Director of Public Prosecutions v Coli

[2023] VCC 78

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 21-02532

DIRECTOR OF PUBLIC PROSECUTIONS

v

PAUL COLI

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JUDGE:	HIS HONOUR JUDGE LAURITSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	9 December 2022
DATE OF SENTENCE:	1 February 2023
CASE MAY BE CITED AS:	DPP v Coli
MEDIUM NEUTRAL CITATION:	[2023] VCC 78

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW      

Catchwords:  Aggravated burglary – attempted aggravated burglary – stalking – sexual activity directed at another person – possession of a drug of dependence – forced entry into young female’s house with knife for purpose of sexual fantasy – personality disorder of moderate severity – offending in context of personality disorder and longstanding drug use – moderate risk of sexual re-offending – positive prospects of rehabilitation – early plea of guilty – onerous conditions in custody due to Covid-19 – totality – discretion to make sex offender registration order – real risk to sexual safety of one or more persons in the community

Legislation Cited:                  Sentencing Act 1991 (Vic), Sex Offenders Registration Act2004 (Vic)

Cases Cited:DPP v Kenna Unreported, Court of Criminal Appeal, 3 November 1988, Worboyes v R [2021] VSCA 169, DPP v Cartwright [2015] VSCA 11, Bowden v R [2013] VSCA 382

Sentence:Four years and nine months imprisonment with a non-parole period of three years imprisonment. Sex Offender Registration Order made for eight years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Caruso	Office of Public Prosecutions
For the Accused	Ms F. Fox	Slades & Parsons Criminal Law

HIS HONOUR: 

Introduction

1At the outset, Paul Coli, I propose to sentence you to four years and nine months' imprisonment and fix a non-parole period of three years' imprisonment.  I will declare the 734 days of your pre-sentence detention (excluding today) as time served under my sentences.  I will also require you to report under the Sex Offenders Registration Act 2004 for eight years.

2You have pleaded guilty to three charges of aggravated burglary and a charge of attempted aggravated burglary; one charge of stalking; one charge of sexual activity directed at another person; and two charges of possession of a drug of dependence.  

3These charges arise out of the events of 10 January 2021 and 28 January 2021.  All of the offences except for the drug charges were committed at the address of the complainant, Samantha Olsen[1].  Ms Olsen was then 21 and you were 45.  Between 2006 and 2014, you were her neighbour even though she did not know you.  

[1] A pseudonym.

4The circumstances of each of the charges are set out in the document entitled 'Summary of Prosecution Opening for Plea', which is Exhibit A.  Your counsel agreed with the factual contents of the exhibit.  

Circumstances

10 January 2021

5On 10 January 2021, you entered the complainant's home through a window after removing a flywire screen.  You were naked.  You went to her bedroom.  She was asleep.  You started masturbating.  She awoke, saw you and screamed.  You ran away.  Her mother was woken by the screams and heard footsteps running away.  The police were called and attended.  Finger and palm prints were matched to you.  These circumstances constitute Charge 1, a charge of aggravated burglary, and Charge 5, sexual activity directed at another person.

6After this incident, the complainant changed bedrooms.  Locks were installed on the bedroom doors as was CCTV.  

28 January 2021 (first incident)

7In the early morning of 28 January 2021, you returned to the complainant's home.  You walked outside the front of the house carrying a torch and tissues.  You were again naked.  You looked in a front window.  You then walked back and forth between the front and east side of the house.  At one stage, you touched your penis.  

8At about 5.45 am, you removed a flywire screen from the window which led into the bottom lounge area and entered.  You went to the complainant's former bedroom but she was not there.  You touched her empty bed and left the room.  A few minutes later, you returned to that bedroom, fondled your penis and wrote the words '[Samantha] Suck My Cock Sexy' on a notebook.  You left the house shortly after through the same window.  You put your clothes on and left the property.  These circumstances constitute Charge 2, another charge of aggravated burglary.

28 January 2021 (second incident) 

9About ten minutes after you left the property, you returned.  You removed your clothes and entered the house through the same window.  You went to the kitchen, found a knife block and after touching three knives, selected a large chef's knife.  You left the home through the laundry with the knife.  You went to the window of the bedroom where the complainant was sleeping and tried to enter.  You were still naked and you still had the knife. The complainant woke up as she heard the window rattle and saw a shadow.  She called Tripe 0 and alerted her mother.  These are the circumstances constituting Charge 3, aggravated burglary, and Charge 6, attempted aggravated burglary.

