Director of Public Prosecutions v Cameron-Kiely
[2023] VCC 618
•18 April 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR 22-01453
CR-19-02036
Indictment No. N10162820.2
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KANE CAMERON-KIELY |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 Dec 2022, 21 Feb 2023, 18 April 2023 | |
DATE OF SENTENCE: | 18 April 2023 | |
CASE MAY BE CITED AS: | DPP v Cameron-Kiely | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 618 | |
REASONS FOR SENTENCE
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Catchwords: “Fresh” offending: Fail to comply with Sex Offender Registration Act reporting obligations x3 including non-report of contact/communication with 6 girls, grooming x2 (2 of the same 6 girls). The ‘fresh’ State Offences involved breach of the first core condition of a CCO imposed for Commonwealth child sex offence dealt with in September 2020. (procuring). Otherwise, compliance very complete. 24 years of age as at sentence. Prior CCO the only criminal history. Breach of CCO by offence within days of CCO. Early guilty plea; Worboyes v The Queen [2021] VSCA 169; remorse; increased custodial burden posed by physical health condition, Intellectual disability; Verdins limbs1,3 and 5: youth.
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APPEARANCES: | Counsel | Solicitors |
| For the State Director of Public Prosecutions | Ms E. Phillips Ms R. Zammit | Office of Public Prosecutions |
| For the Commonwealth Director of Public Prosecutions | Ms. S. Akin | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr J. Barreiro | Adrian Paull Criminal Lawyers |
HIS HONOUR:
1Kane Cameron-Kiely, on 14 December last year, you pleaded guilty to five charges on the State indictment that had been filed in this Court. Those guilty pleas were entered into the records of the Court and the case was then adjourned to 21 February of this year with the hope that the Community Corrections Order breach proceedings relating to a Community Corrections Order I imposed upon you in September 2020 could be listed and dealt with at the same time as the fresh plea proceeding. That was in fact achieved and for that I must express my thanks to those acting on behalf of the Commonwealth Director.
2By 21 February, there had been a slight amendment to the wording of Charge 1 on the State indictment, as one of the young girls names had been omitted accidentally. A new indictment had been filed over and so it was that you then had to be arraigned on that new indictment, not just on one of the charges. You pleaded guilty again to those five charges. By then, a breach summons alleging the breach of the Community Corrections Order had been issued and served upon you. Through your counsel, you admitted your guilt of the offence of breaching the Community Corrections Order that I had imposed on you back in 2020. The breach was by offence, the offences being those five offences on the State indictment to which you had already pleaded guilty.
3So, on that last occasion in February, you will recall that again as today, there were three practitioners at the Bar table. We had the Commonwealth Director of Public Prosecutions represented by Ms Akin and she appears again today. The State Director of Public Prosecutions was represented by Ms Zammit, who again appears today, and Mr Barreiro represented you on the last occasion and again today and in fact had appeared for you when I originally dealt with you.
4You are now 24 years of age and you have admitted that short criminal history constituted only by the matter I dealt with back in 2020.
5As to the State matters now before me, the summary placed before me accurately sets out the maximum penalties and I do not see any need to restate them.
6The Commonwealth prosecution alerted me to the options open upon the breach. There were three options; that is to impose a pecuniary or monetary penalty, to resentence you or to take no further action. They placed before me written submissions as well as a contravention report in a package and on the last occasion they argued that in light of your level of compliance on the order, it would be open to the Court to impose a monetary penalty pursuant to s20AC(6)(a) of the Crimes Act. That submission was to some extent it would seem from today's submissions, predicated on the assumption or belief that a prison term was likely to fall your way in relation to the State matters. Ms Akin has confirmed today though that I have two matters, I have the actual breach of the offence itself which is itself a charge before the court and then I have the powers to act under s20AC(6)(a) through to (c) of the Act, which can include also a resentencing task. I could do anything today that I could have done on the last occasion back in 2020. The fact is though that the Commonwealth sentencing issue has not been the main focus either on the last day or again today and for obvious reasons. Rather, there is the troubling sentencing exercise on the fresh State matters. Your counsel recognised in February, and again today, some of the tensions in that sentencing exercise which he described as a difficult one. He is certainly not wrong about that. It is in fact an extremely difficult sentencing exercise.
Facts
7Let me turn briefly to the facts. As to the Commonwealth matter before me, it is worthless my setting out the full facts of that original offence. The contravention bundle marked as Exhibit CDPP-A includes the original summary. I also have my over lengthy sentencing remarks from 18 September 2020. Again, I think as a matter of completeness, I will put those in as an exhibit. They probably do not need to be, they are able to be accessed on but I will mark them as Exhibit D on the plea. That original offending was serious indeed targeting, as it did, a 13-year-old girl. The Commonwealth Director had been calling for a prison sentence, though in the course of the various plea dates ultimately accepted that the matters personal to you might lead to consideration of your immediate release onto a recognisance release order. Ultimately though, I placed you on a two-year Community Corrections Order with a variety of conditions including a Justice Plan. I monitored you. I gave you a very strong and direct warning about the ramifications of any repetition of the behaviour that brought you before me.
[1] DPP v Cameron [2020] VCC 1506
8Within days of my telling you that, you commenced the fresh offending. I monitored you on a number of occasions. On the first occasion in December 2020, the judicial monitoring report received by the court spelt out that police had attended and seized some devices at your property. I warned you then of the ongoing dangers to you of inappropriate use of the internet. Notwithstanding that, you contacted another young girl in March 2021.
9The State prosecution amended summary marked as Exhibit A sets out the detail of what I will describe as the ‘fresh’ offending. The chronology is very disturbing. So too the content. You failed to report your contact with six children, with that contact commencing on 23 September 2020 and the last contact being on 11 March 2021. I repeat, I placed you on the Community Corrections Order on 18 September 2020. So within a handful of days, you had chosen to reoffend. I monitored you in December 2020 and I was due to monitor you again on 31 March 2021. You failed to report the creation of fresh email accounts and usernames (Charge 3 and 4) and you engaged again in grooming behaviour in relation to two girls, Natalie Behan[2] and her sister Amy[3], on the dates alleged in the indictment. The summary of prosecution opening dated 3 October 2022 is an agreed one and it sets out all of the detail. I see no need to repeat it all here in my reasons which already be quite lengthy. The summary discloses that you were on a number of occasions told to stop. Kayla Fitz[4] was 12 years of age and her mother made that clear to you. You said you would stop. Natalie Behan was 11, her sister Amy 12. Matilda Esson[5] was 12 and again you were warned off any communications. Holly Loftus[6] was 12. Emily Farrer[7] was 15 and again you were warned off in no uncertain terms.
[2] A pseudonym
[3] A pseudonym
[4] A pseudonym
[5] A pseudonym
[6] A pseudonym
[7] A pseudonym
10The grooming charges are the most serious and Charge 2 relating to Natalie the most serious of those by far. The agreed summary sets out some of the communications. You were not, as is sometimes the case, dealing with an undercover police officer who was pretending to be a child. You were not, as on the last occasion I dealt with you at least in the later stages of that communication, unwittingly dealing with the father of the young 13-year-old up in Ballarat. On these occasions, you were dealing with children. In terms of Natalie, you said you wanted to give her a present. What was that present? Well, it was a photograph of your penis sent to her. You were asking her to send photos of herself and she did. You wanted to meet her and you told her that repeatedly. Your communications spell out your desire for secrecy. You asked if her phone got checked and if she could go somewhere quiet and alone and you mentioned the need for secrecy. Your grooming of Amy was less serious, but serious none the less.
11When police seized an Apple iPad, it showed that there had been 34 hours of Instagram use in the preceding seven days.
12It is a feature of significant aggravation that at the time of this offending you were on a Community Corrections Order for related offending.
13I have given only a quite brief summary of the offending. I see no need to set out the full sentencing facts in these my reasons. That quite lengthy amended agreed document does that and I will sentence pursuant to it. It is conceded by your counsel that there are a number of aggravating features in this case.
