Director of Public Prosecutions (Cth) v Troy

[2024] VCC 1689

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-23-01661

DIRECTOR OF PUBLIC PROSECUTIONS (CTH)

v

TROY GRAY

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	11 September 2024
DATE OF SENTENCE:	21 October 2024
CASE MAY BE CITED AS:	DPP (Cth) v Troy
MEDIUM NEUTRAL CITATION:	[2024] VCC 1689

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:  Sentence – Plea of guilty – Use carriage service to procure person believed to be under the age of 16 years for sexual activity – Possess drug of dependence – On bail when offences committed – Registered sex offender – Extensive criminal history – History of substance abuse - Dysfunctional childhood – Mild intellectual disability – Impaired mental functioning - Paedophilic disorder – Recent diagnosis Leukaemia – Significant medical issues

Legislation Cited:     Sex Offenders Registration Act2004 (Vic)

Cases Cited:            R v Verdins (2007) VR 269; Bugmy v The Queen (2013) 249 CLR 571

Sentence:Convicted and sentenced – Charge 1 two years and 8 months’ imprisonment commencing on 21 October 2024 to be released after serving 21 months’ imprisonment on recognisance of $5,000 to comply with various conditions including to be of good behaviour for 4 years – Charge 2 fined $200 – 606 days’ imprisonment declared as having already been served as part of the sentence imposed – s.6AAA Sentencing Act 1991 declaration - Ancillary order Disposal

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions (Cth)	Ms J. Mackay	Commonwealth Director of Public Prosecutions
For the Accused	Ms J. Buxton	SLKO Lawyers

HER HONOUR:

1Troy Aaron Gray, you have pleaded guilty to one charge of using a carriage service to procure a person you believe to be under the age of 16 years for sexual activity and one charge of possessing a drug of dependence.  The first mentioned charge has a maximum penalty of 15 years' imprisonment, and there is a mandatory minimum head sentence of four years' imprisonment.  Maximum penalty for the second mentioned charge is one year imprisonment or 30 penalty units.

2In sentencing you I have had regard to the maximum penalties as these reflect the seriousness with which the relevant Parliament regard these offences.  In addition, you have admitted the offence of possessing or controlling child abuse material obtained or access using a carriage service.  This is an offence which is to be taken into account when sentencing you in respect of
Charge 1.

3You were 39 years old at the time of the offending and living alone in Collingwood.  You are a registered sex offender pursuant to the relevant provision of the Sex Offenders Registration Act 2004. At the time you committed the offences for which I now sentence you, you were on bail for five State charges of knowingly possess child abuse material.

4By way of background the learned prosecutor told me that police engaged a covert police operative to contact you, after being contacted by your Community Correctional case manager on 21 December 2022.  On
2 December, you had informed your disability justice coordinator that you could not help who you were attracted to and wanted to explore antilibidinal medication - libidinal medication.  On 16 December you informed your psychologist that you continued to offend online and discussed strategies to minimise offending behaviour.  On 22 December you attended your Community Corrections Order commitment and described yourself as high risk and advised that you were concerned that you might further offend in a sexual manner.

5On 22 December, you advised your disability justice coordinator, that you had spoken to your GP about the antilibidinal medication but you were advised against it.  Between 9th and 12 January 2023, an undercover operative purporting to be a 14-year-old male named Josh living in the Hawthorn area engaged with you online.  On 3 January 2023, Josh sent a friend request to you via your Facebook account, Troy (Indistinct) Gray.  On 9 January 2023, Josh commenced communication with you via Facebook Messenger, which continued until 12 January 2023.

6You and Josh had the following message exchange via Facebook Messenger, between 9 January and 12 January 2023. 

'On 9 January at 8.35 pm, Josh, "I'm 14 BTW (by the way)." 
On 11 January at 40 minutes past midnight, you asked, "Where you from?"  On 12 January at 12.48 Josh says, "Hey, WYD?" standing for what are you doing.  "I'm from Hawthorn WBU?" standing for what about you.  12 January at 8.42 pm, you replied, "Okay, cool.  Ah nice I'm in Collingwood."  2 January at 8.43 pm you then said, "Call or text me" and you gave your phone number.  On 12 January 2023 commencing at about 8.51 pm, you contacted Josh on Snapchat, using an account with a display name of Troy Gray and a username of Troyboy20157.  You and Josh communicated via Snapchat until 2 February 2023.'

