Director of Public Prosecutions v Elliott
[2012] VCC 944
•9 July 2012
| IN THE COUNTY COURT OF VICTORIA | Revised |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-01148
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL ELLIOTT |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 April 2012 and 31 May 2012 | |
DATE OF SENTENCE: | 9 July 2012 | |
CASE MAY BE CITED AS: | DPP v Elliott | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 944 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms A. Ellul | Office of Public Prosecutions |
| For the Accused | Mr A. Zinger | Robert Stary & Associates |
HER HONOUR:
1 Michael Elliott, you have pleaded guilty to three charges of sexual penetration of a child under 16 and one charge of indecent act with a child under 16. The maximum penalties applicable for both types of offences are ten years imprisonment.
2 These crimes arise out of events which occurred between yourself and the victim of your offending, SL. It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor and consistent with the Prosecution Opening (Exhibit A).
3 I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of the plea hearing. It is sufficient for present purposes to simply say the facts in this case are most serious and disturbing for a number of reasons which I discussed with counsel during the course of your plea hearing and to which I shall shortly refer.
4 Briefly by way of summary. At the time of your offending you were 53 years of age and the complainant, SL, 15 years of age. The complainant lived with her parents in New South Wales.
5 In approximately September 2009, SL met you whilst using a telephone-based chat site. It would appear the complainant was the person who initiated contact on a chat site which, as I understood, was a games site. It was whilst on that site you located her.
6 Following that initial contact you continued to communicate with SL every few days. SL told you she was 15 years of age. You discussed meeting and offering to come and see her at her home in New South Wales. Initially SL declined your offer, stating she did not want to see you as she was having problems at home.
7 On 19 December 2009 you travelled by public transport to her home town. You spent the first night in a motel, and the following two nights sleeping in the open. Whilst at that town you met with SL on several occasions. Firstly, you attended at her home address and approached her bedroom window to speak to her by using the phone.
8 The following day SL contacted you and told you she was going to a supermarket with her mother. You met her at the supermarket, and gave her a mobile phone and a packet of cigarettes. Later that same day SL went to a family function at the Riverina Hotel. You were standing across from the hotel when she and her family arrived. When SL left the hotel for a cigarette, you approached her and gave her your mobile phone, asking her to charge it.
9 You re-attended at SL’s home later that night and were seen by family members at the front of the house, who contacted the police. You left before the police arrived.
10 The next day SL went to town with her family. She left the group and went to meet you. Her family went looking for her and found you walking across a bridge into town. SL’s father approached you and asked you to accompany him to the police station.
11
You then changed your travel plans and returned to Melbourne on
22 December 2009. Undeterred, however, you continued to communicate with SL. On approximately 7 January 2010, SL asked you to return to get her as she was not happy at home.
12 On 14 January 2010 you drove from Melbourne to SL’s home, travelling approximately 400 kilometres, to collect her. You waited in a car around the corner from her home until she arrived at about midnight. Her parents did not know that she was leaving. You and SL then began to drive back to Melbourne.
13 Turning to Charge 1. After leaving SL’s home you drove to St Arnaud, where you and SL stayed for several days. On the second day at St Arnaud you purchased alcohol for SL, consumed it with her, told her you loved her and wanted to marry her. You and SL went into the bedroom, removed your clothes, and you then sexually penetrated SL by putting your penis into her vagina. SL later told police that she was scared and did not want to have sex with you.
14 On 18 January 2010 you and SL came to Melbourne. You were planning to sneak SL into your own home, but as SL was not happy about that, you drove to the home of a friend, Michael Fitzpatrick. You told Mr Fitzpatrick SL was 19 years of age and you stayed the night at Mr Fitzpatrick’s house.
15 At that address Charge 2 occurred, again involving sexual penetration of SL by you, by placing your penis into her vagina.
16 You remained at Mr Fitzpatrick’s home the following night, being 19 January 2010. Again, you sexually penetrated SL by inserting your penis into her vagina.
17 The following evening, 20 January 2010, you and SL snuck into your home without the knowledge of your parents and stayed in your bedroom. You introduced SL to your parents and told them she was 19 years of age. SL then stayed at your home until 7 February 2010.
