Director of Public Prosecutions v Carter (a pseudonym)
[2017] VCC 478
•7 April 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JONATHON CARTER [a pseudonym] |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 April 2017 | |
DATE OF SENTENCE: | 7 April 2017 | |
CASE MAY BE CITED AS: | DPP v Carter (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 478 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr A. Albert | Office of Public Prosecutions |
| For the Accused | Mr D. Gibson | Victoria Legal Aid |
This matter has been anonymised and a pseudonym allocated per the Court’s Anonymisation Protocol to ensure there is no possibility of identification of the accused, victim and family or witnesses.
HER HONOUR:
1 Jonathon Carter,[1] you have been found guilty by jury verdict of two charges of incest, the maximum penalty applicable to those two charges being 25 years’ imprisonment.
[1] Jonathan Carter is a pseudonym.
2 You were found not guilty, by jury verdict, of one charge of sexual penetration of a child under the age of 16 and not guilty of one charge of indecent act with a child under 16. There was a directed entry of not guilty on Charge 3, (s.241 Criminal ProcedureAct 2009).
3 These crimes arise out of events which took place relevant to Charge 1 between 1 February 2003 and 15 April 2003, and Charge 5, between 18 September 2004 and 24 December 2004. Charge 1 involved Kristen Hopper,[2] who was then the child of your de facto spouse. Charge 5 also involved Kristen who, at that time, was your step-child.
[2] Kristen Hopper is a pseudonym.
4 It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been canvassed in some detail before the jury. I proceed to sentence you on the basis of that evidence and discussed during the course of your plea hearing. It is sufficient, for present purposes, to simply say the facts in this case are most serious and disturbing.
5 An aggravating aspect of your offending involved a breach of trust, not only of Kristen, but also her mother, your partner Suzanne Hopper.[3] I also note your offending was initially between February-April 2003 and you repeated that offending approximately 18 months, later between September 2004 and 24 December 2004. That is, you did not desist from your offending after the first occasion. A further aggravating feature involved you telling Kristen to keep your offending against her a secret.
[3] Suzanne Hopper is a pseudonym.
6 Mr Gibson, who appeared on your behalf, referred to a number of potential aggravating features sometimes found in similar cases, that did not apply in your case. I am aware of those.
7 Mr Gibson conceded your offending was serious, given the age and vulnerability of the victim, although urged your physical offending fell to the lower end of seriousness for this type of charge and referred to the absence of the aggravating features to which I have referred.
8 I turn to the background and history of your offending.
9 The complainant, Kristen, was born in January 1992 and was Suzanne’s first child. Suzanne also had a son, Samuel.[4] Their biological father died in June 2000.
[4] Samuel Hopper is a pseudonym.
10 In approximately 2001 and 2002, when Kristen was 9-10 years of age, you and Suzanne commenced a relationship. At that time, Suzanne lived at an address in Wonga Park. You both then lived together for a period of time, initially out of a car, before moving into a residence in Oakleigh. At that time, Kristen and Samuel were living with their grandparents (Suzanne’s parents), and staying with Suzanne and you on occasions.
11 As at 16 April 2003, Suzanne began living at an address in Mount Waverly, managed by SalvoCare Eastern. Records from that organisation indicated Suzanne was the tenant of that property until 29 March 2004. Kristen and Samuel stayed with both you and Suzanne on occasions.
12 Between 30 March and 17 September 2004, you and Suzanne lived at an address in Burwood then, on 19 September 2004, you and Suzanne were tenants of a property at Warranwood, managed by the Department of Human Services. That tenancy ended on 14 April 2005. The relationship between you and Suzanne ceased on 6 April 2005.
13 Turning to Charge 1. Kristen gave evidence she stayed at the Oakleigh address every second week and that an incident occurred while at that house. At the time of that incident, she thought her mother was pregnant with Leah[5].
[5] Leah is a pseudonym.
