Director of Public Prosecutions v Bullock
[2020] VCC 933
•15 June 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-00189
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDREW BULLOCK |
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JUDGE: | HIS HONOUR JUDGE D SEXTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 June 2020 | |
DATE OF SENTENCE: | 15 June 2020 | |
CASE MAY BE CITED AS: | DPP v Bullock | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 933 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords:
Legislation Cited: Criminal Code Act 1995 (Cth); Crimes Act 1914 (Cth); Sex Offenders Registration Act 2004 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:DPP (Cth) v Hizhnikov [2008] VSCA 269;
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Ms K. Breckweg | Solicitor for the Commonwealth Office of Public Prosecutions |
| For the Accused | Mr P. Tiwana | Dribbin and Brown Criminal Lawyers |
HIS HONOUR:
Introduction
1 Andrew James Bullock, you have pleaded guilty to an indictment containing two charges – using a carriage service to procure a person whom you believed to be under 16 years of age for sexual activity between 3 September and 13 October 2019, contrary to s.474.26(1) of the Criminal Code Act 1995 (Commonwealth) which carries a maximum penalty of 15 years’ imprisonment, and a rolled-up charge of using a carriage service to transmit indecent communications to a person believed to be under 16 years of age between 3 September and 10 September 2019, contrary to s.474.27A(1) of the Criminal Code Act 1995 (Commonwealth), which carries a maximum penalty of seven years’ imprisonment. In addition, pursuant to s.16BA of the Crimes Act 1914 (Commonwealth), you have admitted the offence of using a carriage service to solicit material, being child pornography material, on 3 September 2019, to be taken into account in sentencing in accordance with s.16BA.
Circumstances of offending
2 The offending is detailed in Exhibit A, the Revised Prosecution Opening for Plea, which represents the facts upon which I am to sentence you.
3 On 2 September 2019, you were aged 48. On that date, you commenced online communications on the social media platform known as 'Kik' with an individual purporting to be a 15 year old female, 'SR'. Unbeknown to you, that individual was in fact an undercover operative from Victoria Police. Using the social media platform, you identified yourself as 'John Wayne' with the username 'ballaratboys'. Between 3 September 2019 and 13 October 2019, you engaged in online communications with SR which collectively form the basis of Charge 1 on the indictment, using a carriage service to procure a person you believed to be under 16 years of age for sexual activity. The relevant details of those communications are set out in the Prosecution Opening. Having made the initial contact towards SR, you then initiated a dialogue with SR which became increasingly sexual. Almost immediately, you were informed that SR was 15 years of age and sexually inexperienced. Almost immediately in your communications with SR, you articulated the notion of meeting up with SR, and made reference to going to jail if you got caught. You enquired as to whether SR was ever alone on school holidays, if SR ever wagged school, and if SR would feel comfortable meeting up somewhere that she felt safe. You also referred to the physical distance between your location and the purported location of SR, and the time it would take to travel to Dandenong where SR said she was located.
4 From the first day of your online communications with SR, your dialogue was extremely sexual, referring to your mutual genitalia, enquiring as to the sexual activities that SR engaged in, and indicating the sexual activities in which you wanted to engage with SR. By way of example, on the first day of your communications with SR, you said 'So if we did meet would u like to try licking and sucking cock a bit, u might be a natural at it. Only one way to find out … so are u interested. Meeting me sometime'. You expressed similar sentiments four days later on 7 September 2019, as well as on 10 September 2019. On that day, you said 'So u thinking about meeting me babe. I’d love to eat your pussy. Probably when I’m back on day shift in about 5 weeks. Will u come down hear. To Melbs'. Your communications on 13 and 14 September 2019 reflect your persistence in these inappropriate online communications. On 3 October 2019, you said 'So have u thought about it. Me having sex with u. Are u still interested in the idea. If so u could wag school one day when you know your mum is at work and I’ll fuck u in your bed'. You also referred to a suggestion that SR prepare herself for such activity through the use of a carrot and Vaseline.