18 I turn to a number of uncharged acts relied upon by the prosecution of offending at your home. On a number of occasions you sexually penetrated SL by placing your penis into her vagina. SL, when spoken to by police, was reluctant to provide further details of that, although estimated during the time she was with you she had sexual intercourse with you on approximately 10 occasions.
19 Ms Coghlan, on behalf of the prosecution, was relying on those occasions as context only. As I discussed with her, none of the charges before me were representative charges and as such the prosecution was not relying on principles stated in R v SBL (1999) 1 VR 706 and most recently referred to in DP v The Queen [2011] VSCA 1 when sentencing you.
20
On 20 January 2010, a representative of the New South Wales Police Force contacted you. In that telephone conversation you denied knowing that SL was missing from her home and said you did not know where she was. On
21 January 2010, a member of Victoria Police attended at your home and, again, you said you did not know where SL was, despite her being in the backyard of your home at that time.
21 Approximately seven days later Charge 4 occurred. At approximately 1.23 am you were naked in your bedroom sitting close to SL. SL took photographs of your penis with her mobile phone, and you then used her phone to take photographs of SL.
22 SL stayed with you at your parents’ home for a period of approximately three and a half weeks during which time you provided her with accommodation, food, cigarettes, phone credit and clothing. No attempt was made to contact SL’s family, who were trying to locate her. During the time SL was with you, you discouraged her from contacting her parents.
23 On one occasion when you thought that SL was going to leave, you walked on to the road and threatened to kill yourself. On occasions when SL threatened to leave you, you would follow her and either grab her, threaten her or threaten to kill yourself if she left. SL said she was scared because of your age and that she did not want to have sex with you.
24 Again, on 7 February 2010, a representative of the New South Wales Police Force contacted your home. You hung the phone up after they identified themselves. When the investigators then rang SL’s mobile phone you answered and hung up. On that same date you spoke to your father, and then took SL to the Heidelberg Police Station, where she was spoken to by representatives of DHS and placed into secure welfare. SL was later collected by her mother.
25 Following the police investigation at that time, you nevertheless continued to pursue SL, telling her you loved her and missed her. You also discussed what you wanted to do with SL sexually. During the conversations SL raised the possibility she may be pregnant as a result of your sexual activity with her. Subsequent testing revealed she was not pregnant.
26 As part of the police investigation, officers located a pair of SL’s underwear at your home. Examination revealed traces of semen on the inside crotch area. Upon analysis you could not be excluded as the source of the sample.
27 You were arrested and interviewed on 30 March 2010. You told police you met SL online and admitted you had attended her home in December 2009, although said you did not approach the house. You agreed you gave SL your mobile phone to charge. You agreed you subsequently returned to her home to collect her, and that you provided her with money, cigarettes and somewhere to live when she was with you. You said you encouraged SL to contact her parents to tell them of her whereabouts. You denied any sexual activity occurred between yourself and SL.
28 Not deterred by the police interest in your sexual activity with SL, following that interview you transferred $200 into a bank account held by a friend of SL’s to allow SL to purchase a phone so you could continue to contact her.
29 Again, undeterred, in April 2010 SL told you she wanted a platonic relationship yet you continued to contact her. I was taken to a number of references within Exhibit C, being a copy of chat material supporting the submission made by Ms Coghlan (specifically pages 735-742, 748-749, 752 and 785) that your contact with SL was persistent and menacing, revealing a lack of insight into your inappropriate offending with SL.
30 On 30 July 2010 you were again interviewed and made admissions and denials. You denied having sex with SL in any of the locations previously described and said you had communicated with her on only one occasion since your arrest on 30 March 2010.
31 There are a number of very concerning aspects of your offending behaviour which I discussed with counsel at your initial plea hearing and again at the most recent hearing. You were aware from initial contact with SL that SL was vulnerable in the sense that she was not happy living at home.
32
In addition, it is concerning you were not deterred by police involvement, either initially when SL’s parents contacted the police about your behaviour, nor following your discussions with the complainant’s father at the bridge, nor upon police questioning of you on 20 January 2010, 21 January 2010,
7 February 2010. Ms Coghlan submitted that you were actively evading the police.
33 I am also concerned about your provision of alcohol, money, food, cigarettes, clothes and so on to the complainant, albeit as noted in written submissions from Mr Sala to which I shall later refer, were at her request.