14 Kristen was on the couch watching a movie with you. She fell asleep during the movie and was carried to bed. She woke. Her mother was in bed and Samuel in his bed also. She shared a room with Samuel at that address. Kristen said you returned to the bedroom, put your hands down her pyjama pants and started to touch her vaginal area. She tried to pretend she was asleep, hoping you would stop. She said it felt as if you were doing this for a while and it hurt her. She pretended to toss and turn. You exited the room. She described your penetration of her vaginal area. The jury, by their verdict, were satisfied beyond reasonable doubt that offending occurred.
15 Turning to Charge 5, the complainant gave evidence of an incident in her bedroom at Warranwood. Her bed had princess netting around it. You came in and opened the netting. Kristen had been asleep, but woke up. You put your hands under her pyjama pants and into her underwear. You put your fingers under her underwear and digitally penetrated her. Kristen said it hurt her a lot. She told you to stop or that she was going to tell her mother. The jury were also satisfied beyond reasonable doubt that that offending occurred.
16 There was also evidence before the jury of other sexual misconduct whereby the complainant alleged that, in addition to those two charges, you touched her vagina on or around her vagina on other numerous occasions. She said the incidents ‘sort of mashed together’. That the scenario was the same thing, under her underwear, rubbing her vaginal area.
17 Kristen said you told her not to tell anyone what you were doing because you did not want her mother to know. You told her it was a secret and that it would upset her mother if Kristen said anything.
18 You have admitted a number of prior court appearances. The first on 9 April 1996, involving dishonesty-type offences, for which you received a suspended term of imprisonment, together with a community-based order.
19 You next appeared at court on 21 February 1997, on charges of theft and lighting a fire on total fire ban day, and were convicted and placed on a community based order for six months.
20 You then appeared at Inala Magistrates’ Court on 14 October 1997 and were convicted and "not" punished on one charge, and without conviction fined $400 on the other.
21 You were dealt with on 25 January 1999, for breaching the order imposed on 21 February 1997 and were convicted and fined $100 and sentenced to twenty days’ imprisonment for the original charge of lighting a fire on total fire ban day, that imprisonment suspended for twelve months.
22 You next appeared on 28 August 2003, on charges of theft and failing to answer bail, and were convicted and fined an aggregate $500.
23 You next appeared at Brisbane Magistrates’ Court on 18 December 2003 on charges of breaching the Domestic & Family Violence Protection Act and were convicted and fined $600.
24 You then appeared at court on 26 March 2004, and the order of 28 August 2003 was varied, and in default of the payment of $500, you were ordered to perform twenty-five hours of unpaid community work.
25 You next appeared at court on 24 June 2004, on a charge of behaving in an indecent manner in a public place (four charges) and were convicted and fined an aggregate $1,000. I discussed this offending with Mr Gibson, and it was also referred to in the report of Mr Cummins, to which I shall shortly refer.
26 You were next dealt with at the Magistrates’ Court on 7 October 2004, for failing to comply with the community-based order imposed on 26 March 2004 and in default of payment of $300 were to perform fifteen hours of unpaid community work.
27 Subsequent to that hearing, you appeared at Ringwood Magistrates’ Court on 10 June 2005 on various cannabis charges, were convicted and the further hearing adjourned to 9 June 2006.
28 In the Melbourne County Court on 13 February 2006, you were sentenced on a charge of arson and two charges of common law assault, and received three years’ imprisonment with a non-parole period of twelve months.
29 You then appeared at Melbourne Magistrates’ Court on 14 February 2006, on charges of theft and resist police and were sentenced to 21 days’ imprisonment.
30 You next appeared at Ringwood Magistrates’ Court on 7 March 2008, on dishonesty offences and were convicted and fined $400.
31 You then appeared at Ringwood Magistrates’ Court on 10 October 2008, on three charges of breaching an intervention order, and received four months’ imprisonment suspended for two years. That sentence was restored on 2 August 2010.
32 On that same date, (2 August 2010), you were dealt with at the Frankston Magistrates’ Court for a number of injury charges and received 12 months’ imprisonment.
