Director of Public Prosecutions v Carroll

[2020] VCC 1484

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 20-00795

DIRECTOR OF PUBLIC PROSECUTIONS

v

JASON CARROLL

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	7 August 2020
DATE OF SENTENCE:	18 September 2020
CASE MAY BE CITED AS:	DPP v Carroll
MEDIUM NEUTRAL CITATION:	[2020] VCC 1484

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – Plea of guilty – Two charges of stalking – Burglary – Victims not aware – Surveillance and observation by police - Exceptionally valuable plea – Multiple sexual deviations in personality – Verdins principles established – Reduced moral culpability – SOATS program – Combined sentence

Legislation Cited: s.21A Crimes Act 1958 – s.76 Crimes Act 1958

Cases Cited:Thomas v. Campbell [2003] 9 VR 136 - R v Hoang (2017) 16 VR 369 - R v Carroll [2008] VCC 0635- Carroll v R [2011] VSCA 150 – DPP v CharlieDalgliesh [2017] HCA 41- Milson [2019] VSCA 55 - R v Verdins (2007) 16 VR 269

Sentence:Convicted and sentenced to a total effective sentence of 481 days imprisonment with 241 days imprisonment declared as presentence detention. Convicted and sentenced to a community correction order for a period of three years with conditions. Order commences upon completion of imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy	Office of Public Prosecutions
For the Accused	Mr J. Lowy	Docherty Legal

HIS HONOUR:

1Mr Carroll, we are all, as no doubt this morning has illustrated, I think probably from my actions, working under difficulty and I thank counsel and yourself for participating, but unless we do it in this manner nothing gets done in the Courts and your sentence does not get finalised, so I thank everyone for their assistance.

2OFFENDER:  Yes, I appreciate the technology.

3HIS HONOUR:  Yes, thank you.  Can I apologise for you all seeing the side of my head, I cannot look at both screens, but as I am going to pronounce sentence I can look towards you.  What I intend to do, Mr Carroll, is read out my reasons. The purpose of that is to explain to you the sentence that I am going to pronounce.

4When I come to the end we will give you the opportunity to talk to your counsel, in the ‘lobby’.  Mr Cordy and myself and anyone else in the Court is put into the lobby and you can talk to your counsel.  And as I understand it, Mr Lowy, that discussion is not recorded and it is important obviously for you to be able to explain to your client what I have had to say and the consequences and any consents that are needed from him.

5MR LOWY:  Yes, Your Honour. 

6HIS HONOUR:  It will not be necessary for you in the circumstances to stand when I am sentencing but I will indicate to you when I come to your sentence after I have gone through the various reasons, Mr Carroll, all right.

7OFFENDER:  Yes, Your Honour.

8HIS HONOUR:  Yes, Mr Jason Mark Carroll, is now aged 48, he was 46 at the time of this offending, having been born on 28 May 1972. 

9Mr Cordy appeared on behalf of the Director and appears again today, Mr Lowy appeared on behalf of Mr Carroll. The plea involved a plea of guilty by Mr Carroll, to three charges in indictment No.L10170230. Those charges involved two charges of stalking under s.21A of the Crimes Act, in which a maximum penalty is imposed of 10 years imprisonment, and one charge of burglary under s.76 of the Crimes Act, which also involves a maximum penalty prescribed by Parliament of ten years imprisonment.

10Those maximum penalties indicate the opinion of Parliament as to the seriousness of the offending.

Circumstances of the Offending

11Coming then to the circumstances of the offending and I take this essentially from the prosecution opening, Exhibit A, which Mr Lowy accepted as the facts upon which I am to sentence you, Mr Carroll.

12The first is the charge of stalking Ms Cindy Burgess[1], she was aged 37 at the time. The stalking took place from 8 December 2019 to 20 January 2020, it involved five occasions in which you were outside her unit.  On two of those occasions you actually entered her unit and indulged in sexual activity, it may well be on the other occasions that you were outside the unit you were also indulging in sexual activity.  We certainly know on the last occasion of 20 January 2020, because of a surveillance camera in the bedroom, that you not only interfered with her clothing and underwear but you used such for masturbating yourself.

[1] Pseudonym used.

