Director of Public Prosecutions (Cth) v Watson
[2015] VCC 1172
•20 August 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
Case No. CR-15-00501
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL WATSON |
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| JUDGE: | HIS HONOUR JUDGE MCINERNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 28 July 2015 |
| DATE OF SENTENCE: | 19 & 20 August 2015 |
| CASE MAY BE CITED AS: | DPP (Cth) v WATSON |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 1172 |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW - sentence – procure or cause a minor to be concerned in the making of child pornography – cause child pornography material to be transmitted to himself using a carriage service – use a carriage service to engage in sexual activity with a person under 16 years of age – transmit child pornography material using a carriage service – solicit child pornography material using a carriage service – use carriage service to menace, harass or cause offence
Legislation Cited: Criminal Procedure Act 2009 (Vic), Crimes Act 1958 (Vic), Criminal Code Act 1995 (Cth), Crimes Act 1914 (Cth), Sentencing Act 1991 (Vic), Sex Offenders Registration Act 2004 (Vic)
Cases Cited:R v Oliver [2003] 1 Cr App R 28; The Queen v Fuller [2010] NSWCCA 192; R v Verdins [2007] VSCA 102; DPP v Terrick [2009] VSCA 220; Atanackovic v The Queen [2015] VSCA 136
Sentence:Convicted and sentenced to 7 years imprisonment with a non-parole period of 4 years and 8 months imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Mr A Sprague | Solicitor for the CDPP |
| For the Offender | Ms A Beech (28 July & 19 August) Mr P Allen (20 August) | Stary Norton Halphen |
HIS HONOUR:
1Mr Daniel Watson pleaded guilty in this Court on 28 July, pursuant to s.216 of the Criminal Procedure Act2009, to the first charge and a written plea in regard to the other 26 charges was filed and accepted by the Court.
2Mr Watson is a storeman by occupation, he is 33 years of age and was born on 23 July 1982. The first charge to which he pleaded guilty was of cause a minor to be concerned in the making of pornography, an offence against s.69(1) of the Crimes Act1958 (Vic). The maximum penalty prescribed for that offence is 10 years imprisonment. The summary of those offences is as follows.
3The offences under s.69(1) of the of the Crimes Act1958 (Vic) were presented by firstly, Charge 1 concerning Victim 1[1], Charge 4 concerning Victim 2, Charge 7 concerning Victim 3, Charge 9 concerning Victim 4, Charge 11 concerning Victim 5, Charge 13 concerning Victim 6, Charge 14 Victim 7, Charge 16 Victim 8, Charge 18 Victim 9, Charge 20 Victim 10 and 21, her sister Victim 11.
[1]To ensure that there is no possibility of identification of the victims of this sexual offending, this judgment has been anonymised by the adoption of pseudonyms in place of the names of victims.
4All of those persons were minors. All the facts set out in the summary were accepted by Ms Beech as the facts upon which this Court was to sentence Mr Watson. As I said, all were minors and under the age of 16, and in regard to each of those eleven victims, who made VAREs, each were subject to harassment, intimidation and threats by Mr Watson in effecting his scheme of criminality.
5In addition, there was ten charges under the Criminal Code (Cth) of transmit child pornography by the use of a carriage service. In this instance the transmit was to himself. Those offences are offences under 474.19(1) of the Criminal Code (Cth), and the maximum penalty prescribed for such offence is one of 15 years imprisonment.
6The Criminal Code (Cth) offences were all transmissions to himself, essentially they dovetail with the pornography produced pursuant to the State charge in conjunction with all of the offences I have already mentioned. Hence firstly, you have the State criminal charge under s.69 of the Crimes Act 1958 (Vic) of the child being caused to be concerned in the making of pornography and then the materials so made are then transmitted to Mr Watson. Those charges, with the relevant dates set out in the Indictment, are Charges 2, 5, 8, 10, 12, 15, 17, 19, 22 and 26.
7The next charge, which is separate to that, is one of use carriage service to engage in a sexual activity. This matter concerned Victim 1; it concerns again a child under the age of 16 and is an offence against 474.25A(1) of the Criminal Code (Cth). Again the maximum penalty prescribed for such offence is one of 15 years.
8There were then three charges of transmit child pornography using a carriage service under provision 479.19(1) of the Criminal Code (Cth), again a charge attracting a maximum penalty of 15 years. There are three of those, 6, 23 and 27, and again in the Indictments filed, is set out the actual periods of operation.
9There is then Charge 24 of solicit child pornography using a carriage service, being an offence against 474.19(1) of the Criminal Code (Cth). The maximum penalty prescribed for such offence is 15 years. The period involved is from 9 March 2013 through to 7 July 2013.
10There is then one charge, being Charge 25, of use carriage service to menace, harass and cause offence. That is an offence against 474.17(i) of the Criminal Code (Cth). The maximum penalty prescribed is three years, the period of offending in that matter was from 25 February 2011 to 27 July 2013.
11The prisoner effectively has no priors. He has an unrelated dishonesty matter many years ago in his background.
12As I said, the chronology and the matters leading up to the plea as set out is appropriate to the understanding of these crimes and to the understanding of the cooperation given by Mr Watson in this matter, and that is why I have made that Exhibit A1. The summary of the offences themselves, albeit detailed by me, I think is also important to be tendered as an exhibit, and I have recorded that as Exhibit A2.
13The prosecution opening was tendered as Exhibit A and given the behaviours involved, it was necessarily a document of some length.
14I thank in this matter the Commonwealth for the materials - indeed, I thank both counsel and their instructors for the materials supplied to the Court, by way of overview. Mr Watson in the period of offending was aged between 29 and 31. The victims between 5 years and up to, but less than, 16 years.
15As I said, there are some 27 offences that occurred over a period of two years and eight months, from February of 2011 through to October of 2013. There were 43 victims from whom Mr Watson obtained child pornography. There were some 10 victims from whom he solicited child pornography from, or sought to solicit, and there were another 34 victims who he harassed and menaced as well. The total victims involved here that have been identified are 71.
16Mr Watson also transmitted child pornography to other targets. That is, while it is true to say there was not a wide transmission of the pornography produced by him, the pattern adopted by Mr Watson was that he transmitted particular pieces of pornography, as are detailed in Charges 6 and 23 - and I will come to those matters in due course, to assist as part of his scheme in approaching other targets, in this instance some 175 people.
17Mr Waton’s modus operandi was to use fictitious social media accounts. He, in such fictitious operations, purported to be a teenage girl, sometimes a male, and adopted numerous identities. He indeed exchanged photographs of "himself" - I should say of "self" - depending on what mode he was in. Essentially, this is where there was transmission of the child pornography because he utilised pornography that he had obtained from some victims in order to encourage and/or disinhibit other victims to indulge in the same type of behaviour.
18Mr Watson tried, by the use of this material, to have these young girls reciprocate or replicate the behaviour that he had sent to them. The demands would escalate once a young girl was prevailed upon to consent to his requests. Variously by way of pressure exerted over the internet, by way of sustained argument over the internet, by way of threats to disclose the materials that had been purloined from these young girls to their family friends and/or schools, he utilised all those means, by which to escalate his demands of these children.
19Mr Watson then stored the material that he had obtained - indeed in his own IT collection, which relates to Charge 27, he had in fact stored in his IT library 1,480 photographs and 41 videos, which he had obtained by such modus operandi.