33 Most recently on 28 January 2011, you appeared at Latrobe Valley Magistrates’ Court for contravening a Family Violence Intervention order and dishonesty offences and received a total of one month’s imprisonment.
34 The subsequent court appearances to which I have referred are relevant when assessing your rehabilitation prospects. In that regard, I note you have not been to court since January 2011, and also relevant to both your prior and subsequent history, there are no offences of a sexual nature similar to that before me.
35 Your counsel, Mr Gibson, provided a written outline of submissions on sentence dated 29 March 2017 and addressed those during the course of your plea hearing.
36 You were born in Bendigo and when 3 years of age, moved to Toongabbie. Your parents separated when you were 7, and you moved with your mother to Box Hill where she formed a relationship with another man. Unfortunately you were subjected to physical violence by him.
37 You also witnessed verbal violence between your parents who were constantly breaking up in their relationship. As a result, you attended nine different primary schools.
38 When you were 14, you ran away from home to live with your father, but he unfortunately abused drugs and alcohol. Your father formed a relationship with your girlfriend and your now current partner, Robin Vincent,[6] and his relationship with her had been of ongoing concern to you, not surprisingly. Your father was also physically violent towards you.
[6] Robin Vincent is a pseudonym.
39 You left school in Year 9 as you had difficulties with other students.
40 You then did some seasonal fruit picking and worked for a brief time with a curtain company. You spent periods of time in and out of home, and sometimes lived on the streets.
41 You began a motor mechanic apprenticeship with your stepfather, but after six months your mother left that relationship and you moved with her to Queensland. You continued the apprenticeship for 12 months, however, became unemployed due to, I was told, your drug issues.
42 You then had a period of homelessness in Canberra before returning to Melbourne where you were living on the streets and staying in backpackers’ hostels.
43 You then had issues with alcohol, cannabis, speed and ice use. Despite that, however, you were able to get work on a recycling truck for approximately two years and work in a chemical factory.
44 You met Suzanne, the mother of the victim of your offending, in approximately 2002. By that stage, you had “straightened out” with reduction of your alcohol use and minimal cannabis use. The relationship, however, was volatile and ‘on and off’.
45 Your daughter with Suzanne, that is Leah, was born in 2003. Your son, Nicholas,[7] was born subsequent to the end of the relationship.
[7] Nicholas is a pseudonym.
46 Whilst in your relationship with Suzanne, you burnt down the family home on 5 April 2004, which resulted in the prison sentence to which I have previously referred.
47 Upon being released from prison in 2006 following that sentence, you met Samantha who had three children from a previous relationship. They live with their mother in Queensland after your relationship broke down, referrable to the incident of assault in 2010, which resulted in a further prison sentence in 2011.
48 Following release from that sentence, you began a relationship with your current partner, Ms Vincent, and there are two young children of that relationship.
49 At one stage, you lived together in Queensland and you tried to build a career in leatherwork, unfortunately this business did not continue.
50 You returned to Victoria when extradited for the offences before this jury.
51 Mr Gibson submitted your current relationship with Ms Vincent was strong and she continued to support you. You and she had shared the responsibility of raising your children. I am aware Ms Vincent suffered with cancer of the tongue, and is awaiting an operation. She has difficulties communicating without your assistance when in the community and your incarceration will be more difficult for her.
52 I discussed with Mr Gibson whether or not he was relying upon exceptional circumstances relevant to family hardship because of Ms Vincent’s particular difficulties.
53
"Exceptional circumstances", in the context of breach of suspended sentences, of course this is not one of those, nevertheless has been considered in a number of authorities summarised in R v Ienco[8]. Also in that authority Court of Appeal Kellam JA referred to R v Nagul[9] and R v Panuccio[10]. I discussed this submission with Mr Gibson, as the transcript of the plea hearing will reveal.
Mr Gibson was given the opportunity to further address this following the plea hearing.