14You have to this point spent no time in custody. I adjourned the matter from 21 February to obtain a Community Corrections Order assessment as well as Justice Plan materials. They have been received and I have marked those as an exhibit and your counsel has made submissions as to those materials and the physical health issues which persist.
Impact
15No impact statements have been placed before me. It is difficult then to make any assessment of there being any long-term impact occasioned here. I am not free to guess about those sorts of things. No doubt the two girls who were groomed or their family have suffered some impact. After all, you sent an 11-year-old girl a photograph of your penis and you were making all manner of lewd suggestions. Thankfully, her parents were on the ball. Thankfully you did not meet. You wanted to and were plainly grooming her and her sister. You had no business at all in contacting any of the other girls either. Indeed, you were specifically prohibited from doing that without reporting that contact.
16I take into account the impact of your crimes as I am required to.
In Mitigation
17Your counsel, Mr Barreiro, relied upon detailed written plea submissions that were dated 17 February 2023. Those written submissions went to many areas including your family background. Of course, I am well familiar with your background owing to my past involvement as the sentencing Judge back in September 2020.
18Mr Barreiro made submissions as to the relevant sentencing purposes in play in this case and the relative seriousness of the offences. He made submissions as to your prospects of rehabilitation and the risk of reoffence.
19He placed before the Court a lengthy report from a psychologist, Mr Simon Candlish, as well as two reports or letters from your treating specialist Dr Tim Elliott. An additional more recent report from Dr Elliot from February of this year was also filed as well as a brief letter indicating an appointment for a colonoscopy due to take place tomorrow. Mr Barreiro filed those additional brief written submissions dated 17 April dealing with this new material as well as making some submissions about the reports that had been called for by the Court and received.
20He also relied upon three-character references as well as a newspaper online article pertaining to the original sentence.
21In fact, Mr Barreiro had conducted a portion of the original plea for which I placed you on the Community Corrections Order back in September 2020. He was present when I sentenced you. He conducted a comprehensive plea on your behalf in relation to these fresh matters that I am now dealing with. He relied upon a number of matters in mitigation. They were the following:
·Your early guilty plea in the midst of the global pandemic;
·I took him to be suggesting that there was the presence of at least some remorse here as well;
·He relied upon your relative youth;
·Three of the limbs from the decision of Verdins[8] (Limbs 1, 3 and 5);
·The delay in the laying of the charges, and hence, in the finalisation of this matter;
·An increased burden arising from your physical health issues; and
·The impacts of COVID-19 upon any custodial experience should that be your fate.
[8] R v Verdins [2007] VSCA 102; 16 VR 269; 169 A Crim R 581 ('Verdins')
22It must be said that an examination of my lengthy sentencing remarks from 2020 will disclose the striking similarity in relation to the matters now relied upon in mitigation on this plea.
23He argued that it would be open to deal with you by way of taking no further action on the breach. Failing that, he argued I might deal with you by way of a recognisance to be of good behaviour in any resentencing exercise. As to the State matters, though accepting the gravity of the offending and the obviously troubling nature of the chronology, he argued and continued to argue today that it would be open to deal with you once again by a standalone Community Corrections Order. Failing that, a combination type order. So, a prison term with your ultimate release from prison onto a suitably conditioned Community Corrections Order and failing that a head sentence and a non-parole period.
Prosecution
24The State prosecutor, Ms Zammit, argued on behalf of the Director of Public Prosecutions that the last-mentioned disposition was the only available outcome here, that is a head sentence with a non-parole period. The Crown argued that the offending was just too serious. So too the chronology of offending. The State offending had occurred in the currency of the Community Corrections Order for a similar style of offending. That was a matter of aggravation. There had been, the Crown argued, an escalation. You had communicated with six girls; you had groomed two and in a serious fashion. The State Director argued that neither a Community Corrections Order nor even a combination type sentence was open in this case. They placed before me a detailed chronology as well as some written sentencing submissions marked as Exhibit B. They challenged the application of the first and third limbs from that case of Verdins that you heard mentioned.
25I have indicated already that on the Commonwealth matter, that the Commonwealth prosecutor submitted that it would be open to the Court to impose a monetary penalty and I have referred already to the written submissions that were marked as part of Exhibit CDPP-A as well as the additional submissions that were made earlier this morning.
26I am not bound by any submissions made by any of the parties as to sentence. I have to exercise my own sentencing discretion having regard to the various principles of sentencing and obviously paying due regard to any submissions made to me and taking into account the various materials placed before me.
27On the last date, I called for a Community Corrections Order assessment and a Justice Plan report and those documents have now been received and also marked as an exhibit. I went to some lengths to tell you on that last occasion that my calling for those reports did not in any way guarantee that you would be placed on such an order. I told you that you should take no comfort from my calling for those reports and I meant what I said.
Background
28I will discuss the various submissions shortly. I want to turn firstly though and pretty briefly to your personal background. There is a large amount of material before me as to your background. It is referred to in the report of Mr Candlish as well as in the written submissions of your counsel and to some extent even in your mother's reference. I have also dealt with you before and I refer to my coverage of your background in my original sentencing remarks in paragraphs 15-20. There is no point in my just repeating it all again. Of course, since I first saw you, you have grown older. You are now 24 years of age. You mother is still very supportive of you and has attended every hearing. Your grandmother was also very supportive, but sadly, she is now deceased. You have a younger brother. Your parents separated when you were young. You have a mild intellectual disability. You always have. In my original reasons I explained what the word ‘mild’ meant and did not mean when applied to intellectual disability. We are not talking about something that is trifling or minor. Not at all. Schooling was not easy for you. You finished up at St Patricks College in Ballarat and there was a fair bit of bullying at school. You have had significant physical health issues arising from Crohn’s disease or ulcerative colitis. The precise diagnosis is not critical at all. The symptoms have been sizeable and debilitating. There is the report and the letters of Dr Elliot in that regard and I was told in February this year at the resumption of the plea that there were to be further investigations and that it was not too uncommon for there to be ‘flare ups’ in your conditions. There is the updated report from 21 February of this year raising that issue of these ongoing investigations, with the colonoscopy due to take place tomorrow.
29On the employment front, you have had only brief employment as a basketball referee and you very much enjoyed that work but that came to an end obviously following the 2017 offending.
30You still live with your mother.
31You have that short criminal history containing only the original offence for which I placed you on the Community Corrections Order. That offending occurred when you were 18 years of age and is summarised in the original summary and my reasons.
32Since I saw you in September 2020 and then passed sentence on that date, I have monitored you on a number of occasions. As I mentioned earlier in these reasons, regrettably, you offended within days of my order starting and continued to do so even in the face of strong warnings from me both at the time of sentence and even at the time of the first monitoring in December 2020. Of course, otherwise your performance on the Community Corrections Order was very good; that is if we leave out of the equation the fact that you were not open in the October 2020 assessment where you said you had ceased all social media use and we leave out of the equation the fact that you must have in one shape or form deceived your mother by using a device when you were not free to. The breach report placed before me which is part of Exhibit CDPP-A (the breach package) spells out your level of compliance otherwise with the order. However, as I said a moment ago in the course of discussions with the parties, it has a quite strange ring to say as your counsel did that your performance on the order was exemplary but for the offending. That is a very big ‘but for’. The offending was very serious. It is of a similar nature bit more serious than the offending for which you were placed on the original CCO. That Community Corrections Order was designed to lead you away from offending. You, for whatever reason, chose to re-offend within days, in the currency of the order and you well knew that what you were doing was both wrong and illegal, of that I have no doubt at all.
33I take into account your background.
Guilty Plea
34Let me turn then to some of the matters in mitigation raised on your behalf. The first of those matters I will turn to is your guilty plea. It was a plea at what I will treat as an early stage.
35You have in this way, taken quite early responsibility for your crimes. As a result of your plea, the time, the cost and the effort of a contested committal hearing in the Magistrates' Court and a trial up in this court has all been avoided. Witnesses have not been required to actually give evidence. Giving evidence can in fact be a stressful experience. Often it is. The witnesses have at least been spared that experience and of course many of them would have been children.