13It should be noted that on each occasion that you entered you had apparently been able to see that Ms Burgess was not home and had left the premises.  Indeed, she had in fact left the premises and left the door unlocked, allowing you to enter the premises.

14Charge 2, as to Ms Gayle Matthews[2] who was 29 at the time, and lived approximately 400 metres from your home. The circumstances, as set out in the prosecutor's opening, were that in the period 5 January 2020 to 14 January 2020, again you were around her premises on four occasions, and on at least two occasions you were beside the window to her bedroom, one would assume that she was present, certainly she was on at least one occasion and you masturbated outside. As I said both of these offences make up stalking charges under s.21A of the Crimes Act.

[2] Pseudonym used.

15In so far as Charge 1, clearly Ms Burgess was not aware that you were conducting such activities, until 5 January 2020 when she was told by the police. Such advice from the police unit led to the installation of the camera in her bedroom. In so far as Ms Matthews is concerned, she was not aware at any time of your behaviour, and indeed was not advised at all until contacted by the police subsequent to the time of your offending on 23 January 2020 of this year.    

16I find the plea that you have entered is an exceptionally valuable plea, this matter essentially involves a consideration of elements 3 and 4, and the relatively recently amended provision s.21A(3). There are three tests in that section, which involve two subjective tests and one objective test. The plea is very valuable because it saves the prosecution having to prove one or other of those states of mind. I refer in particular to Thomas v. Campbell [2003] 9 VR 136,[149]-[150], [150]-[151], and further to Hoang (2017) 16 VR 369, [99]-[106] which was a decision post the amendment.

17The third charge is the burglary charge, it is accepted that you had observed Ms Burgess leave the premises.  That you entered the premises through an unlocked door, and clearly it is of a lower order by way of criminal culpability than the normal burglary one has to deal with, and it is clearly associated with Charge 1.

18As I say Mr Lowy accepted the facts as set out by the learned prosecutor as the facts upon which I am to sentence you.  In regard to the victim impact statement, no doubt when advised by the police of you being in Ms Burgess’s premises while the camera was there, she was as she expressed understandably distressed and clearly frightened.  However I stress that she was not present at the time of such crime.  I do not see anything unrealistic in her reaction, as set out in Exhibit B, she indicates that your activities have caused her to have a lack of trust in her own safety, in her own environment.  As she told the police she felt that her privacy had been defiled by you, which it clearly had, and especially when she was advised by the police of what you had been doing with her private clothing items.

19There is no victim impact statement in regard to your other victim Ms Matthews, however I note her statement in the depositions at p.71 where again it seems to me totally reasonable that she feel violated, even though she did not know at the time what was happening either at her window or around her premises. 

20In regard to both victims, the Court feels for them the impact of your crimes upon them, and the worries that they have endured as a result of your actions.  However in comparison to earlier criminality, in particular the criminality you were sentenced for by Her Honour Judge Douglas, there was, but for one meeting with Ms Burgess, no physical contact.

21These crimes clearly appear to be for the purpose of your own sexual satisfaction. Of course while understanding the personal integrity of these persons was thereby violated, they were not actually aware of you doing such.

22There is a discrimination as to your intent. When compared to the distress and circumstances of the crimes that Judge Douglas has dealt with, your intent was to cause, distress for the victims.  You were acting out your sexual deviance or as you describe acting as a ‘peeping tom’.

Plea of Mr Carroll

23Following arrest, you have been on remand from 21 January 2020, the period by way of pre-sentence detention is now agreed by all parties at 241 days.  In your record of interview you were cooperative to a degree, however you suggested in regard to Ms Burgess that you had some sort of permission to enter her premises. However you recanted that at your plea, and there was no such suggestion pursued on your behalf by Mr Lowy.

24Your prior offences are concerning to the Court.  They are indicative to the Court of a person with an impulsive sexual disorder. As your counsel has put, it appears you had issues with sexuality since the age of 13. What and how they began is very difficult to understand, albeit the reference in the report of Mr Cummins as to some connection to your father and the issue of violence and the manner in which he treated your mother. However it would be very difficult I would imagine for a psychologist, much less the Court, to precisely understand where this sexual disorder began and why.

25Your priors go back to 1990, it is particularly unfortunate that from the age of 20, you have spent a considerable period of your life in gaol.  In 1992 you had two offences for being unlawfully on the premises.  In 1993 when you were 21 you were given four months gaol for a burglary charge, thereafter you had regular sentences for burglary and dishonesty offences. 