10You left the property, dropping the knife in the rear yard.  The complainant saw you running along her street, naked.  Fourteen minutes after first entering the property, you returned to get your clothes and bag and then left.  

Stalking

11Charge 4 is a charge of stalking, encompassing elements of your conduct between 10 and 28 January 2021. They are:

(a)   your entries and attempted entry of the home contained in Charges 1, 2, 3 and 6;

(b)   your behaviour comprising Charge 5;

(c)   your entry and exit to the property at 5.41 am on 28 January 2021 when naked;  

(d)   looking into the windows while searching for the complainant before entering the home on 28 January 2021;  

(e)   searching the house for the complainant and fondling yourself on 28 January 2021;  

(f)    writing a note in the complainant's bedroom on 28 January 2021.

Possession charges

12On 28 January 2021, the police went to the complainant's home.  Shortly afterwards, they found you walking near a bus stop, topless.  They did not arrest you then.  Afterwards, they compared some CCTV footage with their own body-worn camera footage and arrested you later that day at your home.  A search of your bag revealed a small amount of cannabis, a small amount of methylamphetamine and an ice pipe.  Neither drug was weighed, for both, the amounts were small.  These circumstances constitute Charges 7 and 8, possession of a drug of dependence.

Interview with Police

13You were interviewed by police members.  Among other things, you gave false accounts of the extent of your relationship with the complainant and her family and why you were present at her house on both dates.  However, you did admit to having a bit of a fixation about the complainant.  You admitted writing the note, saying you were aroused.  You admitted taking the knife but could not explain why.  

Pre-Sentence Detention

14On 28 January 2021, you were arrested and remanded in custody, where you have remained.  Excluding today, you have been in custody for 734 days.

Victim Impact Statement

15On 11 March 2022, the complainant made an impact statement.  Understandably, your crimes have had a significant impact upon her.  Although her life has returned to some normality, she still has some difficulty sleeping and fears about her privacy and safety.  She even contemplated moving house. She said:[2]  

'I have been very conflicted in loving being in my own home after time overseas, yet also feeling unsafe and like there were eyes watching me where I could not see.  Friends I confided in had brought up moving away, but although I understood their concerns and the logic behind this, I could not help but feel irritated by the prospect of leaving a house that I love and a life that I had as a consequence of someone else's actions…I remain very particular about shutting the blinds completely at night and locking the bedroom door.  A small gap uncovered at the window continues to induce a small panic from an intrusive image of a stranger peering through.'

[2] Victim Impact Statement of Samantha Olsen dated 15 March 2022

Personal Circumstances

16You are now 47.  You were born in Australia.  You grew up in a stable home with both of your parents.  Your parents remain together.  You have a younger sister who you got along with growing up and still do now.  Growing up, your father was hard on you but did not physically discipline you.  You describe your mother as 'lovely' and as being there for you for the emotional side of things.  At 16, your maternal grandparents moved into your home.  You describe them as loving and there is no family history of mental health issues. 

Education

17You completed Year 12, performing above average academically and socialised outside of school with your friends.  You completed an Associate Diploma in Business Marketing over two years.  While in custody, you have started a business course at a TAFE.  

Employment

18You have a continuous and extensive history of employment in the hospitality industry, working for a number of employers.  

19In about 2008, you started caring for your grandparents on a full-time basis and received a carers pension.  In 2012, your grandfather died.  You continued caring for your grandmother until 2018 when she was moved into residential care.  You have not returned to the workforce.  

20While in custody, you completed a traffic management course and may seek such employment when released from custody.  

Substance Use

21You have smoked cannabis since you were 18 years old.  Before your remand, you smoked cannabis daily.  You are an occasional drinker of alcohol.  

22In the two years leading up to your remand, you used methylamphetamine.  According to your counsel, you were using about an ounce a week.  It appears you started using it in about 2009.  

Relationships

23You have had about six intimate relationships in your life, the longest lasting about two and a half years.  You now have a partner, aged 57.  You remain together despite you being in custody.  Because of shame, you have not told her of the nature of these charges.  

24Your parents support you.  However, neither parent is aware of the nature of the charges against you.  