7Regarding the conduct which gives rise to Charge 1, or procuring a person you believe to be under the age of 16 use for sexual activity I was told the following.  You and Josh exchanged messages on 12 January 2023 via Snapchat, in which you suggested sexual activity in your Collingwood home with Josh.  During the conversation you also asked Josh to take a picture of his penis and send it to you.  The messages extracted were set out in the prosecution opening and are as follows.  With you saying,

'"That's all good."  And then "Not much just chilling and smoking.  Where are you from?  How old are you?"  Josh replying, "Hawthorn, 14 HBU?" how about you?.  You responding, "Okay cool, very nice.  Hot" with a fire emoji and then word "cute".  You then said, "You single, gay, bi or straight?"  Josh replied, "Very single, HBU?" or how about you?  You said, "Yeah, that is good I'm single, gay.  Are you gay, bi or straight?"  Josh replied, "IDK", I don't know, "but never been with a guy."  You then said, "Okay, cool, very nice, hot."  Josh replied, "Hot?"  You then said, "Would you like to try and be with a guy?"  Josh said, "IDK", I don't know, "maybe why?"  You then retorted, "Okay, cool, very nice."  Josh said, "What you smoking?"'

'You said, "I really would love to be your first guy that you have ate with?"  I was told the last-mentioned words are slang for oral sex.  You said, "Did you drink or smoke ciggies or drugs?"  Josh said, "Really" and had a big smile emoji.  You then said, "Yeah do you?"  Josh said, "Not really."  You then said, "Okay, I'm in Collingwood."  Josh replied, "K", you said, "How old do you want your guy to be?"  Josh said, "IDK", I don't know.  You then said, "Would you like older or younger or around your age?"  Josh replied, "IDK, what do you think?"' 

'You said, "I believe older because they have the experience."  Josh said, "Haha really?"  You then said, "Show me your very nice hot" with a fire emoji, "cute, sexy, huge, hard cock."  Josh then said, "I've never done that before, not sure I can."  You said, "Just take a pic of it and send it."  Josh then said, "IDK, can't my parents are next to me."  You said, "Are you home?"  And then you said, "Go and have a bath."  Josh then said, "Ha, already showered."  You said, "Or go into your room."  Josh replied, "They will know."  You then said, "Okay, I'll just wait until they go to bed."  Josh then said, "Why do you want that?" and you said, "Because I reckon that you would have the best hot; fire emoji 'cute, sexy huge cock."'

'Josh then said, "How old are you?"  You said, "I'll tell you once I have received a pic."  Then Josh said, "Where do you live in Collingwood?"  You said, "Off Wellington Street."  He asked, "Do you live alone?"  You said, "Yeah, I do."  You then said, "I would love you to come over but I don't know if you want to?"  Josh then said, "Not tonight" with a smiling emoji, "I need to know first."  You then said, "What about tomorrow night?"  Josh said, "IDK, what would we do?"  You said, "Whatever you want to do.  Then you said I really would love to suck your cock?"  Josh said, "Really?"' 

'You then said, "Yeah I would."  You then said, "You would love it."  There's an unclear word then, "Something would I do?" which is a word described to Josh.  Then you said, "Anything that you don't want to do." Josh then said, "Okay, what do you look like?"  You said, "I'll send pics after I've seen yours."  Josh, "What will I tell my parents, they are very strict?"  You said, "Okay, you will tell them nothing."  Then Josh, "K, talk later, enjoy your smoke" with a winking emoji and a face with a tongue poking out.  You said, "Okay."'

8On 23 February 2023, police executed a search warrant at your home in Collingwood.  Your mobile phone was seized.  Upon triaging the phone, police observed that you had been in communication with Josh.  I take into account the following offence pursuant to s16BA of the Commonwealth Crimes Act 1914 schedule.  When your phone was forensically examined two category 2 child abuse files were found.  One file depicted two males who were naked engaging in a sexual act, with one male appearing distressed.  The other depicted three males naked, with one male engaging in a sexual act with a vegetable being held by another male.

9The facts giving rise to Charge 2 on the indictment, are that during the search warrant police seized a small Ziplock bag which contained two green coloured tablets, these were in the top drawer of your dresser.  In your record of interview, you said that you thought that these were Valium tablets and you admitted that you did not have a prescription for them.  Presumptive testing indicated the presence of diazepam also known as Valium, which is a drug of dependence as defined by relevant legislation.

10On 23 February 2023 you took part in a record of interview, where you made the following admissions which were described in the opening as being significant.  You said that the various Snapchat usernames and Facebook name as well as the phone number that you were asked about belonged to you.  You said you did not recall having a conversation with Josh on Snapchat or Facebook or specific messages.  You told police that there were so many conversations that the police were going to find when they analysed your phone.  You said you did not remember every single conversation that you have.  You said,

'So there's gonna be contact, there will be, let's say conversations, as I've said to you that you guys, when you guys go either into my Snapchat or maybe when you guys go to get my phone analysed that yeah there will be conversations.' 