20The issue of categorisation of this material is obviously important in regard to sentencing. The analysis of the material follows a decision made in England in R v Oliver [2003] 1 Cr App R 28 [463] to [469]. The Court of Appeal in England, at p.466, accepted the analysis from the English Sentencing Advisory panel of the United Kingdom, as to the grading of such offences, by way of a grading based upon what is known as the COPINE scale. The Court of Appeal adopted at paragraph 11, not precisely the COPINE scale but a five-level scale.
21The federal authorities in Australia use a slightly different scale, however insofar as the first two categories, of which we are concerned in this matter, there is really no difference.
22The first of the scales - of which it has to be accepted the majority of the material in this matter concerned - while it is described by the federal authorities as child exploitative material involves no actual sexual activity, but involves display, usually of the breasts or genitalia of a child.
23The second category of which we are involved, as settled by the federal authorities, and which is put to this Court is also described as child exploitative material, but level 2. This involves solo masturbation, sometimes the use of sex aids, sometimes the provision or the action of various low-key sex acts between children. It is not a category which involves penetrative action by a third party. Those crimes are further up the scale.
24There was some discussion during the plea between Mr Sprague and myself about this categorisation. It is true, and has to be accepted, that there is no aggravation of these offences by being category 1 and 2, the fact that they are not within higher categories does not in any way create any mitigation, and I accept that totally.
25Mr Sprague said to me that “they are what they are” serious offences. It was appropriate and in retrospect, I am glad, I do not do it in all cases, but it was important in this case to view this material. As is stressed, in the submissions of Mr Sprague, this material was created by Mr Watson in circumstances where the provisions laid down by Parliament to protect young children from these types of sexual invasions were being breached.
26As I have already described, the modus operandi of the prisoner was particularly insidious. He utilised the various aliases and approaches by way of the internet to gradually groom and pressure, and indeed at times threaten and cajole these young girls to accept and comply with his requirements.
27In viewing this material, which is certainly not one of the most enjoyable experiences of being a Judge in this Court, I must say it was somewhat upsetting to see young girls so prevailed upon in their own home environment. To see young, innocent girls of that age, no doubt involved in their own journey of sexual discovery and maturity, abused in the privacy of their own bedrooms or showers was somewhat disconcerting.
28These children were asked to act out what might be seen as classic pornographic poses as chosen and/or directed by Mr Watson. Of the ones that I saw, they were asked to masturbate themselves in such circumstances and to film such - what would normally be - private sexual actions. By doing and succumbing to the entreaties of Mr Watson, not only was their privacy gravely abused, but they recorded that abuse, laying themselves open, not only to further threats and requests for further material, but to the risk of worldwide distribution of themselves perfuming such actions.
29I make the point that Mr Watson's case does not involve such worldwide distribution, but for some limited provisioning on the Facebook of some images, which he obtained. He utilised such images to try to seduce further victims to participate in a similar way, to which he had been able to extract from the girls, in particular the first two victims in this case.
30By way of summary of the view of the sample, it smacked of a gross personal invasion of these young children's homes and privacy, and gross corruption of these young persons. Clearly the very activities that Parliament enacted this legislation to protect our young children from.
31It is necessary because of the degree and length and dimension of this offending to take some time insofar as summarising the actual offences. I thank the Commonwealth for their excellent summary, albeit somewhat exacting.
32At paragraph 109 is a summary essentially of the modus operandi in regard to the eleven VARE victims. That relates to Charges 1 to 2, 4 to 5, and 7 through to 22. As it says at paragraph 109, in relation to the eleven victims relevant to those charges that I have just recorded, the total number and classification of the child pornography images and videos, which the offender caused them to make, and to send to him, encompassing the Victorian charge s.69(1) and the twin charge of the Commonwealth 474.19(1), were firstly in regard to category 1, 612 photos and category 1, 20 videos. In regard to category 2, which as I have said includes the masturbatory conduct, the conduct involving on two occasions, two children - two related children in each instance, the category 2 material is 23 photos and 12 videos.
33As part of these sentencing remarks, in order to be able to make sense of the sentence and appreciate the intensity of the offending, I will ask the recorders of this sentence to include with the sentence as an appendix pages p.8 through to 39 of the summary. In addition should be attached the appendix to the plea opening, which relates to the rolled up charges.
34Coming then to the charges themselves and the summary as I have indicated.
35The first victim who made a VARE was Victim 1. The offending in this matter relates to Charges 1 to 3, and takes place from 1 December 2011 to 26 June 2013. The victim is aged 14 to 16 years old throughout such period, and provided a video and audio recorded VARE on 19 November 2013. At that time she stated she was 16. She spoke initially of talking to a number of friends, initially a person called Mike, then a person called Danny, they talked on a program called Tagged initially and then they started using Skype. Danny said he was 19. While live on Skype, Danny would ask her to play with herself, masturbate, including telling her to use objects.
36It then developed that Victim 1 was having difficulties and arguments with Danny. She was trying to call him at one stage but he did not pick up the phone. After that, she did not hear from Mike. It was only her and Danny talking. Such proceeded with her talking with Danny, having an argument with Danny about certain other materials and what she was requested to do, seeking some sort of redress or help from another friend who she believed was a girl, Chantalle, and then finally being introduced, in approximately April 2013 to another girl, as she believed, Jasmine.
37It is interesting that it was Jasmine who sent nudes and also abused her and called her a slut. Jasmine would make her get in contact with Danny and would also ask Victim 1 to do photos for her and not tell Danny. This person, who she believed to be Jasmine, sent her what she understood to be nude photos of herself and asked Victim 1 to do exactly what she had done in the photos. She did so, she said, because she knew Jasmine would tell Danny.
38A description of one night's discussion was that Jasmine kept sending Victim 1 nudes and would make her do one, then five, and by the end of the night, she would make her do another twenty. Victim 1 tried to go to sleep or said she was going to church to try to escape the circumstances.
39The Skype chat came about because she provided the Skype user accounts, which the offender was able to operate, and those were two Skype accounts. The investigators looked at four months of chat logs on Victim 1’s laptop. This is why I say that it is important to look at this material in order to try to understand the intensity of this criminality.
40In the period 7 December 2011 to 25 April 2012, there were 2,500 text chat messages exchanged between the offender and the victim, with the offender, as I said, posing as Mike, Chantalle as well as Danny. The offender maintained an online relationship with the victim and made numerous requests for explicit photos and live webcam communication. He sent photos to Victim 1 for her to copy and repeatedly told her he loved her and they would be together.
41The communication as set out in the opening also reveals the grooming and emotional manipulation of Victim 1 by the offender. I think at the plea hearing I made the remark that it still puzzles me, but it just shows you, well, what innocent and naïve young persons we are dealing with here, that persons from what would appear to be otherwise normal homes can somehow be seduced - young persons, I might stress - to act in such a manner.
42The particular Skype message exchanges are detailed firstly insofar as grooming at paragraph 30, and insofar as requests and threats at paragraph 30(b), at paragraph 30(c) discussions as to age, and particularly offensive, and making up the count of Charge 3 insofar as this young victim is concerned, and that is the engaging in sex activity by way of live webcam, an offence against 474.25A(1) of the Criminal Code (Cth).
43The particular details are set out at p.13 and the summary at paragraph 31 says this: "The live webcam transmissions involving the victim touching herself and masturbating are the subject of Charge 3, use of a carriage service to engage in sexual activity with a person under the age of 16."
44The number of instances is not known, but Victim 1 said she "did things on Skype quite a lot", and the communication with Danny extended from December 2011 through to April 2013.
