Director of Public Prosecutions v Fernando (a pseudonym)
[2018] VCC 1510
•14 September 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SEAN FERNANDO (a pseudonym) |
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| JUDGE: | HIS HONOUR JUDGE CARMODY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 11 September 2018 |
| DATE OF SENTENCE: | 14 September 2018 |
| CASE MAY BE CITED AS: | DPP v Fernando (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 1510 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Grooming child under 16 years old, use carriage service, possess child abuse material.
Legislation Cited: Sex Offenders Registration Act 2004
Cases Cited:DPP (Cth) v Haidari [2013] VSCA 149, DPP & DPP (Cth) v Swingler [2017] VSCA 305
Sentence:Total Effective Sentence is five years and nine months imprisonment with the minimum term to be served before being eligible for parole is four years and three months imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S. Coombes | Director of Public Prosecutions |
| For the Accused | Ms S. Lenthall | Victoria Legal Aid |
HIS HONOUR:
1Sean Fernando[1], on 11 September 2018, you pleaded guilty to the following charges on indictment No.C1812066:
Charge 1, grooming for sexual conduct with a child under 16 years. This charge has a maximum penalty of ten years' imprisonment.
Charge 2, grooming for sexual conduct with a child under 16 years. This charge has a maximum penalty of ten years' imprisonment.
Charge 3 is using a carriage service to transmit indecent communications to a child under 16 years. This charge has a maximum penalty of seven years' imprisonment and is a Commonwealth offence.
Charge 4 is failing to comply with the reporting obligations of the Sex Offenders Registration Act. This offence has a maximum penalty of five years' imprisonment.
Charge 5, possess child abuse material. This offence has a maximum penalty of ten years' imprisonment.
Charge 6 is grooming for sexual conduct with a child under 16 years. This offence has a maximum penalty of ten years' imprisonment.
Charge 7, failing to comply with reporting obligations under the Sex Offenders Registration Act 2004. This charge has a maximum penalty of five years' imprisonment.
[1] A pseudonym name
2You have consented to a related summary charge being heard in this court. You have pleaded guilty to a charge of committing an indictable offence while on bail. This offence has a maximum penalty of three months' imprisonment.
Circumstances of your offending
3The offences of Charges 1 to 5 are committed in relation to Daniel Hawes[2]. The offending occurred between 16 May 2017 and 20 December 2017. Your initial contact with Hawes was playing the online game Black Ops 2 on PlayStation. You logged onto the game under the username G_Uchi55. You told Hawes you were 22 years old. You were told by him that he was 12.
[2] A pseudonym name.
4Whilst playing Black Ops 2 with Hawes, you asked if he had a Facebook account. You located Hawes’s Facebook account and added yourself as a friend. On 16 May 2016, you commenced talking on Facebook with Hawes. On 20 May 2017, you commenced communicating with Hawes on Skype. Between 16 May 2017 and 3 December 2017, you engaged in sexualised communications with Hawes via Facebook. Between 20 May 2017 and
5 July 2017, you engaged in sexualised conversations with Hawes via Skype.5This offending straddles 1 July 2017 amendments to the Crimes Act 1958 and cannot be represented by a single charge. Therefore the sexualised messages sent by you to the complainant between 16 May and 30 June 2017 are represented by Charge 1 and the sexualised messages sent by you to the complainant between 1 July and 3 December 2017 are represented by
Charge 2.6The explicit detail of your messages to Hawes was set out in the prosecution opening which was Exhibit “A” on the plea. I will not detail the nature of those communications in these reasons but would characterise them as extremely crude and sexualised approaches to a young boy under the anonymous cover of the internet. You were clearly seeking to ingratiate yourself to Hawes in an attempt to recruit him for your own sexual gratification. The most intense period of communications from you was between 16 May 2017 and 30 May 2017.
7Despite Hawes dropping off responses to your advances, you continued to contact him on Facebook until Hawes’s father responded to one of your communications on 3 December 2017. The police turned up at your house on 12 December 2017.
8Your computer was seized and on 20 December 2017, police located photographs of Hawes on it. That was Charge 5.
9In the course of your communications with Hawes, you had convinced him to send you videos and photographs of himself in sexualised poses that was Charge 3.