11You went onto say that there would be mainly males that were under 18 and that some of the conversations were sexual.  You said, there would probably be pictures on both ends so you and the person.  You said, they could be naked photos, like body photos, saying that they would be naked body photos, penis photos and bottom photos.  You said that there would be numerous conversations with this type of content.  When I asked the learned prosecutor if this was in fact the case, I was told that it appeared to be, but you were not charged on the basis of these admissions as it was difficult for police to ascertain the age of the other parties. 

12You went on to say,

'I find it very hard, and I don't think I'm doing anything wrong when I'm talking to these people, and that because I'm getting consent from them and you know, there's been conversations there that I have deleted because of the simple reason they haven't wanted to obviously talk to me.'  You said that the conversations started in the middle of last year or late last year and you could not specifically remember each and every child.  You said, "I don't even know why I even go down the path, because I am - I'm a victim myself, so I don't even know even know why, like, I go down there."  You then said, "And that's why I say I'm a monster then, like, that I hate myself, and that because I know what it's like, I've been through it all and I still go and take - I still you know, do what I do."' 

'You said that you were, "Obviously highly aroused and yeah, then I'm talking to young teenagers."  You said that you were attracted to teenagers like 15, 16, 17 and then said, like even 18, like 19.  You explained how people you talked to gave their consent, as you termed it saying that it started off with you asking how the person was, then asking if they were gay, bi or straight.  You said, "And if they say gay or bi it's excellent and then yeah, I'll ask for pics, and they'll say no, if they say no, I just delete them and block them.  But 90 per cent of them send pics back, so yeah, naked photos, penises the works."' 

'You said, that when you saw these you would send whatever back.  You went onto say, "They're under 18, I get that, but then at the same time, that's where, when it comes back to, well no, because one, I don't feel like I'm doing anything wrong, because I'm getting the consent and that off them, and two, it's what I - it's what I'm attracted to."  You said, that you did not find men on Grinder your own age or older sexually attractive.  After the interview you were charged and remanded into custody.  As at the date of the plea hearing you had been in custody for 566 days.  I understand that you have now been in custody for 606 days.'

13Mr Gray, your offending, especially Charge 1, is most serious and calls for punishment which is just in all of the relevant circumstances.  Your conduct must be appropriately punished and denounced.  You engaged in a conversation of a graphic kind, with someone who you believed to be only
14 years old, knowing very well that you should not have been doing this.  Although you did reach out for some support in a bid to control your tendencies in this regard, this also reflects an awareness that you ought not to have been engaging in such conduct and you knew very well that it was unlawful.  Fortunately, the participant in the conversation was not a child but you were not to know that, and apparently you had no regard for their welfare in dealing with you in such a way. 

14You knew very well that consent is not a relevant consideration when dealing with a child.  You were the adult and you had no business trying to converse with someone who was under age in the way that you did.  I do not care about how you feel in relation to wrongfulness in engaging with someone who you think consents to such conduct.  The conduct is unlawful and is harmful, whether an under aged victim apparently consents or not, which is why consent is not a relevant consideration as you well know.  Do you understand this?

15OFFENDER:  Yes.

16HIS HONOUR:  In sentencing you I take into account your criminal history, which is rather extensive and contains some relevant matters.  Your criminal history begins in December 2002 and you have offended fairly regularly since that time.  As the learned prosecutor pointed out in her written submissions, you have prior convictions for sexual offending against children, breaches of the Sex Offenders Registration Act, violence and drug offences as well as contravening community-based sentence orders.

17In December 2002, you were convicted and fined for breaching the intervention order.  In July 2006, you were convicted of unlawful assault, using threatening words and indecent language in a public place, and you were granted a six-month Community Corrections Order on that occasion. 
In May 2007, you were convicted and fined for failing to comply with the community-based order to which I've just referred.  In November 2007, you were convicted for an indecent - convicted of indecent act in the presence of a child under the age of 16.  An 18 month community-based order was imposed.  In March 2008, in the County Court, you were convicted of a charge of rape and you were ordered to undergo treatment in a residential treatment facility for three years.

18In October 2010, you were convicted of threatening to inflict a serious injury unlawful assault and recklessly cause injury.  You were granted an adjourned undertaking for 18 months.  In July 2015, you were convicted and tried for failing to comply with obligations under the Sex Offenders Registration Act.  In February 2016, you were convicted of make threat to kill, being armed and using a carriage service to menace. 

19You were granted a 12-month Community Corrections Order.  In July 2016, you contravened the Community Corrections Order imposed in February 2016 and the Community Corrections Order was confirmed.  In November 2016, you were convicted of two charges of failing to comply with the
Sex Offenders Registration Act reporting obligations and a 15-month Community Corrections Order was imposed.

