, and I keep saying this, even in these three weeks that I have been back at Court, I have had a number of these offences. I cannot imagine the numbers of people in Australia who are downloading child pornography every night on their computers.
6It seems to me the Commonwealth has an obligation, as I have said, with many of these cases, and I ask you, Ms McGillvary, to take it back to the parties who are responsible for this, the Attorney-General seems to me to be the appropriate one. But the President of our Appeal Court recently spoke about the obligation of the press to publish sentences pronounced by the Courts so that the public understand the consequences of committing these crimes. In my view, and I am fairly aware of publicity and television, there has been an abject failure by the Commonwealth to advise the community of the dangerous consequences of partaking in this crime.
7I do not know whether it is much easier to be able to – well we know from painstaking investigation overseas, it has been easy to access who has been using this material because with the material that was obtained overseas, that has direct access to the person using them. However, in my view, the community in Australia still does not understand the serious nature of this criminality. I think that the Commonwealth, in the same way it is doing with its sex slavery provisions, should be taking strong steps to advise and inform the community.
8The other matter that constantly bewilders me is how are people able to access, through their systems, child pornography? This is the other concern I would like you to take back to the Commonwealth Attorney-General, which I continue stressing, is that something should be done to stop the ease. It seems to me outrageous that people in this community, be they adult or children, have the access to download this outrageous material.
9
I think the Commonwealth should be taking a far stronger line. It is a shame that the reporter from The Age who was here earlier is not here now. I might,
Ms McGillvary, take the opportunity to send these remarks to him, because I think something has to be done.
10MS MCGILLVARY: Yes, Your Honour. I’m sure Mr Butcher would be obliged.
11HIS HONOUR: It just seems to me that the Commonwealth should be able to do something to stop this outrageous material being so easily downloaded. I do not know the technical side of it but it just seems to me that that is where money should be spent. I heard on Jon Faine this morning, we are spending $1,500 a day to keep refugees in that asylum, on each refugee, $1 billion a year or something. It seems to me that some money can be spent appropriately to try and stop this outrageous crime, and the ongoing victimisation of these young children. Anyway, that is enough of my generalised concerns.
12The third charge, to which Mr Power has pleaded guilty, is a charge under the State Crimes Act, s71, which is the possession of child pornography. That offence is an offence which carries a maximum penalty of five years’ imprisonment. It was specific to the date in which the police exercised the warrant on the premises, being the 14th day of August 2014.
13Exhibit A was, as I said, the agreed Opening tendered by Ms McGillvary, for which I thank her. At paragraph 11, it is indicated, when questioned, and answered, and indeed it is a phrase used by Mr Power with his own psychologist in reference, he suggests he downloaded the matter for titillation. I am reminded when I read that of Justice Nettle’s classification. It is a quotation I read out this morning in Cato[1] and it comes from the case of Smith, at paragraph 26, Director of Public Prosecutions v Smith [2010] VSCA 215, when his Honour makes a comparison between the moral culpability of persons and makes a distinction between persons who, for one reason or other, have mental afflictions, such as the last case that I spoke of. Indeed, by coincidence, both Mr Power and Ms McGillvary were in here. In the report, Nettle JA makes the comparison between, what he describes as manifestations of a deprived voyeurism of socially mature adults, and persons such as Mr Cato.
[1]Director of Public Prosecutions v Cato [2015] VCC 131
14The learned prosecutor provided the Court with much assistance as to the analysis of this material, similar to the analysis that is undertaken and referred to throughout in a number of the authorities that I have referred to, but in particular emanating out of the analysis of Johnson J, in R v Gent (2005) 162 A Crim R 29 at 370, in particular at paragraph 99. And also by our own Harper JA in Director of Public Prosecutions (Cth) v D’Alessandro (2010) 26 VR 477.
15The first aspect that one considers, of course, is the nature and content of the material that comprised the making available charge in paragraph 8 of the Prosecution Summary, that the material available actually observed to have been made available were two files, two at Level 4, and two at Level 2.