45The conversation recorded in webcam, in particular at paragraph 30(d) insofar as Charge 3 is concerned, demonstrates very clearly how Mr Watson essentially directed this young girl in the manner in which he wanted her to behave, in which he wanted her to abuse her body, and the manner in which he wanted her to record that abuse of her body, which laid her open to the chance of such gross victimisation.
46
The exact number of child pornography and videos transmitted between
Mr Watson and this particular victim is unknown, but during the Skype chats extracted from the victim's computer, as I said, the period 7 December 2011 to 25 April 2012, the offender sent 32 photo files to the victim via Skype and which is part of the rolled up Charge 23, and Victim 1 herself sent 46 photo files to the offender, which makes up the materials involved in Charge 1 and 2. Insofar as that material is concerned, there were 46 photo files and in addition, 66 CP photographs.
47The next offences are set out in Charges 4 to 6 and concern Victim 2. I will concentrate on these first two victims, because they so fully explain the type of criminal activity. Again, the same scenario is concerned. She was between the age of 15 to 16 at the time of the offending, and as I said, she made a VARE dated 19 November 2013.
48She essentially described the same history as I have earlier described, but in this instance she was chatting to a person called Mike, a friend of Jasmine who was the first person who she started to contact. The development and the progression was very similar. She makes the point that at the time, she thought Jasmine and Mike were different people. Those three asked her to get her friends to join in, when she was at other people's homes, but she said no.
49Again, perhaps of some indication, on what is known as the Kik chat device, six different user accounts were utilised from that source. The investigators analysed chat logs from that source from a Sony iPod touch cover that had been used by Victim 2. In the period 4 July 2013 to 14 November 2013, a total of 1,850 messages were exchanged between the offender and Victim 2. Those chat logs reveal persistent demands and threats from the offender, using the Kik identity Jazzy Sparks. There were demands made for – Victim 2 sent photos and videos in certain costumes and poses, and proffered a number of deals, as I have earlier explained by way of the modus operandi, to this victim for a certain number of photos and videos in exchange for not sending out her material, that had previously been received.
50Perhaps indicative of Mr Watson's addiction to this type of activity with this particular victim, was indeed the post-arrest offending. Mr Watson was arrested and bailed on 20 August 2013. Subsequent to that time, in particular on 4 September 2013, Mr Watson created further fake Gmail accounts. He continued offending with this victim in the same manner, and between 12 October to 26 October, he continued to demand that Victim 2 provide images and videos, and again directing her exactly how they were to look, and again threatening her to tell the police if she did not comply.
51On 12 October 2013, one particular recording, referred to in paragraph 48 of the summary, the victim attempted to reach a deal for photos, which did not show her face. However, the offender demanded 10 photos showing “face and arse,” as he said, and 10 photos showing “face and topless.” Victim 2 told the offender that she had sent the photos, he then asked her for further materials. She said this, "I've done all I can for the past two years, and the least you can do is leave me alone and don't be a jerk about it." Further demands and threats as to exchanges of photos occurred thereafter on the following four days.
52Further exchanges, which are detailed at paragraph 50 then occurred. In a point made by counsel, Ms Beech, on behalf of Mr Watson, one of the features redeeming for him at least is that despite all of these threats, there is no evidence that any were carried out, although clearly the threats were very much a part of the modus operandi in being able to force and prevailing upon these young girls to accede to his demands.
53As to the categorisation of the material insofar as Victim 2 is concerned, of category 1 there are 291 photographs and 6 videos, category 2 there are 8 photographs and 5 videos.
54I will not describe the Charge 6, I will leave that to later when we talk of the rolled up charges.
55We then had the crimes concerning Victim 3. These took place in the period 1 August 2012 to 25 January 2013. Again they are the twin offences encompassing the behaviour being an offence against the Victorian s.69(1) and the transmission section under the Criminal Code (Cth).
56In this instance, Victim 3 was 15 to 16 years old. She said initially that she went along with the first approach, from a person called Chantalle, because she thought she would leave her alone eventually. She sent photographs of herself in a bikini and underwear. She then describes how that original thought did not come to pass. Threats were utilised, and also threats of naming and shaming her at her school.
57Insofar as Victim 3 is concerned, there were category 1, 30 photographs and 1 video, and category 2, 1 video. The transmission Commonwealth charge relates only to one day, that is 25 January 2013.
58
Coming then to Victim 4, these offences occurred over the period
13 January 2013 to 16 January 2013. They involved only category 1 material and involved 43 photographs.
59Insofar as Charges 11 to 12 are concerned, Victim 5, these matters occurred over the period 1 March 2013 to 18 July 2013. They involved eight photos and again noticeably, if I read from paragraph 65, Facebook chat from the offender, using the name Jasmine, to the victim's Facebook account, reveals that the offender made numerous requests for photos, and sent numerous CP photos of Victim 2, that is, the offender that I have already referred to, as well as CP photos of Victim 8 and Victim 1. Total 20 photos, and of course those photos make up rolled up Charges 6 - are part of the materials making up the rolled up charges, to which I will come to in due course, 6 and 23.
60The next victims were joint in the sense that they were sisters. Victim 6 is the victim in regard to Charge 13. She was 15 at the time. Victim 7, who was clearly prevailed upon, at the behest of Mr Watson, by her sister was aged five. The transmissions took place over the period 11 March 2013 to 1 August 2013. It involved category 1, insofar as Victim 6 is concerned, two videos and 23 photographs. It involved, insofar as Victim 7 was concerned, a combined nine photographs with her sister, and then in regard to them both, there were 11 category 2 photographs transmitted.
61
In regard to this matter and the depravity that was being requested by
Mr Watson, I simply make the point insofar as Victim 6’s own account of what happened - set out at paragraph 72(h), that Victim 6 ultimately sent three CP photographs of herself with her sister, showing Victim 7 holding and sucking Victim 6’s breasts.
62The next charges are Charges 16 to 17, which relate to Victim 8. These offences by way of the Commonwealth offence were transmitted over the period 3 March 2013 through to 24 March 2013. The material involved was all category 1, making up 90 photographs and four videos. Again, the same type of modus operandi. Again, it is noted at paragraph 77(b), Jasmine - being of course the prisoner - sent multiple photos of victims, and Victim 8 responded with 11 photos of herself copying the suggested poses.
63At the end of this copying process recorded at paragraph 73(d), the prisoner posing as Jasmine - said as follows: "Thanks. You're very sexy and Danny is lucky to have you." And then there was further arrangements for her to make – photos, in the mode that Chantalle had provided. Again, there is similar descriptions of the modus operandi. It is worth nothing in this instance a discussion recorded somewhere between 16 March and 24 April where some of the demands were as follows - and this is on the basis of the types of directions that were being given. "I want a four-minute show. Then dance slowly and slowly undo your bra and rub your tits while fingering yourself in your panties, then take off your panties and finger yourself while standing, then turn around and shake your arse and spank it." He said, "I don't want a Skype video, I want to save it."
64There was apparently some resistance to which Mr Watson replies, "I have your address, and I have the street and suburb where you live. I really want you to be my girlfriend but I will teach you to have sex with a girl and practice. If you block, I'll show everyone the pics." Then he goes on to say, "I'm reporting you to the police along with your address so they can find it, that you sent naked photos of yourself to six different people and I've got your address so they'll come straight to your house." It continues, "We won't hassle you again so do what she wants now, okay? Do it on the floor in front of the mirror."
65Again, this is an example of the type of manipulation that was going on and the pressure being used. As I said, that all involved category 1 material.
66
The next offences relate to Victim 9 who was the ninth victim and such happened at a period, which is not specified, but is said to be prior to
30 June 2013, and again this information comes from a VARE which was made by this victim. At this stage, Victim 9 was in fact 16.