5 In addition to the offending relating to procuring SR for sexual activity, in the course of your communications you sent an image of your erect penis to SR on 3 September 2019 and an image of your exposed penis on 7 September 2019. On 10 September 2019, you sent three videos of yourself masturbating to ejaculation to SR. These images and videos were accompanied by highly sexualised dialogue on your part. Your conduct in relation to the sending of these images and videos forms the basis of Charge 2 on the indictment, transmit indecent communications between 3 September and 10 September 2019. This is a rolled-up charge, incorporating the sending of images and videos to SR.
6 In addition to the above-mentioned offending, on 3 September 2019, in the context of the communications to which I have referred, you also solicited child pornography material from SR. In communications with SR, you requested a picture of her in 'a bikini or something. Bra n panties'. When an image was sent to you of a teenage girl in bra and underwear, you requested to see images of her breasts. By way of example, you said to SR 'No face just a little bit of boob, it will prove you are real pls babe'. Pursuant to s.16BA of the Crimes Act 1914 (Commonwealth), and pursuant to the relevant case law in that regard, this offending is to be taken into account in sentencing on the procuring charge, Charge 1 on the indictment. This additional offending in requesting sexual images from the recipient gives greater weight to the need for specific deterrence in relation to the charge of procuring SR for sexual activity.
7 On 17 October 2019, police executed a search warrant at your residence. You provided investigators with your email addresses and passwords. Whilst the 'Kik' application had been deleted from your phone, the account was not deleted and was recovered by investigators, confirming the 'John Wayne' account was on your phone. Police also located a group chat 'Aussieteensforoldermen' located on your account.
8 You then attended Ballarat Police Station where you were interviewed by police. In that interview, you freely admitted having chatted to young girls on 'Kik', including SR. You referred to having been 'stuck in a rut at home, not, you know, having a great sexual relationship with my wife, I suppose'.[1] You referred to engaging in what you described as flirtatious communications, 'talking to the young girls and sending the occasional pic … and them sending me pics'. You said, 'I – for all honesty, I would never ever meet one. I mean, I know I might say I’d like to meet you or something. I would I’m not the sort of person that would go that far'. When asked to describe what you meant by flirtatious chats, you responded, 'If they want to have sex or have – have – if they’ve had sex'. You referred to the communications as being harmless fun. When you were asked why meeting up was discussed with SR on multiple occasions, you responded, 'It’s just like a game, I suppose … but I never would. Honestly, I never would'. You freely acknowledged sending the images and videos of yourself. You were cooperative and forthcoming with the interviewing police in relation to your offending.
[1]Record of Interview, Answer 233
9 After being interviewed, you were charged and bailed with various conditions, all of which you have complied with.
10 This matter resolved at a committal mention at Ballarat Magistrates’ Court on 6 February 2020, with you indicating a plea of guilty to the charges for which you now fall to be sentenced.
Objective seriousness of the offending
11 As conceded by your counsel, your offending is indeed serious. Previous sentencing decisions throughout Australia speak with one voice in indicating that adult persons who make use of the internet to procure children to engage in sexual activity can ordinarily expect to receive a term of imprisonment for such serious offending,[2] such is the paramount public interest in protecting children from sexual abuse. The maximum penalties for the offences for which you fall to be sentenced illustrate the seriousness of these crimes. The procuring charge in particular was the subject of an increase in the maximum penalty to 15 years in 2010, highlighting the gravity of this aspect in particular, of your criminal offending.