16On the basis of the Australian National Identification Library Scale, the number of child pornography files involved with Mr Power on the three DVDs was 1,217. The analysis at page 19 was of much assistance to me and shows the break up between the six categories set out. I was invited to view that material, to which I declined. I declined for the very reasons referred to in Director of Public Prosecutions (Cth) v Zarb [2014] VSCA 347 by Priest AJ, where he said, at paragraph 73, the following:
“In my view, however, it should generally be unnecessary for a judge or magistrate to view such material, so long as the prosecution provides – as it did in this case – a detailed description of the relevant images or videos.”
17As I said to Ms McGillvary, probably over the last twenty years, I have had more than enough experience of viewing this material and I do not particularly want to view any more. However, consistent with the comments of Priest JA, the prosecutor, not only at paragraph 19, gave me the classifications, but fully describes such material at paragraph 22. That is, summarised the precise type of activity that fits within the classifications. It seems to me therefore that despite your invitation Madam Prosecutor, I am on good grounds because of the manner in which you presented the case.
18The point needs to be made, of course, insofar as this plea which was noted in the summary, that we now have a plea in regard to these three charges emanating out of a warrant executed on 14 August of last year. To say the plaintiff cooperated is no understatement, given that it must be seen that matters of such seriousness are now before the Court as a plea, in what can only be seen as quite record time.
19The prisoner in fact does have historic priors, as described by Ms Lodge. I do not think there is any doubt about that. They go back between thirty and fifty years. I disregard them for the purpose of these proceedings, despite the manner in which they are mentioned in each psychologist’s report, and indeed as we discussed yesterday, having been detailed by Mr Power by way of his background, and correctly detailed it seemed to me. There was an initial suggestion by the prosecutor that there were some aspects of violence associated with those matters which needed to be taken into account by myself on the issue of rehabilitation. However, the learned prosecutor did not pursue that submission.
20
Coming to Exhibit B, which was the submission made by the learned prosecutor as to the relevant sentence in this matter, and the relevant sentencing principles, I accept totally the principles, as did, I might say,
Ms Lodge, which were detailed by the learned prosecutor. Looking at the Gent principles, as I earlier referred to, or the Gent’s statements, clearly albeit that the number involved is relatively not a huge number, given the types of cases that come before this Court. The learned prosecutor, rightly I think, accepted the majority of the material was at the lower end of the scale, and is in the lower band.
21However, the point needs to be made, if you accept my maths, and what was made by the learned prosecutor, that 42 per cent of the material is in Level 3 to 6. Clearly, there is no evidence before the Court that Mr Power was involved in any profitmaking in regard to these crimes.
22The matter stressed by the learned prosecutor, at paragraph 8, is a particularly important matter: an important matter, it seemed to me, that relates to the type of rehabilitation that has been effected in this case. That is the reason why the courts are at pains to impose sentences which effect general deterrence and specific deterrence because of the exploitation of the victims in this matter, and what is known as the re-victimisation. Every time these images are re-played, re-victimisation of young children occurs.
23It is for that reason that a court sentencing for these crimes is prescribed to take into account, as first principles, that of the concept of general deterrence and of specific deterrence, and to pass a sentence which renders appropriate punishment that evinces those principles.
24Insofar as the State Charge 3, as the learned prosecutor submitted, Mr Power comes to be sentenced as a serious sexual offender on those matters because of the serious sexual offender provisions of the State Crimes Act. There was no submission by the prosecution that I should pass a sentence which did not reflect the actual culpability of the crime. However, pursuant to provisions of the Act, it is necessary for me to take into account the protection of the community as the paramount purpose of sentencing in regard to that charge.
25The effect of these three offences all being serious offences is to mean that Mr Power will be required for life to be subject to the serious offender legislation, and a notice will need to be given to Mr Power in regard to that obligation, with a life qualification. Are each of these Class 2? I think you already told me that on another ‑ ‑ ‑
26MS MCGILLVARY: Yes, that's correct Your Honour. They're all Class 2.