Psychiatrist

25Rajan Darjee is a consultant forensic psychiatrist.  At the request of your solicitors, he interviewed you on 11 August 2021 and 19 November 2022.  From those interviews he prepared three reports[3]. 

[3] Reports dated 14 October 2021, 3 and 7 December 2022.

26In his first report, Dr Darjee was asked to examine whether the defence of mental impairment was available.  He said it was not for he was unable to diagnose you as suffering from any mental illness or cognitive impairment.  Unlike your account to him, he assumed the prosecution account was correct and described your form of stalking as 'predatory stalking', which is very rarely associated with mental illness.  However, this behaviour is associated with persons suffering from personality and/or paraphilic disorders.  The latter are disorders of sexual preference.  

27After his second interview, Dr Darjee diagnosed a personality disorder of moderate severity.  To diagnose, he used both systems set out in the International Classification of Diseases and the Diagnostic and Statistical Manual of Mental Disorders.  By addressing the criteria under those diagnostic regimes, he set out your various personality characteristics.  This is what he said[4]:

'Paul Coli has a personality disorder.  Where a person's personality (the habitual way in which they experience and express emotions, behave, interact with others, and view themselves, others and the world) causes persistent and pervasive problems and/or is inflexible in adapting to different contexts appropriately, then the person is considered to have a personality disorder.  In the current diagnostic systems (ICD-11 and DSM-5) a level of severity can be attached to personality problems.  Using ICD-11, I consider him to have a moderate personality disorder (the severity levels in ICD-11 are no personality problems, personality difficulty, mild personality disorder, moderate personality disorder and severe personality disorder) given his problems maintaining a long-term relationship, having few if any close friendships, problems with his family, and difficulty maintaining employment.  Using DSM-5 to assess the key aspects of personality functioning, he has some problems with identity, some problems with self‑regulation, significant problems with intimacy and some problems with empathy.  In terms of specific problematic traits, he has struggled to form close relationships with others, his father described him as something of a loner, he has lacked perseverance, he can feel entitled, be overbearing and is self-aggrandizing.  He appears to need to project a competent and very able image of himself, likely compensating for feeling inadequate and feeling that he lets others down.  He can be pedantic.  He likely feels a failure, compared to his father's expectations and his sister's achievements, which is likely a source of shame which he tries to protect himself against.  In terms of specific diagnostic labels, he has some narcissistic, avoidant and obsessional traits, but as with most people, does not fit neatly into any of the traditional personality disorder categories nor does he meet all the criteria for any one specific category of personality disorder.'  

[4] Report dated 3 December 2022 at [17].

28On the available material, and due to your unreliable statements to him, Dr Darjee was unprepared to diagnose any sexual disorder.  

29Dr Darjee thought you were acting out a sexual fantasy you had developed in relation to the complainant and the acting out arose as a combination of your personality and use of methylamphetamine before the offending.  More fully, he said[5]:  

'His personality disorder, the sexual issues noted above, and use of methamphetamine are all relevant to understanding these offences.  His personality problems especially being detached and needing to compensate for feelings of inadequacy have probably led to him using compensatory sexual fantasies about Asian females and/or the specific victim, who he has become sexually preoccupied with and fixated on.  Committing such behaviour was likely sexually exciting and made him feel potent, in the context of the sexually stimulating, disinhibiting and awakening effects of methamphetamine, leading to him indulging his sexual fantasies.  Taking a knife and trying to open the victim's window are potentially of concern regarding escalation in his behaviour, but it is unclear whether he wanted to masturbate in her presence, as he had done previously, or engage her more intrusively or directly.  It is unlikely that he intended to physically injure the victim.'

[5] Report dated 3 December 2022 at [20].

30In his third report, Dr Darjee examined in greater detail the risk of you re-offending sexually.  At paragraph 16 he said[6]:

'Overall, my view is that he poses a moderate risk of further stalking and sexual offending if he is unmanaged and untreated in the community.  This means that he would be as likely to recidivate as the average person convicted of a sexual offence.  Although most people convicted of sexual and stalking offences do not commit further similar offences a minority do.  He is more likely than someone with only non-sexual convictions to commit such an offence, and far more likely than a person without any convictions to commit such an offence in the future, but no more likely than a person convicted of sexual offending.'

[6] Report dated 7 December 2022 at [16].

