Director of Public Prosecutions v Doherty
[2016] VCC 639
•18 May 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-01539
CR-15-01802
CR-16-00082
CR-16-00083
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PHILLIP DOHERTY |
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| JUDGE: | HER HONOUR JUDGE SEXTON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 17 May 2016 |
| DATE OF SENTENCE: | 18 May 2016 |
| CASE MAY BE CITED AS: | DPP v Doherty |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 639 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Pleaded guilty to child pornography, furnish false information, breach of reporting obligation charges – in 2014 released on federal parole for child pornography offending – whilst on parole offended further – placed on Supervision Order – committed further offences – increased seriousness due to offending whilst on parole, and whilst on Supervision Order – early guilty plea and cooperation – sought counselling – applicability of Verdins – poor prospects of rehabilitation – effect of accumulation modified to address totality
Sentence: Total effective sentence on both indictments and the summary charge of 6 years’ 7 months’ imprisonment, with a minimum of 5 years before becoming eligible for parole
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APPEARANCES: | Counsel | Solicitors | |
| For the Commonwealth | Ms F. Holmes | CDPP | |
| For the State Director of Public Prosecutions | Ms K. Churchill | OPP | |
| For the Department of Justice and Regulation | Ms R. Sharp | ||
| For the Accused | Mr B. Newton | Dribbin & Brown | |
HER HONOUR:
Introduction
1 Phillip Doherty, you have pleaded guilty before me to offences on two indictments, and have applied for and been granted leave for this court to hear a summary offence to which you also pleaded guilty. For ease of reference, I list all charges and their maximum penalties in a table that is attached to these reasons.
2 I proceed to sentence you on the basis of the agreed summaries read out in court on behalf of the Commonwealth Director of Public Prosecutions[1], and the Victorian Director of Public Prosecutions[2].
[1] Exhibit A
[2] Exhibit B
Chronology
3 There was no chronology tendered on your behalf as required by the County Court Practice Note, and as the timeline is complicated and also important for consideration of the factors relevant to the sentences to be imposed, I will set out the relevant events. I base this outline on the material in the agreed summaries, and on the assessment reports provided by a forensic and clinical psychologist to the Department of Justice and Regulation for the purposes of the Secretary considering an application under the Serious Sex Offenders (Detention and Supervision) Act, which were in the possession of the parties and the court and referred to in submissions. I receive these reports as Exhibit E.
4 On 27 November 2009, you were sentenced by Her Honour Judge Lawson to a total effective sentence of 5 years with a non-parole period of 2 years 6 months, for two charges of using a carriage service to procure a person under 16, two charges of possession of child pornography, a charge of using an online information service to transmit objectionable material, and a charge of using a carriage service to groom a child under 16 years. You were required to report for life under the Sex Offenders Registration Act and had obligations to report certain details to the police.
5 On 2 July 2014, you were released on federal parole in respect of that sentence. You resumed living with your partner of many years, who was suffering from terminal cancer. You became her carer.
6 On 13 November 2014, you connected a mobile telephone service for a Huawei telephone, and on 27 November, you created an email address.
7 Between 8 December 2014 and 3 August 2015, you used a free photo-sharing website which originated in Russia to access child pornography (Commonwealth charge 1 - 1st indictment). On a device described as a MyGica TV box, police later discovered 534 child pornography files, and on the mobile phone, 93 files were found, one of which was a video. All had been deleted. The vast majority of the child exploitation material on the MyGica TV box was of Level 1, the lowest level on the classification scale associated with the Australian National Victim Identification Library, while a small majority of the files on the mobile phone were classified as Level 4, which involves penetrative sexual activity between children, and between children and adults, and is consequently, a much higher level of classification, and objectively much more serious.
8 Between 30 December 2014 and 30 July 2015, you sent emails to which were attached child pornography files or which contained text which constituted child pornography (Commonwealth charge 2 - 1st indictment).
9 There was no discussion on the plea as to whether I should view a sample of the material involved in charges 1 and 2, and I have not done so, other than the text based material in the depositions. I therefore sentence you on the basis that the summary read by the Commonwealth prosecutor about the material[3], and the references in the sentencing submissions[4], are accepted. I will deal with the nature of the offending later in these remarks.
On 17 March 2015, Forensicare no longer required you to attend for monitoring of your anti-libidinal medication, and referred you to your general practitioner.
[3] Exhibit A at [10]-[27]
[4] Exhibit C at [21]-[23]
10 On 7 April 2015, you were interviewed on behalf of the Department of Justice and Regulation for the purpose of the Secretary to the Department deciding whether an application should be made for you to be subject to a Supervision Order when the sentence you had received in 2009 expired on 20 September 2015.
11 In a report dated 6 May 2015, you were found by the assessing psychologist to be of moderate risk of relevant re-offending by accessing child pornography on the internet and attempting to engage teenage girls in sexual contact. None of the offending I have described after 8 December 2014 was known to the report writer, or the relevant authorities. Protective factors were said to be your insight into your offending, that you had people around you who were aware of your offending, that you were actively engaged in psychological treatment, and were being administered anti-libidinal medication[5]. It was noted that your partner had terminal cancer, and the potential to lose her due to her terminal illness was considered a high risk situation for you[6].
[5] Exhibit E - Report dated 6 May 2015 at [172]
[6] Ibid at [127]
12 On 24 May 2015, you created a video file which recorded a live internet screening via an online chat site that randomly pairs users in one-on-one sessions where anonymous communications can take place. The 1 minute 12 second video was located by police on a mobile phone. It shows a split screen with one screen depicting a naked 5 year old performing sexual acts on herself, and the other screen showing you masturbating, making sexual comments and groaning. You were each visible to the other (Commonwealth charge 3 and State charge 4 - 1st indictment).
13 On 22 July 2015, an Incident Report was compiled by the authorities, documenting that undercover police in the UK had contact with you in an internet chat room where you referred to sexual abuse of a child, and Victoria Police were notified. The Incident Report noted that you had been attending supervision sessions for your parole, had attended sessions with a private psychologist to address mental health and offence-related needs, and had attended Forensicare for monitoring of your medication until terminated by them on 17 March 2015.
14 On 1 August 2015, your partner died.
15 On 3 August, you were spoken to by your Supervising Officer for Corrections Victoria, who noted that you were extremely distraught at your partner’s death. In the course of that conversation, the officer’s suspicions were raised as to you having a phone which was unknown to authorities, so that you potentially had access to the internet.
