Director of Public Prosecutions v Atkinson
[2023] VCC 1695
•14 September 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised Not Restricted Suitable for Publication |
CR 21-10901
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SHANE ATKINSON |
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JUDGE: | HER HONOUR JUDGE BLAIR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 and 26 July 2023 | |
DATE OF SENTENCE: | 14 September 2023 | |
CASE MAY BE CITED AS: | DPP v Atkinson | |
MEDIUM NEUTRAL CITATION: | [2023] VCC | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence
Catchwords: Sentence following trial by jury – attempt to involve a child in the production of child abuse material – involve a child in the production of child abuse material – Youthful offender – close in age to victims – Aboriginal – lower cognitive functioning – Snapchat – sexting – remorse – Excellent prospects of rehabilitation Legislation Cited: ss 51B(1), 321M Crimes Act 1958 (Vic)
Cases Cited:Azzopardi v The Queen (2011) 35 VR 4; Boulton v The Queen (2014) 46 VR 308
Sentence:12-month Community Correction Order
Registrable offender for life pursuant to ss 11 and 34 Sex Offender Registration Act 2004
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms E. Johnson | Office of Public Prosecutions |
| For the Accused | Mr I. Polak | Kurnai Legal |
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HER HONOUR:
1 Shane Atkinson, following a trial by jury on indictment no. L11977785.1, you were found guilty of two charges of attempting to involve a child in the production of child abuse material and three charges of involving a child in the production of child abuse material. The maximum penalty for involving a child in the production of child abuse material is ten years imprisonment. The maximum penalty for the attempt offences is prescribed by s. 321P of the Crimes Act, and is 5 years imprisonment.
2 You were found not guilty of one charge of involving a child in the production of child abuse material and one charge of encouraging a child under the age of 16 to engage in or be involved in sexual activity. A further charge of encouraging a child under the age of 16 to engage in or be involved in sexual activity was removed from the jury’s consideration at my direction. This offence involved the complainant, Grace Anderson.[1] On the evidence before the jury this offending could have occurred when you were seventeen years of age. In such circumstances the prosecution could not secure a conviction as it is an element of this offence that you were over the age of eighteen at the time of the offending.
[1]A pseudonym
Circumstances of the offending
3 In considering the factual basis for sentencing I have had regard to and have carefully considered the arguments of the parties. Consistent with the jury verdict I find that the jury must have acted on the following factual basis.
4
At the time of the offences you were aged between eighteen and nineteen years. Your offending was primarily facilitated by the messaging app Snapchat and you had an account name by the user name ‘shane_a420’ and the display name ‘insanoshano’, which was visible to other Snapchat users.
5 Between approximately November 2018 and November 2019, you had contact with five victims who were under seventeen and from whom you requested nude images. At times you also sent them nude photos and videos of yourself.
Olivia Smith
6 Sometime in 2019, you began messaging Olivia Smith.[2] At this time, Olivia was fourteen to fifteen years old. Olivia was unsure whether you knew her age.
[2]A pseudonym
7 In the course of exchanging messages with Olivia, you offered her alcohol and cigarettes in exchange for nude images. Olivia did not send you any photos of herself. There was evidence of messages exchanged between Holly Jackson[3] and Olivia where Holly appears to be telling Olivia to add you on Snapchat. The messages also included two images of adult females that Olivia said were from the internet. Holly had wanted to send these to you, pretending the images were of them.
[3]A pseudonym
8 Around the middle of 2019, Olivia and Holly arranged to meet you at Victoria Park in Maffra to pick up alcohol you were going to purchase for them. However, this meeting did not eventuate. And that is Charge 3, attempt to involve a child in production of child abuse material.
Ava Moore
9 Towards the end of 2018, when you were seventeen years old you added Ava Moore[4] as a friend on Snapchat and on Instagram. In early 2019, Ava sent you a message via Instagram with a picture of Adidas runners and you said you would buy them for her. Several weeks later you attended the home of Ava’s friend in Maffra and dropped off the runners, which you had purchased.