[2]DPP (Cth) v Hizhnikov [2008] VSCA 269
12 You were 48 years of age when you engaged in the online communications with SR. You knew almost immediately that SR was purporting to be 15 years of age, clearly a significant age difference. Even when you first initiated contact with SR, it was clear from her 'Kik' profile that she was young. Your communications reveal that you were well aware of the illegality of your actions. You referred to going to jail if caught, and you attempted to ensure that SR was not a police officer. It is clear that you were acutely aware of the illegality of your actions and yet you persisted. You engaged in a narrative with SR which quickly became highly sexualised, in the context of being informed that SR was a virgin. I agree with the prosecution that your communications with the purported child were sexually explicit, salacious, graphic and highly offensive. Whilst your communications were not continuous, they continued intermittently over a period of almost six weeks, during which time you sent SR approximately 150 messages. There was an element of persistence in your communications with SR, as you would frequently reinitiate contact when there was a delayed reply to the preceding contact. Throughout your communications, there is a fairly consistent narrative in relation to the prospect of meeting up with SR, using both active and present tense language. You indicated a wish to meet up with SR for the purposes of sexual activity. You frequently asked SR if she would be agreeable to this. You referred to SR’s school, holidays, whether she had any free time, whether she could wag school, and whether she would be agreeable to you driving for approximately two and a quarter hours to meet up with her in Dandenong. You also enquired as to whether she would come to your location. You referred to your ability to meet SR when your work shifts changed.
13 Having reviewed the messages in their entirety, as provided by your counsel during the plea hearing, I am satisfied beyond reasonable doubt that you were at least contemplating meeting up with SR. Whilst such intentions on your part may not have been fully formed, I do not accept that your entreaties to meet up were purely in the realm of fantasy or game-playing. You persistently brought up the topic of meeting, whilst displaying a degree of reticence by virtue of a concern that SR may in fact be a police officer.
14 All of this took place whilst you engaged in increasingly explicit sexual communications with SR, on one occasion suggesting that she prepare for penetrative activity with you by using a carrot and Vaseline. As the communications continued, in addition to asking for sexual images of SR, you sent SR multiple images of your penis, both exposed and erect. You also sent her three videos of you masturbating and ejaculating into a toilet. It cannot be forgotten that you must then have been of the belief that you were sending these images and videos to a 15 year old girl. Your communications with SR only ceased when SR terminated contact.
15 I agree with the prosecution submission that the transmitting of the images and videos to SR, this conduct forming the basis of Charge 2 on the indictment, represents discrete and distinct offending in comparison to the procuring charge, warranting a degree of cumulation between the two charges to reflect the two discrete types of offending, each with different elements, aimed at different vices and reflective of separate acts of serious criminality, subject as always to the principles of proportionality and totality. These images and videos were clearly unsolicited, graphic, and highly offensive.
16 Your counsel made various submissions in relation to the objective seriousness of the offending, ultimately submitting that it represented neither a grave example of such offending, nor high-end offending. It is clear that the absence of an actual victim is not a mitigating factor, rather it represents the absence of an aggravating factor. I accept that there was no particular sophistication or level of cunning or deceit in your offending. You quickly told the police operative that you were 48 years of age, and eventually sent the operative a photo identifying your face. I also accept that there were no inducements offered to the operative. I also accept that perhaps in contrast to other cases, whilst you were indeed persistent in relation to the topic of meeting up with the operative, there is an absence in this case of any clear indicia of such a meeting being arranged. There is also an absence of any requests for secrecy.
17 In all the circumstances, whilst not perhaps high-end examples of each offence, I regard your offending as representing serious and concerning examples of the offences of procuring and transmitting.
Matters personal to you
Background
18 At the age of 49, with an absence of prior convictions, I accept that the offending for which you now fall to be sentenced is out of character for you, and indeed represents an aberration in an otherwise productive and hardworking life.
19 You were born in Sydney and have two older siblings. Your mother was primarily a homemaker but otherwise worked as a retail assistant. Your father worked all his working life as a self-employed bricklayer. When you were aged three your family moved to Launceston, Tasmania, where your father had been born. There you attended both primary and secondary school, completing your schooling at the age of 18 in 1989. You enjoyed sporting pursuits, and apparently showed some talent in the area of cricket. You also engaged in various martial arts activities. You do not appear to have encountered any particular difficulties in your early years.
20 You met your wife, Carma, in 1997, and you lived together for some years before marrying in 2003. Your wife currently works at Bunnings as the manager of the gardening section.