31As to the nature of the likely reoffending[7]:  

'If he were to reoffend, he may target the victim of his current offences, but in my view he would be more likely to target another female with similar characteristics to the victim.  So, the risk is not just to the victim, but also other women.

'If he were to reoffend in such a way, he would likely commit offences like the ones he has been convicted for.  One could not say that he is likely to escalate to commit a more intrusive or violent offence involving physical contact and/or threats to a victim, but, given his escalation within the current offences and him grabbing a knife, such a scenario cannot be considered implausible.'

[7] Report dated 7 December 2022 at [17] & [18}.

Discussion

Purposes

32Section 5(1) of the Sentencing Act 1991 sets out the purposes for which sentences may be imposed:

(a)   to punish the offender to the extent and in a manner which is just in all of the circumstances;

(b)   to deter the offender or other persons from committing offences of the same or a similar character;

(c)   to establish conditions within which it is considered that the offender's rehabilitation may be facilitated;

(d)   to manifest the denunciation of the type of conduct the offender engaged in; and,

(e)   to protect the community from the offender.

33All of these purposes have application in your case.

34I accept Dr Darjee's view of why you offended on 10 and 28 January 2021:  you were acting out a sexual fantasy, developed in relation to the complainant and the impetus to so act came from a combination of your personality and your use of methylamphetamine.

General deterrence

35There are several reasons why a person would commit an aggravated burglary or attempt to do so.  Frequently, it is to steal from a dwelling.  In your case, it was to assault the complainant sexually.  Committing such offences with that intention towards a female is a significant example of each.  To quote Young CJ in DPP v Kenna[8]:  

'There are few offences that strike more terror into the women of this community than offences which involve the breaking into a private house and the commission in that house of sexual assault.'

[8] Unreported, Court of Criminal Appeal, 3 November 1988, at p 5. See also Salvaggio v R [2022] VSCA 88 at [107].

36In that case, apart from committing an aggravated burglary, Mr Kenna committed three rapes, one attempted rape and three indecent assaults upon the victim.  Plainly, you did not sexually assault the complainant in the sense used by Young CJ, but she was not to know that.  Despite his efforts, Dr Darjee never discovered the details of what you intended to do through acting out your fantasy.  Whatever fantasy you intended to act out was prevented by her screams on 10 January and your inability to enter her bedroom on 28 January.  The fear instilled in her by your efforts emerges from her impact statement.  

37My sentences for the charges of aggravated burglary, attempted aggravated burglary and stalking must act to deter others who are similarly inclined to act in the way you have.  The outrageous nature of your offending must be denounced, by my remarks and by my sentences.  

38Similarly, my sentences must act to deter you behaving in that fashion again and protect the community from you.  

Rehabilitation

39In terms of your rehabilitation, if you were in the community, Dr Darjee considered you must abstain from using methylamphetamine.  Given your addiction to that drug as well as cannabis, you would need expert help to remain abstinent notwithstanding your negative testing while in custody.  He also recommended the involvement of the Forensicare Problem Behaviour Program.

40With you, remorse is bound up with shame.  It is the shame of your offending which stops you from telling your parents and partner what you did.  It even stopped you telling Dr Darjee the truth although he understood why.  Your shame could well translate into a determination not to reoffend in this way again.

41Your family is supportive even though your parents are unaware of the circumstances of your offending.  One supposes they will remain supportive even if they find out[9].  One cannot say that in relation to your partner if she finds out.  It may be too much for her.  She suffers from a serious, incurable, disease.  Whether you do tell them the true story is uncertain.  You told Dr Darjee a false story and only gave some ground in the face of conflicting evidence.  As Dr Darjee said[10]:

'When I put it to him that this did not match the evidence in many respects and that there must have been an element of fixation or fantasy regarding the victim, given he went back to the same property and given the behaviour captured on CCTV, he accepted this may have been the case and "I understand where you are coming from".'

[9] I note the letter written by Mr Coli's father dated 6 December 2022.

[10] Report dated 3 December 2022 at p 3.

42The services recommended by Dr Darjee are available to you in custody and after your release.  For a person who has never been sentenced to actual imprisonment, one should not underestimate the deterrent effect of my sentences.  It demonstrates the ability of the law to punish.

43Overall, I would consider your prospects of rehabilitation as positive.  

44Section 5(2) of the Sentencing Act sets out matters, where relevant, which should be taken into account in sentencing you.