36You have facilitated the course of justice in these various ways and this must be adequately reflected in the sentence to be imposed by the court.
37Your guilty plea is worthy of extra weight for the many reasons set out in the decision of Worboyes v The Queen.[9]
[9] Worboyes v The Queen [2021] VSCA 169;
38In the course of the global pandemic, a very large backlog of cases has arisen. Your case is not part of that backlog. In fact, it was not from very early on. It settled swiftly enough. So, I take these various matters into account in mitigation.
Remorse
39I do not recall your counsel making any specific submission about the presence of remorse but I took him to be suggesting that remorse can be implied from your guilty plea. There is also reference to the presence of remorse in some of the other documents filed on your behalf. I am prepared to find that your guilty plea implies that there is some level of remorse. I take what I view as pretty limited remorse into account in your favour.
Rehabilitation and youth
40I turn then to consider your prospects of rehabilitation. I dealt with this issue in my original sentencing remarks from paragraphs 28 to 38. Back then I connected up those prospects to your youth and that is still the position to a degree, though of course you are older now and you have offended whilst on my order. You were 18 when you committed the earlier offence and with no prior criminal history at all. You were 21 when you committed the fresh offences and you were on the Community Corrections Order. The evidence from Mr Candlish speaks of a not insubstantial risk of reoffending. There is still, to some extent, a level of lack of insight. You have a number of conditions that your counsel says have a realistic connection to the offending and I will turn to those Verdins' submissions in due course. However, in so far as you have these conditions, they are part of your make up. You have a deviant attraction to underage girls. You are still, it seems to me, a decent way shy of admitting that. You denied that in fact in earlier discussions with Dr Ball but the evidence is clear now. The reasons for that attraction are spelt out in Mr Candlish’s report. There are a number of contributing features including your intellectual disability. It is very hard to disentangle the impact of one condition over another. However they are features of your make up.
41I am satisfied beyond reasonable doubt that you knew what you were doing was both wrong and illegal and a serious breach of my order. You have family support and that is a good thing but you always have. The risk of re-offence is high enough here. I have you buckling down under the Community Corrections Order and complying with requirements of the order in terms of unpaid work and various other attendances. I have Mr Candlish’s recommendations for ongoing treatment and the things that need to be done.
42You are still young enough and of course were younger still at the time of this fresh offending. Your relative youth is still of importance to my task. I take into account those principles as set out in cases such as Mills[10] and Azzopardi[11]. Young people, even when fully functioning, are not fully developed and they can make very poor decisions without necessarily considering the consequences. They are viewed generally as being more amenable to successful rehabilitation. Youthful offenders are also far more vulnerable to the corruptive influences which abound in adult prisons. Your counsel referred me to the observations of Redlich JA.
[10] R v Mills (1998) 4 VR 235 (“Mills”)
[11] Azzopardi v The Queen [2011] VSCA 372 (“Azzopardi”)
43As I told you back in September 2020, the law generally treats youth as involving some reduction in culpability and as leading generally to some moderation of the punitive purposes of sentencing including the need to deter and to punish. There is generally, a stronger focus on rehabilitation and less weight devoted to punishment. The successful rehabilitation of a youthful offender actually serves to protect the community. Investing in rehabilitation actually serves not just the offender but the broader community as well and that is because a rehabilitated offender is not a threat to anyone. A prison term imposed to satisfy some of the other purposes of sentencing including punishment and deterrence can often enough even set back the rehabilitative prospects of a youthful offender and in that same way, impact negatively upon the broader community itself. I mentioned back in 2020 when I sentenced you a then recent paper released by the Sentencing Advisory Council dealing with the complexities of sentencing young adult offenders. This was the paper 'Rethinking Sentencing for Young Adult Offenders' (Sentencing Advisory Council, 3 December 2019). Your counsel referred in his current written submissions to some recent observations of the Court of Appeal in a matter of Buckley[12] about the ramifications of youthful offenders being sent to prison.
[12] Buckley v The Queen [2022] VSCA 138
44Prison is always a disposition of last resort for any offender, whether young or old. The benchmark for sending a youthful offender to prison is understandably a high one.
45However, the weight to be given to youth will necessarily vary from case to case. Regrettably, sometimes there is no choice but to send a youthful offender to prison. The more serious the crime the less weight can be given to youth and to rehabilitation and the more weight given to other purposes including community protection, deterrence and punishment. I do not lose sight of your youth in my task but you are no longer a youthful first offender. You were not some teenager committing his first crime as you were on that last occasion when I dealt with you. You were 21 years of age and committed these serious crimes quite deliberately whilst on a Court order that you were most fortunate to receive. I warned you very explicitly about the ramifications of any future offending. So youth, though still of importance to me, has less weight in my task. It is pretty clear to me that your youth and personality make-up would to a degree increase your prison burden. There is just no question in my mind about that.
46I am not able to reach the same view as to your rehabilitative prospects which I pronounced back in September 2020. The chronology of offending and the report of Mr Candlish cause me to downgrade those prospects to a degree. Your counsel accepts that this is open to me. In fact, Mr Barreiro was not flinging about any extravagant adjectives to describe your future prospects. He asked me ultimately to find that you had some realistic prospects and I am prepared to accept that this is so. There is also a sizeable enough risk of reoffence as is made clear by both the chronology and also by the report of Mr Candlish. Ongoing treatment is of obvious importance and may reduce your future risk.
Delay
47Your counsel briefly mentioned the delay in the proceeding. It was not a big point made on the plea. The reasons for the delay are explained to some extent in the written Crown Submissions as well as in the chronology of the case before the court. You had made a no comment interview as was your right, though necessarily then, the police had to engage in a full investigation and did so during the COVID-19 pandemic. There were a number of listings once you were charged. The point made being made by counsel is that you stayed out of trouble in the period leading into the laying of the charges, as well as the period since then, and that you had engaged appropriately in the Community Corrections Order up until its expiry. I take those matters into account in your favour. It is relevant to my assessment of your future prospects though I note that the same thing was raised leading into the sentencing exercise back in September 2020.
COVID-19
48I turn to the issue of COVID-19 and its impact upon you should you be sent to prison. That barely raised a murmur on the plea and was only mentioned briefly, when I raised it. I accept that there are still some issues thrown up by COVID-19 upon serving prisoners but most of the significant impacts have been removed or eased. It is not a matter of any great weight here to my task.
Increased burden; physical health
49Of far more significance in your case is the increased burden arising from the physical health issues which have plagued you over the years. I do not doubt that the physical health issues would increase your prison burden for the reasons I announced back in 2020 in paragraph 47 of my reasons. I have the up-to-date report and the other letters that have previously been placed before me in February and it is plain that those health issues will not simply go away. Your counsel referred to the issue at paragraph 11 of his original written submissions, as well as in his most recent written submissions dated 17 April, and there has been some brief discussion of this issue this morning. I do accept that the increased burden exists in this case. There is however no reason for me to doubt that your condition can be adequately managed and investigated in prison. I am sure it can be. You would presumably have to engage with new practitioners and no doubt that would take a bit of time and it would be a bit disruptive to you. You had these health issues when you committed the original offence and when I first sentenced you and when you chose to commit the fresh offending. I give some weight to this increased burden posed by your physical issues but your health concerns really cannot drive this sentencing exercise.