67There are two offences, again, the twin offences and the material involves category 1 material of eight photographs.
68The final two victims who had made VAREs are Victim 10 and Victim 11. These charges make up Charges 20 to 22. They are two charges under the Victorian legislation, being Charges 20 and 21. Charge 20 relates to Victim 10 who was 14 at the time, Charge 21 relates to Victim 11, who was ten at the time, and Charge 22 being the transmission offence.
69They involve material, which is categorised at category 1 being 50 photographs and seven videos, and category 2 material being four photographs and five videos. The period in which the transmission took place was from 17 July 2013 to 27 July 2013.
70We then come to the rolled up charges to which I have referred. The first of those is Charge 6. The introduction to that is at paragraph 110 and the statement makes this point: In addition to the eleven victims detailed who have been contacted by police and have provided VAREs, the email, Facebook and Skype evidence revealed offending against a large number of additional victims. Many of these victims were located overseas. This offending is the subject of rolled up charges, which each cover a number of victims. The respective victims are set out in the lists below and the detail of the offending is set out in the appendice to the plea opening.
71Again, as I have said, that appendice will be added to the sentencing remarks. However, if I went ahead and read out all the details of those charges, we would be here a lot longer than we are going to be, and it is just impossible for me to include all of this material in there oral reasons.
72To use the word "persistent" is no exaggeration. As I said, Charge 6 came back to the second victim which was Victim 2. Again it is a rolled up charge and it is a charge of transmission of child pornography to others, an offence against 474.19(1)(a)(iii) of the Criminal Code (Cth) for which the maximum penalty prescribed is one of 15 years.
73Insofar as this victim was concerned, it involved the transmission of category 1 material, making up 557 photographs and 10 videos of this victim, and category 2 material making up 8 photographs and 2 videos insofar as this victim was concerned. It took place over the period 12 October 2012 to 27 July 2013, and involved the transmission to other persons being predominantly victims and/or prospective victims sought to be identified by way of Facebook. There have been 155 people identified - persons, I suppose that we use "persons" loosely in this context, but sources or sites I suppose is the correct term, identified as having had this material transmitted to them.
74As I say, this is a rolled up charge and must be dealt with accordingly.
75We then come to a further rolled up charge, which is the transmission of child pornography material. This encompasses Mr Watson transmitting child pornography photographs in regard to victims, other than Victim 2 who is set out in Charge 6. I sought particulars and the prosecution submitted that this involved a further 20 victims, this was not disputed.
76The categorisation is that they are all photos, 377 of those photos are category 1 and 7 of those photos are category 2.
77Charge 24 is a charge of soliciting child pornography material, an offence under 474.19(1) of the Criminal Code (Cth), again an offence which carries a sentence of 15 years. This soliciting took place from the period 9 March 2013 to 7 July 2013. It encompasses requests for child pornography material made by Mr Watson to 1 Facebook users who told the offender their age, being between 11 and 15. Those particular persons are identified at paragraph 110, p.37, that is the sites are identified. There is no evidence of any pornography material being sent by these users to Mr Watson, so this is solicitation, which was unsuccessful.
78The next charge is Charge 25, which is a charge of using carriage service to menace, harass or cause offence. As I remarked in regard to the 11 identified victims who made VAREs, they have all identified as part of the modus operandi being menaced, harassed and threatened. Those matters are seen as aggravating in regard to those victims, but are not encompassed in Charge 25. This rolled up charge encompassed menacing, harassing and offensive messages sent by Mr Watson to 34 additional victims. Examples of the type of harassment are set out at p.37. The maximum penalty that can be imposed in regard to this crime is three years imprisonment. The offence occurred between 25 February 2011 to 27 July 2013, and particularisation of the sites to which these threats or menaces were made, is further illustrated at p.38.
79Charge 26 is a charge that relates to transmission to Mr Watson himself, which is the transmission of the child pornography over the period 19 May 2012 to 04 August 2013. It is a rolled up charge, which again encompasses child pornography sent to the offender in response to his requests in relation to 32 identified victims. Upon analysis of that material, these are victims additional to the ones that I have particularly referred to, who made VARE statements. The photos are all category 1, 223 photos, and the videos under category 1 are four, under category 2 there are 11 videos insofar as that matter is concerned, as I have said - they have been identified, and at p.39.
80The final charge is again one of transmission and essentially is a rolled up count encompassing the transmission to his library site of all the material that he extracted and accumulated from his criminality. The period of offending is 27 May 2012 to 14 August 2013. The library was found on the site, described as [email protected], email account. On that site was located, category 1: 1,423 photos and 38 videos, and category 2: 57 photos and three videos. As I said, the maximum penalty prescribed for that offence is one of 15 years.
81The prisoner, as I have already remarked, essentially has no relevant priors, the pre-sentence detention, which I need to ascertain as of today is what, was 609?
82MR SPRAGUE: 631 days not including today.
83HIS HONOUR: 631, is that agreed?
84MS BEECH: That's agreed, Your Honour.
85HIS HONOUR: Further, the victim impact statements were tendered as I have identified as Exhibits B through to F. Essentially but for Victim 3 and Victim 8’s, they were the victim impact statements of parents involved. It seemed to me such statement did not encompass or refer to matters that were in any way inappropriate.
86The final matter of course is that under the Victorian provisions, the serious sexual offender provisions will apply should I impose period of imprisonment in regard to Charges 1 and 2. However as detailed in paragraph 116, they only relate to the Victorian offences that I will detail in due course.
87I am not sure how long I have been talking, but some time, we might have a break.
88(Short adjournment.)
89As I said, I was assisted by the materials and submissions of counsel. Both counsel provided me with outlines as to sentencing. Insofar as the Commonwealth is concerned, the Court was reminded of its obligation under s.16A and 17A of the Crimes Act 1914 (Cth), the various principles insofar as sentencing under the Crimes Act 1914 (Cth) were also referred to. In addition I was provided with a series of documents, they are the plea materials folder, which had relevant prior case law. The principles that were referred to were matters of general deterrence, of which in these matters there can be no dispute.
90Some general observations as to the offending were again put, and not disputed by counsel for Mr Watson: that we are dealing with serious criminal behaviour, it was described by the prosecution as calculating, predatory and manipulative. It was also, I think, as the last hour has demonstrated and the materials that have been tendered, extensive. It also stressed that the Court should remember that it was the offender himself who was involved in the procuring of the production of this material. Insofar as sentencing, I certainly see that as a far more serious charge than the transmission. However sentencing has to be primarily influenced by the maximum penalty prescribed, and such creates obviously a difference between the two back-to-back charges that relate to these offences.
91Insofar as the procuring and making of child pornography and/or soliciting and transmitting such material, again it was submitted that this material was clearly, from anyone's point of view, objectively serious. I have said enough about what I took from my own observation of the sample material. The point was made that in this instance, Mr Watson was not only downloading it, but he was generating it, and as part of the issues involved in general denunciation, one is required to take into account that we are talking here about exploitation of children against specific provision designed for child protection by Parliament.
92Insofar as the 11 victims of which I have identified, the use of threats and demands were put, by way of aggravation. Insofar as the transmission matter, it was pointed out that there was in fact transmission. While it was not of the dimension this Court sometimes observes, the transmission was primarily utilised to try to further entrap young targets. Such transmission of photos and videos, for that purpose, was to another 170 persons, most of them who were young and the material related as I have identified in Charge 6 to Victim 2 and to a lesser degree, Victim 1, Victim 3 and Victim 8.