[4]A pseudonym
10 Over the course of 2019 you sent several Snapchat messages to Ava, requesting her to send nude images of herself to you. At the time, Ava was fourteen to fifteen years old. She did not send you any nude photos. And that's Charge 4, attempting to involve a child in the production of child abuse material.
Amelia Davis
11 At some point in 2019, you became Snapchat friends with Amelia Davis.[5] Amelia gave evidence that she found out you had been giving other girls money in exchange for nude images. With this knowledge, she added you on Snapchat and initiated contact with you. Amelia said that during her first conversation with you, she offered to send you ‘nudes’ in exchange for money and that she told you she was fourteen years old.
[5]A pseudonym
12 From approximately mid-2019 to mid-2020, Amelia sent you numerous images and videos of herself, which displayed her genitals and breasts, as well as recordings of herself masturbating. Amelia gave evidence that there were times where she stooged you by asking for money and not sending an image at all or by sending you the same image.
13 In exchange for nude photos and images, you sent Amelia money on numerous occasions via Commonwealth Bank's ‘cardless cash’ facility and she collected the money from the Commonwealth Bank branch in Sale. And that's Charge 6, involving a child in the production of child abuse material.
14 In her VARE, Amelia estimated the total value of these transactions to be approximately $30,000 and during cross-examination she revised this amount to about $9,000 and bank records indicate it was probably closer to $1,000.
Holly Jackson
15 In the middle of 2019 you became friends with Holly Jackson on Snapchat. At various points in 2019 you began messaging Holly on Snapchat, asking her to send you photos, which she understood to mean nude photos. At this time Holly was thirteen to fourteen years old. Holly gave evidence that she did not tell you her age.
16 In her first VARE, Holly said she only sent images from the internet, which she purported to be pictures of herself. In the second VARE she admitted that she had actually taken multiple pictures of her 'boobs and bum’ whilst she was wearing underwear and she sent those to you.
17 After she had sent you numerous messages you sent her your credit card details. The credit card information was used by Holly to purchase Nike runners online on 5 November 2019 and those runners were valued at $150.00. The shoes were delivered to the home of her friend, Aliyah Shaw.
18 In June 2019, Holly asked you to buy her alcohol. You agreed but only if she sent more nude photos. Ms Jackson then sent you the nude photos via Snapchat. Ms Jackson attended Victoria Park at Maffra with Aliyah Shaw[6] to collect the alcohol, which was a slab of UDLs, a bottle of vodka and $20 in cash. And that's Charge 7, involving a child in the production of child abuse material.
[6]A pseudonym
Aliyah Shaw
19 Lastly, between mid to late 2019, you requested nude photos on Snapchat from Aliyah Shaw in exchange for alcohol. At this time, Aliyah was approximately fourteen years old.
20 Aliyah sent you an image of her ‘butt’ and short time later, photos of her breasts. In both images she was wearing underwear.
21 You later placed a slab of UDLs a bottle of vodka and $20 cash at Victoria Park in Maffra for Aliyah and Holly Jackson to collect. This is Charge 8, involving a child in the production of child abuse material.
Record of interview
22 Turning now to your record of interview. On 28 November 2019, you were interviewed at Sale Police Station, after the mother of one of the victims found text messages from you on her daughter's phone and notified police.
23 You told police that Holly Jackson was a friend on Snapchat and you knew of her through her elder sister who was your age. You admitted that you had requested nude images from Holly but you were unaware of the age difference at the time as she did not tell you her age. Now knowing her real age you accepted what you did was wrong.
24 You explained that Holly had sent you pictures of her breasts and you had probably responded by ‘liking’ the image or conveying some other approval. Nonetheless, you had doubts that the images were actually of Holly because they were sent using the ‘sticker’ feature of Snapchat rather than as a photo. You said that Holly had told you the images depicted her but her face was not shown. You now believe the photo was not of Holly.
25 You denied leaving alcohol in Victoria Park, though you did agree you had given Holly your card details to buy a pair of shoes. You said however, that this was part of an exchange for some shoes she had already which did not fit properly.