Nature and gravity of the offending

45The nature and gravity of your offending has already emerged in my earlier comments.  Arming yourself with a large knife after you had re-entered the complainant's home for the second time on 28 January is a disturbing development as you retained the knife when attempting to enter her bedroom.  Beyond describing your taking of the knife as a disturbing development, I cannot find what you intended to do with it.  You yourself did not say why you took it when interviewed by the police.

46The charges of aggravated burglary, attempted aggravated burglary and stalking are significant examples of serious offences.

Maximum Penalties

47The maximum penalties for the offences are:

(a)    aggravated burglary - 25 years' imprisonment;

(b)   stalking - 10 years' imprisonment;

(c)   sexual activity directed at another person - five years' imprisonment;

(d)   attempting to commit an aggravated burglary -- 20 years' imprisonment;  

(e)   possession of a drug of dependence, being a small quantity of cannabis -- five penalty units;

(f)    possession of a drug of dependence, being a small quantity of methamphetamine – one year's imprisonment or 30 penalty units.  

Guilty pleas

48In relation to the charges, in terms of the timing of your pleas of guilty, they were entered at an early opportunity.  There was no committal hearing and no witnesses were examined.

49By pleading guilty to the charges, you have avoided a trial.  You have saved the time and expense of a trial.  You have allowed other trials to be listed earlier than would otherwise be the case.  You have spared witnesses the burden of giving evidence in a trial.  Giving evidence is never easy.  This would be especially so for the complainant. 

50At the present time, pleas of guilty deserve a greater discount on sentence.  Why this is so was explained in the case of Worboyes v R[11], where the court said:  

'As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested.  Unacceptable delay in the disposition of criminal cases is endemic.  Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts.  We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice.  Given the unhappy state of the courts' lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead.  Such encouragement must come from an actual and palpable amelioration of sentence.'

[11] [2021] VSCA 169 at [35].

51Your pleas of guilty require a significant discount on the sentences I would have imposed if you had pleaded guilty but had been found guilty after a trial.

Criminal History

52Between 19 March 2009 and 9 April 2010, you appeared in the Magistrates' Court on three occasions and were convicted of four charges.  Three of the charges involved the offence of driving while your licence or permit to drive was suspended.  The fourth charge related to the contravention of suspended sentence imposed on a charge of driving while suspended.  No penalty was imposed for that charge and on the others you were fined on one and received suspended sentences of 30 days and three months' imprisonment on the other two. 

53In the context of your offending, your criminal history is of no relevance.  They demonstrate a disobedience of the law and orders of the court but they are dated and relate to entirely different offending. 

Other matters

54I note you have spent your time in custody while various restrictions due to the pandemic have been in place.  Undoubtedly, they made your experience of custody more burdensome. I note the letter of your father, dated 6 December 2022, of his and your mother’s inability to visit you in custody.   

Totality

55The charge of stalking covers much the same territory as the charges of aggravated and attempted aggravated burglary.  The incidents on 10 and 28 January are closely related, being committed in the same premise and with the same intended victim.  The principle of totality has significant application.

Current sentencing practices

56As to current sentencing practices, your counsel drew my attention to five cases, which she helpfully summarised[12].  Counsel for the Director drew my attention to two cases, which she also helpfully summarised and referred to passages from the judgment in one[13].

[12] Singh v DPP (2013) 41 VR 230; YTiburcy v R [2010] VSCA 307; Stevens v R [2012] VSCA 192; DPP v Cartwright (2015) 248 A Crim R 461; and Cao v R [2017] VSCA 298.

[13] Salvaggio v R [2022] VSCA 88; and Burns v R [2016] VSCA 195.

57You do not rely on any of the principles in Verdins v R[14].

[14] (2007) 16 VR .

Sentence

58On Charge 1, a charge of aggravated burglary on 10 January 2021, I sentence you to three years' imprisonment.

59On Charge 2, a charge of aggravated burglary on 28 January 2021, I sentence you to three years' imprisonment.

60On Charge 3, a charge of aggravated burglary, I sentence you to three years and three months' imprisonment.

61On Charge 4, a charge of stalking, I sentence you to two years' imprisonment.

62On Charge 5, a charge of sexual activity directed at another person, I sentence you to six months' imprisonment.

63On Charge 6, a charge of attempting to commit an aggravated burglary, I sentence you to two years' imprisonment.