10On 6 July 2012, you had been declared a registrable offender under the
Sex Offenders Registration Act 2004 and placed on the Sex Offenders Register for life. You failed to notify Victoria Police of your contact with Hawes between 16 May 2017 and 3 December 2017. That is Charge 4, failing to comply with reporting obligations.11On 14 January 2018, you were arrested and interviewed during which you stated the following:
·That you had met Hawes through online gaming.
·That you did not add Hawes to Facebook.
·That you do not add or talk to people under the age of 18 because of your reporting conditions.
·That you did not talk to Hawes over Facebook Messenger that you communicated with Hawes over Skype.
·That you did not remember sending Hawes a photograph of your penis.
·That you sometimes sent photographs of your penis to friends as a joke.
·That you rarely go on Skype.
·That you do not recall discussing your age with Hawes.
·You denied ever being able to see the complainant over Skype, that is Hawes, and you stated he could have been 40 years old.
·You stated that you blocked the contact with Hawes.
·You agree that you did not advise police of your contact with Hawes.
·You denied that your laptop would contain any images of child pornography and;
·You agree that you blocked the complainant when his father responded to your message on Facebook.
12Following your arrest and the interview, you were charged by Detective Senior Constable Ian Campbell and released on bail.
13Despite being on bail for the offences against Hawes, you returned to your grooming offending on 9 February 2018. Oliver Kirwan[3] lives in New South Wales with his family. In February 2018, he was playing an online game of
Call of Duty Black Ops 2 on his PlayStation. This game involves players logging into the game via the internet connection and interacting with other players from different locations as they each play the game. You also played that game under the username of G_Uchi55 and on or around 9 February 2018, you began interacting with Kirwan through this game. You told Kirwan that you were 20 and Kirwan told you he was 14.[3] A pseudonym name
14You discussed your job working in an ice cream store and Kirwan discussed what school he was attending. You asked Kirwan for his phone number and you exchanged phone numbers. On 10 February 2018, you commenced sending text messages to Kirwan. You then asked Kirwan for a photograph and you exchanged photos. Between 10 February 2018 and
20 February 2018, you engaged in sexualised communications with Kirwan via text messages. That was Charge 6.15I will not detail the content of your highly sexualised and depraved messages to Kirwan. Again your communications had an intense period between
9 February 2018 and 19 February 2018.16You were trying to arrange a meeting with Kirwan. During the period that you exchanged the text messages, Kirwan and you continued communicating via the online game. You asked him if he wanted to meet up and Kirwan agreed. You agreed to meet at the East Albury basketball courts but you cancelled prior to the meeting. You then arranged to meet on 25 February 2018 at the East Albury skate park.
17On 22 February 2018, Mrs Kirwan discovered the text messages between her son and you and attended at the Albury police station to report you. Enquiries revealed the mobile phone number that young Kirwan had been texting belonged to you.
18On 6 July 2012, again you were declared as a registrable offender under the Sex Offenders Registration Act 2004 and placed on the Sex Offenders Register for life. You failed to notify the Victoria Police of your contact with the complainant between 10 February 2018 and 20 February 2018, that is Charge 7 on the indictment.
19On 23 February 2018, you were arrested and interviewed during which you stated as follows:
·That the photograph that you received of Kirwan looked like a 19 year old.
·That you did not ask Kirwan his age.
·That you thought that Kirwan was aged at least 18 and you told Kirwan that you were 28.
·You agreed that there was a plan to meet Kirwan but you could not be bothered driving to meet him so it was cancelled.
·You stated the message that you sent to Kirwan about licking things was a joke.
·You said you did not report your contact with Kirwan to Victoria Police because you thought Kirwan was over the age of 18.
·In the past, you would conduct what you would describe as checks on people, entering your clan on the online game but you no longer conducted these checks.
20At the time of the offending in relation to Kirwan, you were on bail in relation to that offending against Hawes and that is the basis for summary charge of committing an indictable offence whilst on bail.
21Following your arrest and interview on 23 February 2018, you were charged by Detective Senior Constable Fiona Naylor and were remanded in custody.
Your bail in relation to the 2017 offending against Hawes was revoked. You have been in custody since that day.