34 I also expressed concern about the threats you made to SL should she leave your relationship with her, including not only the threats of the harm you would do to yourself, but also harm you would do to her. The Victim Impact Statement of SL provides further details in relation to that.
35 I also note that there was no condom used by you when you were committing the acts of sexual penetration, and such is an aggravating feature of your offending. See R v Khem [2008] 186 A Crim R 465. Mr Sala agreed such was an aggravating feature.
36 SL and her family have suffered considerably as a result of your offending. I shall return to pass some remarks on that subject shortly, however, the material within the statements are eloquent in relation to the consequences of your offending. I shall return to pass some remarks on the Victim Impact Statements shortly.
37 You have pleaded guilty to these offences and you are entitled to have that fact taken into account in your favour, and I do so. The community has, by your plea, been spared the time and cost of a trial and witnesses, in particular, SL and her family, have been spared the need to give evidence upon your trial.
38 I was advised by Mr Sala that whilst you had wavered in your preparedness to plead guilty, you had so pleaded and were entitled to a sentencing discount by reason of the fact you have so pleaded. Of course that is correct.
39 In the circumstances I am prepared to accept in your case your plea of guilty indicates some remorse for your actions. Mr Sala made further submissions regarding remorse on 31 May 2012, and I will return to this later.
40 You do not have any prior court appearances and you therefore come before the court as a person of previous good character. You are 55 at time of sentence. I also note you do not have any subsequent court appearances or any subsequent allegations made against you by the police. Both those matters are relevant in mitigation of your sentence.
41
Mr Sala on your behalf submitted at the outset of the plea that he was relying upon the psychiatric report of Dr Daniel Sullivan (Exhibit 1) dated 19 February 2012. Dr Sullivan saw you on 28 October 2011 and 17 February 2012 for the purposes of preparing his report. Dr Sullivan gave evidence before me on
31 May 2012.
42 In his report, Dr Sullivan referred to your background and history. You were born in Victoria and are the oldest of six children. You did not have any children of your own, although stated you had been in a long-standing relationship with a woman in the Philippines.
43 You reported attending "a few schools”, the last being Collingwood Technical College. You left after Form 3 when you were 15 or 16 years of age. You struggled with reading and writing and were placed in a "special grade”.
44 After leaving school you reported working in a supermarket in stores, packing and various other labouring jobs, although you had not worked for some years. You were currently in receipt of a Disability Support Pension as a result, I was initially told at the first plea hearing, of your learning difficulties.
45 You presently lived with your parents in Geelong and had only ever lived away from home on one occasion, the second occasion when you were on remand for these offences.
46 You described a limited social circle.
47 You denied any previous mental health problems, including depression or anxiety. You said you may have been shy in the past but denied that it had ever been a significant problem for you.
48 Turning to your medical history. You reported some previous health issues although none, it seems, of a life-threatening or severe nature. You were not currently taking any medication. You infrequently drank alcohol and had never used illicit drugs.
49 You outlined your account of your offending to Dr Sullivan. You said SL told you she was 19 years of age. You were unable to explain the presence of your DNA on her underwear. By the time you were living with SL in Victoria you knew she was 15 however. You were aware that SL had at least been receiving some counselling at school and had problems with her parents. You described that SL wanted to engage in sexual activity on the first occasion and that you refused.
50 Regarding your own sexual history, you denied any previous significant relationships, describing having had a couple of relationships which lasted for weeks only. You found it difficult forming relationships. In terms of insight regarding your offending, you provided a "somewhat discrepant account" of it and appeared reluctant to discuss it.
51 In the opinion of Dr Sullivan you appeared to have an intellectual disability in the mild or borderline range. At the time of his report, Dr Sullivan had not assessed you any further in relation to your intellectual disability. He described your disability being manifest in social difficulties and likely to impair your ability to engage in complex or consequential thinking. He found no clear indication of pre-morbid psychiatric or personality disorder, although after being charged you developed a range of depressive and anxious symptoms. If your depressive symptoms persisted, Dr Sullivan suggested treatment with medication might be beneficial, as would psychological support. Dr Sullivan found no indication of deviant sexual arousal to children.