[8] [2008] VSCA 17
[9] [2007] VSCA 8
[10] Court of Appeal, 4/5/98
54 Beyond the submissions made by Mr Gibson at your plea hearing, in correspondence from him received later that day, he advised he did not wish to make any further submissions on this issue.
55 I am ultimately not satisfied that ‘exceptional circumstances’ exist in this case. However, I am satisfied that consistent with general sentencing principles, I can accept, and have taken into account, that you will be concerned, not only for Ms Vincent’s wellbeing, but also for that of your children whilst you are in custody. You will also during imprisonment, be unable to support Ms Vincent in her daily life and during any future operations. These matters will, no doubt, weigh heavily upon you in custody. In so deciding, I am also conscious of the decision in R v Osenkowski[11].
[11] (1982) 30 SASR 212
56 I accept that you have not been permitted to see your sons or indeed any of your children whilst in custody and I accept that that is a source of considerable distress to you and also to your sons.
57 Mr Gibson relied upon the delay in this matter being finally determined and the history of it, and I discussed that with both the prosecutor and your counsel. Your offending occurred in 2003 and 2004, was reported to police in 2007 and you were interviewed. The brief, however, was not then authorised. It was not until July of 2014, when it appears the prosecution were making some inquiries in relation to other offences, for which I am aware you were ultimately acquitted, that the Office of Public Prosecutions recommended charges relevant to Kristen be pursued. As a result, you were charged with these offences in 2015. I accept that this delay has not been in any way attributable to you and I accept in the intervening period since 2011, you have made significant efforts towards your rehabilitation, including forming pro-social relationships. I accept the submissions made by Mr Gibson in that regard.
58
Mr Gibson also tendered a report from Mr Jeffrey Cummins, Consulting Clinical and Forensic Psychologist, dated 29 March 2017, who assessed you on
24 March 2017. He had the benefit of an earlier report prepared by
Mr Bernard Healey in 2005 in the preparation of his report.
59 By way of background to this offending, Mr Cummins referred to you having formed a relationship with Suzanne late 2002, marrying in 2003, with your daughter, Leah, born on 1 November 2003. Suzanne had two children from a previous relationship, one of those being Kristen, the complainant.
60 At the time of Mr Cummins’ report and also at sentence you were 38 years of age.
61 Mr Cummins referred to your relationship with Ms Vincent since 2011, and again I note your involvement with her has a background of some complexity (see paragraph 10 of his report).
62 Ms Vincent had full time care of your sons now as I understand it, aged 4 and 2.
63 Your mother is 56 years of age, lives in Queensland and cares for three other children, twins born in 2007 and a daughter born in 2008. You have a sister who is 41 years of age and lives in Narre Warren. You now describe a reasonable relationship with her.
64 You are not receiving treatment for any mental health condition whilst on remand pending sentencing for these charges and based on the contents of Mr Cummins’ report, your counsel, Mr Gibson, conceded he was not relying upon any of the principles of R v Verdins & Ors[12] when sentencing you. Such, in my opinion, was an appropriate concession on the material before me.
[12] (2007) 16 VR 269
65 Mr Cummins also referred to your education and employment history, much of which I was also told by Mr Gibson.
66 You have never been hospitalised in a psychiatric ward, although it would seem, following the fire in April 2005, you spent approximately 10 days in Maroondah Hospital in the general ward at that hospital. You said you were there because you were regarded as a suicide risk.
67 You described cannabis use from the age of 12 and from 14, typically smoking up to 7 grams daily when you had your liberty.
68 You described in your 20s and early 30s experimenting with a number of other drugs, but on very rare occasions.
69 Reference was made also within Mr Cummins’ report to Ms Vincent’s current medical condition and prognosis (paragraph 30).
70 Some further details were provided in relation to other relationships you have had prior to that with Ms Vincent.
71 You maintained your denial of any inappropriate behaviour towards Kristen, and it was conceded by Mr Gibson that he was not relying upon remorse when sentencing you for this offending. That was also an appropriate concession.