Verdins
50I turn then to the Verdins arguments. Your counsel raised the application of Limbs 1, 3 and 5 from that decision. The submissions were not purely reliant on the intellectual disability spoken of. Rather there was the disability, social withdrawal, anxiety and immaturity. So there are a collection of personality traits in combination with the intellectual disability which are said to enliven these limbs. That case that I have mentioned, and you heard it discussed, relates to the impact upon the sentencing process of mental health conditions existing either at the time of the offending or sentence or both for that matter. That is something of a simplification of that decision. So in this case, there are problematic personality traits (see paragraph 47) and signs of personality impairment (paragraph 55). You have obvious problems with empathy, self-direction and interpersonal functioning (see paragraph 56). You meet the criteria for a mild personality disorder over and above the intellectual disability which you undoubtedly labour under. You now meet the criteria for paedophilic disorder. You meet the criteria for social anxiety disorder and Mr Candlish tries to explain the cause of the paedophilia. Young girls are evidently perceived by you as being less judgemental or threatening. Your personality issues and your cognitive impairments have likely had some role to play in limiting your ability to manage your deviant interest and in this deviant attraction. You are socially and emotionally immature. You have distorted attitudes, impaired consequential thinking and poor empathy. Your counsel argues there is an interplay of a variety of factors all able to be modestly recognised pursuant to the Verdins/Brown[13] principles.
[13] Daylia Brown v The Queen [2020] VSCA 212; 62 VR 491
51The Crown did accept there was an increased burden posed by these conditions. However, they challenged the application of the 1st and 3rd limbs and argued there really was no realistic connection. Whatever might be said of these conditions including your intellectual disability, the State Director argued you were not acting impulsively in this offending. The Crown argued that you were acting with clear knowledge of the unlawfulness of your actions and you were taking direct steps to avoid your conduct coming to light including counselling secrecy. The conduct did not occur on a single day. You had also misrepresented the position in October 2020 when you claimed you had ceased all social media use. You must have secretly obtained a device and then another when the iPad was seized to engage in this behaviour. The Crown argued that you knew it was both wrong and criminal and that you had the ability to not engage in such conduct as evidenced by the periods leading into the last sentencing exercise in 2020 and the periods since March 2021 which was the end date of this offending I am dealing with. You had in October 2020 evidently displayed appropriate insight into the wrongfulness of your past conduct. Yet you continued to engage in similar conduct and you did so in the face of very direct warnings. For these reasons, the Crown argued that it was hard to see how your moral culpability could be reduced or that there should be any reduction in the weight given to general deterrence.
52Well, the application of these Verdins principles is not dependent upon establishing a lack of knowledge about the unlawfulness of the conduct. Your knowing that what you were doing was wrong and against the law is no impediment to the application of these principles. In terms of Limb 1, I need to be satisfied on the balance of probabilities there is a realistic connection between the conditions relied upon and the offending. It is then a matter of what weight to afford to Limb 1 and your counsel was not suggesting it is a large reduction in this case. He argued in fact that there should be a modest reduction in your moral culpability and appropriate moderation of the principle of general deterrence. The Limb 3 argument seems to be based on the intellectual disability at least in the written submissions (see paragraph 23). The Limb 1 argument was based on the combination of matters raised in the report (see paragraph 24 off the outline).
53As I have said, the prosecution whilst not challenging the existence of the intellectual disability, seemingly were challenging the application of Limbs 1 and 3 of that case.
54Well I have considered the matter and I reject the Crown's submissions in this regard and now explain why I take that view.
55I dealt with the Verdins considerations in the last sentencing exercise at paragraphs 38-46 of my reasons but of course that was on the basis of other materials then before me. That report of Dr Ball raised more questions than it answered. I have mentioned already in this case, I have the report of Mr Candlish. It is a very lengthy report and I do not see any point in descending to great detail in my reasons as to what is contained within it. I have already mentioned some of the matters.
56You undoubtedly have a mild intellectual disability. That is not in dispute. You have had that throughout your entire life. You plainly function at a very low level.
57I said on the last occasion and I have mentioned already today, there is nothing mild or minor about having a ‘mild’ intellectual disability. You have significant deficits in functioning with the vast majority of people in the community performing at a superior level to you. The statements received under the Disability Act speak of your significant deficits in adaptive behaviour and your significant sub‑average functioning.
58I accept that Limbs 1, 3 and 5 of the decision of Verdins do have application to my task and I am satisfied of that on the balance of probabilities. I am satisfied on the expert materials before me here that there is a realistic connection between your conditions and the offending such that there can be some reduction in your culpability. Further that you are not an ideal vehicle for the full weight to be given to general deterrence and I have no doubt at all that your conditions would increase the burden of imprisonment. The evidence goes in only one direction on that score. It is then, as it always is, a matter of what weight to give to these matters. That depends on the nature and the effect of the conditions.
59I accept your counsel’s submission that there can be some modest reduction in your moral culpability.
60I have said already; you knew what you were doing, you knew that it was wrong, you knew that it was illegal. I am satisfied of those things beyond reasonable doubt.
61You were relatively young yourself, you were immature and with the intellectual disability and other personality traits and disorders combining with each other. There was obviously a slyness to the communication such as you must have secretly got hold of the device and you were counselling secrecy to those you were communicating with. I mentioned in the course of discussions on the last occasion this notion of ‘cunningness’ but on reflection, perhaps that word was not apt. The email addresses had your name or a variant of it. There is nothing too cunning in any of that.
62As I said on the last occasion I sentenced you, some of the communications in this case have an odd and naïve tone to them and they demonstrated very little understanding of the formation of a relationship or the social niceties or rituals in that respect. Asking an 11-year-old girl to be your girlfriend amidst the sending of the lewd messages or asking for a meeting in a fast-food restaurant toilet to have sex. It was not impulsive behaviour but there is an oddness to your tone betraying yet again a complete lack of understanding of interpersonal relationships and how they might take shape and develop.
63Your intellectual disability in combination with your level of immaturity and the other matters relied upon going to your personal make up and disorders in personality does have a realistic connection to the offending. I do not doubt that it would impact to some degree upon the exercise by you of appropriate judgment.
64There is no basis to allow for substantial reduction in your moral culpability here and that is conceded by your own counsel. So I will still give the first limb some weight. I do not believe that there should be significant reduction in the weight to be given to general deterrence. I accept your counsel’s submission that there can be some moderation of that purpose. He conceded that it is not eliminated here (see paragraph 23 of the outline).
65So I give the third limb some weight as well.
66I have no doubt at all that there is an increased custodial burden arising for the reasons advanced in detail by Mr Candlish (see paragraph 93). Some of those matters are amenable to the 5th limb of Verdins. You are a highly vulnerable person for a variety of reasons including your intellectual disability, your age, your emotional and social immaturity and your social anxiety.
67So, in summary, I give some weight to the first, third and fifth limbs from Verdins decision, consistent with your counsel's submissions to me.
68However, the Crown’s alternative Verdins submission found at paragraph 28 of their written outline also is made good. It is often overlooked but it was not in this case by either party, that matters dwelling in a person’s make-up that have a realistic connection to the offending may also increase the risk of re-offence. Plainly that is so here and Mr Candlish recognises that fact when dealing with your risk of reoffence. Your intellectual disability is static. There may be programs and courses which might reduce your risk and he mentions some of those but the various matters relied upon to attract Limb 1 of Verdins undoubtedly have a role in increasing the risk of fresh offending and the need for the due consideration of community protection in this case.