Victim Impact Statement
22There has been no victim impact statements filed by either of the boys in this case. I was informed by the prosecutor that Hawes was particularly vulnerable at the time of the offending, not just because of his young age which was 11 years but that his mother had recently passed away at the time of the offending due to cancer. This fact was known to you because it formed part of your conversations with Hawes. Both boys had the opportunity to file a victim impact statement but their families declined the opportunity.
Personal Circumstances
23You are now 28 years old. At the time of your offending, you were 27 to 28 years old. You are the youngest of three children in your family. You had a happy and stable early childhood. At age ten, your parents separated.
24Your mother re-partnered and you lived with her and a person I would described as your stepfather. Your stepfather was verbally abusive to both you and your mother. When you were 14 years old, you moved to live with your father, your brother and sister. You have enjoyed good family support until this offending before the court. Whilst on remand, you still have contact with some family members.
25Your education is limited. You completed primary education at Sydenham South Primary School with a teacher's aide to assist you in language, spelling and reading. You then attended Rossbourne Special School in Hawthorn.
You stayed there until Year 9 when you were encouraged to move on.26Your next education was to Year 10 VCAL at Holmesglen TAFE. You then completed a pre-apprenticeship course in plastering. You commenced an apprenticeship as a plasterer but moved across to labouring in that industry because the pay was better. You remained in that employment until your incarceration in 2012.
27Your incarceration commenced on 6 July 2012. You were released from prison without parole or control on 5 March 2017. You commenced offending again two months later, on 16 May 2017.
28You have two relevant prior court appearances. On 6 July 2012, you were convicted of sexual penetration of a child under 16 years and seven other child sex offences and sentences to a total effective sentence of four years and eight months with a non-parole period of two years and six months. You were placed on the Sex Offender Register for life.
29Whilst still in custody for those matters, on 30 September 2013, you were convicted of using a service to procure an under 16 child for a sex act on two separate charges. The charges were Commonwealth charges. You were sentenced to one year and eight months and released on a s.20 bond to be of good behaviour for 30 months after serving eight months' imprisonment.
You were not granted parole. I was told by your counsel that the reason for your non-parole grant was you were unable to provide a suitable address to comply with the requirements under the Sex Offenders Registration Act.30Whilst in custody, you did attend a sex offenders program designed for prisoners with a disability. You told Mr Cummins, forensic psychologist, who assessed you for the purpose of this proceeding that, "I didn't get much out of the program. I was treated like I had a mind of a five year old." You did express an interest in doing further sex offending programs which you describe as adult programs.
31You have been assessed by Patrick Newton, forensic psychologist, for your two previous court appearances. These reports were dated 25 June 2012 and 12 September 2013 and were Exhibit “2” on the plea. In their reports, you were assessed as having a normal mental state. You were assessed as manifesting deviant cognition and distorted understandings of peri-adolescent sexuality. You were assessed as a moderate to high risk of sexual recidivism.
32In his report dated 7 September 2018, which was Exhibit “3” on the plea, Jeffrey Cummins, forensic psychologist gave his opinion as follows:
"It is my opinion that his risk of committing further sexual offences against an underage male is at least moderate to high and will remain at this level or progress to high unless he receives and benefits from appropriate offence specific treatment."
33You have been formally tested by Mr Newton for your level of cognitive functioning. You were assessed as falling into the borderline range for intellectual impairment but did not qualify for intellectual disability.
34Prior to your incarceration, you were working in an ice cream factory. You were charged and released on bail for Charges 1 to 5 on this indictment on
14 January 2018. On 23 February 2018, you were arrested and charged with Charges 6 and 7. You have been in custody for a total of 203 days of pre-sentence detention.
Sentence Considerations
35The basic purpose for which a court may impose a sentence are just punishment, deterrence both specific and general, rehabilitation and denunciation of your actions and the protection of the community. In sentencing you, I must have regard to a range of factors such as the seriousness of your offending, your culpability for it and your personal circumstances.
36I am also required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure as far as possible that you as an offender are rehabilitated and reintegrated into society.