27HIS HONOUR: All Class 2. The end point of the prosecution submission in this matter, taking into account all of those principles that I said, and after hearing the plea of Ms Lodge, and the matters that she referred to, was that a period of immediate gaol must be part of the sentence. There is a slight enhancement on that this morning, in the sense that the learned prosecutor pointed out to me the reference to Boulton, the most recent determination and directions determination of a Court of five of the Court of Appeal, passed I think on the 22nd. Monday, I think, was 22 December – which indicated, given the current legislation, that that combination, of course, can be by way of gaol, not limited now to a period of three months, and a Community Correction Order.
28
Ms Lodge provided the Court with a helpful written submission. As I have said, she accepted the principles put by the learned prosecutor, and also accepted the criminality and did not resile from the culpability of
Mr Power. She stressed, however, the relatively low number of images and the relatively limited time involved. Also the quick time that Mr Power is before the Court in regard to the charges. She referred me to the background – ss I have said, he is 66 – the family background and the support that he continues to receive from his wife and daughter. In that regard, Exhibit 4 was tendered, which I have read again.
29Mr Power is person who, throughout his life, has provided for his family, has been in continued employment, until unfortunately he was retrenched some ten years ago. He has made contributions in the community and an example of that was the article tendered insofar as the erection of the Men’s Shed in his community. I take the view, given that background, that one is entitled to say, despite his priors, that he is a person entitled to rely on his character before the Court, those priors being so historic.
30Of course, technically he is not of good character because he always has to wear the consequences of those priors, however historic they are. But it seems to me that a person who gets to 66, without any further matters after his 18th birthday, is entitled to put to the Court the totality of the life that he has led. Ms Lodge relied in particular upon the medical material before the Court, first being Exhibit 2, the report of Dr McKenzie, the clinical psychologist. That report is dated 30 January 2015 and is Exhibit 2.
31Mr Power sought assistance from Dr McKenzie approximately one month after being detected with these items. It was diagnosed that he had for some time suffered a Depressive Disorder, as best as I read the material, associated with ongoing neck pain and dealing with an early loss of employment. He has not been diagnosed as a paedophile or a person with paedophilic tendencies. However, it seems to me that that perhaps runs in the face of reality in this matter. I note in both reports that he suggests he is never aroused by this matter, that he has not had an erection for some fifteen years, and indeed did not masturbate as a result of the downloading of this material.
32His explanation, both in the record of interview and to the psychologist, is that he did it for titillation. I am not quite sure how all of that resiles, or is balanced. However, whatever the motivation, he comes before the Court having pleaded guilty, and exercising and indicating to the Court his remorse for such crimes. I think in particular the comments of Dr McKenzie go to the matters that I earlier raised, about how do we classify Mr Power?
33Here is an adult downloading outrageous material. As I said, 44 per cent of it of an extreme nature. It is clear from the material that Mr Power has found his psychological counselling confronting. The psychologist says this:
“Although finding it confronting, Mr Power has been” [- this is at page 4 of the report -] “Mr Power has been receptive to psycho-education regarding his form of offending. The victim empathy work we have done has been particularly difficult. He has had to come to the full realisation of how harmful his type of behaviour can be to the child victims physically, psychologically and socially.
Through the course of treatment he has been able to identify and challenge the cognitive distortions he was employing, such as the fact that he was not doing harm because he was looking at what was already there, that the images were fake and that he was not contributing to child exploitation industry. During treatment we have dispelled his belief the images were fake by discussing in detail the reality and extent of sexual violence perpetrated against children. Mr Power began being able to demonstrate that he has a comprehensive understanding of why his form of offending is illegal, including the potential it has to incite others into further and more serious acts of violence against children by creating a sense of belonging to a deviate community that normalises such behaviour.