General
69Let me then turn to some general matters. I am required to take into account a large range of matters, including things such as the maximum penalty and the nature and the gravity as well as the impact of your crimes. The principles for sentencing in relation to this sort of matter are not seriously in dispute. The Court of Appeal in this State has frequently commented on the seriousness of sexual offences targeting children and the strong public interest in protecting children. These provisions exist to protect children from the considerable harm that might be done to them by communications from those adults seeking sexual involvement with them. It is a serious crime and that is so even if no sexual act occurs. The seriousness of the grooming offence is not to be underestimated. This was unmistakably serious offending and that is directly conceded by your counsel (see paragraph 22). Grooming is an inherently serious offence. So too by the way breaching your obligations under the Sex Offenders Registration Act. The two victims of your grooming lived in your local area. This was not ‘pie in the sky’ stuff in terms of ever meeting. You were wanting to meet them and the reasons are clear. You knew they were children. You knew you were on a Community Corrections Order with a requirement that you not offend and you were being monitored by me. You had obligations under the Sex Offenders Registration Act and you were willing to breach them as well. These were real girls. The language in the grooming was explicit and in the case of Natalie, an 11-year-old girl, you sent her a photograph of your penis. You requested photos be sent to you and made numerous requests for a meeting with Natalie. You counselled secrecy. You, an adult, wanted other adults cut-out of the equation. It is not as simple as saying, as Mr Barreiro did, that you were bound to be caught. You were not, actually. Even if that were true, caught at what stage? You were grooming these two girls and as a matter of luck the parents were alerted to the conversation but not before some photographs had been sent back to you. Not before you had suggested meetings and places to meet. Had you not been interrupted, what next? You wanted to meet and for sexual activity. So much is admitted by your plea. All of this in the face of some of the mothers of the girls or the girls even the subject of Charge 1 telling you in no uncertain terms to desist. You just moved to the next girl even in the face of a threat to contact the police. This was serious offending indeed. It was persistent and targeted. Charge 2 is the most serious of the offences. It is no minor example of the crime of grooming by any stretch of the imagination. Despite police attending and executing a search warrant at your home and seizing the iPad on 19 November 2020, despite the words of my sentencing remarks only months before, words you had ignored within five days, despite attending the judicial monitoring on 17 December 2020, you then communicated with yet another girl on 12 March the following year. The offending and chronology of offending is serious.
Purposes
70I have to consider a number of purposes of sentencing. I must pay regard to your prospects of rehabilitation. You have realistic prospects but undeniably there is a tangible risk of reoffending.
71Sentencing is not just about you and your prospects. If it was all about you and what is best for you, it would be a much simpler task. But it is not. There are other purposes of sentence at play and other things which I must take into account. Your counsel recognises the strong pull of purposes that militate towards your being imprisoned. I am required to punish you for your crimes. Well, punishment is an important sentencing purpose in this case. I have to do that justly and proportionately. Community protection is of obvious importance here. Again, you have targeted young girls and done so whilst on a serious court order and in full knowledge of how illegal your conduct was. I obviously must consider the need to protect the community from you. It is no minor consideration at all in my task.
72I must also denounce your conduct and of course that is an important purpose of sentencing as well.
73I must also give appropriate weight to specific deterrence. By that, I mean the need to deter or dissuade you from offending in the future. That is of real significance here, given the serious nature of the offending and the troubling chronology I have spoken of.
74Then there is general deterrence which is still an important purpose of sentencing in this case. I say ‘still’ and that is because there is some moderation owing to the 3rd limb of Verdins. General deterrence involves the need to deter other future potential offenders. This court is required to send a message to others in the community who may consider this serious style of offending. They must be deterred or dissuaded from offending. It is far from eliminated as a purpose here.
75I must also pay regard to current sentencing practices. It is not a single controlling factor. I have looked at the Sentencing Advisory Council online statistics for this type of offending the subject of the State indictment.
76However, sentencing is not a mathematical or a statistical task. No amount of looking at other cases and no amount of looking at statistics can ever provide the answer to my task. Other cases are not precedents and there is no such thing as one correct sentence to be imposed.
77Statistics omit all of the relevant matters both in aggravation and in mitigation, the very things which would actually explain a particular sentencing outcome. Statistics are numbers on a page and they tell me next to nothing about either the offence or the offender represented in that data.
78Well, I am exercising a sentencing discretion in your case but I must take into account the matters in aggravation and in mitigation in your case. Things that are known to me in this case. The things really that I have been dealing with in these reasons to date. Statistics do not drive my task, nor other sentences imposed upon other offenders for other crimes.
Totality
79I must pay regard to the principle of totality of sentence. I have taken a last look at the overall effect of my orders, to ensure that the overall effect of the sentence is commensurate with your overall criminality. Plainly there is a temporal link between the offending. With the exception of the last communication in relation to Charge 1, these offences were committed within a few months of each other. However, of course they involve different girls and different conduct.
80
Prison is always a disposition of last resort for any court. I have said that now more than once and that is so whether I am dealing with a young person, a
middle-aged person or an elderly person. Whether a person has got significant prior history or none. Prison is always a disposition of last resort.
81Mr Barreiro, whilst accepting the serious nature of the offending and the deeply troubling aspect of the chronology, argued that the last resort of prison was not reached here and that you should be given a final chance to avoid that destination. He argued instead that a suitably conditioned Community Corrections Order with a Justice Plan could achieve all the various purposes of sentencing whilst at the same time avoiding the deeply corrupting influence of prison upon one such as you. The things he spoke of in paragraph [31] of his original outline. He argued that your prospects of rehabilitation were not illusory but they might be significantly eroded, if not lost for all time, should you be sent to prison. Well, a similar submission was put to me back in 2020 and I gave you a chance and we know that you have placed yourself at the very brink of a sizeable prison term. For ordinarily, this style of serious offending will be met with a prison term of some substance.
82I have had you assessed and, as I said earlier, I warned you and your family in February to take no comfort from my calling for those reports. I wanted the opportunity of considering the various submissions that had been made to me and the materials that had been placed before me as well as considering the reports when they came back.
83I have now received back those reports. Unsurprisingly you are suitable for a Community Corrections Order. Can I really admit you to one in the sound exercise of my sentencing discretion? The Crown said no on the last occasion and repeat that submission today. They say that such an outcome, a standalone Community Corrections Order, falls outside the range of available sentences owing to the seriousness of the offending and the chronology that I have recited. That a head sentence and a non-parole period is the only available sentencing outcome in this case.
84As I did on the previous occasion back in September 2020, I have thought long and hard about this issue. How could I not be most troubled by the chronology of offending? I am very troubled by the speed with which you set about offending within days of my previous order being explained to you by me. I am troubled by the serious nature of your offending and the number of girls you were communicating with and your preparedness not to report the matters you were required to report under your obligations pursuant to the Sex Offenders Registration Act. The chronology is not your friend in this case, that is for sure. I said a moment ago that ordinarily a person will be confined when brought before the court for this style of serious offending. That is a very common outcome. I have only adult prison at my disposal given your age but of course I am not sentencing you according to some template. Sentencing is complex. It does involve a consideration of the individual details of the case. That is why it is so hard. The details of the offence and the offender, and a consideration of the matters in aggravation and mitigation and the way the purposes of sentencing must be reflected in the individual particular case. There is no predetermined starting point or end point for that matter, so statements as to what is the ordinary outcome do not dictate the actual outcome.
85You are still a young man with only that one prior appearance and with obviously very decent periods where you have abstained from offending. You were and still are immature, emotionally and socially. You are intellectually disabled. I have no doubt at all that prison would be extremely difficult for you. You are clearly a person with some realistic abilities to rehabilitate. You still have support in the community. Of note is the fact that the offending occurred in the early phases of the Community Corrections Order and prior to treatment and programs really kicking in and thereafter you attended counselling and programs. There are many treatment recommendations made by Mr Candlish and by the authors of the Court ordered reports.
86I do not ignore the submission made on behalf of the State Director of Public Prosecutions as to the need for a term of imprisonment here with a head sentence and a non-parole period. However, having considered that submission, having considered the matters leading into today's date including the matters that have been raised today, I just do not accept that submission. My sense is that taking a step such as that would likely be most counterproductive. Not just to you but also to the community more generally. As I sit here today, I do not view your prospects of rehabilitation as being fanciful or illusory. I have no doubt at all that prison would be a most corruptive environment for you and I hold a fear that the opportunity for rehabilitation might well be lost or at least very significantly impacted should you be sent to prison at this point. Prison is a disposition of last resort but ultimately after much anxious consideration of the materials, I believe that a suitably conditioned Community Corrections Order can achieve the various purposes of sentencing.
87So I will extend to you a final chance, Mr Cameron-Kiely, and that is what it is; it is a final chance. Do not breach the orders I am about to pronounce for if you do, let me be very, very clear; there are no more chances waiting for you in the cupboard. Do you understand?
88OFFENDER: Yes, I do, Your Honour.