72 Turning to an assessment of risk, in Mr Cummins’ opinion, your risk of committing a sexual offence against an underage person was low-moderate. He would also expect that risk to move further towards "low" if you actively participated in and appeared to benefit from offence specific treatment. Mr Cummins observed your presentation at interview and history was consistent with you having a borderline personality disorder traits. You may have a borderline personality disorder.
73 In his opinion, you reported chronic feelings of depression, negative ruminative thinking and feelings of anger and frustration towards your biological father.
74 You acknowledged you had problems with anger and trust referring to previous Intervention Orders. You had been dependent upon alcohol between the ages of 18 and 30 and cannabis since age 13 and 14. He also concluded you had chronic problems with trust. Mr Cummins urged, as do I, that you be directed to participate in offence specific treatment.
75 Four references were before me.
76 There was a reference from John Burn of Many Rivers Micro Finance Ltd. Many Rivers had provided business support to you and Ms Vincent, since September of 2014 to establish and assist in running your then leather craft business.
77 A reference from Cornelius Span dated 31 March 2017, who had known you since your arrival with Ms Vincent and two children at a caravan park in 2015. He, with a team from the Christian Reformed Church, worked in the park providing food, clothing and special care to residents.
78 You had declared an interest in assisting park management and conducted daily chores in the park and created hand crafted leather handbags.
79 In early 2016, Ms Vincent had been diagnosed with throat and tongue cancer and then there were pressures put on the family unit. He described you as very compassionate towards your two boys.
80 In the last 12 months or so, he had observed you under stress due to your partner’s health issues. Nevertheless, you continued to support her and show patience and love for your boys.
81 There was a reference from Stanislawa Szczerbinski dated 28 March 2017 who had known you for a period of three years and assisted you in your earlier business endeavour making and selling leather craft. She described you as having a young family and that Ms Vincent’s cancer had placed an enormous stress on the family. She described you as a responsible and caring man.
82 There was also a reference from Ms Vincent. She has known you for approximately 26 years in total and has been in a de facto relationship with you for the past six years, with two young sons of that relationship. She referred to the leather craft business having to cease upon your extradition to Victoria for these charges. Her recent cancer diagnosis, operation and treatment had added to your stress. Ms Vincent detailed the treatment she had undergone as a result of the cancer and the prosecution did not take any issue with the accuracy of any of those descriptions. I have no doubt it is a very stressful time for everyone.
83 Ms Vincent referred to your support and care, not only of her, but the children. At times you would drive her to specialist appointments.
84 As I have previously acknowledged, I accept there will be difficulties for Ms Vincent and I have taken that into account, as I have said, consistent with general sentencing principles and no doubt the flow on impact upon you.
85 The victims of your offending have suffered considerably in the manner described in their respective victim impact statements. There was a victim impact statement from Kristen. She described at age 12 her innocence and trust being taken away by a parental figure (you).
86 Your offending behaviour had impacted on her life throughout the years to the present day. She had never been the same person.
87 She had been diagnosed with severe PTSD, anxiety and depression and needed to see a psychologist on a fortnightly basis.
88 She was embarrassed and ashamed by your offending. She suffered severe migraines. It had also adversely affected her ability to trust others, in particular males. She had difficulty in her relationship with her partner in the ways described within her statement. She did not leave the house unless she absolutely had to. Your offending had impacted upon her social behaviour. She had very few friends and felt isolated, not being able to trust anyone.
89 Your offending had also adversely impacted upon her relationship with her mother.
90 She had difficulty watching and reading news about similar stories to hers. She was constantly unsure, stressed and worried about things. She had emotional outbursts. She asked why this happened to her; why did you choose to do this to her?
91 As a result of your offending, she had lost all contact with her maternal family. Your offending had affected her whole family and ultimately torn them apart.
92 She struggled to get to her employment. She was constantly anxious, untrusting and wary of people. What happened to her, she said, could not be erased or changed. It was something she had to deal with on a daily basis.