26 You also admitted you had communicated with Aliyah Shaw on Snapchat but you did not know her personally. You agreed that you asked Aliyah for nude photos by saying something like, ‘Do you want to get, like, kinky…’ or ‘something… a bit sexual’. However, no images were sent.
27 You told police that you did not offer anything in return for nude images besides images of yourself. You said that Holly had used the term, ‘trade’, in discussions about sending photos but you understood this to mean exchanging sexual images with each other. You denied that you had ever offered her ‘trade’ for images.
28 You denied knowing anyone called Olivia Smith and you did not think that you had her as a friend on Snapchat.
29 You were interviewed again on 19 August 2020 but gave a no comment interview.
Nature and gravity of the offending
30 Turning now to the nature and gravity of the offending. Sexual offences against children are inherently serious crimes because they affect some of the most vulnerable members of our community. This is reflected in the maximum penalty for these offences, which is five and ten years imprisonment.
31 These offences carry with them a presumption of harm, whether they involve contact offending or non-contact crimes such as yours that are perpetrated through the internet and technology. Harm to children in these contexts is not always immediately apparent but may arise in the future with the perspective and maturity that comes with adulthood.
32 In formulating an appropriate sentence I must have regard to the gravity of your offending. An overview of your offending is that it involves multiple instances of offending against five separate victims over a period of about one and half years. Further, Charges 6 and 7 are course of conduct charges, which means that each of these charges represent multiple occurrences of this offence within the period specified by the charge. Some of your offending occurred after you had been interviewed by police.
33 For several reasons I consider that your offending is less serious than other examples of offending of this type.
34 First and foremost is the proximity in age between you and the victims.
(a) Whilst you were legally an adult at the time of the offending, this was only a case by a short margin as you were eighteen years old for the majority of the offending period. You were in fact just seventeen when you commenced messaging one of the victims. The largest disparity in age between yourself and a victim is approximately four years. Further, I accept the evidence of Sandra Cokorilo, psychologist in terms of your age and level of maturity at the time of the offending. I also accept the evidence of Dr March that you were functioning at a low average level of intellectual functioning.
(b) This is a crucial point of difference from other instances of child sexual offending which involve offenders who are not uncommonly decades older than their victims. By extension, these offenders have the benefit of significant mental and emotional maturity as well as life experience over their victims which I do not accept is applicable to your case.
(c) Your comments to psychologist, Sandra Cokorilo, illustrate that your interactions with the victims occurred on the understanding that you were communicating with people of a similar age to yourself, and they were not motivated by a deviant attraction to children. At the time of some of these exchanges you had in fact been a child yourself only a matter of months earlier.
35 A second relevant aspect is the nature of the images sought and received.
a) In finding you guilty of these charges, the jury has accepted that the images requested by you and sent by the victims constitute child abuse material. Nonetheless, the specific features of these images remain a relevant sentencing consideration.
b) The evidence of the victims and the images that were recovered indicate that, except for Amelia Davis, you received images of body parts such as breasts and buttocks in underwear.
c) It is clear from the victims’ evidence that they considered these images to be ‘nudes’ even though they do not depict nude body parts. It is also seems likely that you considered these images to be nudes as you offered compensation for the images.
d) I consider that these features make your offending less serious than if the victims had been encouraged to provide and did provide images of unclothed or naked breasts and genital areas according to the usual meaning of the word ‘nude’.
e) The images and videos sent to you by Amelia Davis are of a significantly more explicit nature as they depict the breasts and genital area without underwear and included videos of Ms Davis masturbating. Whilst this isn’t a mitigating feature, I note that there is no suggestion that you specifically requested videos of masturbation or images of breasts or the genital area without underwear.