20In April 2017, you were convicted to using a carriage service to menace and contravention of a Community Corrections Order imposed in 2016, then concerns in July 2016 were found proven.  The Community Corrections Order was confirmed.  In September 2020, you were convicted of three charges of failing to comply with SORA reporting obligations and a 12 month
Community Corrections Order was imposed.  In June 2021, you were convicted of inviting a child under the age of 18 to take part in a sexual performance.  Sixty days imprisonment was imposed, with pre-sentence detention being declared as 173 days. 

21You were also convicted and fined for failing to comply with SORA reporting obligations and contravening a Community Corrections Order imposed in September 2020.  The contravention was found proven with the
Community Corrections Order previously imposed confirmed.  In May 2022, you were sentenced to 70 days imprisonment for three charges of failing to comply with SORA reporting obligations and three charges of possessing a drug of dependence.  Pre-sentence detention of 73 days was declared.

22In July 2022, you were dealt with for contravention of a Community Corrections Order being the order imposed in September 2020 and confirmed in
June 2021.  The Community Corrections Order was varied.  I was provided with further details in relation to three of the offences in your criminal history, which involved under age children, and I also provided with sentencing remarks of Her Honour Judge Willmot dated 3 March 2008 in respect of the rape offence.  I have borne in mind that the summary in relation to your prior conviction of 23 November 2007, may not be exactly the basis upon which you were sentenced for that offending, which was conveyed to me by the learned prosecutor.

23The offending for which I now sentence you in the context of your criminal history and in particular the matters to which I have just referred gives me a good deal of concern in respect of your prospects of rehabilitation and protection of the community.

24In sentencing you, I take into account your background.

25You are 40 years old and non-binary.  In 2016, you were diagnosed as having an intellectual disability although along the way there's been some disagreement about this.  However, I sentence you on the basis that you do have such an impaired mental function, and I will refer this aspect further in due course.  You experienced a difficult childhood, which was described by
Ms Faruqi, Psychologist as disrupted and said that there was a presence of tumultuous interpersonal relationships, insecure attachments and traumatic events, including childhood sexual, physical and verbal abuse.  According to the report of Ms Faruqi, you were raised by your parents in the Geelong region, but you had to move quite often because of financial difficulty.  However, in 1989, your parents bought a home in Geelong where your mother still lives.

26Sadly, your father died when you were only 10 years old, and you described this as a shock and a difficult time when you were speaking with Ms Faruqi.  You are the oldest of three children, with a brother who is 39 and a sister who is 37.  You have no contact with your brother as he does not accept your sexuality.  You have limited contact with your sister.  Neither your siblings or parents had substance abuse problems or legal problems.

27Two years after your father's death, your mother re-partnered.  Your stepfather was verbally and physically abusive towards you and your mother.  On several occasions the Department of Family, Fairness and Housing previously the Child Protective Services, became involved.  Their first involvement was when you were 12 years old.  You were required to live with your maternal Uncle at this time.  When you were 15 you were placed in foster care.  You apparently told Ms Faruqi that between the ages of 12 and 15 you were molested by your Uncle, saying that you were forced to have sexual intercourse with another child whilst a knife was being held to you throat.  You told her that you absconded from home and at the age of 15 you began living in foster homes, where you were first subjected to physical abuse.

28You then began absconding from foster homes saying that you preferred to live on the streets.  There seems to be something of a conflict between what you told Ms Faruqi in this regard and what Her Honour Judge Wilmoth was told, as reflected in her sentencing remarks dated 3 March 2008.  She said that you were the victim of a sexual assault at the age of 13 by another boy in a residential unit.  There was no mention of sexual abuse by your uncle or being placed with him when you were 12 years old, rather you apparently instructed previously that you were the victim of a sexual assault when you were 13 by another boy in a residential unit suggesting that this is where you were residing at the time.

29I asked for clarification in this regard from your counsel and I have been told that it is your friend's and I was then subsequently told that it was your friend's uncle who was the perpetrator not your uncle.  But it is still somewhat unclear as to the circumstances of which you were sexually assaulted.  It is difficult for me to take this aspect into account in view of such conflicts of your various accounts, which are in some degree of conflict with one another.  But in view of what Ms Faruqi said about this aspect, I accept that you were sexually assaulted when you were a teenager and I factor that in when sentencing you and factoring in your background.

30In terms of your education and employment, I was told that you completed schooling to the middle of Grade 10, then commenced a TAFE course about 12 months after leaving school.  You found this demanding although you persisted and completed six months work experience at
Geelong Football Club in food preparation and kitchen duties.  At about the that you commenced your TAFE course, you were deemed to have an intellectual disability and qualified for disability support pension.  I understand that you have not furthered your training or engaged in employment since this time and it is to be hoped that you do engage in employment or something to occupy your days and interest in the future in a positive way.