37I am also required to take into account current sentencing practices in fixing your sentence. That enquiry is directed particularly but not exhaustively to the kinds of sentences imposed in comparable cases and the statistics for those sentences at the time. I have considered the statistics and the current sentencing practices mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case as indeed they are from one another.
38Charge 3, is a Commonwealth offence. That brings into place a legislated set of considerations.
39The most significant consideration in sentencing a Federal offender such as yourself is s.17A of the Crimes Act, which provides as follows:
"A court shall not pass a sentence of imprisonment on any person unless the court, having considered all of the other available sentences, is satisfied that no other sentence is appropriate in all the circumstances."
40A term of imprisonment is the only appropriate sentence for your offending.
41Section 16A(2) of the Crimes Act sets out a non-exhaustive list of factors the court must take into account and consideration when sentencing a Federal offender such as yourself. There are many factors I must take into account and they are set out as follows:
(a) The nature and circumstances of your offending;
(b) If your offences forms part of a course of conduct consisting of a series of criminal acts, I have to take that into account. It was an integral part of your offending in this case;
(c) Any loss, injury or damage resulting from the offence;
(d) The degree to which a person has shown contrition for his offending. In your case, the remorse is confirmed by your plea of guilty;
(e) That you have pleaded guilty to the offending.
(f) That the deterrent effect of any sentence or order under consideration may have on you, that is specific deterrence on you;
(g) That the deterrent effect of any sentence or order under consideration may have on other persons, that is general deterrence;
(h) The need to ensure that you are adequately punished for your offending;
(i) Your character, antecedence, age, means and physical and mental condition;
(j) The prospect of your rehabilitation; and(k) The probable effect any sentence or order would have on your family.
42There is almost a complete overlap in sentencing considerations in both State and Federal offences.
43You have pleaded guilty to these charges. Your plea of guilty was indicated at an early stage. Your plea does have a utilitarian value of allowing for the orderly and effective administration of justice. There is a certainty of outcome and a resolution of the substantive issues raised by your offending. Your plea allows the preservation of the court and police resources to deal with other matters. Your plea vindicates the public confidence in the legal process set up to protect the community.
44Your plea is also a clear acknowledgement by you that you accept responsibility for your criminal behaviour on these occasions. Your plea also recognises that you will facilitate the course of justice in the community and I accept that your guilty plea to these charges indicates and demonstrates some remorse on your behalf.
45In charges such as the ones under consideration, the plea of guilty relieves the necessity for vulnerable victims to front up to the prospect of giving evidence and being cross-examined about such personal and sensitive matters.
The discount in the sentencing process is appropriate and will be noted.46You have relevant prior convictions. In 2012, you were convicted of child sex offences and sentenced to a total effective sentence of four years and eight months with a non-parole period of two years and six months. In 2013, you were convicted of two charges of using a carriage service to procure a child under 16 for a sexual act. The total effective sentence was on that occasion one year and eight months but s.20 bond of $1,000 to be released after serving eight months of that term of imprisonment. The bond was for a period of
30 months from September 2013.47The combined effect of these two court orders were you served a full term of imprisonment. You were released from prison on 7 March 2017. Your first period of offending commenced on 16 May 2017, a little over two months after you were released from prison. The recidivism pattern continues after you were arrested and charged with offences of Charges 1 to 5 in this case. You were bailed on 14 January 2018. You then committed Charges 6 and 7 and the related summary offence between 10 and 20 February 2018. This is less than a month after you had been bailed on similar offending.
48I find that you are a high risk of reoffending in a sexual manner against young males.
49Due to your prior convictions, the serious offender provisions of the
Sentencing Act apply to you in this proceeding.50Under the serious offender provisions in the Sentencing Act 1991, I am required on the sexual offences Charges 1, 2, 5 and 6 to regard the protection of the community from you as a principal purpose for which the sentence is to be imposed. If necessary, in order to achieve that purpose of protecting the community, I am empowered under s.6D of the Sentencing Act to impose a greater sentence than is proportionate to the gravity of the offences.