36 Third, I have considered the origin and nature of your interaction with each of the victims.
a) The law is clear that sexual harm against children is not lessened by consent or initiation on the part of the child. Nonetheless, it is a relevant consideration that some of the victims contacted you because they were aware you had compensated other girls for providing nude images.
b) It is apparent from the comments in your record of interview and to Ms Cokorilo that your contact with some of the victims was motivated in part by loneliness and a desire for connection. This is borne out in some of the evidence of the victims. This may provide some explanation for why you felt ‘tricked’ when you became aware that were only speaking with you because they knew you might compensate them for images.
c) It is important to note that whether the child or adult initiated contact and the initial motivations of that contact are not factors which displace the responsibility for this offending from the adult to the child. However, for purpose of contextualising your offending amongst other examples of these offences, it distinguishes your case from instances where a person has sought out and initiated contact with children solely for the purposes of sexual gratification.
37 I note that there is also the absence of a number of aggravating features. These include a breach of trust, physical sexual contact with the victims and any intention to show or distribute these images to people besides yourself.
38 It is relevant to point out that these offences are capable of summary determination, though I note jurisdiction was refused by the Magistrates' Court.
Personal circumstances
39 Now, turning to your personal circumstances, you are an Aboriginal man of Kurnai and Yorta Yorta heritage and you are currently twenty-two years old.
40 You grew up in Maffra and you are the second eldest of five children. Although you remember your parents arguing when you were younger, overall you consider you had a good homelife with loving and supporting parents. Your parents remain together and you currently live with them and your siblings in a Housing Commission home in Maffra.
41 You attended Maffra High School where you were not an overly academic student. However, you completed school until Year 10, without additional learning support or failing any grades. You enjoyed sport and you generally got along well with your teachers and peers. After Year 10 you left school to complete an apprenticeship in painting and decorating.
42 You began working with Parer Painting in Maffra in 2018 and you received your painting and decorating qualifications in 2022. You have continued to work in the business full time since completing your apprenticeship.
43 Outside of work you continue to be involved with sport, including basketball, cricket, football and golf and sport is the source of positive social connection for you.
Delay
44 I consider delay to be a relevant factor in mitigation of your sentence.
45 Your first communications with the victims commenced in 2018 and you were interviewed in November 2019. At the end of this interview, you were advised that you may be charged but this did not occur until August 2020.
46 Various avenues for resolution were explored on your behalf, including applications for discontinuance and a sentence indication. Ultimately, the matter was listed for trial in May 2023. Exploration of these other options and taking a matter to trial necessarily results in a more drawn out process than a plea of guilty. Nonetheless, it remains your right as an accused person to exercise these avenues which were appropriate to consider in the circumstances of your case.
47 Your matter was undoubtedly delayed beyond control by the effects of the COVID-19 pandemic as you were charged in 2020 during the height of shutdowns and court closures.
48 It has been over four years since the start of the offending period. Given your young age this is not an insignificant period that you have spent with great uncertainty about whether you would be charged, whether you would found guilty or not guilty and then what your sentence would be.
49
The impact that the court proceedings has had on you mentally is evident in both psychological reports received by the court and that's both from
Sandra Cokorilo and Dr March. They reported that you were experiencing persistent low mood and anxiety related to the proceedings and you had withdrawn from friends and stopped playing sport.
Psychological assessment
50 Over the course of the court proceedings and the delay you were assessed by Neuropsychologist, Dr Evrim March and Psychologist, Sandra Cokorilo.
51 Dr March was asked to assess your cognitive ability, mental health and whether you had suffered any hardship or deprivation in childhood. This assessment occurred with you by video on 8 December 2021.
52 In relation to your cognitive functioning Dr March's opinion was that you did not have an intellectual disability but your intellectual functioning was in the borderline to low average range. She identified executive functioning deficiencies in the areas of strategy development, cognitive impulsivity, which she considered to be significant and also mental rigidity.
53 At the time she did not believe you were suffering from a mental illness but you were experiencing mild anxiety, which was ‘…partly contextual and partly driven by a fragile sense of self and possibly vulnerable personality traits.’[7]
[7]Report of Dr Evrim March dated 12 December 2021, 8 [45].
54 In terms of the relationship to the offending behaviour, Dr March concluded that your cognitive impulsivity combined with a fragile sense of self increased the likelihood of impulsive behaviours. This may be so even though your cognitive functioning is sufficient to understand social rules and regulations.