89HIS HONOUR: Gaol would inevitably beckon for you.
Forfeiture
90Just bear with me. There is an application for forfeiture of the iPad. The application is not opposed and, in the circumstances, given the use made of that iPad, notwithstanding the mother’s ownership, I am prepared to make the order. I am satisfied that the conditions for the making of the order are made out and that the property referred to in the schedule be forfeited to the Minister. So I have signed that order under s33 of the Confiscations Act and pronounce that order in an abbreviated form.
91Now, this will take a bit of time. I think because it will take a bit of time, I am going to have you sit down. Grab a seat then for a moment. I will get you to stand later on in the proceedings.
92Before I do that, it will take a bit of time. How are you traveling? Do you need a break at all or not?
93OFFENDER: If that's possible.
94HIS HONOUR: Yes. I will give you a break. I will give you a break in one moment. I will just indicate what I propose at least from the Commonwealth's perspective because they will then have to prepare a document.
Commonwealth
95So what I intend to do is on the breach of the Community Corrections Order, I take into account the extent of your compliance with that Community Corrections Order and pursuant to s20AC(6)(b), I intend to resentence you. I intend to admit you to a s20(1)(a) bond to be of good behaviour for a period of 2 ½ years from today's date. The effect of that is it will keep that matter live before me for the next 2 ½ years. The only special condition is that you are of good behaviour in that period. If you are not of good behaviour in that period, of course you will be brought back for breach of that order and of course that would likely lead to a term of imprisonment on that Federal matter.
96Is there anything more I need to say in terms of that intended disposition to shape it, Ms Akin, or have I said sufficient for your purposes?
97MS AKIN: No, Your Honour. That is fine.
HIS HONOUR: So you will prepare that and if that can be prepared, I will give Mr Cameron-Kiely a bit of a break, all of you a bit of a break actually, and I will come back onto the Bench and indicate then what I intend to do in terms of the State matters. It is going to be a standalone Community Corrections Order though with a variety of conditions. So I think for the moment then I will stand down. I will come back onto the Bench at about 12 o'clock, all right?
(Short adjournment.)
98HIS HONOUR: Yes. Thank you. All right. Well, I have already indicated then what I intend to do in relation to the Commonwealth matter that has you back before me. Let me now deal with the orders that I propose in relation to the five charges on the State indictment.
State
99On Charges 1-5 on the State indictment, I intend to convict you and I am going to admit you to standalone Community Corrections Order. So I am not sending you to prison and then have you released onto such an order. You are immediately on this order. So it will be for a 2 ½ year period. Now, as it occurred on the last occasion, I can only do this if you consent. I am assuming you will consent to this order but I will ask you in due course, not now but once I have told you what the order involves. Let me spell out the nature of the order. That I have already indicated; it is 2 ½ years, it runs from today's date.
Mandatory terms
100Well, you may or may not recall but when I dealt with you back in 2020, I told you that all these orders have what I described as mandatory terms. Well, this one does as well. It has got the same mandatory terms as the last one. The first of those is one that you very swiftly breached and that is you must not commit another offence for which you could be imprisoned for the next 2 ½ years. Breach that, commit any offence for which you could be imprisoned, we will meet again.
101You must report to and receive visits from a Community Corrections officer.
102You must report to them within two clear working days and you will have to get down to the Community Corrections Services Centre at Camp Street, Ballarat, the address is on the document, so too the phone number. You have got to do that within two working days. Get down there tomorrow.In fact, there is a phone number there. You are probably best to ring them first to clarify whether you attend in person or not. They will give you the heads up on that but that is what you have got to do. Report within two clear working days.
103You have got to let them know within two clear working days of any change of address or job.
104As you know, you must not leave Victoria without first getting permission to do so from the Corrections officer. I think I saw reference in one of the documents to the fact that you had been allowed to leave at one point because you had been doing so well on the order. So I am not saying they will not give you permission but you do not just get up and leave. You get permission and then you can leave but if you do not get permission and you just get up and leave, you breach the order.
105You must obey all their lawful instructions.
106So they are the mandatory terms that applied on the last occasion. They apply now.
Special conditions
107Then there are the tailored conditions. The first of those is going to be unpaid work and that is unmistakably punitive. It is one of the tools that I have to ensure that this order can actually achieve the various purposes of sentencing. You must perform 375 hours of unpaid community work over the period of the order. That is over 2 ½ years. However, unlike on the previous occasion, on this occasion any hours that you put towards treatment and rehabilitation will count as hours of unpaid work as well. So you will get credit in that respect which is recommended to me by the author of the report.
108You are going to be under supervision of a Corrections officer for the next 2 ½ years.
109You must undergo any mental health assessment and treatment and that includes all sorts of other things that are mentioned in the order but what it amounts to, any mental health assessment and treatment as directed by the regional manager.
110You must participate in programs or courses that address factors relating to the offending as directed by the regional manager including a sex offenders program.
111Then there is the Justice Plan; you must participate in the services specified in a Justice Plan for the 30 months, the 2 ½ years.
112Listen to this condition very carefully. You must not - you must not - use Instagram, WhatsApp, TikTok or any social media platform or the internet to communicate with or attempt to communicate with any person under 18 years of age.
113Now, no doubt I could have sat up here and with the assistance of someone who knows more about these things spelt out about 50 or 60 social media platforms. I have not done that; instead though what I have done, I have dealt with Instagram, I have dealt with WhatsApp, I have dealt with TikTok, I know you have used Instagram and WhatsApp illegally on these occasions either this time or the previous time but I have incorporated a broad concept; or any social media platform or the internet to communicate with or attempt to communicate with any person under 18 years of age. Do any of those things, you are in an immediate breach of this order and do not expect any further chances.
114Then I have already said you must participate in the services specified in a Justice Plan. There will be a specific condition, 'You must follow the Justice Plan recommendations dated 12 April 2023, namely' - and then I simply set out the various conditions, 'to engage with the Disability Justice coordinator from the Department of Families, Fairness and Housing for the duration of the order, participating in further planning as required, accept and participate in any supports and treatments that are identified by Disability Justice coordination, participate in a referral to the Forensic Disability Clinical Services team and participate in the assessment process and any offending behaviour programs as recommended, participate and accept a referral to the Forensic Disability Services for emotion regulation as recommended by Mr Candlish, consultant psychologist, Prahran Medical Clinic and attend an appointment with your general practitioner and agree to a referral for a mental health care plan and engage with mental health services.
115So that is the full suite of mandatory terms and tailored conditions. I am not going to monitor you. I have monitored you for two years. I monitored you from when you were 21. You are 24 years of age now. I am not going to monitor you. If I see you again unless it happens to be strolling around the streets of Ballarat, it will be in a court and it will end with you being sent to prison if you breach this order. Do you understand?
116OFFENDER: Yes, I do.
117HIS HONOUR: So I have considered whether I should continue monitoring. I will not.
118I have probably spelt out pretty directly there the ramifications of breaching this order but if you commit any offence punishable by a term of imprisonment and these days virtually every offence is, you breach this order.
119There is no reason for me to think you will not comply with the various other mandatory terms or for that matter the conditions because you have in the past but if you fail to comply, if you will not do what you have agreed to do, you will be breached.
Sex Offenders Registration Act2004
120Now, you are going to be on the Sex Offender Registration. That is going to be for life and I will tell you about that in a moment. It was previously for eight years. You breach any of the terms of the Sex Offenders Registration Act, that is punishable by term of imprisonment, that will breach this order as well, all right? It will also breach the Commonwealth order as well by the way.
121
So any offending at all in the next 2 ½ years, we will meet again. Any
non-compliance, we will meet again because it will be me that you will be meeting. We deal with our own breaches as I am dealing with the Commonwealth breach today, I will be dealing with you, if you are foolish enough to breach this order.