This means that the sentencing task in respect of Charges 1, 2, 5 and 6 on the indictment is to be undertaken on the basis that the protection of the community from you is the principal purpose for which the sentence is to be imposed. To achieve that purpose, a sentence may be imposed longer than that which is proportionate to the gravity of the offences, considered in the light of the objective circumstances.51Section 6E of the Sentencing Act also requires that unless I otherwise direct with respect to Charges 1, 2, 5 and 6 on the indictment, the sentences I impose on you are to be served cumulatively. I note here that the prosecution did not call for a disproportionate sentence or for cumulation contemplated under s.6B and s.6E of the Sentencing Act allowing for the matters which I have already outlined in these reasons for sentence. In my view, it is appropriate to impose only that degree of cumulation to which I subsequently refer, reflecting as it does several episodes of offending. To do otherwise may produce a sentence which is not appropriate and is unjust.
52Pursuant to the provisions of the Sex Offenders Registration Act 2004,
Charges 1, 2, 3, 5 and 6, they are Class 2 offences and you are put on the register. Pursuant to s.34 of the Sex Offenders Registration Act, you must report for life.53I declare that pursuant to s.6F, I have sentenced you as a serious sexual offender. The objective seriousness of your offending is informed by the following factors:
(a) You used the anonymity of the internet to prey on prospective young males;
(b) You pressured and pursued of the sexualisation of the "conversations" with the clear intent of meeting your target for sexual contact;
(c) You have offended shortly after your release from prison for similar offences;
(d) You returned to offending of grooming shortly after being arrested and bailed for grooming offences;
(e) You convinced your victim to send pornographic images of themselves to you;
(f) The nature of your offending is to corrupt young boys for your own sexual gratification; and(g) Your offending is a persistent course of conduct until it is interrupted by the parents in these cases.
54In this case, Charges 1 and 2 are part of your offending against the same boy. The reason for the two charges that the legislative changes applied within the period of that offending. For that reason, it is appropriate to have full concurrency between the sentences for those two charges. The fact that you have breached your obligations under the Sex Offenders Registration Act requires part cumulation of the sentence for that charge. The charge of possessing child abuse material also requires some cumulation of that sentence to reflect the additional criminality. I accept that the child abuse material would be in the lower categories of the ANVIL classifications.
55Your offending against the second boy whilst on bail for the first set of charges calls for substantial cumulation of that sentence. Your second offending against the Sex Offenders Registration Act requires part cumulation of that sentence. The penalty for committing these offences whilst on bail for similar offences requires a discrete cumulation to arrive at a just punishment.
56The principle of totality has some role to play in the sentencing process in your case. In the case of DPP (Cth) v Haidari [2013] VSCA 149, Harper J stated as follows,
"When sentences are imposed for numerous offences, the sentencing judge should stand back and look at the overall picture and decide whether the total of what would otherwise be an appropriate sentence is a fair and reasonable total sentence to impose. This is an aspect of the totality principle which, as the High Court said in Mill v The Queen is a recognised principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. To is described succinctly in Thomas, Principles of Sentencing as follows,
"The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles of governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is also necessary for the court to take a last look at the total just to see whether it looks wrong'; 'when … cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all of the offences."
"The principle has a wider application than the case specified in the passage quote above."
57As Thomas points out in Principles of Sentencing,
"The principle applies to all situations in which an offender may become subject to more than one sentence: where sentences are passed on different counts on an indictment or on different indictments, where the offender is subject to a suspended sentence or probation order, where he is already serving a sentence of imprisonment or makes appearances in different courts within short spaces of time. In all such cases 'the final duty of the sentencer is to make sure that the totality of the consecutive sentences is not excessive.'"
58His Honour went on to say,
"The courts have for these reasons shown an aversion to the imposition of crushing sentences except when these are either required by statute or are, in exceptional circumstances, otherwise plainly justified. There could in my opinion be no justification for imposing a crushing sentence if the only warrant for it was the notion that where an offender has committed an offence which carries a minimum sentence, that minimum must be cumulated in full upon all other sentences imposed at the same time."
59I have taken into account the principle of totality when assessing the cumulation of the individual sentences for each charge and then the total effective sentence at the end.
60After taking into account all of the relevant matters to your offending, the principles of protection of the community, general and specific deterrence are the most significant factors.