55 In terms of hardship or deprivation as a child, Dr March noted that you told her your parents smoked cannabis at home until you were in your teens and there was domestic violence from your father ‘every so often…not every day’. You went on to tell her that your father would hit you when you were naughty and not ‘out of the blue’. It was Dr March's opinion that you minimised this behaviour and its impact.[8]
[8]Ibid, 2-3 [11].
56
You were assessed more recently on 11 May 2023 by Psychologist,
Sandra Cokorilo.
57 Ms Cokorilo found you did not suffer from a mental health disorder, though you were continuing to experience situational anxiety related to the court proceeding and how the charges reflected on you in the community. She noted that you do not have a personal or familiar history of mental health problems and you have never received mental health treatment.
Youth
58 At the age of twenty-two, you are still to be sentenced as a youthful offender. Without delays in the resolution of your matter you would have fallen within the definition of a young offender within the meaning of s3 of the Sentencing Act.
59 Sexual crimes involving children are always serious. However, for the reasons previously discussed I do not consider your offending to be serious enough to displace the principles usually applied to youthful offenders.
60 The youth of an offender should be a primary consideration for a sentencing court where the matter properly arises. There is little doubt that it is a relevant factor in your case, as you were only eighteen to nineteen years old when you offended.
61 The case of Azzopardi sets out three considerations which underlie the general primacy afforded to an offender's youth as a sentencing consideration where identified.
First, young offenders, being immature, are “more prone to make ill-considered or rash decisions” In that respect, they “may lack the degree of insight, judgment and self-control” possessed by a more mature adult. They may not “fully appreciate the nature, seriousness and consequences of their criminal conduct”.
Secondly, the courts recognise the potential for young offenders to be redeemed and rehabilitated.
Thirdly, courts sentencing young offenders are cognizant that the effect of incarceration in an adult prison on a young offender will more likely impair, rather than improve, the offender’s prospects of successful rehabilitation. While in prison a youthful offender is likely to be exposed to corrupting influences which may entrench in that young person criminal behaviour, thereby defeating the very purpose for which punishment is imposed. Imprisonment for any substantial period carries with it the recognised risk that anti-social tendencies may be exacerbated. The likely detrimental effect of adult prison on a youthful offender has adverse flow on consequences for the community.[9]
[9]Azzopardi v The Queen (2011) 35 VR 4, [34]-[36].
62 It was Ms Cokorilo's opinion that your youth and consequently your cognitive immaturity contributed significantly to your offending. In her report she notes that ‘the age between 16 and 19 represents an important transition point in psycho-social development with implications for moral culpability’.[10]
[10]Report of Sandra Cokorilo dated 17 May 2023, [51].
63 Further, she opined your cognitive impairment would have heightened the age related biological and neurodevelopmental impulsivity that is typical of someone of your age at the time of the offending.
64 Comments she made during your assessment with Ms Cokorilo illustrate insight into how your immaturity impacted your behaviour at the time. You told her that you, ‘wanted to talk to someone new… didn't think that deep into it…very stupid of me at the time…just a dumb thing… just a horny bloke when younger’.[11]
[11]Ibid [30].
Remorse
65 During the plea hearings for this matter the prosecutor, Ms Johnson, submitted that you lack remorse and you have not accepted responsibility for your offending.
66 This view was based on comments made to Ms Cokorilo and to Corrections during your suitability assessment for a community correction order and also because you ran a trial.
67 The prosecution highlighted that you told Ms Cokorilo, 'It's a fairly common thing what I've done… everyone is doing it, sharing nudes… happens daily, weird if you haven't done it'. Further, you told Ms Cokorilo that you felt the victims had ‘tricked’ you and that you felt ‘persuaded in a certain way’.[12]
[12]Ibid [31]-[32].
68
In the Extended Pre-sentence Assessment Report dated 3 May 2023, the assessor noted that you told them that the offending against Olivia Smith, Ava Moore and Aliyah Shaw ‘did not happen’ and you took issue with some of the details of the offending in relation to Amelia Davis and
Holly Jackson.