16 On 13 August, following the information received from the UK police, the Sex Offender Management Branch of the Department of Justice and Regulation sought an updated report from the assessing psychologist, which she provided on 15 August. I receive that as part of Exhibit E. She did not interview you on that occasion, but based on the material she had been given, including allegations of re-offending relating to the UK information, she re-assessed you as posing a high risk of sexual re-offending. She offered the opinion[7] that
“the declining health and death of [your] partner may have resulted in the collapse of social support (as a key network person has been lost) and a state of emotional collapse (impairing judgement and threatening self-control). [Her earlier report] indicated that emotional collapse was linked to [your] past sexual offending, and were [you] to lose [your] partner, it would be a high risk situation for re-offending.”
[7] Exhibit E – Report dated 15 August 2015 at [6]
17 Also on 13 August, the police executed a search warrant on your home, and located the MyGica TV box and the Huawei mobile phone. You told police that the previous Wednesday (5 August) you had thrown away the computer on the street late at night because it would have had old emails and child pornography, and you thought ‘ “it” was starting to get worse’. You showed police where you had got rid of the computer but it could not be found. You were interviewed and admitted your criminal conduct in relation to charges 1 – 4 on the first indictment. You were released on bail.
18 On 3 September 2015, the Secretary to the Department of Justice and Regulation made an urgent application for you to be placed on a Supervision Order under the Serious Sex Offenders (Detention and Supervision) Act, based on the updated report of 15 August[8]. Such an application can only be made while an offender is undergoing sentence for a relevant offence. You were still undergoing the 2009 sentence for relevant offences, but only until 20 September 2015.
[8] Exhibit E
19 On 16 September 2015, I ordered that you be subject to an interim Supervision Order on certain conditions, which you consented to. The interim order was made because the full application could not be heard within the days remaining on your sentence. The interim order was made to commence on 20 September, the date of completion of your sentence, with conditions including that you not commit a relevant offence, and that, without the consent of the Adult Parole Board, you not use a computer or access the internet, photograph or video children under 16, or use a mobile phone or camera to access, store or transmit images of children aged under 16. Despite the interim order, you proceeded to do all of these prohibited activities.
20 On 8 October 2015, police attended at your home. When the police approached, you went around the back of your house and threw a Motorola mobile phone under a bush. The police retrieved it and you told them it was your deceased partner’s phone.
21 Police seized the phone, a second MyGica TV box, and a laptop computer. No child pornography was found on these devices, but on interview, you admitted that you had been using the second TV box, which you had obtained about a month earlier, to access child pornography about 15 to 20 times since you were bailed on 13 August (Commonwealth charge 5 - 1st indictment).
22 By accessing that child pornography material, the subject of charge 5, you breached condition 4.1 of the interim Supervision Order (State indictable charge 1 – 2nd indictment).
23 On analysis, the Motorola phone had at least 4 images of schoolgirls on it, which you admitted taking while driving past them believing them to be aged 15-16 years. You also admitted using the Motorola phone to access the internet since 13 August, which you had been using to stream movies and view child pornography material. By using or accessing the internet, photographing children under 16, and using a mobile phone to store the images, all without consent of the Adult Parole Board, you were in breach of condition 6.1 of the interim Supervision Order (State summary rolled up charge 1 – 2nd indictment).
24 You were aware of your reporting obligations under the Sex Offenders Registration Act, having received notification on numerous occasions: on 29 November 2009 when sentenced; on 1 July 2014, the day before your release on parole; on 10 April 2015; and at your annual review under the Act on 14 July 2015.
25 At that review on 14 July 2015, you told police that although there was internet connected to your home, you did not have access to it. This was false, as you later admitted that your partner, probably due to her illness, sometimes forgot to turn off her computer to which only she had the password (State charge 7 – 1st indictment). As a result, you had access to the internet on these occasions.
26 Between 13 November 2014 and 12 August 2015, you failed to comply with your obligations under the Sex Offenders Registration Act by not reporting the number of the Huawei mobile phone, nor the email addresses you used during that period, nor the several usernames you used online, nor the internet access you had on that phone and your partner’s computer (State charge 6 – 1st indictment).
27 Between 13 August and 8 October 2015, you failed to comply with your obligations by not reporting your use of the Motorola phone formerly belonging to your partner, and your use of her email address (State charge 8 – 1st indictment).
28 You have been in custody since 8 October 2015.
Nature of offending
29 It has been conceded on your behalf that this is very serious offending. While your offending was not committed for profit, and the pornographic material identified did not involve as large a quantity as found in other cases, your participation in the global market involving the possession, production and distribution of child pornography is nevertheless of high seriousness. This was a sustained period of conduct over a period of 8-9 months, and the offending resumed after your release on bail and continued for another two months before you were taken into custody.
30 While there are no identifiable victims, these are not victimless crimes. Every child depicted in the images you accessed and made available is a victim, not just during the appalling abuse suffered at the time of the creation of the pornography, but forever, as these images cannot be wholly removed from the internet. As they grow older and learn the real significance of what was done to them, if they were not old enough to realise it at the time, they will have to live for the rest of their lives with the awful knowledge that at any given time, someone like you will be looking at them thereby perpetuating their abuse.
31 For the State charges, the failure to comply with reporting obligations under the Sex Offenders Registration Act provided the opportunity for you to re-offend and keep on offending. Had you reported the devices, internet access and other details, your offending, or potential for offending, would have been detected earlier, and it is highly likely that you would have been unable to commit some of the offences.
32 The two charges of failure to comply with the conditions of the Supervision Order are also serious matters. Charge 1 on the second indictment is directly referrable to charge 5 on the first indictment, whereby you admitted to accessing child pornography over 15-20 times over the period. The summary charge is a rolled-up charge relating to four different types of activity that you engaged in which breached condition 6.1 of the order. The efficacy of the whole scheme of supervision of serious sex offenders depends on those orders being properly imposed and adequately maintained. Where the breach of a condition is an act preparatory to the commission of a further offence, as it was in this case, the breach is much more serious. The order was breached as soon as it was made, and you persisted in the offending activity, which was of the same nature as the index offending for the Supervision Order.