21 In 2004, you and your wife moved to Brisbane due to a desire on your wife’s part to be closer to her sister. Your son Hayden was born in 2005. He is currently aged 14 and is in Year 9 at St Patrick’s private boys' school in Ballarat.
22 Over many years, you have completed a number of courses in order to further your career in the printing industry. Indeed, you have enjoyed an impressive and continuous employment history, mainly working as a printing machinist for newspaper publications. You commenced an apprenticeship as a printing machinist for News Corp Australia whilst you were residing in Brisbane, having previously worked in various capacities from your teenage years. You worked for News Corp for nine and a half years between November 2004 and July 2013, during that time being promoted and eventually becoming an assistant team leader. Subsequent to that you worked in 2013 and 2014 with Alliance Paper Products, printing receipt rolls, before working briefly with Amcor Flexibles, operating a cutting machine. Between 2015 and 2017 you worked as a printing machinist for APN Newspapers, which was taken over by News Corp.
23 In 2017 you moved to Ballarat due to work. Since 16 October 2017 you have been working as a printing machinist for the Australian Community Media (ACM), formerly known as Fairfax Media. ACM prints The Age as well as various other publications. You undertake shift work, working 12-hour shifts, five days at a time, alternating between the 7 am to 7 pm shift and the 7 pm to 7 am shift. A letter from the site manager at ACM Ballarat, Matthew Hancock (Exhibit 4), confirms your employment there, and the fact that you are clearly well regarded as an employee. I understand that your employer is aware of the general nature of your charges rather than the detail. Nevertheless, your employment history, and current employment status does bode well for your prospects of rehabilitation.
24 You initially moved to Ballarat on your own in 2017, with your wife and son following after the property in Brisbane was sold.
25 I was informed that your income of approximately $1,450 a week is important in order for your family to manage all monthly household expenses, including a mortgage on the Ballarat home as well as on a rental property in Brisbane, together with many personal loans, and of course the private school fees for your son.
26 I have read and considered the references from your wife, sister, and employment manager, and accept, as I have stated, that, but for this offending, you have otherwise led a productive life. You have raised a family and maintained a productive employment history. You have no criminal history. You are therefore entitled to rely on your good character in mitigation.
Explanation for the offending
27 In written submissions, your counsel submitted that the offending occurred in the context of a diminishing sexual relationship with your wife and pressures of starting afresh in a new place where you had no social circle outside of work. There was financial stress, and you were drinking alcohol more than usual during the offending conduct. The character references from your sister and wife also make reference to personal difficulties over recent years, including family illness, the loss of close family members, financial stresses, job changes, and moving to a new state, all of which has apparently taken an emotional and physical toll upon you.
28 The psychological report of Ms Pamela Matthews dated 29 March 2020 (Exhibit 2) provides further detail in relation to your personal circumstances leading up to the offending. You apparently purchased a property at a higher price bracket than earlier intended, with no close neighbours. This left you with little money for socialising and caused a degree of financial stress to you and your wife, which resulted in discord between you.
29 You informed Ms Matthews that your wife was working at Bunnings, your son was attending private secondary school, and you were working shift work at ACM, struggling with loneliness Monday to Friday when the family were out and you were home during the day. You began to look for company online, and eventually developed online chats with other individuals with sexual connotations and the sharing of sexually-related images.
30 According to your counsel, the discord between you and your wife led to sexual intimacy issues. In the context of these difficulties, together with the financial stresses, you increased your intake of alcohol to daily drinking, particularly when you had been working night shift. Your counsel indicated that most of the offending took place in the day when you were working night shift, and in that regard I note from the online communications, your reference to working night shift. Your counsel indicated that you sought intimacy online, initially communicating legally with other adult females before commencing the offending communications. It occurred, according to your counsel, in the context of these personal difficulties, when you were lonely, stressed, and alienated from your wife.
31 I note, according to Ms Matthews, that you would begin drinking alcohol once your wife and son were out of the house for the day, and you would consume approximately half a dozen stubbies as the day progressed.