31In relation to your mental health, I note that Her Honour Judge Wilmoth considered a report from Dr William Glasser, Consultant Psychiatrist, and also considered a report from a private Psychologist, Mr Peter Stanislawski.  At that time Dr Glasser recommended that you be referred to the
Statewide Forensic Services to see if you were suitable for a residential treatment order.  At the plea hearing in relation to these prior matters, a
Mr Peter Lamb who was a unit manager at disability client services spoke on your behalf.  He said that your bail conditions as at that time required an unusually high level of supervision which was difficult to provide, but that you had complied with all of the obligations.  Her Honour also considered a psychiatric report obtained through Forensicare in the year prior to her sentencing, which was prepared by Dr Jane Phillips under the supervision of Dr David Bell.

32She said that you presented consistently with having a mild intellectual disability and that you struggled to conceptualise complex problems and that you described your secondary schooling as being provided through a remedial program to those with learning difficulties.  She said that you were a young man with a very fragile underlying personality structure and noted a very dysfunctional childhood after your father's death when you were 10 years old and your mother's remarriage when you were 12, to your verbally and physically abusive stepfather.

33Dr Glasser apparently noted that you were quite literate and could generally function reasonably independently and communicate verbally at a fairly sophisticated level.  Dr Glasser said that you were very articulate and used an extensive vocabulary which was in marked contrast with what might be expected in a person with a mild degree of intellectual disability.  Dr Glasser queried the diagnosis. 

34You exhibited behavioural problems throughout your teenage years which included truancy, alcohol and substance abuse and various contact with the criminal justice system.  Her Honour noted that you had a psychiatric history of depressive symptoms which had troubled you for about six years at that stage and that you had required three brief admissions to inpatients psychiatric at times of crisis.  At that time Her Honour noted that your use of alcohol and marijuana appeared to be under good control.

35Dr Glasser opined that there was evidence for but not a definite diagnosis of sexual deviation.  At that time Dr Glasser was of the view that weighing up various factors which were both positive and negative that you were at moderately high risk of reoffending if you did not receive appropriate interventions.  She set out a detailed plan of treatment which she recommended for you.  This involved a strictly supervised environment and the very gradual lifting of restriction depending on your behaviour and progress in treatment.  The recommendation was that you needed specific counselling for your problem with ongoing psychiatric monitoring and provision of vocational and educational opportunities which would play an important part in decreasing your opportunities to reoffend.

36Her Honour Judge Wilmoth went on to impose a residential treatment order to which I have previously referred.  A pre-sentence report that Her Honour obtained was from Statewide Forensic Services dated 7 February 2008, which was based on five interviews with you.  The writer of that report identified your disorder as being paedophilia or sexual attraction to pubescent or
post-pubescent children.  You were further assessed as having a borderline intellectual disability with your verbal skills being attributed to your need to survive in a streetwise fashion.  You were assessed as being at high risk of sexual recidivism and that you would benefit from a highly structured and supportive environment offered by the residential treatment program.

37Ms Faruqi prepared a report on 13 May this year having assessed you on two occasions, being 18 April and 9 May this year.  She noted that you had been diagnosed with an intellectual disability when you were 11 years old and began receiving a disability support pension when you were 15.  She noted the various psychological assessments you had had in the past and she was also of a view that you had a mild intellectual disability.  She spoke of your difficult upbringing which she said had led to an adjustment disorder which had then developed into a major depressive disorder. 

38Further she said that you had met the criteria for post-traumatic stress disorder.  She also said that you met the criteria for a cannabis use disorder and stimulant use disorder albeit that these conditions were in remission within a controlled environment in gaol.  She noted that you had advised her that substances increased your sexual drive and was a perpetuating fact of your sexual offending.

39She said that you interest in appropriate child stimuli were consistent with a paedophilic disorder.  She assessed your risk of reoffending as being high.  Mr Faruqi said the following. 

'Previously diagnosed and present at the time of the assessment was
Mr Gray's mild ID, standing for intellectual disability.  His rate of speech was slow and his sense of morality was impaired during the period of offending, continuing to send sexualised text messages to a person under the age of 16 despite awareness this was wrongful, which appears to be congruent to his past behaviour and functioning.  Individuals with an ID compromise a vulnerable group and face challenges in society, owing to compromise neurocognitive motor and social functioning.  Such intellectual limitations are associated with impairment in executive functioning, reduced self-inhibition, self-awareness and emotional self-regulation and poor reasoning, which may have played a role in his offending by impairing his ability to exercise appropriate judgment and fully appreciate the wrongfulness of his conduct.'

'Deficits in self-control, specifically inhabitation are common IDs and maybe relevant to Mr Gray's offending.  Inhibition refers the ability to deliberately suppress compelling dominant, automatic or pre-post in responses in the service of high order or longer-term goals.  Therefore, inhibition deficits are associated with impulsive behaviours which can lead to poor decision making.'