33 There are some other matters that make your offending even more serious.
34 First, charges 1-4, 6, 7 and up until 20 September 2015, charges 5 and 8 on the 1st indictment, were offences committed by you while on federal parole. As a result, when you receive a sentence of imprisonment today which will clearly be for more than three months, the parole order is taken to be revoked, and you will be liable to serve the balance of the original federal sentence imposed in 2009[9].
[9] Section 19AQ Crimes Act 1914 (C’th)
35 Next, charges 5 and 8 on the 1st indictment, and charge 1 on the 2nd indictment and the summary charge, were offences committed by you while on bail. Other than charge 5, those charges are Victorian offences, and as a result, the sentences to be imposed on the Victorian charges must be served cumulatively unless otherwise directed[10].
[10] Section 16(3C) Sentencing Act (Vic)
36 Next, even though the offending in Commonwealth charge 3 and State charge 4 on the first indictment is non-contact offending and even though the child was present over the internet and not in person, it is still very serious offending of its type, because of the child victim’s extremely young age, because it seems she was made (by another person at her location) to perform sexual acts for your depraved gratification, and because she could see you masturbating. Indeed, I consider these two charges to be the most serious of the offences for which you are to be sentenced today.
37 For sexual offending against children, it is expected that the court will impose a sentence which reflects the seriousness of such conduct, condemns and denounces the conduct, and provides protection to the most vulnerable in society. These expectations are even more pronounced when such offences are committed by a person who has committed similar offences in the past, who is a diagnosed paedophile, and who committed the offences in the face of court orders and processes put in place to deter him from re-offending.
38 While there are some matters that the law says must be taken into account in your favour, there are other matters which your counsel submitted should also operate to reduce the sentence which would otherwise be imposed. Both prosecuting agencies submitted that I should not find that these other matters reduce your culpability.
Matters in your favour
39 Turning initially to the matters that I must take into account: the first is your plea of guilty. Despite the gravity of your offending, it is not an exceptional case in which it would be inappropriate to take your plea into account on the basis that it has saved the community the time and cost of a number of trials, and demonstrated your willingness to facilitate the course of justice[11]. I do accept that the plea reflects a degree of remorse, and that you accept responsibility for your actions, albeit that your actions arise from a longstanding diagnosis of paedophilia whereby you find it difficult to resist acting in such a way. As a result of the effect of your plea of guilty, the sentence I will impose is less than would otherwise have been the case.
[11]Phillips v R [2012] VSCA 140
40 Further, I take into account that you co-operated with the authorities, making admissions in two records of interview, and provided details to enable them to investigate your crimes further. You admitted to conduct which was not otherwise discoverable.
41 Next, I accept that you threw your partner’s computer away in an attempt to reduce your opportunity to offend, although that was shortly before you were apprehended, and you then committed further offences via internet access through other means. I also accept that in a further attempt to reduce your risk, you sought psychological counselling to help you cope with your partner’s illness and death[12], which you were well aware was a risk for you to re-offend. However, over 17 sessions between 16 September 2014 and 20 September 2015, you did not disclose to that counsellor, Ms U, that you were already re-offending. Further, you did not fully disclose the extent of your re-offending to the psychologist Ms M[13] with whom you consulted on four occasions from 20 August 2015 until you were taken into custody in October 2015. Your attempts to address your re-offending are also to be weighed against the facts that you concealed from the authorities that you had other devices, obtained a second MyGica TV box after police seized the first one, and continued to offend.
[12] Exhibit 3 – Report dated 11 March 2016
[13] Exhibit 1 – Report dated 11 February 2016
42 I have referred already to your recent personal history, so I will not repeat that, but I also take into account other aspects of your circumstances as outlined in the assessment report written for the application for a Supervision Order[14], and in the sentencing remarks from 2009. I will also receive the sentencing remarks as Exhibit F with the qualification that I do not have before me the material that was provided to that sentencing judge, and so do not make or act on the findings in that sentence, other than the sentence itself. I will briefly summarise the relevant aspects of your circumstances.
[14] Exhibit E
43 You were subjected to violence which was perpetrated on you and your siblings and mother by your father. You were not educated beyond Year 9 and your schooling was disrupted by suspension. You were the subject of sexual abuse at the ages of 8 and 13 by a female neighbour and a friend’s mother, none of which you did not then, and do not now, perceive as abuse. According to the assessment report writer, you are not functioning at a high level of intelligence, and Ms M assessed your IQ at 90, and considered your functioning to be low-average. You told Ms M that you had a longstanding diagnosis of Attention Deficit Hyperactivity Disorder, and Ms M confirmed that your presentation to her on each occasion was quite frantic, that you spoke quickly, and that you had difficulty in understanding the difference between thoughts and feelings when undertaking exercises with her to try and prevent re-offending.
Criminal history
44 You have a considerable criminal history from the age of 18 years, involving over 60 offences for which you appeared in court between 1974 and 2009. The history includes offences of dishonesty, but of most significance are the offence of possession of child pornography in 2003, and the offences for which you were sentenced in 2009[15].
Applicability of the principles of Verdins
[15] See paragraph [4] above.
45 On the first plea date, I queried whether I was bound by findings that had been made by the sentencing judge in 2009, leading to a reduction in your moral culpability and moderating the need for general and specific deterrence, or whether I should assess your situation only on the material put before me. The previous sentencing judge made her findings on the basis of reports which were not provided to me. To enable the parties to consider this query, and other matters that were raised during the first hearing, the plea hearing was adjourned until 7 March 2016. Up to that point, I had not received any submissions on sentence from the prosecution because Ms M’s report dated 11 February had only been provided to them on the day of the plea and they wished to consider it.
46 By 7 March, the prosecution had notified your counsel that it would be submitted that you should receive a substantial term of imprisonment. Mr Newton on your behalf then sought an urgent report from Ms M over the intervening weekend, and this second report[16] was provided to the prosecution and the court on Monday 7 March.
[16] Exhibit 2 – supplementary report of Ms M dated 6 March 2016
47 Mr Newton submitted on your behalf that while your offending was serious and was committed while you were on parole (and for some offences also while on on bail), there were two matters arising from your personal circumstances which were strong mitigatory features, and met the test for reduction of your moral culpability and moderation of the need for deterrence[17]. These two matters were firstly, the significant disadvantages you suffered as a child including physical brutality and sexual abuse, the latter it was submitted ultimately leading to the commission of non-contact sexual offending in the context of the illness and death of your main support person, your partner; and secondly, the impact on you of your own sexual abuse and the nexus to be drawn between that and your offending. It was also submitted that as a matter of consistency, I should rely on the findings made by the sentencing judge in 2009 on the basis of the material before her.