26In August 1996 you had your first stalking offence, which went to appeal and was upheld whereby you were given 15 months gaol.  In October 1998 you were given a further three year sentence, having been reduced on appeal for stalking.  Subsequently in 2004, 2007 you had further gaol periods for dishonesty offences. Finally the sentence that you received from Judge Douglas on 9 May 2008 when you were given a total effective sentence of 12 years with a minimum period to serve before being eligible for parole of ten years. 

27Somewhat remarkably you served the full 12 years of that sentence, Judge Douglas' sentencing remarks are unreported (R v Carroll [2008] VCC 0635). It is noted that Judge Douglas did not accept the propositions put as to Verdins, and her sentence and determination as to Verdins was upheld by the Court of Appeal, Carroll v R [2011] VSCA 150.

28It is important to discriminate such difference.  I do not wish to name the victims, however there are at least seven victims of which you were convicted in that matter, one in particular, Ms B, in circumstances where the offences against her took place over a period of some five to six years. In regard to all of those seven victims, not only did you enter their premises, interfere with their private possessions, but in each case you contacted them, usually by phone that you had stolen from them, and behaved in a most outrageous manner.  

29Such behaviour as was indeed described as sadistic by Judge Douglas, and is substantially more serious than the matters that are before me.  It is remarkable, despite the views expressed by Judge Douglas at [82] of her sentencing remarks, as to the need for you to receive appropriate psychological or psychiatric treatment for your sexual deviations, such did not occur.

30You in fact served the whole sentence in the period prior to your release on 27 August 2019, as set out in the letter marked Exhibit E. While you did not have the full SOATS course, you did apparently have a series of one hour sessions. As your counsel has put today, it is disputed that you in fact had 18 one hour sessions, but I am not here to determine that particular fact.

31The prosecutor's submissions as to sentence was set out in Exhibit C, it was submitted that there should be imposed by this Court a significant and long term of imprisonment and that a community correction order in all the circumstances was inappropriate.  That submission has been maintained this morning.  The reasons expressed by Mr Cordy in his submission, were the need for denunciation of your behaviour, the need for protection of the community, the principle of specific deterrence and of course general deterrence. I accept totally Mr Cordy's submission that all of those factors are appropriate considerations given this behaviour and indeed your prior offences. 

32In the plea of Mr Lowy he submitted, in both his written submissions and orally before me, that the appropriate course to be taken was a combined sentence under s.44 of the Sentencing Act.  He submitted that thereby the Court can take a step to ensure that upon your release from prison you do get the relevant SOATS treatment, which was not only recommended by Mr Cummins and Judge Douglas and accepted by the Court of Appeal, but in the favourable extended pre-sentence report received from the Department of Justice was prescribed as necessary for you.

33Of course when sentencing this Court tries to set in place relevant programs, or steps, that can be taken to effect rehabilitation.  I stress again it is not for me to sit in judgment as to any alleged failures or problems in your past rehabilitation.  However given the details of the Corrections record, appropriately analysed by Mr Lowy for which I thank him, as accepted by Mr Cordy this morning, the assumptions originally made in the prosecution's submissions at [3], [4] and [6] cannot be maintained.  Clearly there appears to have been a failure, I am not too certain where in the Corrections Department, but a failure to effect the requests of Judge Douglas, or the consent of Mr Carroll on any number of occasions so that he could get bail for him to undergo the appropriate SOATS treatment.

34In saying that I do not lose sight of the comments made in Exhibit E, that is the email from Ms Coombes as to the unresolvable security conflict as to being transferred to Karreenga.  It is impossible for me to determine the totality of those circumstances.

35Suffice for me to say that certainly care was taken to ensure that upon your release, even though you did not get any therapeutic treatment whilst in gaol, but for those occasions Mr Cordy referred to this morning and are set out in Exhibit E. Clearly upon your release from December 2019, what was set in place was surveillance and observation by you, I imagine by a proactive police unit department, whereby these crimes came into light.

36Given the need to protect the community from the offences that had been referred to by Judge Douglas, and the description of your behaviour by the Court of Appeal, obviously such proactive police activity was done in the interest of the public.  As I say however the treatment option appears to have totality failed, but for as I said the disputed 18, one hour sessions, which took place in the period leading up to your release, from March 2019.