32 As your counsel rightly concedes, all of this may contextualise your offending conduct, but it most certainly does not excuse your serious criminal behaviour. Many people experience and even endure significant life stressors, without engaging in explicit, offensive online communications with children, suggesting sexual rendezvous, and sending images and videos of their genitalia and sexual acts.
Plea of guilty, insight regarding offending, and remorse
33 In sentencing you, I am required to take into account your plea of guilty, and the degree to which you have shown contrition for your offending, as well as the degree to which you have cooperated with law enforcement agencies in the investigation of the offence.[3]
[3]Crimes Act 1914 (Cth) s16A(2)(f), (g) and (h)
34 I accept that you were fully cooperative with the police during the execution of the search warrant on 17 October 2019. You provided the relevant email addresses and passwords. You made admissions in your police interview, accepting responsibility for communicating with the undercover operative and sending her the images and the videos the subject of the charges.
35 Having reviewed the legal chronology in this matter, I am satisfied that you have pleaded guilty at the earliest opportunity, in the context of immediate cooperation with the authorities. Your cooperation and pleas of guilty at the earliest opportunity are indicative of contrition. The prosecution in this case conceded that whilst your plea of guilty was entered in the face of a strong Crown case, it was entered at an early stage, has utilitarian value, and is demonstrative of a willingness to facilitate the course of justice, acceptance of responsibility, and a degree of remorse.
36 Further on the issue of remorse and insight, I note in your wife’s character reference that she refers to you being 'extremely remorseful' for what you have done. I also note that only a few weeks after being charged, you were referred by your general practitioner for psychological counselling with clinical psychologist Alex Montgomery. The brief letter from Mr Montgomery dated 26 May 2020 (Exhibit 3) confirms you attended upon Mr Montgomery for treatment on four occasions between 21 November 2019 and 3 February 2020. According to psychologist Pamela Matthews in her report[4] (Exhibit 2), you had been referred to Mr Montgomery on account of being suicidal after being charged.
[4]Psychological Report of Ms Pamela Matthews dated 29 March 2020
37 You attended upon psychologist Pamela Matthews on 22 February 2020 and again on 11 March 2020. According to Ms Matthews, when you first met with her you minimised your offending behaviour. You apparently had no insight that the acts you carried out online were sexual abuse of a child, in that you thought the individual you were talking to was a child. Your impaired understanding was supported by the rationalisation that the individual you were talking to, you now know to be an assumed identity. According to Ms Matthews, your self-awareness at the time of the offending accordingly was extremely poor.
38 On a more positive note, Ms Matthews noted that by the second appointment there had been a shift in attitude, and you have some insight now, at least into the psychosocial factors that led to your offending, but you require more treatment focused on how your functioning and coping style has impacted on your offending. Ms Matthews concludes that you require involvement in a sex-offender treatment program to assist you in understanding the cognitive distortions that enabled your behaviour and those you are currently relying upon, which minimise the intent of your behaviour and the potential impact of your behaviour upon a young person.[5]
[5]Psychological Report of Ms Pamela Matthews dated 29 March 2020, page 11
39 As conceded by your counsel, you appear to have some insight issues in relation to your offending. However, I accept, notwithstanding your insight issues, that you have been cooperative with the authorities, accepted responsibility for your conduct, and pleaded guilty at the earliest opportunity. A significant sentencing discount is therefore warranted.
Prospects of rehabilitation
40 In sentencing you, I must take into account your prospects of rehabilitation.
41 Your counsel submitted that due to your absence of prior criminality, your otherwise law-abiding, responsible, family-oriented and hardworking life, the salutary experience of being charged and facing court proceedings, your absence of any history of drug or alcohol issues, the ongoing support of your family, and the risk assessment of psychologist Ms Matthews, your prospects of rehabilitation were very good.