93Of course the impact on the victims is understandable. What impact it actually has, and ultimately has, when they are so young, one would hope that with proper assistance from their parents, they get over these issues. Children have a lot of issues that they have to deal with as they are growing up. This is not the sort of experience that they should have to endure, and I note the comments referred to by the prosecutor in The Queen v Fuller [2010] NSWCCA 192 [25], at paragraph 30 of his submission.
94The matters as to the guilty plea were put. Question as to remorse - I will come to remorse in due course. I find and will find there was and has been remorse. Whether it gets to the level of genuine contrition, I am not convinced. I only say, because from the psychological opinion evidence of Mr Newton, it is a question of whether the mental state of Mr Watson is such that he fully comprehends those issues, and indeed he presents as an ongoing risk unfortunately.
95As to his priors, I have already mentioned that. His prospects of rehabilitation obviously have to be seen as guarded given the evidence of Mr Newton, however one would hope, given his background, given the fact that he comes before this Court at the age of 33 without any relevant offences, and with unrelated prior offences occurring some considerable period away, that the prison sentence that I am about to impose for this serious offending will be a salutary lesson.
96The prosecution also spoke of the issues as to cumulation and totality, and of course the mechanics of Commonwealth sentencing, which we will delightfully come to in due course.
97Insofar as the submission made on behalf of Mr Watson by Ms Beech, tendered was a folder of materials in addition to her own written submission as to sentencing, and those materials became Exhibits 1 to 10, materials of which I have closely considered.
98It was submitted that the context of the offending in this matter was such that I should find that Mr Watson is different from the usual offender in these matters. It was submitted that there was an intersection, so to speak, of background factors, being firstly his deprived childhood, the difficulties he had growing up and being, for which his sister in her statement gives confirmation, the problems with his mother dying early and his own experiences as an adult, and difficulties as an adult with relationships, his own particular personality, all of which led to him retreating into an online world. What reality that world represents is an interesting point, but that matter was put.
99Ms Beech put that in dealing with these background issues, Mr Watson became uncontrolled in his partaking of alcohol, and this particularly increased after 2008 when his grandfather died. Mr Watson suggests that he was particularly prone to commit these offences while he was intoxicated. I do not find any mitigation in that at all. In particular, I noted Mr Newton's report, Exhibit 3, on p.4, when he was talking about substance use, "He uses alcohol essentially to alleviate social anxiety. It makes him more affable and outgoing. He becomes, perhaps as everyone becomes, somewhat more impulsive and disinhibited when he has been drinking. However, that seems to lead into arguments and fights. He also said that a lot of the offending took place while he was intoxicated." It seems to me that is simply coincidental; I do not see any mitigating factor in that in the slightest.
100However, the issue as to this offending, it was submitted, reflects essentially a fragile life, a fragility brought about from the instability in his personality, and demonstrated by way of sexual dysfunction. I have no doubt, given the extent of his sexual perversions or paraphilic obsessions as described by Mr Newton, that he has personality defects and suffers sexual dysfunction. Such is his make-up so to speak, and I accept such as the explanation for these offences.
101In particular, I note in Exhibit 3, Mr Newton's psychological assessment, the following, paragraph 35:
"Mr Watson suggests his social skills are poor, is eccentric and socially awkward, who has been perennially confused with how to establish or maintain mature intimacy with adults. His experiences of harassment, that is the harassment as a child, left him with a deep-seeded fear of rejection and humiliation at the hands of others and made him reluctant to initiate contact with others unless he can ensure he is able to control the parameters and the inaction. As a result, he has gravitated to the online world, where communication is highly structured and where his limited social skills do not pose the degree of impediment that would be the case in the more mainstream domains of interaction. Regrettably, the more he has immersed himself in the online world, the more distanced he has become from mainstream society, the more eccentric his mores and style of interacting has become."
102There was some suggestion about him feeling still put upon while operating in the online context. From what I have read, I have not observed that.
103At paragraph 36, Mr Newton opined that the offending reflects three dysfunctional personality traits. Firstly, an inability to interact with the real world, which led to the obsessive engagement on online chat. Even online he was unable to manage the challenge of relating to women, and his two (live) experiences are referred to there, of which I have been advised were unfortunately unsuccessful. Mr Newton says, the prisoner has resorted to interactions with underage females of whom he was able to control and who did not threaten his fragile sense of self-worth.
104Mr Newton describes, at paragraph 37, Mr Watson’s personality as being unequivocally maladaptive, and as to his sexual functioning, says at paragraph 39:
"Even had no offending been involved, Mr Watson's interest in internet chat related behaviour would have been considered dysfunctional and problematic from a number of perspectives. It would be sufficiently intense in its own right to meet DSM-5 criteria for the diagnosis of an unspecified paraphilic disorder."
105I am not quite sure that sentence makes much sense, but clearly I accept that his offending was certainly the impact of a dysfunctional personality, that it was intense and no doubt is the basis for the diagnosis of an unspecified paraphilic disorder. Again, I am not too sure of the description of "fetish", but it was suggested whatever his condition, he has limited insight into the factors contributing to his behaviour and there is a clear need for him to participate in appropriate treatment to address the issues as to his sexual functioning.
106Paragraph 40 raised further concerns about his sexual adjustment, the deficits in his capacity to form relationships, the preference for the company of young children, albeit over the internet, and the experiences of the same level of sexual arousal to pubescent and prepubescent females as he would have to mature women, and unfortunately that Mr Watson could not demonstrate any insight into the reasons why sexualised contact between adults and young people, such as the chatting engaged in with the complainants, was wrong.
107
Those factors no doubt were the background of Mr Newton’s review of risk factors at paragraph 42, that Mr Watson's level of risk is likely to be higher than that of offenders normally charged with these type of offences. In particular,
Mr Newton said he was concerned by the extended duration of the offending, the number of victims, the entrenched sexual deviance demonstrated and the very limited experience he has had with actual relationships. He cast that risk as a moderate to high range.
108Insofar as Mr Newton’s final opinion, he thought that currently Mr Watson was suffering from noteworthy anxiety, there has been some apparent victimisation within the gaol environment, and also thought the symptoms were somewhat more intense than a person in that position, and he diagnosed an adjustment disorder which is basically reactive in nature, rather than the outcome of any fundamental disorder.
109Mr Watson’s drinking is described as severe enough to be an alcohol use disorder. He remains very immature. In analysing the impact of these offences, Mr Newton notes that this behaviour dominated Mr Watson’s sexual activities, to an obsessional degree, and that his offending arose out of it. I do not know what it is “betwixt or between,” but certainly Mr Watson was obsessed, and the degree of his sexually related activities, I find was quite remarkable.
110Mr Newton finally concludes at paragraph 10:
"His problems with sexual, emotional and psychological development have resulted in profound confusion about the normal development of young people."
111As I say, Mr Newton casts Mr Watson as a moderate to high risk of reoffending, and concludes that Mr Watson requires intensive treatment. I am not too certain and I do not understand that you can get sex offender treatment at this stage in prison, I keep making this point, the sooner he gets it the better, I would have thought, for the whole community, but there you are.
112It would appear that his time to date in gaol has been difficult. He is obviously anxious about his condition and would be in a protected situation. He has had some treatment in gaol for alcohol issues, and has undergone a number of other programs. I agree totally with Ms Beech, based upon what Mr Newton has said, that Mr Watson needs key intervention to equip him to develop mature intimacy and understand sexuality, and of course those problems are even more complex, with Mr Watson’s relatively low IQ and issues of cognition.