61I assess your chances of rehabilitation as guarded. Nevertheless, I have fixed a non-parole period in the hope that on this occasion that you spend in gaol is followed by a period of close supervision and continued sex offender treatment in the community. On the last occasion, you were released without any supervision as you served every day of your sentence. You reoffended within two months. The protection of the community will be enhanced by active and close supervision and treatment in the community upon your release from custody. I trust that the provisions of my order under the Sex Offenders Registration Act does not frustrate or prevent the parole board from having the option to grant you parole should you earn the privilege whilst you are in custody.
62On Charge 1, you are convicted and sentenced to 36 months' imprisonment, that is the base sentence. On Charge 2, you are convicted and sentenced to 36 months. On Charge 3, this is the Commonwealth offence, you are convicted and sentenced to six months' imprisonment. With Charge 3, I am going to seek assistance from the prosecutor and defence counsel about how this is to be ordered, I will just tell you what I want to do at the end.
63COUNSEL: Yes, Your Honour.
64HIS HONOUR: Thank you.
65Charge 4, this is the breach of the Sex Offender Registration Act, you are convicted and sentenced to six months, three months of that sentence is to be served cumulatively on the base sentence. On Charge 5, which is possession child abuse material, you are convicted and sentenced to nine months' imprisonment. Six months of that sentence is to be served cumulatively on the other sentences. On Charge 6, which is the second grooming offence, you are convicted and sentenced to 30 months' imprisonment, 20 months of that is to be served cumulatively on all the other sentences. On Charge 7, you are convicted and sentenced to six months' imprisonment and three months of that sentence is to be served cumulatively on all the others.
66In respect of to the offending whilst on bail, you are convicted and sentenced to one month and that one month is to be served cumulatively upon the other sentences.
67On my calculation, the State total effective sentence is five years and nine months and for the State non-parole period, I am setting a period of four years' imprisonment.
68Now, what I want to do and I am seeking assistance about how to properly order this so it does not create problems that are very carefully elicited by the Court of Appeal in the case of Swingler, the six month sentence that I wish to impose or have imposed, sorry, in respect of Charge 3, I want to cumulate three months of that on the non-parole period of the State sentence so that the way I thought it needed to be done was that I set the start date for the Commonwealth sentence of six months to be three months prior to the end of the non-parole period of the State sentence. That is Part 1.
69Part 2 is that is just a straight sentence on a Commonwealth offence under three years and the reason I want to do it that way is, and I will announce these reasons if it is the appropriate way to do it, is because one, the predominant sentence is a State sentence by weight and numbers, length of time I mean, and that this additional sentence for the Commonwealth matters is just to mark out the additional offending and should be a straight sentence and the reason I am not setting any non-parole period is it is taking into account of all the other non-parole sentencing.
70Now I hope that it complies with the Commonwealth Act. I do not know whether it does or not. I will have a look at it. I think I can do it that way. So in effect, in the overall total sentence for him would be five years and nine months and the minimum non-parole period would be four years and three months.
71MS COOMBES: Yes, that sounds like what Your Honour has indicated. I do not see an issue with the way that Your Honour has articulated approaching that sentencing task.
72HIS HONOUR: Yes. Just on that, I looked at s.19AB talking about fixing a non-parole period in Commonwealth matters. Subsection 3 says a court may decline to fix a non-parole period under this section, that is under the Commonwealth part if the court is satisfied a non-parole period is not appropriate, and that is really what I am saying about the Commonwealth offence.
73MS COOMBES: Yes.
74HIS HONOUR: Having regard to the nature and the circumstances of the offence and the antecedence of the person sentenced and albeit the person is expected to be serving the State or Territory sentence on the day at the end of the Federal sentence or the last to be served of the Federal sentences as reduced by remissions or reductions under s.19A. So the State sentence, because of the head sentences, is further out than that, I say he is still serving it.
75MS COOMBES: Yes, yes. That's right, Your Honour, yes.
76HIS HONOUR: Mr Fernando, just so you understand, the total numbers you need to know, your counsel will explain this all to you but just so you know now, the total sentence is five years and nine months. That is the head sentence as you would call it. The non-parole period including both Federal and State offences is four years and three months.
77I further order, as I think I had done during the course of sentence, but you are placed on the Sex Offenders Register for life. There are Class 2 offences on the charges I nominated. I have signed the disposal order sought. That relates to the matters seized from you and that I have sentenced you under s.6F as a serious sexual offender.