64On Charge 7, a charge of possessing Cannabis L, and Charge 8, a charge of possessing methylamphetamine, I will convict and discharge you on both charges.  For each charge, the amount of the drug was small.  It would serve no useful purpose to fine you on each charge in view of the sentences of imprisonment I am imposing.  Even if the fines remained outstanding on your release, they may only serve to impede your rehabilitation. 

65The base sentence is the sentence on Charge 3.  Nine months of the sentences on Charges 1 and 2 will be served cumulatively upon themselves and the base sentence.  The other sentences of imprisonment will be served concurrently with each other and the other sentences of imprisonment.

66The total effective sentence is four years and nine months' imprisonment.  I will set a non-parole period of three years' imprisonment.

67I declare the 734 days of your pre-sentence detention (excluding today) as time already served under my sentences today.  

Section 6AAA Declaration

68If you had not pleaded guilty to these charges but had been found guilty after a trial, I would have sentenced you to a total effective sentence of seven years' imprisonment.

Forfeiture and disposal orders

69I will make the forfeiture and disposal orders in the terms sought.

Sex Offenders Registration Act

70The Director seeks an order under s11(1) of the Sex Offenders Registration Act 2004 that you comply with the reporting obligations of that Act.  You oppose the making of that order.

71A registrable offender is a person whom a court at any time sentenced for a registrable offence. A registrable offence is a Class 1 Or Class 2 offence or an offence which results in the making of a sex offender registration order. Section 11(1) provides:

'If a court finds a person guilty of an offence committed as an adult that is not a Class 1 or Class 2 offence (including an offence that is a Class 3 or Class 4 offence), it may order that the person comply with the reporting obligations of this Act.'

72As an adult, you have not committed a Class 1, 2, 3 or 4 offence. Presumably, the Director seeks the order because you are guilty of the offences in one or other or all of Charges 1, 2, 3, 4, 5 and 6. It was not submitted on your behalf that s11(1) does not apply to you. In fact, it was decided in DPP v Cartwright[15] that s11(1) applied to the offence of aggravated burglary.

[15] [2015] VSCA 11.

73Section 11(3) provides:

'The court may only make an order under this section if, after taking into account any matter that it considers appropriate, it is satisfied, beyond reasonable doubt, that the person poses a risk to the sexual safety of one or more persons of the community.'

74Sub-section (4) clarified sub-section (3) by providing:

'For the purposes of subsection (3), it is not necessary that the court be able to identify a risk to particular people, or a particular class of people.'

75Both counsel - both your counsel and counsel for the Director - referred to Bowden v R[16]. As to risk, the court in that case said[17]:

'To enliven the discretion to make a registration order under s11(1), the risk must be assessed to be real. The court must be satisfied beyond reasonable doubt that the risk that the offender poses is a real risk. If the risk posed by the offender is unreal, or fanciful, the court must not make a registration order.'

[16] [2013] VSCA 382.

[17] At p 237.

76I have already quoted paragraph 16 of Dr Darjee's report.  Unless treatment is successful, you pose a moderate risk of reoffending sexually.  Dr Darjee described what he meant by 'moderate risk'.  In view of that opinion, given the nature of your underlying personality disorder and your longstanding drug addiction, I consider you will remain a real risk to the sexual safety of one or more persons of the community.  I reach that conclusion beyond reasonable doubt. 

77Notwithstanding a finding under s11(3), the Court in Bowden's case identified a discretion as to the making of the order.  The discretion involves the balancing of the nature of the risk and its likelihood of occurring against the onerous reporting obligations imposed on a registrable offender.  The Court discussed the discretion in paragraphs 40 to 46 of its judgment.

78Dr Darjee said you are a moderate risk of reoffending sexually. He described the way you might reoffend. Part 3 of the Act describes the reporting obligations. They are indeed onerous. The risk of you reoffending is significant and, if you did, the damage suffered by the victim would be great. It far outweighs the onerous nature of the reporting obligations. I will make an order under s 11(1).

79Section 34 sets out the length of the reporting period.  There are three lengths:  eight years; 15 years; and life. Your offences come within section 34(4)(b).  You have been found guilty of an offence not being a Class 3 or 4 offence.  As such, you are to be treated as having committed a Class 2 offence.  Section 34(1)(a) prescribes a reporting period of eight years.  Accordingly, I will fix the length of your reporting period at eight years.  

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