113I note the letters of apology which the Court accepts. The letters to the victims have not, I do not think, been sent to the victims, have they?
114MR SPRAGUE: No, Your Honour.
115HIS HONOUR: But at least I note that their delivery to the victims was sought. All of those matters essentially came about as a result of the evidence of Mr Newton who was called to give evidence. Insofar as being cross-examined, he said that he did not think that there was any issue as to him being unaware that what he was doing was wrong. However, there was an issue as to whether he had any insight as to the reasons behind his behaviour. Mr Newton described in cross-examination the fact that we are dealing with a complex personality, and I have already detailed that by referring to paragraphs 35, 36 and 37.
116It was put that perhaps he could be seen as a classic internet user. I would consider such somewhat of an understatement. It was further put that Mr Watson’s behaviour matches his personality, and reflects his background and personality. However, the continuing nature of it and its dimensions were unusual, even in this case, continuing after he had been apprehended, as I have referred to.
117Taking into account that evidence, on the plea, Ms Beech submitted that there was no resiling from the fact of this being serious criminality and that an appropriate period of imprisonment should be imposed. That in all the circumstances, especially bearing in mind the need for treatment, that there was a need to pass a sentence which effected appropriate parole.
118It was put by Counsel that there was mitigation of the seriousness of the crimes. I think the correct way the Court of Appeal would describe that is that certainly there was no aggravating features. That is, these materials were not released to the internet at large, the control of the images were with him essentially and indeed he never followed through with the threats to publish to family et cetera. I think I have made all those points.
119Of course there was no physical contact, his operating in this way is very symptomatic of the type of person that we are dealing with. It was submitted that the nature of offending was illustrative of his personality makeup, and his deficits as referred to by Mr Newton and I accept that submission totally. I accept that this abhorrent behaviour, in the context of the vast reaches into modern society that is provided on the IT framework, is the type of crime that can occur with a personality of Mr Watson’s.
120
It was put to me that I should not fail to remember that we are dealing with a person who has never been in gaol before, who is still a relatively young man, and who with the right treatment, may have the capacity to rehabilitate, despite
Mr Newton's concerns as to future risk.
121It was put to me that I should not overemphasise denunciation and general deterrence. I accept that. Such is always a challenge in cases like this. As I said, and I did not wish to overstress the circumstances of the offending, but because of its breadth and intensity, it was impossible to appropriately describe the material without going into some detail, as evident from the fact that such has taken me at least one hour.
122The benefit of the early plea is totally accepted. I accept it as a valuable plea indeed in regard to witnesses who have not made VAREs. As to the issue of remorse, I accept the plea as being indicative of remorse. I am unable to accept in the circumstances, as I I have already described, that such reflects genuine remorse. I see that not as a criticism of your client, Ms Beech, but I am concerned as to the question of cognition of your client in this regard, as detailed by Mr Newton.
123It was put that he has been very active in custody, taking the appropriate steps. An analogy by way of criminal responsibility and personality was put to be insofar as the cases that relate to persons who were brought up in this country’s indigenous society and DPP v Terrick [2009] VSCA 220, in particular paragraphs 46 and 47. I have no doubt that his upbringing was difficult. I have got no doubt that his upbringing in totality, explains why he has the personality difficulties that have led to this criminal behaviour. I see that no more than that. However, as in all sentencing, persons who have difficulties as to their being brought up and have personality issues, are entitled to have such differences taken into account on their behalf, albeit to a moderate degree, in circumstances when one is balancing those matters against the issues and the need in cases such as this, for sentences which reflect general deterrence and denunciation.
124I also accept, given his personality type, the circumstances we have heard as to him having a very difficult time in prison already, that the principles five and six in R v Verdins [2007] VSCA 102 relate very much to him and I take that into account. I also note that he has already spent two years in gaol, and this year, a particularly difficult time because of what has gone on in gaol as to the extensive lock downs over the smoking issue.
125I accept that his problems will not be solved in gaol. However, gaol will serve the purpose of punishment and denunciation primarily. I want to make the point, that this practice of our Correction authorities failing to treat sexual offenders until they are about to leave gaol is totally flawed. However, I do not run our Community Correction facilities, but I do intend to refer this sentence to the Commissioner of Corrections, Victoria.
126Ms Beech also referred to the fact that he continues to be supported by his family, I note that. I was taken with the references from the family, in particular as set out in Exhibits 6 to 10. It is stressed that this is the first time that he has been in custody, and of course all these factors have to be balanced. I stress again the fact that it has taken me one hour just to recite the particular circumstances of this offending should not be seen, and indeed as a Judge, one ensures that one is not overwhelmed by the seriousness of the criminality of offences of this sort.
127I have already referred to the written submissions of the prosecutor. In response to that, Ms Beech correctly pointed out to me, when we had the original submissions that I had used the word "paedophilia" and such was quite wrong. There is no diagnosis of that, although I do not think he is very far away from it myself, but that was not an appropriate comment to make and I accept that totally. Counsel stressed the cooperation, and in particular, the remorse demonstrated by the letter of apology and the full and valuable cooperation of her client.
128It is necessary for me of course, in sentencing, to take into account all of those factors, and I do so as best as I can. The primary factors of course are the ones set out in the statutes and the maximum penalties proscribed by Parliament, and all of the factors that have been so competently put to me by counsel appearing in this case have, I hope, been taken into account by me in this complex case.
129Coming, therefore, to the sentencing. Mr Watson, I would ask you to stand up now, please. On the first three offences against Victim 1, as to Charge 1, that is the Victorian offence under s.69 of the Crimes Act 1958 (Vic), causing a minor to partake in the making of pornography, I sentence you to a period of imprisonment of three years.
130Insofar as Charge 2, the transmission offence, the Commonwealth offence, a period of imprisonment of two and a half years.
131Given that determination, you now, for the purposes of Victorian State legislation, come under the auspices of the Serious Sexual Offender Legislation so far as sentencing is concerned, pursuant to s.6D of the Sentencing Act 1991 (Vic), the protection of the community must be the fundamental and the major aim of sentencing, and in that regard, not only is one required under s.6E to pass cumulative sentences, however, one can pass a sentence, which does not necessarily reflect the criminality involved in order to protect the community. However, there has been no submission from the prosecution that such a determination is necessary and I do not intend, to do so.
132Insofar as the issue as to how one takes into account the intent of Parliament, in circumstances such as this, the intent of Parliament is that for the remaining sentences under the Victorian legislation, that is Charges 4, 7, 9, 11, 13, 14, 16, 18, 20 and 21, the Serious Sexual Offender Legislation applies and Mr Watson must be sentenced for those matters as a serious sexual offender, such sentencing to be noted, and pursuant to s.6C, each of the sentences passed should, pursuant to such legislation, be cumulative upon sentence passed before.
133Without in any way wishing to negate the wish of Parliament, obviously a Court sentencing upon so many charges, is primarily guided, as a matter of justice to an accused, by the principle of totality, which I have taken into account, and that has been the submission of both counsel.
134Insofar as Charge 3 is concerned, that is engage in sexual activity by way of live webcam, you will be sentenced to a period of imprisonment of three and a half years.
135Insofar as Victim 2, Charge 4, the Victorian offence under s.69, a period of imprisonment of three years. Charge 5, that is the transmission offence, a period of two and a half years imprisonment.
136I will leave Charge 6 until I get to the rolled up matters.
137Coming then to Victim 3 in regard to Charge 7, a period of imprisonment of three years. In regard to Charge 8, a period of imprisonment of two and a half years.