37Also it is not to be disregarded that you have had previous treatment which obviously has proved unsuccessful.  You apparently underwent two sex offender programs in 2001 and 2002.  I think I would be naïve to suggest that you going through the SOATS program would necessarily solve your issues, but at least it might assist, and thereby protect the community.

38As to the offending, Mr Lowy adopted the propositions that I have already put, that the offending, [10] of his submission, was considerably different from the behaviour that Judge Douglas had to deal with.  As I said Her Honour describes such behaviour as sadistic, it involved actual contact subsequently by phone, usually stolen by you from the victims, with conversation which can only be described as crude sexually orientated and certainly behaviour which would have been terribly upsetting to those victims.

39The High Court requires as a matter of justice, see Dalgliesh [2017] HCA 41, that you be sentenced for the circumstances in this case before me today. That is why I have been at some pain to differentiate your behaviour.

40Mr Lowy in so far as the Verdins argument in his written submission relied on limb 5 for the purposes of issues of your diagnosed anxiety, it seems to me that given the manner in which it has been reported whereby you have adapted yourself to your prison environment, and we will come later to the issue of institutionalisation, I am not particularly concerned about that limb. 

41However in so far as the proposition adopted by Mr Lowy, and confirmed today, I consider as Mr Cummins found in his report, in particular [3], that you clearly suffer from multiple sexual deviations in your personality, in particular such deviance relates in voyeurism and fetishism.  Such manifests itself as is clearly demonstrated from the behaviour that I have described, in urges to masturbate and fondle your genitals either outside premises where females live, or when they are not present in their bedrooms which you entered by way of burglary,  and you indulged in masturbatory behaviour and or genital fondling with the use of their underwear.

42I stress, as has been pointed out by Mr Lowy, whenever you are inside premises it has never been that the victims themselves are there. In Mr Cummins' report he diagnosed, your sexual deviance as a mental disorder [28]. Mr Cummins considered that you are in a high risk category for further such offending, see [24] and [31], and as to your future in regard to which he though you needed offence specific treatment, even with such treatment his prognosis was guarded, [42].

43With great respect to my former colleague Judge Douglas and to the Court of Appeal, as I have said it is necessary for me to consider the circumstances of this case, not to be effected by the determinations made in the cases to which I have referred.  I find in the circumstances of this case based upon the expert opinion that I have referred to, that Verdins principles 1, 2, 3 and 4 are established. 

44As a result of the reduced moral culpability there is a need for the principles of denunciation, general deterrence and specific deterrence to be moderated,, given your mental condition as diagnosed, which I find has and does impact upon your ability to make an appropriate judgment in a calm and rational way.  I find, upon rigid analysis, that there is the appropriate causative connection to these crimes of such mental impairment which does in fact reduce your moral culpability.

45Of course despite the differences in regard to the particular criminality that I have referred to from the matters Judge Douglas had to deal with, given the totality of your history and particularly that offending that I have detailed, and to be balanced against the finding that I made in regard to Verdins, there is still a need to consider the steps that this Court should take to protect the community. Those matters are set out in s.5(1) of the Sentencing Act, particularly sub-s.(d) and (e), but of course I must not forget that I am also required to take into account sub-ss.(a), (b) and (c).  In particular sub-s.(c) relates to the question of rehabilitation.

46Despite the guarded view of your psychologist, as detailed by the Court in Milson [2019] VSCA 55, [31], it is in the community interest if an offender, even a recidivist such as yourself, can be steered away from the life of crime. It must be said that even with your undertaking of a SOATS program, given the period of time you have had this mental disorder, one must be guarded as to how far you can be steered away from the life of crime, but one can only be positive.

47Balancing all of those factors, the Court is faced with quite a difficult dilemma in regard to this sentence.  As you have heard it is still the prosecution view, having taken into account all of the matters that I have now spoken of, that the only appropriate sentence is immediate imprisonment with a parole period.

48The alternative submission from Mr Lowy was that it is in the community interest that I should craft a sentence which both punished and denounces your behaviour and recognises your crimes, but also reduces the risk of further offending by you. Mr Lowy has submitted than an order by way of a combined order under s.44 would be a way of doing that.