42 Ms Matthews conducted a detailed risk assessment of you, using well-recognised risk assessment tools. Significantly, you did not, in the opinion of Ms Matthews, attract a diagnosis of paedophilia or paraphilia. Following a brief period of reactive depression consistent with an adjustment disorder with depressive symptoms after being charged, this resolved. Having considered all of the relevant matters, Ms Matthews concluded:
'Mr Bullock’s overall risk of reoffending is, based on, a structured, guided clinical judgment combined with an actuarial instrument estimated to be low and is solely related to dynamic risk factors which can be addressed in treatment'.[6]
[6]Psychological Report of Ms Pamela Matthews dated 29 March 2020, page 11
43 As earlier indicated, Ms Matthews opines that you would benefit from the intervention of sex-offender treatment, particularly given your insight issues.
44 Notwithstanding the insight issues to which I have referred, I am satisfied in all the circumstances that your prospects of rehabilitation overall are quite good but are dependent upon your successful completion of specialist intervention in a sex-offender treatment program.
Hardship in Custody
45 Your counsel relied upon the burden that a sentence of imprisonment would cause you, particularly given your absence of prior criminal history. This would be your first experience in custody, the likelihood that your adjustment disorder with depression and suicidal ideation following being charged would re-emerge if imprisoned, and finally the additional burdens due to the
COVID-19 pandemic. In that regard, I accept that a term of imprisonment will be onerous for you. You have a psychological fragility which will heighten any anxieties attendant upon a jail term. Pamela Matthews opines that although your symptoms have mainly resolved, they are likely to re-emerge should you be imprisoned, in which case the relevant authorities will require notification, particularly regarding suicide risk. All prisoners entering the custodial setting are subject to a mandatory 14 day quarantine, resulting effectively in isolation in a cell for that period. Personal contact visits have been suspended, limiting access to familial supports. There are other restrictions on programs and work, meaning that custodial conditions at present are indeed onerous, and I have no doubt anxiety causing. As mentioned by your wife in her reference, any removal from the community will likely have adverse financial consequences for you and your family, which will no doubt only add to your difficulties coping with a term of imprisonment.
46 In light of your personal difficulties in relation to a term of imprisonment, and in light of the COVID-19 complications, a general mitigatory allowance is warranted in sentencing, bearing in mind that such an allowance cannot justify an otherwise inappropriately lenient sentence in this case.
Applicable sentencing principles
47 General deterrence is the primary sentencing consideration for offending involving the online sexual exploitation of children, given the vulnerability of children online and the need to protect children from sexual abuse. Where general deterrence is the primary sentencing principle, an offender’s personal mitigatory factors, such as good character and prospects of rehabilitation, must therefore be given less weight than otherwise might be given. Specific deterrence, denunciation, just punishment, and protection of the community are also very important sentencing considerations. Offending involving online sexual exploitation occurs on an international level and is becoming increasingly prevalent. It is also often difficult to detect, given the anonymity provided by the internet. There is clearly a paramount public interest objective in promoting the protection of children, as online child exploitation offences are not victimless crimes.
48 You have consented to me taking into account the offence of soliciting child pornography pursuant to s.16BA of the Commonwealth Crimes Act 1914. Accordingly, this offending is to be taken into account in sentencing on the procuring charge, Charge 1 on the indictment. This additional offending, in requesting sexual images from the recipient, gives greater weight to the need for specific deterrence in relation to the charge of procuring for sexual activity. The sentence imposed for this charge therefore may be longer than if it had stood alone, to account for the additional criminality involved in soliciting sexual images from the recipient. Whilst I have taken into consideration the soliciting child pornography offending, as conceded by the prosecution in this matter when submitting that this offending was not the most serious example of this offence by any means, your conduct in that regard represents a low-level example of that type of offending (one communication, early on in the broader communications, asking the recipient to expose a breast), it occurred in the context of an absence of any diagnosis of paedophilia/paraphilia which would otherwise accentuate the need to reflect the sentencing purpose of specific deterrence, and separately would not ordinarily attract any significant penalty above and beyond that which you are to receive in sentencing for this matter.
49 In formulating an appropriate sentence in your case, I am required to impose a sentence which is of a severity appropriate in all the circumstances of the offence. Amongst the various sentencing factors to which I have already referred, you must also be adequately punished for your offending. I am not permitted to impose a sentence of imprisonment unless I have considered all other alternatives, and come to the view that no other sentence is appropriate in this case.