69 At the Further Plea hearing on 26 July 2023, Ms Cokorilo was cross-examined by the prosecution about a number of topics, including her findings about remorse.
70 Ms Cokorilo gave evidence that your comments regarding your lack of knowledge of the victim’s ages and the perception that you had been tricked did not necessarily indicate denial of the offending or a lack of remorse.
71 She accepted there may have been some level of minimisation but this is likely reflective of your cognitive deficits and how this affects your interpretation of events rather than an actual lack of remorse.
72 It was Ms Cokorilo's opinion that you have been genuine when you empathised with the anxiety the victims would have felt when talking with the police during the court proceedings and the impact of stigma against them in the community. I accept the opinions of Ms Cokorilo, notwithstanding your plea of not guilty and given the unique circumstances of your case as already canvassed I accept that you are genuinely remorseful for your offending.
Rehabilitation
73 In terms of rehabilitation I note that you are a young man who has no prior convictions. Despite the difficulties of your upbringing and the intellectual challenges you have faced you have been fully employed upon leaving school. Further, you engaged in pro-social activities within the community. You are appropriately connected with your Aboriginal culture and do not have any issues with drug or alcohol dependence.
74
A testimonial from your employer, John Parer, was tendered on your plea.
Mr Parer informed the court that you were nominated for a variety of awards during your apprenticeship and won Third Year Apprentice of the Year for the Master Painters Association of Victoria and Tasmania. He considered you to be a very competent worker who had mastered all aspects of your trade. He told the court you now supervise jobs for his organisation, which he considers to be a massive achievement for a tradesman two years out of an apprenticeship. Further, Mr Parer described you as very polite and respectful to clients and also, that you had been a patient and kind mentor to his new apprentice who has mid-range autism. Mr Parer considers you to be a huge asset to his business and a young man who is held in high regard within the local Aboriginal community.
75
The prosecution requested Mr Parer for cross-examination. He appeared happy to attend court remotely and expand on your virtues. Further, it was apparent that not only was he aware of the offending before the court but you had confided in him after each court hearing and had thoroughly discussed your offending allegations with him. I consider his evidence to be very important.
Mr Parer was clearly proud of you and considered you to be an impressive young man with a very promising future.
76 It has been over three years since you offended. In that time you have attended every court hearing, including travelling to Melbourne and staying overnight on numerous occasions and for extended periods. I have observed you during the hearings and in my view you have taken this matter very seriously and have always been respectful and courteous.
77 I accept the opinion of Ms Cokorilo that the positive and pro-social factors in your life should not be disrupted but rather should be encouraged. You have numerous protective factors that should see you thrive in the future. I consider imprisonment would be a retrograde step and one that is not necessary in the circumstances of your case.
78 I have had regard to Ms Cokorilo’s assessment both in her report and oral evidence that you are a low risk of sexual reoffending. I have also had regard to the extended pre-sentence report. Corrections have also assessed you as a low risk of general reoffending.
79 It is my view, the combination of these factors brings me to the conclusion that you have excellent prospects for rehabilitation and you have effectively demonstrated this over the last three plus years.
Sentencing principles
80 The basis purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.
81 Given your youth and background circumstances, general deterrence must give way to the promotion of your rehabilitation as the primary purpose of sentencing. The weight to be given to specific deterrence must also be moderated in light of your experiences within the criminal justice system and subsequent reformation. In your case I regard protection of the community to be a relevant consideration but I consider this as best achieved by a period with support and supervision in the community and by fostering the path of reformation upon which you have already embarked. In your case this is what will likely reduce the risk of future offending.
82
I take into account the sentencing guidelines referred to in s5 of the
Sentencing Act, where relevant and to your case in particular, I have had regard to the sentencing landscape for the offending before me. There were few examples of cases dealing with these offences. None of the cases I found were similar to your case. This is likely because these offences are capable of summary determination and are usually dealt with in the lower jurisdiction.