52 In the opinion of Dr Sullivan your offences appeared to be based upon impairments in your ability to form relationships, and poor judgment. You had a limited ability to think through possibilities that related to the truthfulness of SL’s reported situation in alternative ways in which you may have rendered assistance to someone in such a situation as SL.
53 Rather than presenting as predatory or rapacious, Dr Sullivan described you more as a naïve, immature man with limited social skills. You became enamoured of a teenager, and your subsequent conduct was premised on a fantasy of love. Your problems in those domains, in his opinion, were related to your intellectual or cognitive impairment. Your cognitive deficits, in his opinion, were likely to have consequential difficulties in your ability to think clearly and to make calm and rational choices.
54 As you did not have an entrenched pattern of behaviour, such as that before me, the likelihood of you re-offending, he thought, would be low.
55 In his opinion, you should be assessed for treatment through Disability Services involving assessment eligibility for a Justice Plan.
56 Mr Sala called Dr Sullivan to give evidence on 31 May 2012.
57 Therein he said that he had met you on three occasions for assessment. There was also, as I have previously stated, an earlier report from him, and he spoke to that report before me.
58 Dr Sullivan in his evidence said he reached a number of conclusions regarding your mental health. Despite your lack of prior contact with either psychiatrists or psychologists, your history indicated deficits in your functioning. You had difficulty with a number of tasks and he was confident you would be at the borderline of intellectual functioning. You would have difficulty with the emotional demands of a trial, and you were overwhelmed and agitated when discussing the alleged offences. His earlier report was directed in fact towards your fitness to plead to the charges. Consistent with your intellectual disability, when demands made of you that exceeded your capacity. You had an adjustment disorder, although whilst that disorder was not particularly relevant in his overall assessment, your intellectual disability he said was relevant to your offending.
59 When he took an initial history from you, he noted the types of minimisations by alleged offenders of sexual matters, however your lies were far from convincing. The factor that most impressed him was that you did not think of the consequences of your actions. Dr Sullivan got the sense you functioned "like a teenager”. You did not have the ability to think consequentially, in particular, regarding the outcome of your offending and were not able to think through your contact with SL, even though you would probably be aware you would not be able to kidnap SL and take her away indefinitely.
60 He gave evidence that whilst you had impaired intellectual functioning, you also had impaired social skills. There was a nexus, he said, between your impairment and this offending. He assessed your risk of future sexual offending and concluded you required sustained treatment. In prison you would need treatment by way of a target group to assess your IQ, and if you were not found eligible for disability services, consideration should then be given to you being placed in a skills based program.
61 He expressed concern that in custody it was likely you would be "picked on”. You were currently in protection.
62 He concluded on the restatement of the Tsiaris principles in R vVerdins& Ors (2007) 16 VR 269, Principles 5 and 6 would apply to you and be relevant when sentencing.
63 In cross-examination, Dr Sullivan stated there was no evidence of any formal IQ testing of you, however based on his experience, he estimated your IQ would be between 65 and 70. Your insight, he concluded, was limited. Denials of your sexual offending were typical he said of sex offenders. He assessed you as being a low risk of sexual re-offending providing you received appropriate treatment. There were risk factors, in particular, relevant to your re-offending, being the lack of a past age-appropriate relationship, that SL was not related to you, ie that SL was a stranger. He agreed your intellectual disability was also relevant to risk, and that without treatment the risk of you re-offending in a sexual way would increase.
64 In further examination-in-chief, Dr Sullivan addressed your moral culpability for your offending, and concluded your capacity for moral reasoning was impaired. You had difficulty thinking through issues of morality. You knew the age of consent was 16, but did not know why that was so. In addition, some application of the restatement of Tsiaris Principle 3 in relation to general deterrence was also relevant when sentencing you, and I note that.
65 In further cross-examination, your capacity for moral reasoning was impaired and during your offending you did not appreciate the extent of the wrongfulness of it, despite being approached by police. Your intellectual disability was apparent from the way you tried to "cover your tracks" and your unsophisticated lies.
66 Mr Sala submitted that you were not an appropriate vehicle for general deterrence, and such should be moderated as a result of your mental health problems. There was, he submitted, a nexus to enliven the principles in Verdins to which I have previously referred, from the evidence of Dr Sullivan.