49There was no issue for Mr Cordy as to the personal history and factors put to me by Mr Lowy as detailed in [14] to [21] of his written submissions.  I note the issue of institutionalisation spoken of at [46] and I have already referred to the long history of incarceration.

50It was submitted by Mr Lowy that I need to take into account and give appropriate discount for your early plea.  It was submitted that such demonstrates the remorse that you have for any upset that was subsequently caused to these victims, once being apprised of your behaviour. Indeed you have tendered a letter, while that letter predominantly talks about the failure and the reasons for the failure to undergo the SOATS program in prison, it does encompass an apology to the Court and your victims and your disappointment at failing to be able to control your behaviour which led to these crimes.  Mr Lowy also maintains as I have already found this to be a very valuable plea which I accept totally.

51It is upon the totality of those circumstances that I find, despite your background, that there are exceptional circumstances whereby I accept the submission of Mr Lowy that an appropriate sentence for you is a combined sentence under s.44. I do so in particular in regard to the positive pre-sentence report that I have received from the community correction authorities. I want to go to that report in particular at p.4 and 5, I think I have already thanked those who did the report, Mr Coleman and Mr Pianta. I was particularly assisted in this difficult sentence by this report.

52At p.4 under the heading 'Criminal attitude and anti-social pattern', Mr Coleman and Mr Pianta said:

'Inclusion of a mental health condition will provide CCS the opportunity to refer you for assessment for a mental health care plan and that appropriate interventions can be instigated to sanction you to address these concerns'.

53During the interview you advised you had been assessed several times and found suitable to participate in the SOATS program, which is clearly demonstrated by your counsel's further submission, however as is accepted by all were unable to take that program while incarcerated.

54The pre-sentence report continues on to say this:

'Mr Carroll's history demonstrates a pattern of quickly offending post release, however it is also noted Mr Carroll has been released from prior terms in prison without any community or specialised supports.  Mr Carroll will benefit from a referral to the Corrections Victoria Sex Offender Program with the expectation to participate in the modular management and intervention programs if deemed suitable.'

55On p.5 the report continues: 

'Mr Carroll presents as an individual with limited protective factors that may reduce his risk of recidivism.' 

56It further continues under 'Conclusion and recommendations': 

'Mr Carroll's a 48-year-old male, assessed by video-link. He has admitted to guilt of these charges, acknowledging sexual gratification as a precursor to the offences.  Mr Carroll has never been provided the opportunity to engage in appropriate treatment to address his offending behaviour whilst in custody.' 

57I think that means given the facts, by way of an intensive SOATS type program.

58Mr Carroll was assessed as suitable and the following was stated:

‘In assessing Mr Carroll’s suitability for a community correction order, all consideration has been given to his presentation and engagement during assessment and all relevant information.’

59That report not only reflects the views, going back to Judge Douglas' sentence, but certainly maintained the view of the psychologist Mr Cummins.

60The intent of the sentence that I propose to impose, Mr Lowy, would be this, and of course your client will need to consent. Mr Carroll currently has served 241 days. My view would be that a further period of imprisonment is appropriate in all the circumstances, and what I would be of the view is that your client would need to serve a further eight months. I would impose periods of imprisonment in regard to each crime which would result a total effective imprisonment of 481 days. I would then make a s.18 declaration which is 241 days which would then leave a period of imprisonment to serve of approximately eight months being another 240 days

61I would then order upon his release, pursuant to s.41, a community correction order in regard to all of the three offences of three years with conditions of supervision, mental health and that he undertake the offenders programs or re-offending programs as suggested in this instance in particular the SOATS program.

62MR LOWY:    Yes, sorry, if I could just stop you there.  Sorry to interrupt you mid-sentence of your sentence.

63HIS HONOUR:  Yes.

64MR LOWY:  If Your Honour makes a declaration 241 days and the imposes a further eight months, it will go over the 12 months. 

65HIS HONOUR:  No, it will not.

66MR LOWY:    Yes, it will, 241 days plus a further eight months.  If you declare the ‑ ‑ ‑

67HIS HONOUR:  No, no, no, if you take off the 241 from the 481, that leaves 240 days.

68MR LOWY:    Sorry, I thought Your Honour was saying you had reckoned as served 241.