[17]Verdins [2007] VSCA 102; O’Neill [2015] VSCA 325
48 The Commonwealth prosecutor spoke to written submissions[18] and submitted that your personal circumstances and background, while relevant for me to take into account, fell short of what was required to meet the test in Verdins; that your offending was explained by the removal of the support of your partner through her death, but that this did not lead you to be suffering from a condition impairing your mental functioning such that your moral culpability is to be reduced together with the need for deterrence; and that there was insufficient material before me to make the same findings made by the sentencing judge in 2009.
[18] Exhibit C
49 The State prosecutor also spoke to written submissions[19], which were limited to the two offences with which that agency is concerned being: two charges of failing to comply with the conditions of the Supervision Order on the second indictment and summary charge sheet. It was submitted that, while it was conceded that the impact on you of the abusive experiences as a child and the death of your partner were to be taken into account, as you breached the conditions from the time the order was made the need for general and specific deterrence remained paramount. Further, it was submitted that there was insufficient evidence from the reports of Ms M to apply the test in Verdins, and that she had not herself made any diagnosis.
[19] Exhibit D
50 At the end of that hearing, I indicated that I would list the matter for further plea if your counsel wished to call Ms M to give evidence.
51 On 18 March, Ms M was called to give evidence. New counsel appeared for both prosecuting agencies.
52 Ms M expanded on her reports[20] and said that she saw you for four sessions for treatment and then saw you for assessment for the Supervision Order application. Ms M was asked about some of your possible diagnoses and gave the opinions that you still had some symptoms of Attention Deficit Hyperactivity Disorder including impulse control and increased restlessness; while Asperger’s symptoms decreased over time, there were aspects that were still affecting your personality such as producing subtleties in your sexual relationships and impacting on your social relationships; that you suffered from anxiety, and had avoidance symptoms of Post Traumatic Stress Disorder; that you link the events of the sexual acts perpetrated on you as a child with sexual performance anxiety as an adult such that physical sex provokes anxiety and links into the other disorders; as to depression, you presented to her as having a low mood, being lonely and not eating or sleeping; and that you did not have Obsessive Compulsive Disorder, but, with your urges, had features of it. Ms M said there was a lot of crossover with the conditions and these were linked to your paedophilia.
[20] Exhibits 1 and 2
53 Ms M was of the opinion that you were depressed, associated with grief over the loss of your partner, and that this bereavement was impacting on you when you were committing the offences following her death. She relied on the view of the assessment report writer of 15 August 2015[21] that you were not coping, that you suffered an emotional collapse, and formed the opinion that as you struggle with a diagnosis of paedophilia as a baseline, and have other factors impacting on you, the significant event of the death of your partner reduced your ability to think clearly and flexibly.
[21] Exhibit E
54 In cross examination, Ms M agreed that you definitely had a diagnosis of paedophilia, going back to 2001, relating to pre-pubertal children aged 13 years or less. She agreed that environmental stressors were a risk factor for you, and that bereavement was an example of such a stressor. She agreed that there is an overlap between intrusive thoughts with Obsessive Compulsive Disorder, and intrusive thoughts with paedophilia, and that these can be inextricably linked.
55 Asked about your own childhood sexual abuse being linked with your preference for non-contact sexual activity, and older women as partners, Ms M agreed this did not match up with offending which is based on a diagnosis of paedophilia. Ms M said that there was a definite connection but this became integrated with how you cope, and that your paedophilia creates struggles with intrusive thoughts and this makes it harder to deal with environmental struggles.
56 Before Ms M gave evidence, counsel for the Commonwealth DPP made submissions which were confirmed, together with the written submissions on sentence tendered at the previous hearing[22], following the evidence. New counsel for the State DPP supported these submissions. In summary, it was submitted on behalf of the CDPP:
[22] Exhibit C
· with respect to whether I should take into account the findings of the previous sentencing judge applying the principles in Verdins, that I should not, and should only have regard to the material placed before me;
· that in any event, there was no link between that material and the offending for which I am sentencing you, which is required before the principles may be applied[23];
[23]Verdins ibid; O’Neill ibid; Flood v R [2016] VSCA 37
· that the various diagnoses were general mitigatory factors, but did not invoke the principles in Verdins;
· with respect to the effect of your own child sexual abuse, that on the basis of Ms M’s reports, those events fall well short of the serious nature of the abuse relied on in the cases cited[24], did not impact on you as abuse at the time, and while the events may have led to your style of offending in a physically avoidant way seeking sexual gratification online involving children, there was a difference between that effect and your history of having relationships with older women, albeit unable to sustain sexual intimacy with them;
[24]R v AWF [2000] VSCA 172; GEM v R [2010] VSCA 168; Bourne v R [2011] VSCA 159
· as a result, that I should proceed with caution before I moderated the applicable principles on this basis, particularly having regard to the fact that this is your third sentence for sexual offending involving children; and
· with respect to the application of the Verdins principles because of your emotional collapse due to your bereavement, that Ms M’s evidence had to be cogent enough to establish the link between your emotional collapse and the offending, having regard to the facts that you were having counselling with Ms U to help cope with grief before your partner’s death, that you were committing more offences than you told Ms M about, that you have a clear understanding of the wrongfulness of your acts being linked to your diagnosis of paedophilia, which can never be a basis for the application of the Verdins principles; that you were previously on anti-libidinal medication, which at one point you said you were testing by accessing the material and seeing what effect it had on you; and your understanding of the wrongfulness is demonstrated by the act of throwing the computer away.
57 In response, counsel on your behalf submitted that the material before the previous sentencing judge was considered by the assessment report writer for the Supervision Order application and contributed to her opinions, and as to the nature of the sexual abuse perpetrated on you as a child, it was submitted that the cases indicated that one should consider the consequences of such abuse[25], and that, of course, no such abuse is ever consensual. A written outline of submissions was tendered on this occasion.[26]
Conclusion as to Verdins
[25]AWF ibid especially at [ 6]
[26] Exhibit 4
58 I have decided that the significant social disadvantage suffered by you, and the sexual abuse perpetrated on you as a child, are relevant as general mitigatory factors that I take into account in determining the appropriate sentence, but do not invoke the principles in Verdins. I have formed this view for the reasons set out in the submissions of counsel for the CDPP. As I have already stated, I do not apply the principles in Verdins as the previous sentencing judge did, as I do not have the source material before me. However, I have decided that the bereavement you suffered is to be considered as contributing to your offending.