138The offences against Victim 4 in regard to Charge 9, a period of imprisonment of three years. In regard to Charge 10, a period of imprisonment of two and a half years.
139In regard to the offences against Victim 5, Charge 11, a period of imprisonment of three years. Charge 12, a period of imprisonment of two and a half years.
140Insofar as Charges 13, 14 and 15 are concerned, that is the offences against Victim 7 and Victim 6, Charge 13, the Victorian charge, a period of imprisonment of three years is imposed. In regard to Charge 14, a period of imprisonment of two years is imposed. In regard to Charge 15, that is the transmission offence, a period of imprisonment of two and a half years is imposed.
141In regard to Victim 8, Charge 16, a period of imprisonment of three years. In regard to Charge 17, the transmission offence, a period of imprisonment of two and a half years.
142In regard to Victim 9, Charge 18, a period of imprisonment of three years, and the transmission offence, Charge 19, a period of imprisonment of two and a half years.
143Insofar as Victims 10 and 11, two sisters, Charge 20, the Victorian offence in regard to Victim 10, a period of imprisonment of three years. In regard to Victim 11, Charge 21, a period of imprisonment of three years. In regard to Charge 22, the transmission offence, a period of imprisonment of two and a half years.
144Coming to the rolled up charges, Charge 6 being the rolled up charge and the circumstances of that having been fully described by me, I sentence you to a period of imprisonment of five years.
145Insofar as the rolled up Charge 23, I sentence you to a period of imprisonment of five years also.
146In regard to Charge 24, the solicit child pornography, I sentence you to a period of imprisonment of two years.
147In regard to Charge 25, use of the carriage service to menace and harass, a sentence of one year.
148In regard to Charge 26, the transmission to yourself of the 32 victims' material, a period of imprisonment of two and a half years.
149And the final transmission offence being the library offence, Charge 27, imprisonment of two and a half years.
150That brings me to the situation where things get somewhat difficult. We might need the learned prosecutor to assist. However, what I would want, if I was able without the conflicts of two separate pieces of legislation, is I would take as the head sentence the sentence on Charge 6, which is five years. I would add two months' cumulation in regard to the State offences, so two months' cumulation in regard to the State offences, 1, 4, 7, 9, 11, 13, 14, 16, 18, 20 and 21, and the Commonwealth offence 23, to make 24 months, which I would cumulate with Charge 6 and with each other to effect a maximum sentence of seven years, it would be my intention to impose a minimum period that would be served before being eligible for parole of four years and eight months. Obviously pre-sentence service of imprisonment would be deducted from that.
151However, the issue is how do I achieve that?
152(Discussion ensued as to form of sentence.)
153HIS HONOUR: I'm sorry I can't finish it today, but I've just got other matters I can't do anything about.
154MS BEECH: Does Your Honour wish for Mr Watson to be present for that to be finalised?
155HIS HONOUR: Yes, I think he'd better come back. I'm sorry to be a pest.
156MS BEECH: No, I understand that, Your Honour.
157HIS HONOUR: Mr Watson, you might have heard the complications in getting this done.
158OFFENDER: Yep.
159HIS HONOUR: It's most unsatisfactory from my point of view, but we can't do much about it, so we're going to have to drag you back tomorrow, all right? So we'll see you in the morning at 10.30. It won't be long. Get on the early bus back, hopefully. Thank you for your manner in which you've behaved yourself, too.
160All right. We'll adjourn till the morning at 10.30.
161MR SPRAGUE: Yes, Your Honour.
162HIS HONOUR: And my Associate will be in touch with you if that's all right.
163MR SPRAGUE: Yes.
164HIS HONOUR: Yes.
165ADJOURNED UNTIL THURSDAY 20 AUGUST 2015
UPON RESUMING THURSDAY 20 AUGUST 2015
166HIS HONOUR: Yes, thank you all. Mr Allen, great to see you there.
167MR ALLEN: Good morning, Your Honour.
168HIS HONOUR: Good morning. You might tell your client afterwards, as I said to him yesterday, regrettable that we have to go through this, but - someone sometime is going to have to try and solve these issues. I wonder if at one of those AG conferences it might be a good idea, Mr Sprague, for you to mention - about time. I know the issue is going to the High Court about how State sentence - that is an issue on Commonwealth matters.
169MR SPRAGUE: Yes.
170HIS HONOUR: But it seems to me there must be a simpler way of doing the sentencing. I mean we have been mucking around all morning doing it. Thankfully your schedule is a very good way to do it, actually.
171MR SPRAGUE: Yes. We have those ready to go for these type of matters, Your Honour.
172HIS HONOUR: Yes. No, it is a very good way to do it. What I thought I would do then formally is just complete the sentence as we have determined it.
173MR SPRAGUE: Yes.
174HIS HONOUR: What I got to the stage of was announcing all the sentences, so we will move on from there.
175That is the other thing. Our IT systems are so clunky, to put in such a sentencing process as this is quite an endeavour in itself.
176MR SPRAGUE: Yes, Your Honour.
177HIS HONOUR: I am not criticising you, I am just - all right.
178So what I have done is in fact announced all the sentences. Now in order, we will go through - so that in regard to the State sentences, I formally announce - I thought I already had, but I will do it again - pursuant to s.6F of the Sentencing Act, the offender is sentenced as a serious sexual offender in respect of Charges 4, 7, 9, 11, 13, 14, 16, 18 and 20.
179MR SPRAGUE: I think it would be 21 as well, Your Honour.
180HIS HONOUR: Sorry, I did not pronounce that. That was there, I should have. I apologise, it is 21 as well. And 21.
181Then we note on the order - I am just going in the order - pursuant to s.34 of the Sex Offenders Registration Act 2004 (Vic) the length of the reporting is life and that notice has been signed.
182Then coming to what might be seen as the matters that we were talking about yesterday, the sentence on Charge 6 - that is the Federal charge, I think we should make that clear - is to commence today. The sentence on Federal Charge 23 is to commence two months after the commencement of the sentence on Charge 6. All other Federal charges are to commence today. That makes a total effective Federal sentence of five years and two months' imprisonment to commence today.
183Then coming to the State charges, I direct that two months of the sentence imposed on Charge 1 be served cumulatively upon the sentence imposed on Federal Charge 23 to commence 28 months after the commencement of the sentence on Federal Charge 6. I then direct that two months of the sentences imposed on Charges 1, 4 - no, it should not be one, I have already done that cumulative. We have already done 1, see? Yes. I direct that two months of the sentences imposed on Charges 4, 7, 9, 11, 13, 14, 16, 18, 20 and 21 be served cumulatively upon each other and upon the sentence imposed on Federal Charge 23. Maybe we do leave 1 there. Why have you - why do we need to have it twice then? See how you have got it twice?
184ASSOCIATE: I think Charge 1 is fine because you have already declared it as done.
185HIS HONOUR: No, in regard to State charges, I direct that two months of the sentence imposed on Charge 1 be served cumulatively upon the sentence imposed on 23 to commence 28 months after the commencement of the sentence on Federal Charge 6. Direct that two months of the sentence imposed on - serve cumulatively upon each other and upon the sentence imposed - shouldn't that be on Charge 1?
186MR SPRAGUE: Yes, if it was then ‑ ‑ ‑
187HIS HONOUR: Not Federal Charge 23.
188MR SPRAGUE: If it was then two months cumulative on 4, 7, et cetera, cumulative upon each other and upon the sentence imposed on Charge 1.