Although Mr Power has imposed his own environmental controls, we have discussed more suitable long-term solutions. He has now stated that he has no intent to access any form of pornography. In my opinion, he will require long-term individual therapy focused on his depression, his anger over his retrenchment and unresolved grief. He has expressed an interest in continuing the therapy or to explore his options.”
34In addition to that document, a further medico-legal report of a clinical psychologist, was tendered as Exhibit 3. That is a report dated 19 January 2015 and was prepared for Mr Power's solicitors by Dr Joel Godfredson, a clinical and forensic psychologist. He also notes the strong confrontation that has been involved, and as reported by Mr Power, in the counselling sessions. In particular, at page 6 he says “Mr Power said he had thus far found the sessions to be confronting. However, he said that he intends to continue engaging with the treatment. That is certainly a low risk for committing any offences that involve other parties, and a moderate risk of committing further child pornography.” That is at page 10.
35I note the interesting point, which I agree with, that the psychologist says, “Generally speaking it’s difficult to assess the risk of recidivism amongst people convicted of child pornography offences, as there are no specific risk assessment instruments which have been validated exclusively for this purpose”. Again, confirming the opinion of Dr McKenzie, Dr Godfredson is of the view, upon the history, despite the comments I have made, that Mr Power does not experience a particular paraphilia.
36Insofar as his opinion is concerned, he makes a recommendation at page 12 that Mr Power would most likely benefit from offence specific intervention to further address the factors, and would certainly need to be part of a sex offender program. At page13, it was recommended that he continue to see Dr McKenzie.
37In conformity with those matters put, Ms Lodge submitted that the sentence in this matter, while acknowledging the serious nature of the crimes, could be a sentence which effected a period of imprisonment and had tied with it, punitive aspects of sentencing associated with a Community Correction Order, and the punitive aspects of such an order, as described in the case of Boulton, to which the prosecutor has referred this morning, Boulton v R [2014] VSCA 342.
38Ms Lodge submitted to the Court that though there was no issue with the need, given the seriousness of this matter, for a period of imprisonment to be imposed, the question in issue between counsel, as she submitted, was whether there should be a sentence which involved immediate imprisonment. Clearly, that is the issue that had to be considered in this matter and I have taken some time overnight to make that consideration. I think, on the basis of the principles that I earlier referred to that the learned prosecutor took me to, and the various authorities, there is no doubt of the need for a period of imprisonment to be imposed in this matter. The real issue is, whether, as part of that sentence, there should be an immediate period imposed.
39The learned prosecutor relied in particular upon the comments in Director of Public Prosecutions (Cth) v Guest [2014] VSCA 29, and the determination therein, and in particular, given the correlation of circumstances, despite the obvious differences, as recognised by Coghlan AJ, at paragraph 48 of that determination. In particular, the learned prosecutor referred to the last sentence of that paragraph, where his Honour said:
“… a non-custodial disposition could only be contemplated in circumstances that are ‘exceptional’.”
40Insofar as a court takes into account other sentences and other pronouncements of courts, such is all obviously done as part of the process of synthesis that a court must go through. This issue was raised by the Court of Appeal in Hasan v R (2010) 31 VR 28. Under the heading of ‘Consistency of Sentencing’, the Court stresses that the first task of a sentencing Judge, when seeking to ascertain appropriate sentence in a particular case, is to assess the objective gravity of the particular offence. Of course, the maximum penalty set by Parliament gives a good guide.
41They go on to say that an examination of comparable cases will then assist the Judge to make objective assessment, but warn that there are limitations, and the limitations of such an exercise must be borne in mind. Those matters are further referred to in Hudson v R (2010) 30 VR 610 at paragraph 27. It seems to me that such is appropriate when I bear in mind both the facts and the statements made in Guest and the series of authorities that the learned prosecutor was kind enough to hand to the Court, which is set out in a whole volume of materials that the Court has had the benefit of being able to see.