122At the last occasion, I explained the Community Corrections Order in great detail. Within I think, five days of that explanation, you were off committing fresh offences. Well, maybe you did not listen, maybe you did, I do not know but do not expect that you will get a third Community Corrections Order from me. That is just not what happens. You got the first one back in September 2020 as against the Commonwealth Director arguing that a term of imprisonment was required but one where you could immediately released. I placed you on a Community Corrections Order. Today, the State Director of Public Prosecutions argues and for that matter may continue to argue that you should be receiving a term of imprisonment with a head sentence and a non-parole period. In other words, something greater than 12 months in prison. For the reasons that I have announced, I believe that a suitably conditioned Community Corrections Order can actually achieve the various purposes of sentencing.
123I cannot say exactly what I will do if you breach this order, because I would need to do exactly what I have done in the currency of every other hearing where I have dealt with you. That is listen to the submissions that are made, act on the materials placed me before me by both sides and exercise my own discretion in light of those matters. Well, I cannot know in advance how I would deal with you. I would need to examine the extent of your compliance with the order. I would need to examine the nature of any sort of breach but let me make it very, very plain, if I have not already. You work on the hypothesis that you breach this order and you are very likely to receive a substantial term of imprisonment with a non-parole period. Do you understand?
124OFFENDER: Yes, I do.
125HIS HONOUR: I think I told you that I the last occasion and it did not stop you from offending. Hopefully, we never clap eyes on each other ever again but if we do, it will no doubt be in court and it will be because you have breached this order. Do not, do not come back to court with any expectation of getting a third chance from me, all right? Work on the theory that it will most likely end with you heading at a door down to a prison van and out to an adult prison to serve a substantial prison sentence. Do you understand?
126OFFENDER: Yes, I do, Your Honour.
127HIS HONOUR: All right. Just bear with me.
128Ms Akin, I was just looking at the terms of the s20(1)(a) recognisance as it has been prepared and what I had intended and whether it needs to be on the document itself or not I am not entirely clear but as it exists on our system, there are two matters and you seem to confirm this. There is the offence - there is the charge information dealing with the offence of breaching the order itself.
129MS AKIN: Yes.
130HIS HONOUR: That is a standalone offence, is it not?
131MS AKIN: Yes, Your Honour.
132HIS HONOUR: So I have got to deal with that. And then I have got to take such action as I choose to take in terms of the original order, right?
133So should there not be on the recognisance not just the use of the carriage service but also the failure to comply? It might be implied anyway, I do not know, but - - -
134MS AKIN: I will have to confirm, Your Honour. It was my instructions that it was only the original offence because the option selected was to revoke the sentence and - revoke the original order and resentence on the original offending which it was why it was included but - - -
135HIS HONOUR: But I am putting him on this recognisance order in relation to the original offending - the original charge as well as the offence of breaching it.
136MS AKIN: As well. Yes, I will confirm, Your Honour. If you just give me a moment.
137HIS HONOUR: Yes. I think my associate sent a document that would purport to contain that additional charge. See if that passes muster or not. If you think it does not, let me know why and - - -
138MS AKIN: No worries, Your Honour.
139HIS HONOUR: Grab a seat if you want to.
140MS AKIN: Thank you.
141MR BARREIRO: I received it, Your Honour.
142MS AKIN: Your Honour, I have just received updated instructions. It is that the charge - the breach charge being proven and the original sentence be revoked and the former CCO - so the former CCO be revoked and the s20(1)(a) bond be imposed which is the resentence. So it is only meant to have the first one that I have just included, that is - - -
143HIS HONOUR: Say it again.
144MS AKIN: So the original draft that I just sent through previously, I have been informed that that is the correct version.
145HIS HONOUR: Yes. But is it not my intention to - well, it is my intention but tell me if I should not be doing it but it is my intention to impose a s20(1)(a) recognisance in relation to both the original charge of using a carriage service to procure a person and also the charge before me today, failing to comply.
146MS AKIN: Yes, Your Honour. So the breach charge be found proven, that is correct, but also because you have gone with the option to resentence on the original offending, that is why only the original offence would be included. That is the instructions I have been provided.
147HIS HONOUR: Well, what sentence is imposed on the - - -
148MS AKIN: Which is the resentence that you have suggested is the bond.
149HIS HONOUR: I think our computer is going to spit out some nasty sort of - - -
150MS AKIN: That is the instructions I have been given, Your Honour.
151HIS HONOUR: Yes. Do I not need to have a penalty on the actual offence of breaching the order?
152MS AKIN: Not to my knowledge, Your Honour.
153HIS HONOUR: Sorry?
154MS AKIN: Not to my knowledge, Your Honour. Based on the instructions I have provided it is just to be found proven.
155HIS HONOUR: All right. Give me a second. So you say it should be done simply on the resentencing exercise under s20AC(6)(b), I have revoked the sentence and then I am resentencing on that charge with use of a carriage service to keep that matter live before me and on the condition he would be of good behaviour for that period.
156MS AKIN: Yes, Your Honour.
157HIS HONOUR: Yes. It is probably a template that you have used to prepare that, Ms Akin, and I am just looking at the reason the order has been issued because - then it sets out that he is charged with failing Federal offences for carriage service to procure a person, it sets out the details, 'The Court has convicted the defendant to the offence. (c) The court has decided to release the defendant without passing sentence on the defendant', and then it says, 'Complies with the conditions of this order'.
158So there is some sort of grammatical issue there.
159MS AKIN: I will just have a look, Your Honour, one moment.
160HIS HONOUR: I think it is, 'If he complies with the conditions of the order', but - - - I am just looking at s20(1)(a) in the actual Act itself and, 'The court before which he or she is convicted may, if it thinks fit: by order, release the person, without passing sentence on him with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he or she will comply with the following conditions'. So I think (c) probably should read, 'The court has decided to release the defendant without passing sentence on the defendant if he complies with the conditions of this order.' Does that make sense or not?
161MS AKIN: Yes, Your Honour, it makes sense but I am just following the template that we have and that is what is recommended over there. I am just seeking updated instructions to confirm that that is correct.
162HIS HONOUR: Yes. Well, the template cannot be correct I do not think.
163MS AKIN: Your Honour, I have just obtained instructions. So it is meant to say, 'The court has decided to release the defendant without passing sentence on the defendant if the defendant complies with the conditions of this order'. I apologise for that, Your Honour.
164HIS HONOUR: So without passing sentence on the defendant if he complies - - -
165MS AKIN: Yes, if the defendant complies with the conditions of the order.
166HIS HONOUR: If the defendant. Right. If he complies, that is all right, is it not?
167MS AKIN: That is fine, Your Honour.
168HIS HONOUR: Yes. All right. I am accumulating documents up here. That is that one.
169All right. Sorry about that. All right. Well, I have got those two documents in my hand. Let me just have another look at them.
170Again, just remain seated then, Mr Cameron-Kiely. So I have set out the full suite of or full list of sort of mandatory terms and the conditions of the Community Corrections Order. I think you understand that. I will ask you in a moment whether you consent to those. There has been a bit of discussion about this Commonwealth matter which - and what that involves, you have heard me mention provisions of the Crimes Act, it is just a matter of what it all means to you and what it means is for - because you have breached that Community Corrections Order that was imposed when I dealt with you back in September 2020, the breach is proven, obviously you have admitted it. I am revoking that previous sentence and then I am resentencing you in a way that I could have done at the time and what I am then doing with that single charge of use of a carriage service, so the original one that occurred back in 2017 I think it was, I am releasing you without further passing sentence on that matter and the only condition is that for the next 2 ½ years, so it is the same period as the Community Corrections Order, that you are of good behaviour, all right?
171OFFENDER: Yes, Your Honour.
172HIS HONOUR: If you are not, then you breach that order as well and you come back before me in breach of the Commonwealth matter and if that occurs, then, again, there are powers that are open to me to either fine you or to do what I have done today, to revoke the order and then to resentence you which almost inevitably would lead to a prison term or to take no further action. You have the power to bring the matter back before me for variation. It is hard to imagine any basis upon which there could be a discharge or a meaningful variation of the order.