67 Mr Sala referred me to the decision of Muldrock v R (2011) HCA 39 at [50] and [51], as well as Leeder v R (2010) VSCA 98 in which the courts have stated intellectual disability can be a matter mitigatory of sentence. I, of course, accept those authorities and also the principles stated in Verdins.
68 Regarding your offending behaviour, Mr Sala submitted that it had all the hallmarks of a Lolita obsession over a young girl. He, however, conceded that you were a menacing presence at the time you were initially hanging around the house.
69 I discussed with Mr Sala my concern your offending displayed an element of cunning or, at least, some sophistication in your persistence. A transcript of the plea hearing will reveal that discussion between counsel and myself. I remain concerned about this although note the conclusion of Dr Sullivan regarding future risk.
70 Mr Sala submitted based on the report of Dr Sullivan you were not a predator of young girls rather found it difficult to associate with others appropriately aged. That your contact was initiated by SL using a games website. As I understood his submission, SL had been precluded by her parents from having a mobile phone or access to other websites due to earlier troubling behaviour by her.
71 Despite this, Mr Sala conceded as he had to, that SL was, at 15 years of age, a vulnerable young girl.
72 Turning to his written submissions, Mr Sala submitted you were currently 55 years of age and your first time entering the prison system. That your plea of guilty and the stage at which it was entered, entitled you to a reduction in sentence to reflect that plea of guilty. That is, of course, correct.
73 Further, he submitted you did not have any prior Court appearances, nor any subsequent matters, and as such, you were entitled to rely upon your previous good character. That is so.
74 He submitted your mental health deficiencies were relevant for sentence and he referred again to the principles in Verdins, and I agree as I have previously stated.
75 Regarding your rehabilitation prospects, at age 55, without any prior convictions, he submitted your rehabilitation prospects were significantly high and that Dr Sullivan had assessed your risk of sexually re-offending as low.
76 In relation to sentencing, he conceded consistent with R v SLJ (No.2) [2010] VSCA 32, that whilst advanced age of an offender was relevant to such sentence, such was often the case involving sexual allegations against offenders, and often not dealt with at the time of the offending, but rather much later when offenders are considerably older.
77 I have some concerns regarding your rehabilitation prospects, in particular if you do not have the necessary treatment to avoid repetition of this offending in the future, although I am mindful your assessment by Dr Sullivan is of a low risk of sexual re-offending.
78 Mr Sala referred to some of your background history, that at age 55, you have only lived away from home twice, one being for a period of six months when you were 25 years of age, and the second occasion as a result of your recent incarceration for this offending. Most recently for the last five years he also noted you had worked as a volunteer at Vinnies and a reference was provided to me from Ms Marlene Milner, Centre Manager, undated, confirming that employment.
79 Mr Sala conceded that the victim of your offending was vulnerable by virtue of her age (see Clarkson v R [2011] VSCA 157). Mr Sala conceded your lack of use of a condom was an aggravating feature consistent with R v Khem [2008] VSCA 136.
80 Whilst Mr Sala conceded you were to be sentenced as a serious sexual offender in relation to Charges 3 and 4 on the indictment, he submitted I need not impose a disproportionate sentence. The prosecution were not urging a disproportionate sentence and I am of the opinion I can sentence you without imposing a disproportionate sentence.
81 Mr Sala conceded an immediate term of imprisonment was the only appropriate disposition for your offending, however, at the conclusion of the hearing on 31 May 2012 stated his submissions were ultimately directed to a short non-parole period to reflect Verdins principles and allow you to be reintegrated into the community with the support of the Adult Parole Board.
82 Ms Coghlan, on behalf of the prosecution, agreed you should receive the full benefit of your plea of guilty from the time it was made, although she took issue with whether you had genuine remorse.
83 Remorse and pleas of guilty have most recently been discussed in McGuigan v The Queen [2012] VSCA 121. Macaulay AJA referred to R v Duncan [1998] 3 VR 208:
“An early plea that does nothing except save time and expense is still entitled to consideration, and should usually attract a significant discount. A plea of guilty which has those effects but also evidences genuine remorse and prospects of rehabilitation normally justifies a high discount.”