59 It is of course, not the sole reason for your offending, as your paedophilia is the main cause, but it need only have a causal connection. In my view, it seems to provide the clearest explanation for you re-offending in the way that you did – in breach of every order that you were on: parole, bail and a Supervision Order. On one view of it, no-one exercising clear judgement would act in such a way. In a practical sense, the illness and death of your partner also removed an important protection for you, as your partner was highly supportive of you, took steps to prevent you re-offending, and encouraged your rehabilitation.
60 The question then is whether your bereavement merely provides an explanation for your offending, or whether it was a condition akin to depression that affected your mental functioning in the lead up to, and at the time of, all of the offending for which you are to be sentenced. Further, I need to consider whether the difficult period leading up to her death also led to a condition that affected your mental functioning. I note that the most serious offending, as I have found it, occurred almost three months before her death.
61 On careful consideration of all the material which is before me, I have decided that there is evidence of a causal connection, from the assessment reports[27], and the reports[28] and evidence of Ms M, that the effect of your bereavement was to bring on an emotional collapse which impaired your ability to think clearly, make calm and rational choices, and to exercise appropriate judgement. However, I do not find that this condition operated to such a degree before your partner’s death, and so will not apply the relevant principles to offending before 1 August 2015. The fact that you were her carer during her terminal illness is a relevant factor that I take into account generally.
[27] Exhibit E
[28] Exhibits 1 and 2
62 As a result of my finding, there is a slight reduction in your moral culpability for offending committed after 1 August 2015. However, I find that the principles of specific and general deterrence, by which you and others must be deterred from such offending through today’s sentence, and the principle of denunciation remain of paramount importance in a case where you have a history of sexual offending against children, and the offending in this case is of a high level of seriousness. There is no application of the other limbs of Verdins.
63 The effect of all the matters to be taken into account in your favour is that the individual sentences will be less than would have been imposed without those factors.
64 I have considered your prospects for rehabilitation. They are poor, given your diagnosis of paedophilia, and your re-offending despite being on a number of orders, including one principally designed to protect the community, but with a secondary purpose of rehabilitation[29]. Although you recognise the need for treatment, and sought it, it is clear that much more work needs to be done before the community would be protected from you. You are at a high risk of re-offending, and that may include offending very close to contact offending in the sense that a child victim may be present online for the commission of the offence.
[29] The interim Supervision Order – section 1(1) and (2) Serious Sex Offender (Detention and Supervision) Act.
Sentencing principles
65 This is a most complicated sentencing exercise. I have weighed the objective seriousness of the offending, your criminal and personal history, and the matters in your favour. I have taken into account that for the charges that breached federal parole, there is not a requirement for accumulation.[30] I have taken into account that the totality and proportionality principles apply, by which I must consider the whole of your offending, including that for which you were sentenced in 2009, and the sentence there passed, as well as the ‘outstanding sentence’[31] remaining from then which you must serve beginning today by virtue of your breach of parole.
[30] This was the submission of the CDPP. I note that it was left undecided in R v Ahmad (2007) 15 VR 498 whether s16(3B) Sentencing Act (Vic) applied to offences committed whilst on federal parole
[31] Section 19AR and section 16B C’th Crimes Act
66 However, the totality principle is potentially modified by the serious sex offender provisions of the Sentencing Act (Vic)[32] for charge 4 on the first indictment, and by section 16(3C) of that Act for part of the period of offending on charges 5 and 8 on the first indictment, and for charge 1 on the second indictment and the rolled up summary charge, all of which were committed whilst you were on bail. Both provisions state that sentences on applicable charges must be wholly cumulative unless otherwise directed. I have decided to modify the effect of accumulation for the offences committed whilst on bail, and the serious sex offender charge, in order to give effect to the principle of totality[33].
[32] Section 6E
[33]Ahmad ibid at [134]-[135]
67 Because the outstanding or parole sentence is less than three years, I can address the principle of totality in part by way of a recognisance release order, allowing for a reduction of that period[34]. However, I need not do so, if I am of the view that a recognisance release order is inappropriate[35]. I have decided that it is inappropriate, having regard to the fact[36] that you committed such serious offences (all of the offending on the first indictment) while on parole for the previous very serious offending, in order to emphasise the seriousness of offenders committing sexual offences against children flouting orders for parole in order to commit new offences. This is so, even having regard to the mitigating effect of your bereavement and other personal factors; these do not justify amelioration of the parole sentence, although as I have said, they have weight generally.
[34] Section 19AR(3)(e) C’th Crimes Act
[35] Section 19AR(5)
[36] Adopting with respect, the language employed in Ahmad ibid at [128]
68 To make it clear, I have imposed sentences on each charge that I consider are appropriate in all the circumstances that I have referred to, and have addressed totality by modifying the accumulation between the charges, while recognising that there should be some accumulation between all charges to recognise the different offences but also the overlap between some of them; and by having regard to the outstanding parole sentence you must serve, to the whole period of imprisonment that you will have to serve arising from the previous sentence in 2009 and from today’s sentence, and to the whole of the offending committed by you for which those sentences were imposed.
69 I have also had regard to the reduction required from any non-parole period set because of the ‘clean street time’ you have, which is the period you were on parole before you began re-offending[37].
[37] Section 19AA(3) C’th Crimes Act
Orders
70 The outstanding federal parole sentence of 446 days starts today.
71 On the first indictment, you are convicted and sentenced as follows:
72 On charge 3, (Commonwealth) use carriage service to engage in sexual activity with a child under 16 years – 5 years’ imprisonment. That sentence starts on the expiration of the outstanding federal parole sentence.