189HIS HONOUR: Yes. Then we cross out the one, then we have the one. Then, without going through it, for each charge I've taken - like Charge 4 to commence 30 months, gone right through until we get to Charge 14 which is to commence 52 months, then come back to Charge 16 which is to commence 42 months and then go through 48 months.
190MR SPRAGUE: Yes, Your Honour.
191The total effective sentence State is four years eight months' imprisonment to commence 28 months after the commencement of the sentence on Federal Charge 6.
192I direct the minimum term to be served before being eligible for parole for Federal charges is three years. I direct the minimum term to be served before being eligible for parole for State charges is 28 months to commence 28 months after the commencement of the sentence on Charge 6.
193I declare that the period that the prisoner has been in custody for both Federal and State offences, namely 632 days, be reckoned as a period of imprisonment already served upon this sentence which is to be deducted administratively.
194Mr Watson, all that you want to hear after all of that is this: The global total effective sentence is seven years. The global non-parole period is four years and eight months. So despite the way we get to it, that is the final thing. And in regard to that period - where is your declaration of time served?
195ASSOCIATE: The following page, Your Honour.
196HIS HONOUR: It is not there, is it?
197MR SPRAGUE: Your Honour has already read it, I believe.
198HIS HONOUR: Have I? The 600 days?
199MR SPRAGUE: Six hundred and thirty-two days, Your Honour.
200HIS HONOUR: Yes, I have. I declare the period the prisoner has already - so that as far as you are concerned, Mr Watson, it is seven years. Minimum parole period for everything, four years and eight months, less the 632 days you have served. So I think we worked out, effectively, another two and a bit years.
201Then coming to the 6AAA. In Atanackovic v The Queen [2015] VSCA 136, I thought they mentioned that about 6AAA, but I checked it, they haven't. That still hasn't been determined, I don't think, by ‑ ‑ ‑
202MR SPRAGUE: No, not finally, Your Honour, no. It's still ‑ ‑ ‑
203HIS HONOUR: No.
204So on the assumption that it applies to both, pursuant to s.6AAA of the Sentencing Act 1991 (Vic), the Court would have imposed a global sentence of nine years and four months' imprisonment with a non-parole period of six years and three months imprisonment, but for the guilty plea.
205So it is important to point out to you Mr Watson, that you have got a maximum of seven years. Had you not pleaded guilty, the maximum you would have had is nine years and four months. So that gives you a means of determining what the guilty plea meant to you. All right?
206Then it seems to me it is almost impossible to go further than to satisfy the demands of Parliament, but what I have done is simply indicate that for each of the sentences, being five, three, three and a half, two years, two years and one year, what I would have imposed - I'm not going to go into the process of being the minimums despite what it says. I think it's ridiculous.
207MR SPRAGUE: Yes, Your Honour.
208HIS HONOUR: But any rate, there you are.
209So what I have gone on - I have done the global figure, and then just in regard to each of the sentences of three years - for example, five years, I have said that had there not been a plea of guilty, the period of imprisonment would have been six years and eight months and I have just taken that through. So for three years, for example, it would be four years. For two and a half, it would be three years, four months. For two years, it would be two years eight months. For one year, it would have been one year and four months. So that is the best I - I am not going to go into minimums, Mr Allen.
210MR SPRAGUE: No. I don't seek to take it any further than that, Your Honour.
211HIS HONOUR: Well I think the global figure is really all that's required. I think if you do it literally, it is required, and I think across the road they might take that view, but any rate.
212MR SPRAGUE: Yes, Your Honour.
213HIS HONOUR: If they want to do that, they can. So what we might do, Madam Associate, I think if you can bring out the order now as it's been done and amended.
214ASSOCIATE: Yes.
215HIS HONOUR: And then have both counsel look at it and approve it and I'll come back then. Then you might explain to Mr Watson in simpler terms than I've had to pronounce it here, Mr Allen.
216MR ALLEN: I'll do my best, Your Honour.
217HIS HONOUR: I'm sure you will.
218(Short adjournment.)
219HIS HONOUR: I understand that both counsel now are ad idem with the orders and that the orders reflect what I intended?
220MR SPRAGUE: Yes, Your Honour.
221HIS HONOUR: Good. All we have to see now is how Corrections handles it and who gets the first call.
222MR SPRAGUE: Yes. The only other matter I wish to raise, Your Honour, is under s.16F of the Crimes Act 1914 (Cth) there is a requirement for the Court to either explain or cause to be explained the purpose and consequence of fixing a non-parole period. Now that's something that Your Honour can ‑ ‑ ‑
223HIS HONOUR: Do I really have to explain that?
224MR SPRAGUE: Well Your Honour can request that Mr Watson's representatives explain that to him.
225HIS HONOUR: I think he would understand what non-parole period means, wouldn't he?
226MR SPRAGUE: Yes, Your Honour, and the consequences of breach. But Mr ‑ ‑ ‑
227HIS HONOUR: The breach.
228MR SPRAGUE: Yes. Mr Allen can no doubt ‑ ‑ ‑
229HIS HONOUR: That will be explained to him pretty strongly before he gets parole, won't it?
230MR SPRAGUE: One would think so, Your Honour, but it's a requirement for the Court to either explain it or cause it to be explained.
231HIS HONOUR: I don't usually abide by silly requirements, Mr Sprague. Can I thank you both for your assistance.
232Mr Watson, I do apologise for this. It is bad enough getting a gaol sentence, then being messed around like you have been, so I do apologise. I hope when you get a chance to read the sentence that you will appreciate what has been put in there, and I am sure that - and it is important for you to get treatment to make sure you do not get into this position again, all right? You have committed serious crimes and landed yourself in gaol, where you have never been before in your life. So it is very important that you solve your issues. All right? All the best.
233OFFENDER: Cheers.
234HIS HONOUR: All right. Mr Allen, no reason why Mr Watson cannot be taken down?
235MR ALLEN: No reason, Your Honour.
236HIS HONOUR: No. Thank you.
237Yes, there is probably no way we can solve these problems, really, but it wouldn't hurt at the next AG's meeting that they perhaps talk about it.
238MR SPRAGUE: We'll do our best to continue assisting, Your Honour.
239HIS HONOUR: Well I might say, I don't know what Mr Allen thought, but I think this is a great idea, the chart.
240MR SPRAGUE: Yes, Your Honour.
241HIS HONOUR: We're going to send that actually to Corrections. That might prevent the innumerable calls we get, because I think that would be a good idea. Then they could actually comprehend what's gone on.
242MR SPRAGUE: Sometimes it's really the only way to figure out where it all fits in.
243HIS HONOUR: I think it's the only way, when you read this. And my only feeling is it sort of takes away from the sentencing as well. I mean you've got someone sitting there who's just been given a “whack” and he has to go through all this technical rubbish. I mean it might be said that the Judge should have done it all beforehand, but it really is quite complicated.
244MR SPRAGUE: Yes. Once ‑ ‑ ‑
245HIS HONOUR: It could be said.
246MR SPRAGUE: It could be said.
247HIS HONOUR: All right. Thank you both for your assistance.
248Mr Sprague, the only matter is you're going to get to my associate those materials that I've included within the sentence?
249MR SPRAGUE: Yes, with the anonymised version.
250HIS HONOUR: Then we'll send it on to the ‑ ‑ ‑
251MR SPRAGUE: That will take maybe a day or two to do that, Your Honour.
252HIS HONOUR: I appreciate that, yes. But we thought it's easier you doing it than us trying to do it here.
253MR SPRAGUE: Yes, Your Honour.
254HIS HONOUR: Yes. All right, thank you.
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