42Insofar as the particular statement of Coghlan AJ, it is always difficult when one is sitting in an inferior Court to be so bold as to make any comments, but being bold, and certainly not critical, to fully understand this – and again, I thank the learned prosecutor, because all of the materials were supplied. However, by now I do have a fairly large volume myself of relevant cases but, having analysed overnight the case of D’Alessandro, which I have already referred to, Gent, Smith, Guest and Zarb, it seems to me that the view adopted in Zarb by the majority, which was to agree with the comments of Coghlan AJ in Guest, is not the analysis that I would prefer.
43It seems to me that the view expressed by Nettle AJ, as he then was, now of the High Court, and of Priest AJ, as summarised in the minority decision in Zarb, is the view which most closely reflects my experience of sentencing over the last twenty years. If I might quote from his comments. After having directly referred to the matter of Guest, and the comment that I referred to, at page 31, paragraph 71, Priest AJ said this:
“With respect, I do not think the view expressed by Coghlan JA can be accepted without qualification. It is not correct, in my view, to posit that a non-custodial disposition could only be contemplated in circumstances that are ‘exceptional’. There is no statutory warrant for that view, let alone an inflexible legislative command that an offender must be imprisoned for this kind offending unless exceptional circumstances exist … .”
44In my respectful opinion, the better analysis is as expressed by Appeal Justice Nettle in Smith:
“[Although] a sentence of immediate imprisonment might ordinarily be warranted, … cases where a sentence which does not involve a period of actual custody is not precluded.”
Every case must depend on its own particular facts.
45Of course, in the case of Smith, at paragraphs 27 and 28, is an analysis similar to that of Priest AJ, which is expressed by, as he then was, Appeal Justice Nettle. I think within the context of what might be said a pedantic but important difference, I am inclined to go with the Priest/Nettle view.
46Also of fundamental importance in this case, in my view, is firstly, the principle set out in s17A of the Commonwealth Crimes Act. In addition, the views of the President, insofar as the importance of rehabilitation in any sentence, those were firstly expressed in the case of Director of Public Prosecutions v Tokava [2006] VSCA 156. Such related in that case to young offenders. However, the important point that his Honour made about rehabilitation, and trying all that one can to do not to impose immediate imprisonment if possible, was the statement that it would be unreal and artificial, at paragraph 24, for sentencing courts to ignore the evidence about the antisocial effects of time spent in gaol.
47More particularly, by way of reference to the issue of rehabilitation, are the statements again made by the learned President in R v Merrett, Piggott & Ferrari (2007) 14 VR 392, in particular at paragraph 49, where his Honour said this in regard to rehabilitation:
“… the sentencing court looks to the future as well as to the past. There is very great benefit to the community at large, as well as to the individuals themselves and their immediate families, if future criminal activity can be avoided. It is important that this court, by its own sentencing decisions, recognise and reward efforts at rehabilitation, just as we should support trial judges who do so. It is important to reinforce in the public mind the very considerable public interest in the rehabilitation of offenders. The preoccupation with retribution which characterises much of the public comment on sentencing is understandable, but it focuses on only one part of what the sentencing court does.”
48It seems to me that those principles are very important when you are dealing with a man who is 66 and, but for matters that arose very early on in his life, a person who has lived a blame free life since that time.
49The rehabilitation that has been effected here, it seems to me, is significant. That is the reason why I have taken the time to refer to the two reports of the psychologist. Of course, rehabilitation is always a factor and only one of the factors that has to be balanced against the very important factors, as I have remarked, of general deterrence and specific deterrence. I accept the comments in regard to Mr Power of the psychologist, that there is no need for a sentence which reflects specific deterrence.
50I am convinced, given the steps Mr Power has taken, the shame that he suffered within his own family and his relationships, that he is not a person who will be back before this Court. The life that he has lived prior to this time indicates that. That, of course, does not take care of the matter of general deterrence and, of course, that is why a period of imprisonment must be imposed. The difficult balancing factor, and of course, as I said, the issue between the learned prosecutor and defence counsel in this matter, as does this particular case involving Mr Power, based upon all those principles, require a term of immediate imprisonment.