73 On charge 5, (Commonwealth) use carriage service to access child pornography – 4 years’ imprisonment. That sentence starts 3 years and 6 months before the expiration of the sentence imposed on charge 3;
74 On charge 1, (Commonwealth) use carriage service to access child pornography – 3 years’ imprisonment. That sentence starts 2 years and 10 months before the expiration of the sentence imposed on charge 5;
75 On charge 2, (Commonwealth) use carriage service to transmit child pornography – 3 years’ imprisonment. That sentence starts 2 years and 10 months before the expiration of the sentence imposed on charge 1;
76 On charge 4, (State) make child pornography – 2 years’ imprisonment. That sentence starts 1 year and 9 months before the expiration of the sentence imposed on charge 2;
77 On charge 6, (State) fail to comply with reporting obligations under the Sex Offenders Registration Act - 12 months’ imprisonment. That sentence starts 11 months before the expiration of the sentence imposed on charge 4;
78 On charge 8, (State) fail to comply with reporting obligations under the Sex Offenders Registration Act - 12 months’ imprisonment. That sentence starts 11 months before the expiration of the sentence imposed on charge 6;
79 On charge 7, (State) furnish false information under the Sex Offenders Registration Act - 12 months’ imprisonment. That sentence starts 11 months before the expiration of the sentence imposed on charge 8.
80 The effective sentence on the first indictment is 6 years 4 months’ imprisonment.
81 On the second indictment, you are convicted and sentenced as follows:
82 On charge 1, (State) fail to comply with a Supervision Order under the Serious Sex Offenders (Detention and Supervision) Act – 20 months’ imprisonment. That sentence starts 18 months before the expiration of the sentence imposed on charge 7 on the first indictment.
83 On the summary charge, (State) fail to comply with condition 6.1 of a Supervision Order under the Serious Sex Offenders (Detention and Supervision) Act – 12 months’ imprisonment. That sentence starts 11 months before the expiration of the sentence imposed on charge 1 on the second indictment.
84 The effective sentence on the second indictment and summary charge is 21 months’ imprisonment.
85 The effect of the orders for commencement of sentences on all charges is a total effective sentence on both indictments and the summary charge of 6 years 7 months’ imprisonment.
86 I direct that you serve 5 years before becoming eligible for parole. If you are released on parole, as you are well aware, the balance of your sentence will be served in the community subject to the conditions of your parole. Any such parole order may be amended or revoked. If you fail without reasonable excuse to fulfil the conditions of your parole, your parole may be revoked and you may be ordered to serve the balance of your sentence in prison.
87 The purpose of fixing that non-parole period is to provide for a period of supported rehabilitation in the community, if you are considered to be suitable.
88 I declare that the period of time you have already spent in custody is 223 days not including today. Pursuant to section 16E Crimes Act (Commonwealth) and section 18(4) Sentencing Act (Vic), these are to be deducted administratively from your sentence.
89 I declare that you have been sentenced as a serious sex offender on charge 4 on the first indictment, and direct that this be noted in the records of the court.
90 As a result of my sentencing you today, you continue as a registrable sex offender under the Sex Offenders Registration Act 2004. Charges 1, 2, 4 and 5 on the first indictment are class two offences, and as you were previously convicted of registrable offences, you will be required within 7 days of your release from custody to report your personal details and continue a regime of annual reporting required by the Act and be subject for the remainder of your life. I will now have my Associate hand to you a form which notifies you of your reporting obligations. I do not require you to sign again.
91 If you had not pleaded guilty to the State charges, but had been found guilty after a trial, the sentence I would have imposed on those offences alone is 6 years’ imprisonment with a non-parole period of 4 years.
92 I will not indicate what my sentence would have been for the Commonwealth charges but for the plea of guilty, until legislation specifically requires it for federal offences, or an authority binding on me, states that it is required.
93 Finally, pursuant to section 19AS Crimes Act (Commonwealth), I issue a warrant authorising the prisoner to be detained to serve the balance of his federal sentence.
94 I will now have my associate hand to you a form which notifies you of your reporting obligations. I do not require you to sign the form again.
95 MS HOLMES: Your Honour, could I just indicate that, whilst Your Honour read out the correct amount of PSD, there's a typographical error in the sentence which says that it's 233 rather than 223, that it's at paragraph 86.
96 HER HONOUR: Yes, I see. All right, well certainly it should be noted in the sentencing remarks as 223.
97 MS HOLMES: As Your Honour pleases.
98 HER HONOUR: Thank you. Returning to you, Mr Doherty, if you had not pleaded guilty to the State charges but had been found guilty after a trial, the sentence I would have imposed on those offences alone is 6 years' imprisonment with a non-parole period of 4 years.
99 I will not indicate what my sentence would have been for the Commonwealth charges but for the plea of guilty, until legislation specifically requires it for federal offences or an authority binding on me states that it is required.
100 Finally, pursuant to s.19AS of the Crimes Act (Cth), I issue a warrant authorising the prisoner to be detained to serve the balance of his federal sentence.
101 Yes, just take a seat please, Mr Doherty. Has that warrant been completed?
102 MS HOLMES: It needs Your Honour's full name and signature.
103 HER HONOUR: Yes, I can fill that part in. It was the other parts that I was anxious to have done.
104 MS SHARP: Your Honour, if I might interrupt the process, Ms Sharp, I'm here for the Secretary in relation to the interim Supervision Order.
105 HER HONOUR: Yes.
106 MS SHARP: I apologise for interrupting. I'm actually due in the Supreme Court for a trial that's coming on at 10.30.
107 HER HONOUR: Yes, certainly.
108 MS SHARP: Given, Your Honour, the sentence that Your Honour has imposed today, my instructions are to not seek a renewal of the interim Supervision Order, which is to expire today. There is currently a Supervision Order application which has been adjourned sine die. I don't have instructions to withdraw that application. It's proposed to leave that on foot. If my instructions are ultimately to withdraw it, then the court and Mr Doherty's legal representatives will be advised of that, and I would imagine a new application is brought on shortly before, or subject to, reports in relation to that, to be considered shortly before Mr Doherty's release.
109 HER HONOUR: Yes, thank you Ms Sharp. Mr Newton, in terms of that application?
110 MR NEWTON: Yes. I don't oppose that application, Your Honour.
111 HER HONOUR: All right. Thank you very much. So I will extend the interim Supervision Order.
112 MS SHARP: No, Your Honour. There's no application to extend the interim Supervision Order.
113 HER HONOUR: I beg your pardon.
114 MS SHARP: Given that Mr Doherty's going to be in custody now for quite some years, there's no requirement for it to be extended. It expires today and can simply lapse.