40I refer there to paragraph 139 and 140 of Ms Faruqi's report.

41Earlier in her report, Ms Faruqi noted that you had told her that substances increased your arousal, especially alcohol.  Further you told her that during the period of offending you were under the influence of methamphetamine and cannabis.  You had previously engaged in alcohol and drug services through Community Corrections Orders and completed a week long detox program in 2022.  You were also engaged with an AOD clinician on a weekly basis in November 2022.  However, you told Ms Faruqi that you lived in public housing with amphetamine dealers and you found that upon returning from a detoxification program you were offered drugs and you were unable to abstain.  You said that you wanted to access alternative accommodation options in order to avoid such temptations.

42It was not clear to me at the time of the plea hearing, as to the role that the substances you were taking at the time the offending was said to have contributed to your offending in Ms Faruqi's view.  I sought clarification in this regard.  I have now received an update via an email from Ms Faruqi which reads as follows, the email reads:

'His substance use (namely alcohol, cannabis and methamphetamine), have influenced his offending, given that substances impair thinking, complex problem solving, judgment and reasoning.  Furthermore, they have contributed to deterioration of his mental health by means of avoidance and maladaptive coping distressors.  Therefore, when faced with difficult situations he is likely to act disproportionately and impulsivity rather, I think it should be impulsively rather than logically and consequentially.  Essentially, substances impair his ability to decipher between right and wrong, which is perpetuated by his ID.  Mr Gray further disclosed that substances increased his arousal.  Therefore as he had been under the influence of substances, he would have been more likely due to poor coping reasoning, decision making and problem solving
(to give in to sexual urges as opposed to an individual who is - or who was in a sober state and without ID).'

43In a supplementary report, which actually pre-dated this email and was dated 19 June 2024.  Ms Faruqi said that Limb 1 of Verdins was enlivened and that your moral culpability was reduced on account of your intellectual disability, referring to paragraphs 139 and 140 of her report.

44With all due respect to Ms Faruqi it is not her role to make such an assessment in terms of reduction of moral culpability as such, however, it appears that she is of a view that your intellectual disability impacted upon your ability to properly reason and make sound judgment.  Notwithstanding that she referred to what may have been the case in the relevant paragraph.  Clearly other matters were at play at that time including your paedophilic disorder which is not mitigatory, as well as substances which again are not mitigatory.

45Ms Faruqi was also of the view that gaol would be more difficult for you because of your intellectual disability and major depressive disorder and post-traumatic stress disorder, she spoke of the ways in which your mental health could well be impacted in a custodial setting because of these conditions, and I accept that time in custody has been and would be harder for you because of these.

46In view of the material before me and the concessions made by the prosecution, and in view of Bugmy considerations and Verdins considerations in respect of your intellectual disability, insofar as the latter is concerned, I am prepared to moderate your moral culpability to a fairly moderate extent and I make a reduction in the way it would otherwise attach to general deterrence, just punishment and denunciation to a moderate extent in all the relevant circumstances.  I make a similar reduction in relation to the weight that would otherwise to specific deterrence because of your intellectual disability and the difficulties because of it in being deterred. 

47Having said this fairly strong weight must still attach to general deterrence in a bid to deter others from behaving as you have, albeit that this will be reduced somewhat because of your intellectual disability.  And I must give strong weight - and I ought still give fairly strong weight, sorry, just one moment.  Having made those reductions I also still give fairly strong weight to specific deterrence as you are capable of learning and knowing when you are behaving poorly.  I assess you prospects of rehabilitation as being fairly poor in all the relevant circumstances and strong weight must be given to the protection of the community.

48In your favour I allow for a significant discount in the sentence you would otherwise receive because of the early stage at which you pleaded guilty to the offences.  In doing so you've saved the community the time and expense of a contested proceeding and you saved the witnesses the time and trouble of taking part in these.  Further in your favour I take into account your
self-reporting to your psychologist and Community Corrections case manager.  Your concerns that you were at risk of committing further sexual offences.  And that you made full admissions to the offending during your interview with police, which may well have given rise to further charges against you.

49The Crown conceded that after all relevant - after all other relevant objectives and subjective sentencing factors are synthesised, the mandatory minimum penalty may not, to quote,

'A full and sufficient sentencing (indistinct) to appropriately reflect the offender's guilty plea and degree of cooperation with law enforcement.  And that the court may consider it appropriate to reduce the head sentence below the mandatory minimum period.  There is a maximum reduction available in this regard of 50 per cent, and I refer to s16AAC(2) and (3).'