83 I note that neither the prosecution nor defence supplied the court with any comparable cases.
84 Ultimately, the sentencing exercise requires that I balance all relevant factors and make a judgment as to the appropriate sentence in the circumstances of your particular case. The principles of totality, proportionality and parsimony are also very important considerations here. They require me to make sure the total sentence is appropriate to the total criminality. I have taken these principles into account in fixing the sentence I am about to impose.
85
Weighing up all relevant matters I consider that a sentence of imprisonment is not required in the circumstances of your case and the sentencing factors of general deterrence, just punishment, denunciation, as they are relevant to you can be addressed by the imposition of a community correction order. In coming to this conclusion I am mindful of the guidance given by the
Court of Appeal in Boulton v The Queen. That is, the community correction order may be suitable even in cases of relatively serious offences, which might previously have attracted a medium term of imprisonment. The Court there stated,
A CCO is likely to be a particularly important sentencing option in the case of a young offender, where there may be a perceived conflict between the need to punish the offender and the importance — both to the community and to the offender — of rehabilitating the offender.
Since the CCO can be used to rehabilitate and punish simultaneously, the conflict is likely to be reduced. Instead of needing to give less weight to denunciation or specific or general deterrence, in order to promote the young offender’s rehabilitation, the court will be able to fashion a CCO which adequately achieves all of those purposes at once.[13]
[13]Boulton v The Queen (2014) 46 VR 308, [9]-[10].
Disposition
86 So, Mr Atkinson, the bottom line, I will not ask you to stand, given that you are on Webex. But in relation to all charges before the court you are convicted and I order you be placed on a Community Correction Order for a period of 12 months from today. The conditions of this community correction order include that you perform: The conditions of this Community Correction Order include that you must perform:
(a) 100 hours of unpaid community work over that 12 months period;
(b) You are also to attend for supervision;
(c) You are to attend for judicial monitoring.
87 So, I will set a date shortly for you to come back and see me and you can certainly do that via Webex I just want to see how you are going and just check in. All right.
88 So, in all the circumstances of your case I have given careful consideration as to whether I should require you to undertake programs to reduce re-offending, in particular the sex offender program. I have taken into account Ms Cokorilo's assessment that your overall risk of sexual recidivism is rated low without any formal intervention. Further, Ms Cokorilo listed several protective factors which mitigate your risk profile and that was at paragraph 68 of her report. It is my view that to take you away from your work, have you travel to Melbourne to participate in a group program with older and more entrenched offenders would be counter-productive and unnecessary. For this reason I do not intend to include this as a condition of your order.
89 In addition to the conditions that I have imposed there are standard conditions that you must comply with. The first and foremost of these is that you are not to commit another offence punishable by imprisonment for the period of the order, which is 12 months. You need to report within two working days to your nearest Corrections office, which I understand is Sale, you are required to advise your supervising Corrections office of any change of address where you are living or working within two clear working days. And it is a term of all community correction orders that you must submit to visits as directed and obey the instructions and directions of the Corrections officer and you cannot leave the State of Victoria without prior permission.
90 So, Mr Atkinson, if you re-offend you will breach the correction order and if you do not comply with the conditions you also would breach the order. And if you do that you would come back before me and you may be re-sentenced in relation to the original charges.
91 I can only place you on a correction order if you agree. So, firstly, do you understand what is involved in such an order?
92 OFFENDER: Um, a little bit.
93
HER HONOUR: All right. I will get probably Ms Theocharous or Mr Polak to go through it with you in a bit more detail. But essentially what I am asking you to do is have supervision with Corrections. So, that is keeping appointments with them, probably likely to be weekly to start off with. Depending on how you go it might reduce to fortnightly or monthly. So, that is the first part. The second part is I want you to do 100 hours of unpaid community work. That is the punishment that I impose for the offending. So, I am not sure where you would do that but it might be given that you have got connections within the
Koori community you might be able to do something there but Corrections will organise that.
94 OFFENDER: Yep.
95 HER HONOUR: And the third thing is judicial monitoring, so that is checking in with me. So, I will just check in with you a couple of times during the 12 months, just to see how you are going. And as I say, we can do that by Webex and Corrections will give me a report on how you are doing. All right, so, that is really what is involved. You cannot leave the State of Victoria. You have got to report to Corrections. You have got to let them know if you change your job. Yes. So, that is basically what is involved.