115 HER HONOUR: I see. I beg your pardon, yes, that was the original order that was sought. Yes, I follow.
116 MS SHARP: The only other thing I would like to mention, Your Honour, just to confirm, Your Honour referred to a number of reports that were filed on the plea before Your Honour, which were also filed in the application for the interim Supervision Order. I just note for those persons in court who may be present and listening to the proceedings that s.182 of the Sex Offenders (Detention and Supervision) Act prohibits publication of that material.
117 HER HONOUR: Yes, that is so, and there is a suppression order in place I think still?
118 MS SHARP: I don't believe so, Your Honour, no.
119 HER HONOUR: Well obviously that is why I have referred to no name for the assessment report writer and initials for the others.
120 MS SHARP: Yes, Your Honour.
121 HER HONOUR: Because Ms M was providing a report also for that process.
122 MS SHARP: Yes, Your Honour. I appreciate that. I just wanted to mention that.
123 HER HONOUR: Yes, thank you.
124 MS SHARP: Thank you for Your Honour's ‑ ‑ ‑
125 HER HONOUR: I thank you very much for your attendance, and I should release you now so that you can get to your next matter.
126 MS SHARP: Thank you very much.
127 HER HONOUR: So Mr Doherty, that just means that the interim Supervision Order that I placed you on, and which of course formed some of the charges for breaching that order, that lapses, and that will not be the subject of any further application. There may well be another one at the end of the current sentence you are undergoing, but that is some time in the future. So yes, just take a seat.
128 I am not sure whether counsel has had time amongst all of that to check the orders.
129 MS HOLMES: It looks to be all in order, Your Honour, from my brief perusal. It's my instructor who's the expert in relation to Commonwealth sentences. I might ask that she advises Your Honour's associate within the next hour or two if there are any issues with it. I don't see that there are.
130 HER HONOUR: No, that is fine.
131 MS HOLMES: Because they're so complex.
132 HER HONOUR: It is complex, so I say take the time that is required, and the order will need to be made, but it can be varied.
133 MS HOLMES: Under the slip rule.
134 HER HONOUR: Yes.
135 MS HOLMES: If necessary.
136 HER HONOUR: Because the intention is clear, it would only be amending it to reflect what was announced.
137 MS HOLMES: Yes, and to comply with the various legislation.
138 HER HONOUR: Complexities of the Commonwealth sentencing regime, yes.
139 MS HOLMES: Yes.
140 HER HONOUR: Yes, thank you very much, Ms Holmes.
141 MR NEWTON: Thank you, Your Honour.
142 HER HONOUR: Mr Newton, that is satisfactory in terms of you being notified as to that?
143 MR NEWTON: Yes, Your Honour.
144 HER HONOUR: Yes, well I am confident that there is no hiatus between the charges, but it may be that I have, somewhere on the way, missed something. Well, could I thank everybody for their attendance and assistance in this long and complicated matter, and once again my apologies for the delay. Its complications were part of the reason.
145 MS HOLMES: Your Honour, could I just - in this warrant, the schedule indicates that the following has to be filled in. Firstly, to be imprisoned for a total of, and we've put 6 years and 7 months with a non-parole period of 5 years. But it says, "Commencing on", and it requires a date. So it will be 446 days from the - just checking, the pre-sentence detention will apply as against that reclaimed parole because it's first in time, won't it?
146 HER HONOUR: Yes.
147 MS HOLMES: So it will be whatever that period of parole is, minus the pre-sentence detention from today will be the commencement date that's required to be entered on this warrant. Does Your Honour agree with that?
148 HER HONOUR: I think that is probably right. I must admit, I had not gone through that. Mr Newton, you would agree with that?
149 MR NEWTON: Yes, Your Honour. I had it as 223 days, which would be obviously taken off the 446, which gives you 223.
150 HER HONOUR: Yes, it happens to be exactly half.
151 MS HOLMES: So it will be 223 days from today's date. We'll work out what that date is.
152 HER HONOUR: Yes, all right, thank you.
153 MS HOLMES: With my trusty calendar.
154 HER HONOUR: Yes, thank you. I just need to sign this before you are taken out, Mr Doherty. That is the delay.
155 MR NEWTON: May I just approach my client?
156 HER HONOUR: Yes, certainly.
157 MS HOLMES: We still have to get Your Honour to sign it, but 223 days from today is 27 December 2017 - 16.
158 HER HONOUR: Thank you.
159 MS HOLMES: Thank you, Your Honour.
160 MR NEWTON: I'm grateful for that time.
161 HER HONOUR: Yes, well I have signed that warrant and I have initialled the corrections.
162 MS HOLMES: Thank you, Your Honour.
163 HER HONOUR: Yes, thank you. Mr Doherty may now be removed.
ADDENDUM TO SENTENCE DELIVERED 18 MAY 2016
1 Following the sentence being delivered in court on 18 May 2016, the parties were asked to confirm whether the orders made by me conformed with the requirements of the Commonwealth sentencing regime, and the State sentencing laws.
2 Advice was received from the Commonwealth DPP that I had neglected to set separate non-parole periods for the Commonwealth and State sentences.
3 Subsequently, I received a helpful chart and explanatory paper from the Commonwealth DPP to assist me in making the correct orders. The legal representatives of the prisoner have also received this material and had the opportunity to make written submissions.
4 Pursuant to s104A Sentencing Act (Vic), I propose to make the following orders. These amend the orders originally made on 18 May 2016, but include the same orders for commencement dates, with the exception of Charge 1 on Indictment 2[38], and now include non-parole periods for both Commonwealth[39] and State[40] sentences. The only other difference is that the outstanding federal (parole) sentence of 446 days, previously advised by the Commonwealth DPP as 1 year 2 months and 19 days, has been revised to 1 year 2 months and 20 days, as now advised by the Commonwealth DPP. The outcome of the sentence announced in court on 18 May 2016 remains the same, and the sentencing date remains as 18 May 2016.
[38] Paragraph 20
[39] Paragraphs 13 and 14
[40] Paragraph 23
5 I do not consider it desirable or necessary in the interests of justice to have a hearing in open court.
6 The orders are as follows:
Orders
7 The outstanding federal parole sentence of 446 days started 18 May 2016.
8 On the first indictment, the prisoner is convicted and sentenced as follows:
9 On charge 3, (Commonwealth) use carriage service to engage in sexual activity with a child under 16 years – 5 years’ imprisonment. That sentence starts on the expiration of the outstanding federal parole sentence.