93 There was also a victim impact statement from Kristen’s mother, sworn 29 March 2017. She felt guilty that she did not investigate your offending earlier. She felt guilt that she did not protect her daughter and had failed her. She felt she had let her daughter down. She did not trust men.
94 She stayed home a lot due to her fear and anxiety after she found out about your offending. She was short tempered at times as your offending played on her mind.
95
Also relevant is the notion of social rehabilitation. A number of authorities have referred to the effects upon a victim of sexual offending, including
DPP v Toomey[13], in which his Honour Justice Vincent referred to social rehabilitation citing DPP v DJK[14] (allowing of course for the difference in factual circumstances to the present case):
[13] [2006] VSCA 60
“… With respect to those statements, I repeat comments that I have made as a Sentencing Judge on more than one occasion. They constitute a reminder of what might be described as the human impact of crime. They draw to the attention of the Judge who would of necessity, have to consider the possible and probable consequences of criminal behaviour, not only its significance to society in general, but the actual effect of a specific crime upon those who have been intimately affected by it. The statements provide an opportunity for those whose lives are often tragically altered by criminal behaviour to draw to the court's attention the damage and sense of anguish which has been created and which can often be of a very long duration. For practical purposes, they may provide the only such opportunity. Obviously the contents of the statements must be approached with care and understanding. It is not to be expected that victims will be familiar with or even attribute significance to the many considerations to which a sentencing judge must have regard in the determination of a just sentence in the particular case. Nor would it normally be reasonable or practicable for a Sentencing Judge to explore the accuracy of the assertions made. Nevertheless, there has been an increasing level of appreciation by the courts of the value of victim impact statements. In my view, they play an important role with respect to an aspect of the criminal law to which reference is not often made. They play their part in achieving what might be termed social and individual rehabilitation. Rehabilitation, in this sense, is not perceived from the perspective of the offender, but from that of those persons who have sustained loss and damage by reason of the commission of an offence.”
[14] [2003] VSCA 109
96 The effects upon a victim are a relevant sentencing consideration (see s.5 Sentencing Act 1991). I am conscious, however, that I must not allow the effects upon a victim to swamp the sentencing process.
97 Mr Gibson conceded that general deterrence and public denunciation were significant sentencing factors. He urged specific deterrence be moderated because of your subsequent efforts to reform your life. In my opinion, there is a need for specific deterrence given your extensive criminal history, albeit not for the same type of offending, and also I note, your offending in Charge 5 occurred a significant period of time after Charge 1, when you could have desisted from further offending but did not.
98 Mr Gibson urged when sentencing you, that your prospects of rehabilitation were good, relying on Mr Cummins’ risk assessment, your age at the time of the offending to now and the strong family support you would have upon your release.
99
Mr Albert, who appeared on behalf of the prosecution, referred to a chart of comparative cases, and sentencing snapshots, also a decision of
DPP v Crawford[15].
[15] [2017] VCC 105, 17/2/17
100 I am aware also of the decision of DPP v Dalgleish[16] and more recently that of R v Kilic[17], the latter involving different offences to yours, but containing a discussion of current sentencing practices generally. Kilic was recently referred to in Stanley v The Queen[18].
[16] [2016] VSCA 148
[17] (2016) 339 ALR 229
[18] [2017] VSCA 54
101
Sexual offending against children is regarded by the courts as very serious and there have been such pronouncements over many years, including in
R v Wayland[19], R v Sposito[20], R v WEF[21], DPP v VH[22].That list is not exhaustive and further authorities were also referred to in Dalgleish.