51Imprisonment is not restricted to a period of just three months, and can be passed in conjunction with a Community Correction Order. As I said, the principle and factor of general deterrence is important in this instance because of the degree of criminality, despite the limitations that I have referred to, and of course the re-victimisation that takes place in this instance at least on the four instances of uploading that took place that were referred to. However, this Court has always taken the view that a person who lives essentially a blame-free life and gets to mature years is entitled to a chance.
52Here, as I have said, Mr Power is 66. Despite having committed these serious offences, he has effected rehabilitation and, in my view, it would not be appropriate to interfere with that rehabilitation, or take the risk of interfering with that by imposing a sentence which involved even a short period of immediate imprisonment. In the circumstances, I consider it would be inappropriate for me to impose immediate imprisonment. I note that the report called for recommends and makes a positive recommendation – I think it was Exhibit D, was it? Did we get to that? Anyway.
53MS BALLARD: C.
54HIS HONOUR: C, Exhibit C, and pursuant to that positive recommendation, I would intend to impose two Community Correction Orders, one for the Commonwealth and one for the State offence, pursuant to the provisions of s20AB of the Commonwealth Crimes Act, that there be 300 hours community service involved and that the recommendations made, insofar as that report is concerned, as to treatment and rehabilitation, and sex offender programs, be imposed. In addition, I intend to impose a fine for both offences in the sum of $3,000.
55MS MCGILLVARY: Your Honour, it’s not possible to impose a fine in conjunction ‑ ‑ ‑
56HIS HONOUR: I have to do two separate - not in conjunction with ‑ ‑ ‑
57MS MCGILLVARY: You could impose a fine on one of the ‑ ‑ ‑
58HIS HONOUR: On the State offence.
59MS MCGILLVARY: Sorry. In relation to the State offence, yes, sorry Your Honour.
60HIS HONOUR: Yes. I cannot impose it in the Commonwealth?
61MS MCGILLVARY: Not where the sentences have involved a sentence which is a Community Correction Order. Your Honour could impose a Community Correction Order on one count and a fine on the other but not if you’re making an aggregate sentence in relation to the two Commonwealth ‑ ‑ ‑
62HIS HONOUR: I will restrict that fine to the State offence.
63MS MCGILLVARY: Thank you, Your Honour.
64HIS HONOUR: I also intend to impose the fine of $3,000 in regard to the State offence, for which I will grant an initial stay of six months and provided appropriate payment has been made in that period. If it is impossible to make the payment in that time, additional time can be served. I intend, because it is a four-year period, to involve an intensive period under the provision of two years. It seemed to me that that should be a sufficient period to undertake the treatment that is involved but that is a matter really for the authorities. But as I understand the matter, I think it is s39, isn’t it?
65MS MCGILLVARY: Thirty-eight sets out the period, Your Honour.
66HIS HONOUR: Thirty-eighty, yes. No, it’s ‑ ‑ ‑
67MS MCGILLVARY: An intensive compliance period, sorry. I beg your pardon, Your Honour.
68HIS HONOUR: Yes.
69MS MCGILLVARY: It’s 39.
70HIS HONOUR: Thirty-nine, yes. I will get it. And to those I would imagine that the conditions of treatment, what I'll - I must actually attach the conditions of treatment that I have imposed for that intensive period.
71MS MCGILLVARY: I’m sorry, Your Honour. I didn’t get the period of the intensive compliance.
72HIS HONOUR: Two years.
73MS MCGILLVARY: Two years.
74HIS HONOUR: Yes. I am just trying to see where there are two separate ones. “(3) If a court ascends in any respect of two or more” - no, no. “The court makes separate community orders in respect of any (indistinct) periods of which are cumulative”, no. That is not the problem so it will be the same period of intensive and that will relate to the treatment condition.