10 On charge 5, (Commonwealth) use carriage service to access child pornography – 4 years’ imprisonment. That sentence starts 3 years and 6 months before the expiration of the sentence imposed on charge 3;
11 On charge 1, (Commonwealth) use carriage service to access child pornography – 3 years’ imprisonment. That sentence starts 2 years and 10 months before the expiration of the sentence imposed on charge 5;
12 On charge 2, (Commonwealth) use carriage service to transmit child pornography – 3 years’ imprisonment. That sentence starts 2 years and 10 months before the expiration of the sentence imposed on charge 1.
13 The effective Commonwealth sentence is 5 years and 10 months’ imprisonment. The total effective Commonwealth sentence (including the outstanding federal parole sentence) is 7 years and 20 days’ imprisonment.
14 I direct that the prisoner serve 5 years 3 months and 20 days of the federal sentence before becoming eligible for federal parole. If the prisoner is released on parole, the balance of the sentence will be served in the community subject to the conditions of parole. Any such parole order may be amended or revoked. If the prisoner fails without reasonable excuse to fulfil the conditions of parole, the parole may be revoked and the prisoner may be ordered to serve the balance of the sentence in prison. The purpose of fixing that non-parole period is to provide for a period of supported rehabilitation in the community, if the prisoner is considered to be suitable.
15 On charge 4 (State) on the first indictment, make child pornography – 2 years’ imprisonment. That sentence starts 1 year and 9 months before the expiration of the sentence imposed on charge 2;
16 On charge 6 (State) on the first indictment, fail to comply with reporting obligations under the Sex Offenders Registration Act - 12 months’ imprisonment. That sentence starts 11 months before the expiration of the sentence imposed on charge 4;
17 On charge 8 (State) on the first indictment, fail to comply with reporting obligations under the Sex Offenders Registration Act - 12 months’ imprisonment. That sentence starts 11 months before the expiration of the sentence imposed on charge 6;
18 On charge 7 (State) on the first indictment, furnish false information under the Sex Offenders Registration Act - 12 months’ imprisonment. That sentence starts 11 months before the expiration of the sentence imposed on charge 8.
19 On the second indictment, you are convicted and sentenced as follows:
20 On charge 1, (State) fail to comply with a Supervision Order under the Serious Sex Offenders (Detention and Supervision) Act – 20 months’ imprisonment. That sentence starts 15 months before the expiration of the sentence imposed on charge 4 on the first indictment.
21 On the summary charge, (State) fail to comply with condition 6.1 of a Supervision Order under the Serious Sex Offenders (Detention and Supervision) Act – 12 months’ imprisonment. That sentence starts 11 months before the expiration of the sentence imposed on charge 1 on the second indictment.
22 The effective State sentence is 2 years 6 months’ imprisonment.
23 I direct that you serve 11 months of the State sentence before becoming eligible for State parole.
24 The effect of the orders for commencement of sentences on all charges is a total effective sentence on both indictments and the summary charge of 6 years 7 months’ imprisonment. Combined with the outstanding parole sentence, the global effective sentence is 7 years 9 months and 20 days’ imprisonment with a global non-parole period of 6 years 2 months and 20 days.
25 I declare that the period of time the prisoner has already spent in custody is 223 days not including the day of sentence of 18 May. Pursuant to section 16E Crimes Act (Commonwealth) and section 18(4) Sentencing Act (Vic), these are to be deducted administratively from the sentence.
26 I declare that the prisoner has been sentenced as a serious sex offender on charge 4 on the first indictment, and direct that this be noted in the records of the court.
27 As a result of my sentencing the prisoner, he continues as a registrable sex offender under the Sex Offenders Registration Act 2004. Charges 1, 2, 4 and 5 on the first indictment are class two offences, and as he was previously convicted of registrable offences, he will be required within 7 days of release from custody to report his personal details and continue a regime of annual reporting required by the Sex Offenders Registration Act 2004 and be otherwise subject to the Act for the remainder of his life. He has been provided with a form which notifies him of his reporting obligations. I did not require the prisoner to sign again.
28 If the prisoner had not pleaded guilty to the State charges, but had been found guilty after a trial, the sentence I would have imposed on those offences alone is 6 years’ imprisonment with a non-parole period of 4 years.
29 I will not indicate what my sentence would have been for the Commonwealth charges but for the plea of guilty, until legislation specifically requires it for federal offences, or an authority binding on me, states that it is required.
30 Pursuant to section 19AS Crimes Act (Commonwealth), I issue a warrant authorising the prisoner to be detained to serve the balance of his federal sentence.
LIST OF CHARGES
Indictment No Prosecuting party Charge No Offence C’th or State legislation Maximum penalty CR-16-00082
1st indictment
Commonwealth 1 Use carriage service to access child pornography Criminal Code (C’th) 15 years CR-16-00082
1st indictment
Commonwealth 2 Use carriage service to transmit child pornography Criminal Code (C’th) 15 years CR-16-00082
1st indictment
Commonwealth 3 Use carriage service to engage in sexual activity with a child under 16 years Criminal Code (C’th) 15 years CR-16-00082
1st indictment
Commonwealth 4 Make child pornography Crimes Act (Vic) 10 years CR-16-00082
1st indictment
Commonwealth 5 Use carriage service to access child pornography Criminal Code (C’th) 15 years CR-16-00082
1st indictment
Commonwealth 6 Fail to comply with reporting obligations Sex Offenders Registration Act (Vic) 5 years CR-16-00082
1st indictment
Commonwealth 7 Furnish false information Sex Offenders Registration Act (Vic) 2 years or
240 penalty units
CR-16-00082
1st indictment
Commonwealth 8 Fail to comply with reporting obligations Sex Offenders Registration Act (Vic) 5 years No. 1505466
(Indictable) CR-15-01802
2nd indictment
Victoria 1 Fail to comply with Supervision Order Serious Sex Offenders (Detention and Supervision) Act 5 years Charge sheet dated 8/10/15
(Summary charge)
Victoria 1 (rolled up) Fail to comply with condition 6.1 of a Supervision Order Serious Sex Offenders (Detention and Supervision) Act 2 years
3
7
0