96 OFFENDER: Okay.
97 HER HONOUR: So, is that clear?
98 OFFENDER: Yep.
99 HER HONOUR: Yes. Do you consent to doing an order like that?
100 HER HONOUR: Now, pursuant to s11 of the Sex Offender Registration Act, I declare that you are a registerable offender, as you have been found guilty of five class 2 offences. And pursuant to s34 of the Sex Offender Registration Act you are required to report for life. All right. So, some documents will be printed out and forwarded to you. I will need you to sign at some stage and we will work this out. I have the papers sent to Ms Theocharous’s office and then they can forward it back to us but we will work that out.
101 But we need to give you some documents and you need to sign saying that you've received them. And then I expect Ms Polak or Ms Theocharous will help you and go through them but you will have to report to the police. I think it is in about 28 days, after 28 days or fairly soon anyway but they'll give you a support worker who will get some information from you and who will keep in contact with you. And they'll help you with what you need to do. At this stage, as I say, it will be for life. It might be in the future, depending on how things go, that you could make an application to the Supreme Court - potentially to this court but more likely to the Supreme Court to be released from that but I will leave that for your legal advisors to talk to you about. At this stage, I have got no choice but to put you on that order. All right.
102 OFFENDER: Yep.
103 HER HONOUR: So, Shane, do you consent to doing the Community Correction Order?
104 OFFENDER: Ah, yes.
105 HER HONOUR: All right. Great. All right. Have I missed anything?
106 MS JOHNSON: No, Your Honour.
107
HER HONOUR: Now, Mr Polak, you wanted an appeals costs certificate for
31 August, is that right?
108 MR POLAK: If that's the day that we - - -
109 HER HONOUR: I can't remember which day it was, the day that we vacated but I am certainly happy to give you a certificate for the day that - - -
110 MR POLAK: Thanks, Your Honour, yes, 30 August.
111 HER HONOUR: Yes. So, I'll give you an Appeals Costs Certificate. The case was adjourned through no fault of either you or Mr Atkinson. It was adjourned as there were no further submissions to be made and to give me time to do the sentence. So, that can happen.
112 MR POLAK: Thanks, Your Honour.
113 HER HONOUR: The sentencing remarks should be prepared fairly quickly, I would have thought and they will be released to the parties when they are. It will be, you know, a couple of days I would imagine. Things have been coming back to us pretty quickly.
114 MR POLAK: Thanks.
115
HER HONOUR: So, we will review them and send them out. All right.
So, thanks very much everyone.
116 MS JOHNSON: Judicial monitoring?
117 HER HONOUR: Yes. So, I need to make a time for judicial monitoring. So, I will do that in three months' time or actually that'll be right around Christmas. I will do it just before Christmas. So, our last sitting day is, what, the 21st? We can do it at 9.15 on the 21st.
118 MR POLAK: Thanks.
119 HER HONOUR: You don't need to come, Mr Polak but you're welcome to. Legal Aid may not pay you but you might like to come along
120 MS JOHNSON: Your Honour, I just wanted to clarify with the sex offenders register.
121 HER HONOUR: Yes.
122 MS JOHNSON: I believe you have to make an actual order. I am not sure if you were making an order or if you just - - -
123 HER HONOUR: Well, that's what I announced.
124 MS JOHNSON: All right. Sorry, thank you. I knew you were sending him some material but I just didn't hear you say you were making an order. That's all. It may well be my mistake.
125 HER HONOUR: I'll read it out again
126 MS JOHNSON: Sure.
127 HER HONOUR: But pursuant to s11 of the Sex Offender Registration Act 2004, I declare that you are a registerable offender as you have been found guilty of five class 2 offences. Pursuant to s34 of the Sex Offender Registration Act 2004, you are required to report for life.
128 MS JOHNSON: Thank you, Your Honour.
129 HER HONOUR: So, that's the order.
130 I'll adjourn.
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