69HIS HONOUR:  He served 241 which I would declare, so that the total sentence would be reduced, the total sentence that he would there have to complete is eight months.

70MR LOWY:    No, but if you declare that time as served - -

71HIS HONOUR:  Yes.

72MR LOWY:    It exceeds the 12 month maximum that you can impose.

73HIS HONOUR: No, it does not. That is what the Act says, s.44. It says ‑ ‑ ‑

74MR LOWY:    Sorry, I will get it up. 

75HIS HONOUR: If you get s.44 up, it says this.

76MR LOWY:    Yes. 

77HIS HONOUR:  I say with respect - I will get it up myself.

78MR LOWY: s.44(1).

79HIS HONOUR: s44(1). '…a Court may make a community correction order in addition to imposing a sentence of imprisonment, only if the sum of all the terms of imprisonment to be served (after deduction of any period of custody that under s.18 is reckoned to be a period of imprisonment or detention already served), is one year or less.' So the only period that he has to serve is eight months.

80MR LOWY:  Okay.

81HIS HONOUR: Are you happy with that, Mr Prosecutor, that's the way I understand the Court of Appeal. The Court of Appeal in fact - I used to do it on the basis that I would simply disregard it myself, but the Court of Appeal have indicated they want the s.18 declaration made, so that you make a sentence for the total 481 days and then the operation of s.44(1) deducts from that period of custody the period the declaration made, leaving eight months.

82MR CORDY:  That's right, which is effectively in the 12 months roll over ‑ ‑ ‑

83HIS HONOUR:  In the 12 month period. 

84MR LOWY:  Well I stand corrected, I am sorry, Your Honour.

85HIS HONOUR:  That is certainly my intent.  Although given that your client has to consent, Mr Lowy, what we might do is Mr Cordy and I might be put in the lobby and anyone else and you can talk to your client about what I intend to do.

86MR LOWY:  Yes, all right, Your Honour, which should not take too long.

87HIS HONOUR:  All right, Madam Associate, can you put us into the lobby.

88ASSOCIATE:  Yes, Your Honour, I will do that now.

89HIS HONOUR:  Let us hope we can come back, Mr Cordy.

90MR CORDY:  Yes, we will see how we go.

91(Short adjournment.)

92HIS HONOUR:  I cannot hear you that well, Mr Tipstaff.  Can you hear me,
Mr Cordy.

93MR CORDY:  Yes, I can quite clearly, Your Honour.

94HIS HONOUR:  I cannot hear you.    Mr Lowy?

95MR LOWY:  I can hear you very clearly, Your Honour.

96HIS HONOUR:  I cannot hear you either. 

97TIPSTAFF:  Your Honour, sometimes if you just go to your speaker ‑ ‑ ‑

98HIS HONOUR:  I can only just hear you, Mr Tipstaff, I cannot hear you enough to comprehend what you are saying.  Is that better? 

99TIPSTAFF:  Is that better, Your Honour? 

100HIS HONOUR:  Much. 

101MR CORDY:  Has Your Honour got me ‑ ‑ ‑

102HIS HONOUR:  Can you hear me, Mr Cordy?

103MR CORDY:  I can hear you.

104HIS HONOUR:  You can.

105MR CORDY:  Yes, yes.

106HIS HONOUR:  I cannot hear you I don't think. 

107MR CORDY:  Right. 

108ASSOCIATE:  Your Honour, can you pick up, I'm just trying to call you and ‑ ‑ ‑

109HIS HONOUR:  What room.  If you could all -  you can hear, Mr Lowy.

110MR LOWY:  Yes.

111HIS HONOUR:  Yes, all right, well then we can continue. 
Mr Lowy, do I understand, and you can nod, that your client consents? Okay. All right. Mr Carroll, you needn't do anything else but remain there. Mr Lowy, the circumstances are that it is possible now under the Sentencing Act for your client to consent by way of digital acknowledgement, and I take that acceptance for that purpose. However in this instance I do, because of the importance of this decision and order, my Associate is going to send a copy of the order to be signed by your client at prison.

112Yes, well formally then Mr Lowy will be convicted of each of these three charges.  In regard to Charge 1, I will impose a period of imprisonment of 481 days.  Can you not hear me now? 

113MR LOWY:  Can someone same time me?