78Is there anything else I need to say or do?
79MS COOMBES: Your Honour, s.6AAA.
80HIS HONOUR: Yes, sorry. Thank you. Section 6AAA, but for your plea of guilty, I would have sentenced you to seven years and six months head sentence with a non-parole period of five years.
81MS COOMBES: As Your Honour pleases.
82MS LENTHALL: As Your Honour pleases.
83MS COOMBES: Your Honour, just in respect of the State and Commonwealth charges, Your Honour just needs to state the date, if you have not already, that is for the record the date that the State sentences commence, being today
84HIS HONOUR: Sorry, commences today and I declare the pre-sentence detention of 203 days.
85MS COOMBES: Yes, as time reckoned, yes. Then Your Honour needs to also declare when the Commonwealth sentence will commence and my understanding is that it is three months before the expiration of the non-parole period on the State offences.
86HIS HONOUR: Correct.
87MS COOMBES: So Your Honour just needs to make that declaration.
88HIS HONOUR: Very clear.
89MS COOMBES: Yes, thank you.
90HIS HONOUR: Thank you. So in relation to your Commonwealth sentence of six months, it is to commence three months before the expiration of the State non-parole period which is four years. So for want of a better way of putting it, your State non-parole period is four years. You commence your Commonwealth one three months before it and you finish it three months after the State one. That is why it is four years and three months.
91Were there any other ancillary orders I had to make?
92MS COOMBES: There was a disposal forfeiture order but Your Honour made that.
93HIS HONOUR: I have got the disposal order. Was there a forfeiture order separate?
94MS COOMBES: Sorry, it was disposal only. Forfeiture under the Confiscations Act, yes.
95HIS HONOUR: I have signed three of those.
96MS COOMBES: I think they have been done.
97HIS HONOUR: Yes. They are there. This is the Sex Offender Registration papers, if you would not mind, Ms Lenthall, thank you.
98MS COOMBES: Your Honour, just with respect to the orders, the sentencing.
99HIS HONOUR: The cumulation.
100MS COOMBES: Just in terms of all of the charges relevant to cumulative periods.
101HIS HONOUR: Yes.
102MS COOMBES: We are just adding those up.
103HIS HONOUR: I will go through them again.
104MS COOMBES: Yes, thank you.
105HIS HONOUR: Sorry, I will wait until Ms Lenthall is back.
106MS COOMBES: Yes, thanks. Your Honour, I can indicate we have done those calculations and it is correct. Ours aligns with what Your Honour has done.
107HIS HONOUR: Yes, you should have five years nine months.
108MS COOMBES: Yes, five years nine months, that is correct.
109HIS HONOUR: And four with three overall.
110MS COOMBES: Yes, that is correct. My instructor was just looking at the orders Your Honour had made but the Commonwealth offence, the six months ‑ ‑ ‑
111HIS HONOUR: Added them in.
112MS COOMBES: Correct. She added the three months instead of not realising the three months that was before the non-parole period so that is where she went. But Your Honour is absolutely correct.
113HIS HONOUR: If it is any comfort to her, I made the same mistake myself.
114Mr Fernando, I have just sentenced you to a large slice of your life. You have already done a similar sentence before. You are only 28. On Australian life tables, you have got about 60 years in front of you. You have got a serious problem. If you do not do something about it, the community will look after you for 60 years in that tracksuit. You could have an alternative life outside here. I know it is difficult but you have just got to take the chance of these child sex offence education and treatment courses and grab them with both hands and live by it otherwise you will come back and see people dressed like me, sending you off out the back door with people dressed like them many times.
115Thanks, you can remove the prisoner and thank you.
116MS LENTHALL: Your Honour, just before that.
117HIS HONOUR: Sorry.
118MS LENTHALL: If I can just provide these documents back to - they should go with him.
119HIS HONOUR: Certainly. Sorry, Ms Lenthall.
(Prisoner removed.)
120I just want to take the opportunity to thank you both for your assistance in this matter and as I say, I am sorry about mucking your calendars around.
121MS COOMBES: No problem, Your Honour. May it please the court.
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