50 The prosecution submitted that in all the circumstances of this case, a term of immediate imprisonment was warranted. Your counsel submitted that whilst a sentence of imprisonment was warranted, you should be released immediately on a recognisance release order. Alternatively, a short sharp sentence of immediate imprisonment should be imposed. Both the prosecution and defence referred me to various previous sentencing decisions of courts in this and other jurisdictions, and I have considered all of those carefully. Comparable cases provide guidance as to the identification and application of relevant sentencing principles, and they can yield discernible sentencing practices, and possibly a sentencing range – they can serve as yardsticks to illustrate the possible range of sentences available. Whilst there have been cases involving non-immediate terms of imprisonment, usually in cases involving significant mitigatory factors, there are many that have involved immediate terms of imprisonment. Whilst other sentences are helpful and informative, in the end I must sentence you in accordance with the sentencing principles and factors to which I have referred, distilling as best I can an appropriate sentence in the particular circumstances of this case.
Sentence to be imposed
51 In my view, taking into account all of the relevant factors and principles, particularly the need to reflect the sentencing purpose of general deterrence and denunciation, a sentence that includes some immediate imprisonment is required. I have however concluded that in the particular circumstances of this case, a relatively short term of imprisonment, followed by supervised release pursuant to a carefully structured recognisance release order will pay sufficient regard to just punishment and general deterrence, yet at the same time recognise your personal circumstances. Given the discrete nature of the transmit offensive communications charge and the fact that it is a rolled up charge, it is appropriate in my view that there be a measure of cumulation on this charge, subject to the totality principle.
52 In relation to Charge 1, you are convicted and sentenced to 20 months' imprisonment. In relation to Charge 2,
you are convicted and sentenced to 10 months' imprisonment. It is my intention that 4 months of this sentence be cumulative upon the sentence I impose on Charge 1. Accordingly, I direct that this sentence commences 14 months after the commencement of the sentence imposed on Charge 1, making a total effective sentence of
24 months' imprisonment. That sentence commences this day. I direct that you be released after serving 5 months' imprisonment, upon you entering into a recognisance in the sum of $2,000, to be of good behaviour for a period of 2 years. As a condition of this recognisance release order, I direct that you be under the supervision of the Deputy Commissioner of Community Correctional Services and Sex Offender Management, or his/her nominee for 2 years. You are to attend for assessment, and if assessed as suitable, treatment in the Sex Offender Program, or programs to reduce re-offending as directed.
53 Before I explain the consequences of that order, Ms Breckweg, any issues in relation to that validity of that sentence?
54 MS BRECKWEG: No, Your Honour, if you just give me one second while I just do the - - -
55 HIS HONOUR: Yes, I might keep going and I will come back to you then.
56 MS BRECKWEG: Certainly.
57 HIS HONOUR: Mr Bullock, I am required to explain the purpose and consequence of the making of the recognisance release order that I have just made. The order reflects the gravity of your offence, but also mitigating factors which I have referred to in the course of these reasons. If you are of good behaviour over the following two-year period after your release five months from today and comply with the conditions, that is the end of the sentencing process in respect of those charges as far as the Court is concerned. If you are not of good behaviour, by way of example by committing further offences, in all likelihood you will be brought back before this Court and depending on the nature and seriousness of the transgression the Court may either take no action, impose a fine, extend the period of your good behaviour, impose a different penalty, revoke the recognisance release order, or send you to prison for the balance of your sentence.
58 I will shortly ask you to sign the order, to indicate that I have explained the purpose and effect of this order, the consequences if you do not comply, and that you agree to be bound in accordance with the terms of the order.
59
By virtue of your convictions for these offences, you will be placed on the
Sex Offenders Register. These offences are both Class 2 offences and under the Sex Offenders Registration Act 2004 (Vic), you will have a reporting period of 15 years. You will shortly be given a document which sets out your obligations under the legislation.