75MS MCGILLVARY: Thank you, Your Honour.
76HIS HONOUR: Any matters that I need to clarify?
77MS MCGILLVARY: Your Honour, there’s Commonwealth ‑ ‑ ‑
78HIS HONOUR: Sorry. Any other pronouncements? Yes sorry, I think I have to indicate that pursuant to s6AAA, which does not necessarily apply to the Commonwealth matter, but certainly applies to the State, to the extent that Parliament requires me to say that. All that I am prepared to say, is that I certainly would not have imposed a Community Correction Order had there not been a plea of guilty. I think it has already been noted, and one of the matters Ms Lodge relied upon, the plea to these offences places Mr Power on a lifetime of reporting provision and we have to give him notice in regard to that.
79MS MCGILLVARY: That's correct, Your Honour.
80HIS HONOUR: So anything else I have forgotten?
81MS MCGILLVARY: For completeness, a commencement date for the sentences?
82HIS HONOUR: Today.
83MS MCGILLVARY: Today. Thank you, Your Honour. Your Honour, can I just raise one issue that Your Honour actually referred to a number of times during the course of your remarks, and it may be that it’s my interpretation of what Your Honour said. It was in relation to the reference to a blame-free life. Your Honour at one stage referred to the fact that there were no matters since the age of 18. In fact, the second ‑ ‑ ‑
84HIS HONOUR: Or whatever the last sentence was. It was thirty years ago.
85MS MCGILLVARY: The second and third. He was 37.
86HIS HONOUR: Was he 37 in that one?
87MS MCGILLVARY: Yes.
88HIS HONOUR: So that was one and the rest were fifty years.
89MS MCGILLVARY: Not quite fifty years. He was 18 when he commenced. He’s 66 now so.
90HIS HONOUR: Yes.
91MS MCGILLVARY: I just wanted to draw that to Your Honour’s attention, in the circumstances.
92HIS HONOUR: Yes. I think I said I could not in law say he has got good character because that could not be, but it seems to me he has led the life otherwise as an adult but for these matters.
93MS MCGILLVARY: And the only other thing, Your Honour. Obviously there's a single CCO. It's an aggregate charge. Perhaps if Your Honour could just state that for the purposes ‑ ‑ ‑
94HIS HONOUR: No. It is not a single CCO, it is a ‑ ‑ ‑
95MS MCGILLVARY: No, but for the purposes of the first and second counts on the indictment, which are both common law ‑ ‑ ‑
96HIS HONOUR: I see.
97MS MCGILLVARY: It’s an aggregate.
98HIS HONOUR: Pursuant to s40, I will say that it relates to both offences of the State. If you can pass one single CCO for two offences.
99MS MCGILLVARY: Thank you, Your Honour.
100HIS HONOUR: I will just check that. I think it is s40.
101MS MCGILLVARY: I’m not sure that that’s the applicable section. I’ll just check it also, Your Honour.
102HIS HONOUR: “Presumption of concurrency”, 41. “The court makes separate Community Correction” - no, that is a separate one.
103MS MCGILLVARY: And it also relates to State on counts ‑ ‑ ‑
104HIS HONOUR: Yes. I don’t know whether you've got a - you couldn’t have in regard to this, could you?
105MS MCGILLVARY: Yes, under s4K, yes.
106HIS HONOUR: What do I say under s4K?
107MS MCGILLVARY: It’s s4K but it doesn’t enable an aggregate sentence but it picks up and applies the state provisions. So one ‑ ‑ ‑
108HIS HONOUR: So will I order that under s4K that the one Community Correction Order is applicable for Charges 1 and 2?
109MS MCGILLVARY: Thank you, Your Honour.
110HIS HONOUR: Thank you, Ms McGillvary, for your assistance.
111MS MCGILLVARY: Thank you, Your Honour.
---
9
0