50I accept that you have expressed remorse in relation to your offending and yet some of the things that you told police are not consistent with this, as you seem to be of the view that there was nothing wrong with what you were doing.  I also note from Ms Faruqi's report that you displayed minimisation and denial in relation to the offending as well as poor insight when you described it.  You continue to victimise yourself throughout discussions with her, although simultaneously you understood that your offending behaviour was inappropriate and you described yourself to police as a monster.  In the end I allowed that you have made some appropriate expressions of remorse in relation to your offending and indeed you did what you could in a bid to try and stop yourself from engaging in it, which then apparently led to the police becoming involved in the matter. 

51It seems to me that your intellectual disability has a role in your ability to feel heartfelt remorse of an enduring nature, and I accept that you are sorry for what you have done.  I do not accept that you have appropriate insight into the seriousness of your offending which again is probably a creature of your mental health issues to some extent.  In terms of your medical health, you have recently been diagnosed with leukemia and you have been undergoing treatment at St Vincent's Hospital for several months.  The plea hearing had to be adjourned on a number of occasions because of your treatment and the effects of chemotherapy upon you.

52In a letter dated 24 June 2024, Dr Michael Shipton, who is a Haematology Registrar from St Vincent's Hospital, said that you were admitted to the hospital on 15 June after a new diagnosis of acute lymphoblastic leukemia.  He said that this was potentially life threatening and required urgent treatment with chemotherapy commencing on 17 June.  He said the chemotherapy would be delivered over a four-to-six-month period.  He said there was a high chance of achieving remission with the chemotherapy, although there was a significant probability of leukemia relapse requiring treatment in the future.

53He also spoke of the possibility of a stem cell transplant in the future which would require admission for three to four weeks.  He spoke of the impact of chemotherapy being potentially significant on your quality of life during that time which would likely render you too unwell to attend court or other appointments.  He also spoke of the high probability that chemotherapy would affect your immune system and increase risk of infection which might require intravenous antibiotics which would also prevent you from leaving hospital.  He said that you were in the early stage of the treatment and that your status and prognosis might change.

54In the letter dated 13 August 2024, I was told that you remained an inpatient at St Vincent's Hospital Haematology Unit for ongoing management of your illness.  That you had commenced the second cycle of chemotherapy on
1 August and would continue to have chemotherapy over the following next four to six months.  You were too unwell to attend court on 16 August.  The court was very recently advised that you are well enough to take part in the proceedings which were heard on 12 September.  At that time you had been returned to prison.  A letter from a Hilda Broughnect, dated
10 September 2024. 

55It was indicated that disability justice coordinator Ms Dregana Johnson had continued to maintain regular contact with you through fortnightly phone meetings.  Ms Johnson visited you after admission to St Vincent's Hospital and observed that you are not your cheerful self, saying that this has not helped - was not helped by the fact that you were chained to the bed.

56You have lost weight and some hair and were feeling extremely nauseous due to the chemotherapy treatment.  I have taken into account the various matters set out in that letter and the steps that have been taken, or were to be taken in relation to your future management, insofar as disability services were concerned.  A letter indicated that you were appreciative of the program's involvement and you had an extensive history of positive engagement with disability justice coordination.  You had developed a trusting relationship with Ms Johnson and disability justice coordination would continue attempts to support you in the best way possible. 

57I have also read this morning a letter from Witt Gorry who spoke of the extremely difficult conditions under which you have undertaken chemotherapy.  Especially during the period that you were in the public ward where you were shackled to the bed and this was at a time when you were feeling extremely unwell.  I am also most concerned that the guards did not wear face masks while guarding you.  This is outrageous in my view, and ought not to have occurred.  Witt Gorry also spoke of the harsh condition that you have endured or would endure during incarceration due to your non-binary sexuality.

58In view of your significant medical issues and the other matters to which I have just referred, I am satisfied that time in custody has been and would be harder for you and for others who are not in your position.  Witt Gorry also indicated the plans in place, your accommodation in the short term and the long term and the supports that will be in place for you in the future, upon your release.  I was also updated by your counsel this morning as to the future bouts of treatment that you are going to undertake.

59The learned prosecutor most fairly conceded that all relevant matters - that in view of all relevant matters and including the concession in respect of the mandatory maximum term that would otherwise apply, the learned prosecution conceded that a recognisance release order would be open in your case.  I agree that this is an appropriate disposition and therefore I intend to impose a recognisance release order in the following terms subject to having it vetted by the learned prosecutor in the event that I have some detail wrong.

60You are convicted of the two charges on the indictment.  I make the disposal order which it was not opposed by you. 

61In relation to Charge 2 that is the drug possession charge you are fined $200. 

62In relation to Charge 1, you are sentenced to two years and eight months imprisonment, such sentence to commence today.  However, I direct that you be released after serving 21 months' imprisonment upon entering into a recognisance of $5,000 to comply with the following conditions:  (a), to be of good behaviour for a period of four years; and (b), to be subject to the supervision of a probation officer, deputy commissioner community correctional services and sex offender management or his or her nominee for a period of four years.