84 Regarding your offending behaviour, Ms Coghlan submitted that there was no real consent by SL to your offending based on her young age, the disparity between her age and yours and her vulnerability, referring to the principles in Clarkson.
85 As I have stated, I accept your plea of guilty reflects some remorse. In my opinion, the level of your remorse must also take into account the evidence before me that your insight regarding your offending is limited, and that you were reluctant to discuss your offending. You denied your sexual offending (although I note such is considered typical of sex offenders). These matters limit the extent of your remorse, but do not extinguish it. Of course, these matters of concern must be seen against your intellectual and cognitive impairment. You require sustained treatment. As such, I accept your plea of guilty indicates some remorse for your offending. The discount, to adopt the words of Macaulay AJA, falling between significant and high discount.
86 Ms Coghlan referred to Dr Sullivan’s reference to you minimising your offending and that you lacked insight. It was also relevant to sentencing, she submitted, that you were of mature age without any prior criminal record, therefore of previous good character, although submitted age was not as relevant when offences involved sexual offending against a child.
87 Turning to the principles in Verdins, Ms Coghlan submitted there needed to be a nexus between intellectual disability and your offending to enliven those principles. As I understood, she agreed imprisonment may weigh more heavily upon you as a result of your intellectual disability and that I should take that into account when determining the appropriate sentence. In my opinion, the principles in Verdins are applicable when sentencing you, specifically the restatement of Tsiarias Principles 1, 3, 5 and 6.
88 Although I have some doubt about Principle 6, if it applies, it is to a lesser degree than Principles 1, 3 and 5.
89 Regarding your rehabilitation prospects, she submitted I should be cautious. Whilst you did not have any prior or subsequent court appearances, however, if your intellectual disability was involved in your offending, you were currently a low to moderate risk of sexual offending unless treatment was received.
90 Ms Coghlan submitted denunciation of your conduct was important in this case, that general deterrence also applied to an extent, she submitted there were a number of aggravating features of your offending, including the age difference between yourself and SL, the impressionability of SL, that your offending occurred over a number of weeks, that you actively took SL away from her family and avoided attempts to contact her by police. Further, when she threatened to leave, you threatened to harm yourself. You also did not wear a condom when you offended. Ms Coghlan, referring to the serious sex offender provisions, and submitted there should be some cumulation in the sentences imposed on Charges 3 and 4.
91 However, as well as matters personal to you, including your prospects of rehabilitation as I find them to be, general deterrence is a very important sentencing consideration when sentencing for these offences. The courts have repeatedly referred to the need to protect children from sexual offending.
92 Children are vulnerable and especially vulnerable to abuse of trust. They are immature in their understanding of right or wrong and are dependent upon adults not to abuse that immaturity.
93 Relevant authorities include Roosmalen (1989) 43 A crim R 358, Wayland 14/9/1992 CA Victoria, Parente 20/2/1996 CA Victoria, DPP v CPD [2009] VSCA 114 and Clarkson v The Queen [2011] VSCA 157. This list is by no means exhaustive.
94 Having said that, I accept that some moderation of general deterrence is applicable in your case based on the principles in Verdins.
95 In my opinion, there is an element of specific deterrence required when sentencing you as your offending occurred over a significant period of time and included attempts by you to evade detection by police and others. Having said that, I again accept that the principles in Verdins are applicable in relation to your moral culpability which has some bearing upon specific deterrence.
96 I must also have regard to the need to protect the community from you. I am still concerned about this, albeit Dr Sullivan says that with treatment you would be a low risk of sexual re-offending. However, I am convinced that that risk will really only be reduced should you obtain the necessary sex offender treatment.
97 I am also required by the Sentencing Act 1991, to manifest the communities denunciation of your conduct and generally to impose a just punishment. In sentencing you, I declare pursuant to s.6F Sentencing Act 1991, you have been sentenced as a serious sexual offender on Charges 3 and 4 and I direct that that be entered into the records of the court. I previously referred to the Victim Impact Statements in this matter, I have read those Victim Impact Statements at the time that I prepared these sentencing remarks. The effects upon a victim are a relevant sentencing consideration, see s.5 of the Sentencing Act 1991. I am of course conscious when sentencing I must not allow the effects upon a victim to swamp the sentencing process. There is no doubt however that your offending has significantly effected the victim and her family.