[19] Court of Appeal Vic, 14/9/92
[20] Court of Appeal Vic, 8/6/93
[21] [1998] 2 VR 385
[22] (2004) 10 VR 234
102 Regarding the charges of incest, in DPP v G[23], Winneke P said:
“This court has, in recent years, had cause to remark on the prevalence of the crime of incest in the community, its capacity to erode decency of family life and the trust and confidence of its young victims. It is a crime which obliges the court to punish it with principles of general deterrence, denunciation and protection of young persons at the forefront of sentencing purposes. … The insidious effects of the crime of incest upon its victims should be recognised by those who are privileged to exercise parental care and the community is entitled to expect that those who exercise such care, will not abuse the trust and confidence reposed in them by those in their charge. Parents - and those in loco parentis - who fail to exercise the restraint which the community expects of them, and who give in to their own sexual gratification, must expect to be severely and appropriately punished.” (Paragraph 83 – Dalgleish)
[23] [2002] VSCA 6
103 Mr Albert, who appeared on behalf of the prosecution, submitted that whilst I should not find exceptional circumstances relevant to the impact of your incarceration upon Ms Vincent and your children, that I could take that into account consistent with general sentencing principles and, as I say, I have.
104 As well as matters personal to you to which I have referred to including your prospects of rehabilitation, which I find to be good, I must also take into account matters such as deterrence, especially general deterrence, which is of considerable importance in a case such as this. As previously stated, courts have repeatedly referred to the seriousness of sexual offending involving children.
105 There is also the need for specific deterrence when sentencing you. As I said before, you have frequently appeared at court and have been dealt with for numerous offences, albeit none of the same type that are currently before me. There was also the opportunity to desist between the commission of Charge 1 and Charge 5. However, you did not.
106 I must also consider the question of protection of members of the community from you and bear in mind the likelihood of your re-offending. In that regard, I am comforted by the assessment and conclusion of Mr Cummins that you are currently a low to moderate risk of sexual re-offending and with appropriate treatment, could be a low risk.
107 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
108 I sentence you as follows.
109 On Charge 1, you are convicted and sentenced to 6 years’ imprisonment.
110 On Charge 5, you are convicted and sentenced to 6 years’ imprisonment.
111 Charge 5 is the base sentence and I direct that 2 years of the sentence on Charge 1 be served cumulatively upon Charge 5.
112 That results in a total effective sentence of 8 years’ imprisonment and I direct that you serve a period of 5 years before you are eligible for parole.
113 For completeness only, as you proceeded to trial, I do not make a s.6AAA sentencing declaration.
114 Pursuant s.18(4) Sentencing Act 1991, I declare you have spent 39 days in custody, up to and including yesterday being 6 April 2017, by way of pre‑sentence detention and I direct that that be entered into the records of the court.
115 By virtue of the finding of guilt, in relation to these two charges, you are also required to report pursuant to the Sex Offenders Registration Act 2004 for life, such being mandatory. Mr Gibson agreed such applied to you.
116 For completeness only, I state the prosecution were not seeking an application pursuant to s.464ZF Crimes Act 1958 and nor were you sentenced as a serious sexual offender. Now are there any other orders?
117 MS OTTREY: No, Your Honour.
118 HER HONOUR: All right.
119 MR BAILIN: No, Your Honour.
120 HER HONOUR: Now what about PSD?
121 MS OTTREY: It's correct, Your Honour.
122 MR BAILIN: Yes.
123 HER HONOUR: Do you agree with that?
124 MR BAILIN: Yes.
125 HER HONOUR: All right then. I have to sign something. Ms Jackson has to approach you I am afraid Mr Carter. When I say I am afraid, it is just one of the things that has to happen. That is all I meant by that.
126 Because you are now on the Sex Offenders Register - pursuant to the Sex Offenders Registration Act, she is obliged to give you some paperwork about that. She is not asking you to agree to it. I have made the order, but her job is simply to make sure you are handed that paper and then you sign for it. If you do not want to sign for it, I understand, but that is what she is doing now and that is why she is coming back to see you. That is the only reason, all right? Did you want to go back to him or not?
127 MR BAILIN: Yes.
128 HER HONOUR: It is up to you. All right, thank you very much. Is there anything further?
129 MS OTTREY: Nothing further, Your Honour.
130 HER HONOUR: No, all right. Thank you sir you'll have to go out I'm afraid. All right, thank you.
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