63(c), to obey all reasonable directions of the probation officer, deputy commissioner, community correctional services and sex offender management, or his or her nominee; and (d), not travel interstate or overseas without the written permission of a probation officer, deputy commissioner, community correctional services and sex offender management or his or her nominee; and, (e), undertake such treatment or rehabilitation program that the probation officer, deputy commissioner, community correctional services and sex offender management or his or her nominee reasonable directs.

64In order to give effect to these conditions, (f), that you are to report to the Collingwood Neighbourhood Justice Centre by 4 pm within two clear working days of your release from custody; (g), you are to report to and receive visits from a Community Corrections officer or officers; (h) notify an officer at the specified Community Corrections centre of any change of address or employment within two clear working days after the change; (i) attend for assessment and is assessed as suitable, treatment for sex offender programs or programs to reduce reoffending as directed by the
Deputy Commissioner, Community Correctional Services and sex offender management or his or her nominee.

65I have made these orders because you have been charged with the offence on the indictment, that is Charge 1.  And in view of the matters set out in my sentencing remarks herein pertaining to that offence.  In view of those I have sentenced you to a total effective sentence of two years and eight months' imprisonment over and view of all relevant matters set out in my sentencing reasons.  I have decided you would be released after serving 21 months of the total effective sentence if you comply with the conditions of this order.

66If you fail without reasonable excuse to comply with the conditions of the order, then you may be dealt with for breaching the recognisance release order, in which case you maybe required to pay the sum of $5,000 and to serve the balance of the sentence of imprisonment, namely 18 - so sorry, just got to make sure that, serve the balance of the sentence of imprisonment.  The orders that I have made may be discharged or varied under s20AA of the Commonwealth Crimes Act by a party in these proceedings who has standing.  Now do you acknowledge that I have explained the purpose and effect of this recognisance release order. 

67The consequences that may follow if you fail to comply with it, unless you have a reasonable excuse and that the order can be discharged or varied under s20AA of the Commonwealth Crimes Act.  Do you agree to be bound in accordance with the order?  And I also indicate to you that you will be given a copy of the order in due course.  But do you agree to be bound in accordance with the order?

68OFFENDER:  Yes.

69HER HONOUR:  All right.  If not your plea of guilty, I would have sentenced you to a total effective sentence of five years' imprisonment to commence today with a non-parole period of three years.  And I declare that you have already served 606 days by way of pre-sentence detention.  Now is there anything arising Madam Prosecutor?

70MS MACKAY:  Your Honour the only matter is that I'm instructed that
Your Honour needs to remake the existing order under SORA.  That the reporting obligations apply for life.

71HER HONOUR:  Well is that something that was set out anywhere?  Because that's - I queried that I must say, and I understood that it needn't be made because he's already subject to those obligations.

72MS MACKAY:  He certainly is, and I apologise if it's not made clear in the opening.  But those are my instructions that effectively the existing, the application of the existing reporting period needs to be restated on the (indistinct) order.

73HER HONOUR:  And it's going to be for?

74MS MACKAY:  Life Your Honour.

75HER HONOUR:  Life.  All right.  Well, I will then make that order that, it's just that I don't see the need but anyway, I'll make the order under the
Sex Offenders Registration Act that you be subject to the conditions that you're already subject to under that legislation for a period which is set out as life.

76MS MACKAY:  Thank you, Your Honour.

77HER HONOUR:  All right.

78MS MACKAY:  Otherwise, Your Honour, there are no issues with the sentence order as far as I can see as Your Honour has issued it.

79HER HONOUR:  All right.  Yes, thank you.  Is there anything arising?

80MS BUXTON:  Thank you, nothing from me Your Honour, thank you.

81HER HONOUR:  All right.  So, on my calculation, I think that's about time served but it might be a little bit more.

82MS MACKAY:  Your Honour, on my calculation it's about one month left to serve.  I think the PSD of 606 days is about 19 months and something. 

83HER HONOUR:  All right.  Well, any event we'll see.  But I thought that that was an appropriate time so that in any event Mr Gray can ready himself also factoring in the treatment regime he's already undertaking, ready himself for release and to ensure that there's effective handover that doesn't set him up for fail otherwise.

84MS BUXTON:  Thank you, Your Honour.

85HER HONOUR:  All right.  Now I have another matter.  I was going to offer that you have a word with your client but I think that I'll have to ask you to do that another time.

86MR BUXTON:  No, I completely understand, thank you Your Honour. - - -

87HER HONOUR:  Yes.  All right.  Very well.  Thank you.  We'll now adjourn.

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