98 When sentencing you, I apply the principles of totality and proportionality.
99 On Charge 1, convicted and sentenced to 2 years 6 months imprisonment.
100 On Charge 2, convicted and sentenced to 2 years 6 months imprisonment.
101 On Charge 3, convicted and sentenced to 2 years 6 months imprisonment.
102 On Charge 4, convicted and sentenced to 10 months' imprisonment.
103 I direct the following in relation to cumulation and concurrency. Charge 1 is the base sentence, and I direct that 18 months of Charge 2 be served concurrently and 1 year cumulatively upon Charge 1.
104 I direct that 15 months of Charge 3 be served concurrently and 15 months cumulatively upon Charge 1.
105 I direct that on Charge 4 that 5 months be served concurrently and 5 months cumulatively upon Charge 1.
106 That results in a total effective sentence of 5 years and 2 months, and I direct that you serve a period of 3 years before you are eligible for parole.
107 Pursuant to s.18(4) Sentencing Act, I declare you have spent 98 days in custody by way of pre-sentence detention for these offences, up to and including yesterday being 8 July, I would like that confirmed please or otherwise, and direct that that be entered into the records of the court.
108 Pursuant to s.6AAA Sentencing Act, had you been found guilty by jury verdict following trial for these offences, I would have sentenced you to a term of imprisonment of 7 years with a non-parole period of 5 years.
109 Pursuant to the Sex Offenders Registration Act 2004, the charge of sexual penetration of a child under 16 is a Class 1 offence, and indecent act with a child under 16 is a Class 2 offence. As such, registration is mandatory and you will be registered as a sex offender for life. Mr Sala conceded such a classification and duration applied to you.
110 Part 2A Sentencing Act 1991 is applicable and I direct it be entered into the records of the court that you have been sentenced as a serious sexual offender in relation to Charges 3 and 4 on the indictment.
111 The relevant legislation of course being s.6D Sentencing Act 1991. When sentencing you as a serious sexual offender I must regard protection of the community as the principal purpose for which sentence is imposed. The prosecution also made application in relation to cumulation and concurrency, see also s.6E.
112 The prosecution also made application pursuant to s.464ZFB Crimes Act 1958 for the retention of a forensic sample. This was unopposed by counsel on your behalf and I make the order in the terms sought. I do that on the basis of the seriousness of the offending.
113 The prosecution also made application for forfeiture of items seized. Again, unopposed by counsel on your behalf and I make the order in the terms sought.
114 For purposes of clarity in relation to the orders of cumulation, the orders for cumulation are upon themselves, and upon the base sentence, which results in the total effective sentence to which I have just referred.
115 Now is there any problem with the mathematics, anything - you want the sentences re-read?
116 MS ELLUL: No Your Honour.
117 MR ZINGER: No Your Honour.
118 HER HONOUR: All right, what about the PSD, do you agree?
119 MS ELLUL: Yes Your Honour.
120 MR ZINGER: That's agreed.
121 HER HONOUR: Up to and including yesterday?
122 MR ZINGER: Indeed.
123 HER HONOUR: All right, now in relation to the forms I make the order for the retention based on the seriousness of the offending, and I note it's not opposed, I've signed that order. Now also I'm signing the forfeiture order, and I'm signing the document regarding the Sex Offenders Registration, and what's going to happen now is my associate is going to come back to you, and ask you simply to sign acknowledging receipt of the documents, not asking whether you want to be on the register or not, I've made the order, she's simply handing you paperwork. So all you're being asked to do is sign acknowledging receipt of the paperwork, that's all. Thank you, did you want to go back and explain that or not?
124 MR ZINGER: I might Your Honour.
125 HER HONOUR: All right, so what he's being asked to sign is simply acknowledging receipt of the paperwork.
126 MR ZINGER: Certainly.
127 HER HONOUR: Not whether he wants to be on the register, all right. Now is there anything else in this matter?
128 MS ELLUL: No Your Honour.
129 HER HONOUR: Yes all right, thank you, remove Mr Elliott please. Yes, thank you.
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