173So I spent a long time explaining these things. Longer than I hoped to. I will have these documents come down in a moment so the parties can look at them to ensure that they meet my intentions and I have not overlooked anything and it is still that same address in [redacted], is it?
174OFFENDER: Yes, Your Honour.
175HIS HONOUR: I will have them come down at the Bar table. I have not signed them yet. If they could be looked at by the parties present. Just let me know if there is anything that does not pass muster.
176All right. Do they seem to - maybe not. Hold on.
177MR BARREIRO: I do not think there could be any ambiguity about who 'he' is, Your Honour.
178HIS HONOUR: Well, it is - - -
179MS AKIN: That is just what the provision sets out, Your Honour. That is my instructions so - - -
180MR BARREIRO: I have the State Community Correction Order here. The learned prosecutor for the State Director and I agree that it reflects what Your Honour has said orally in court today.
181HIS HONOUR: Well, I think what I will do is - now, do you need to speak to your client about these things or not?
182MR BARREIRO: I am happy to take it back to him and have him sign it now while Your Honour is on the Bench.
183HIS HONOUR: Because I am going to ask him in a moment whether he consents.
184MR BARREIRO: Yes. I do not think there is any need to further explain what it means.
185HIS HONOUR: Well, perhaps go down and my associate will come down with you and have them signed and I will sign them in a moment myself.
186MR BARREIRO: Thank you, Your Honour. My client has signed each of those documents, Your Honour.
187HIS HONOUR: Thank you.
188Stand up then, Mr Cameron-Kiely.
189Firstly, in terms of the Commonwealth matter which essentially is a good behaviour bond, that is what it amounts to. You have got to be of good behaviour for the next 2 ½ years. Do you agree to - and you have indicated you do, but do you agree to enter that undertaking to be of good behaviour for the next 2 ½ years?
190OFFENDER: Yes, I do, Your Honour.
191HIS HONOUR: And you understand that if you are not, you will be brought back in breach of that order and face potentially a resentencing exercise?
192OFFENDER: Yes, I do.
193HIS HONOUR: And, secondly, in terms of Community Corrections Order which is the State - five offences that brought you back before me, you have signed this order and do you consent to enter onto this Community Corrections Order?
194OFFENDER: Yes, I do, Your Honour.
195HIS HONOUR: And you understand the effect and the conditions of this order and consent to it, is that so?
196OFFENDER: Yes.
197HIS HONOUR: And, again, you understand the - I have explained in some detail the ramifications, what might happen if you breach that order. Do you understand that?
198OFFENDER: Yes, I do.
199HIS HONOUR: There is one other thing I need to do. You will get copies of these as the parties will.
Sex Offenders Registration Act 2004
200Finally, as I did on the last occasion back in 2020, I have to tell you now about your new obligations under the Sex Offenders Registration Act 2004. You cannot have listened too well on the last occasion for you breached many of those conditions. Three of the charges relate to your breaches of those conditions. So any failure to comply with any of your obligations is itself a serious criminal offence, it is punishable by a term of imprisonment. If it occurred in the next 2 ½ years, it would also be breaching each of those orders that have just been signed by you, the Community Corrections Order and the Commonwealth Good Behaviour Bond would be breached if you breach the sex offenders obligations. You have been sentenced by me today in relation to two further charges that are registrable offences under that Act and you must comply and continue to comply with your reporting and various other obligations under that Act and it is for an increased period. Previously it was eight years because it was only a single charge. As a result of these other two offences, that period has increased and your obligations remain for life. So it is now a lifetime obligation to report and comply with those provisions. I am going to do what I did last time. We are going to have handed to you a lengthy document that explains all your obligations under that Act. It details your reporting requirements. Lots of other things that are spelt out including things you must not do, things you must do. There are prohibitions upon gaining any employment in any child-related activity. There are requirements to report any communication or contact with children. Lots of things there. It would take me half an hour to go through them and explain them. I do not need to. You will need to familiarize yourself with these conditions again. What I am going to do is have you do what you did last time, sign a form purely to acknowledge receipt of those materials and then what you will need to do is to familiarize yourself with those obligations and this time actually comply with your obligations … or else. Or else. Because if you do not, you will breach all of this. If you do not, you will wind up in prison.
201Mr Barreiro, you have seen these before and again, as I did on the last occasion, I am not expecting him to just sit down and read all this now. It is simply him acknowledging receipt of the documents. So will you go down to him in a moment and just have him sign the appropriate point in the document please to acknowledge receipt? I think I have got to sign this myself too.
202So I will have that come down to Mr Barreiro, he will come down and get you to sign that and then we are almost finished.
203MR BARREIRO: My client has signed that document, Your Honour.
204HIS HONOUR: Yes. Thank you.
6AAA
205I have told you I have taken into account your guilty plea and reduced the sentence accordingly. I will now tell you the dimensions of that reduction. If you had pleaded not guilty and been found guilty of these five State offences, I would have sent you to prison for a period of three years and 10 months. I would have fixed a non-parole period of two years and that declaration made pursuant to s6AAA is to be entered into the records of the court.
206Let me just see if there were any other matters that I need to attend to or any matters that I have overlooked.
207So, Ms Zammit, are there any other matters I need to deal with at all?
208MS ZAMMIT: No, Your Honour.
209HIS HONOUR: From your perspective, Ms Akin?
210MS AKIN: No, Your Honour.
211HIS HONOUR: And Mr Barreiro?
212MR BARREIRO: No, Your Honour.
213HIS HONOUR: When I saw you on that last occasion, not in February this year, not December last year but in September 2020 when I sentenced you, I concluded having gone through all the details of the sentence, I said, 'The only advice I can give you is to stay out of trouble'. I said, 'Never, ever use the internet in this fashion again. Never, ever try to engage in an inappropriate relationship with a child.' I said, 'Buckle down on this order and speak honestly and openly with those providing counselling. You need treatment. Accept it and don't much around. Never, ever forget how you got into such big trouble using the internet here.' I said, 'If you try to communicate with a child in the future, there is every chance that child is not a child, it might be an undercover police officer or even, as it was in this case, a parent checking their child's internet use or a child who tells her parents and each of those settings would result in the police knocking on your door again. Don't ever do this again for if you do, you'll most certainly end up in an adult prison and I do not think you can imagine what that would be like for you.'
214Well, you are not ending up in adult prison despite what I said back in September 2020 and that simply illustrates the fact that my obligation is to deal with the matters placed live before me in this sentencing exercise but everything I said there about using the internet applies and you did not pay too much attention when I said those things because within days you were doing exactly what I had told you not to do.
215Well, you do that again and you will not be using the internet because you will wind up in a prison where there is no internet, all right? And there is a specific condition on this order that you must not use Instagram, WhatsApp, TikTok or any social media platform or the internet to communicate with or attempt to communicate with any person under 18 years of age. Do any of those things, you are going to wind up in prison, all right? And you would also of course in doing any of those things and not reporting them, you would be breaching the Sex Offenders Registration Act obligations as well.
216Do not expect under any circumstances to get a further opportunity from me. Do you understand?
217OFFENDER: Yes, I do, Your Honour.
218HIS HONOUR: There is no one out there with a third Community Corrections Order with my signature on it a third time. Do you understand?
219OFFENDER: Yes, I do.
220HIS HONOUR: You have got a second. You will not get a third, all right? All roads with lead to prison if you are foolish enough to breach this order. So let's not meet again. Get treatment, engage with your treatment team and with the Justice Plan and take a totally different attitude to the use of the internet because if you do not, it is going to end disastrously for you. Do you understand?
221OFFENDER: Yes, I do.
222HIS HONOUR: No other matters from any of you?
223MR BARREIRO: No, Your Honour.
224MS ZAMMIT: No, Your Honour.
225HIS HONOUR: No. Well, thank you for your assistance each of you and you will get copies of these orders. I will sign the CLMS orders in chambers. It will take a bit more time I think.
226Well, adjourn the court then till 10am tomorrow then please. Thank you.
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