114ASSOCIATE:  I have just tried to ring him but I don't think he has his phone near him.

115MR CORDY:  Yes, perhaps you could text him, let him know it's not Mr Lowy, perhaps it should be. 

116MR LOWY:  Today was a good one.  That day, we'll have that on transcript. 

117HIS HONOUR:  In respect of each of the three charges.  On Charge 1 you will be sentenced to a period of imprisonment of 481 days.  On Charge 2, a period of imprisonment of 300 days, and on Charge 3, a period of imprisonment of 250 days.  I make no order as to cumulation, therefore the total effective sentence will be 481 days. 

118Pursuant to s.18 of the Sentencing Act, I declare that the 241 days that you have served to date by way of remand be deemed service of this sentence and a declaration be effected to that effect in the records of this Court. The result thereof will be that you will have to serve in addition a period of 240 days, roughly eight months.

119In addition pursuant to s.41, I order that you undertake a community correction order of three years which is to commence upon the date your imprisonment ceases. That the conditions as recommended in the report Exhibit D, will apply, that is one of supervision.  You be assisted in regard to your mental health, and that you undertake the offenders or a program to stop reoffending, in particular in your case, the SOATS program.

120I am told by your counsel that you consent to the conditions and to entering into that community correction order, however in the circumstances I have indicated you will be sent an actual community correction order to sign in prison. 

121Pursuant to the provisions of s.6AAA of the Sentencing Act, given the multiplicity of factors in this case, it is very difficult for any Court to undertake the wish of Parliament that one is able to declare Mr Carroll what you would otherwise have received by way of sentence had you not pleaded guilty. However doing as best I can had you not pleaded guilty the total effective sentence that I would have imposed would have been a period of 24 months and the minimum period you would have had to serve would be a period of 18 months.

122Do either counsel require any elucidation on any of those matters?

123MR LOWY:  No, Your Honour.

124MR CORDY:  Yes, Your Honour. Your Honour has expressed the CCO as in addition, but I take it that applies to all three charges does it?  Can Your Honour hear me?

125HIS HONOUR:  Does either counsel require me to elucidate on any of those matters, you do, Mr Cordy?  You are okay?

126MR CORDY:  I do, I do, Your Honour, but I ‑ ‑ ‑

127HIS HONOUR:  I cannot hear you see.

128MR CORDY:  No.  I will send through a text, just pardon me. 

129HIS HONOUR:  So that there is no cumulation, so the total effective sentence will be 481 days, the 241 days is pre-sentence detention, leaving 240 days.

130MR CORDY:  Yes, hang on, hang on ‑ ‑ ‑ 

131HIS HONOUR:  Which effectively is eight months.

132MR CORDY:  I'll send an email.

133ASSOCIATE:  One moment.  Mr Cordy, I will just try and call His Honour.

134MR CORDY:  So what I am seeking to clarify, Tatjana, is ‑ ‑ ‑

135HIS HONOUR:  I cannot hear you.

136MR CORDY:  The CCO relates to all three charges, but he hasn't specified that.

137ASSOCIATE:  Okay.

138HIS HONOUR:  Yes, can you translate then, maybe that was the way.  What is Mr Cordy saying?  The community correction order relates to all charges under s.41.  Sorry, s.40(1).

139MR CORDY:  Thank you, Your Honour, that's absolute (indistinct).

140HIS HONOUR:  Is each counsel okay with that?

141MR CORDY:  Yes, Your Honour.

142HIS HONOUR:  Thank you, I'm sorry about the circumstances, why I have run out, I do not know.  Mr Carroll, can I just say to you, can you hear me?

143OFFENDER:  Yes, I can, Your Honour.

144HIS HONOUR:  It is obviously important for you, you have been in gaol far too often.

145OFFENDER:  Yes.

146HIS HONOUR:  You must do something about it because otherwise you are going to be there for a long time again.

147OFFENDER:  Yes.

148HIS HONOUR:  What I have provided hopefully for you is an opportunity to undertake a form of treatment which may assist and you have got to use that treatment and somehow get the will and determination to make sure that you do not commit these offences again.   So I wish you well in that treatment.

149OFFENDER:  I appreciate the opportunity.

150HIS HONOUR:  Yes, thank you.  Yes, thank you, Mr Tipstaff.

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