60 Finally, pursuant to s.6AAA of the Sentencing Act 1991 (Vic) if you had not pleaded guilty to this matter, I would have sentenced you to a period in respect of both of the charges that would have made a total effective sentence of 36 months and I would have fixed a recognisance release order after 20 months.
61 Mr Bullock, you can take a seat for a moment. Ms Breckweg?
62 MS BRECKWEG: Yes, that is perfect, Your Honour, the structure.
63 HIS HONOUR: Thanks.
64 MS BRECKWEG: The only questions I had, did Your Honour - I missed the recognisance amount.
65 HIS HONOUR: Yes, $2,000.
66 MS BRECKWEG: $2,000. Your Honour, the only other issue is in terms of the orders - the special conditions that your Honour read out.
67 HIS HONOUR: Yes.
68 MS BRECKWEG: It seemed to end at the reporting to a certain community corrections centre.
69 HIS HONOUR: Yes.
70 MS BRECKWEG: Is Your Honour mindful of adding the additional ones that the defendant is to report to and receive visits from a community corrections order and notify the centre of any change of address.
71 HIS HONOUR: Are they the standard conditions to attach - - -
72 MS BRECKWEG: They are. Can I - - -
73 HIS HONOUR: - - - when there is a sex offender program condition?
74 MS BRECKWEG: Yes, there is.
75 HIS HONOUR: Yes.
76 MS BRECKWEG: But the other conditions, I will hand this up to Your Honour.
77 HIS HONOUR: Yes.
78 MS BRECKWEG: Are really to give Corrections the power to - - -
79 HIS HONOUR: Monitor.
80 MS BRECKWEG: - - - monitor.
81 HIS HONOUR: To monitor, yes. Yes, I am content to do that. I cannot remember where I got the text from in relation to - probably another case.
82 MS BRECKWEG: Possibly, yes.
83 HIS HONOUR: So I probably missed something. Mr Tiwana, any issues in relation to those extra conditions? They are, as I recall now, standard conditions?
84 MR TIWANA: No, not at all. No issues with those and no issues with anything.
85
HIS HONOUR: Yes, so it is clear to you, Mr Tiwana, so that you explain to
Mr Bullock.
86 MR TIWANA: Yes, I will, thank you.
87 HIS HONOUR: Yes, thanks.
88 MS BRECKWEG: Sorry, Your Honour, I'll complete the form. I'll only be a second.
89 HIS HONOUR: Yes, take your time, Ms Breckweg. Mr Tiwana, I will also note in the formal orders of the court - I will make a notation in accordance with the recommendations of Ms Matthews in relation to your client's mental health status to facilitate any monitoring in custody.
90 MR TIWANA: Yes, thank you, Your Honour.
91 MS BRECKWEG: Your Honour, because it's difficult to work out exactly what date it is what I've done - - -
92 HIS HONOUR: Yes.
93 MS BRECKWEG: - - - is, my friend agrees.
94 HIS HONOUR: Yes.
95 MS BRECKWEG: Is just put, 'Report to Ballarat Community Corrections Centre within two working days of release'.
96 HIS HONOUR: Yes, that's fine.
97 MS BRECKWEG: Thank you.
98 HIS HONOUR: Mr Breckweg, do I sign first or second?
99 MS BRECKWEG: I think first, Your Honour, yes.
100 HIS HONOUR: Yes. What is today's date, the 15th?
101 MS BRECKWEG: The 15th, Your Honour.
102 HIS HONOUR: Mr Tiwana, if you could accompany Mr Lavery to the back of the court.
103 MR TIWANA: Yes, Your Honour.
104 HIS HONOUR: Yes, thanks. Mr Bullock can be removed, thank you. Yes, Mr Tiwana, if you can wait behind for Mr Lavery to bombard you with documents, I think.
105 MR TIWANA: Yes, Your Honour, thank you.
106 HIS HONOUR: Thanks to both of you for your assistance, thanks.
107 MR TIWANA: Thank you.
108 MS BRECKWEG: Thank you, Your Honour.
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