Director of Public Prosecutions v Foley (a pseudonym)
[2016] VCC 321
•21 March 2016 (at Melbourne)
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT WARRNAMBOOL
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JACKSON FOLEY[1] |
[1] The name of the Accused has been allocated a pseudonym to protect the identity of the victim pursuant to section 4 of the Judicial Proceedings Reports Act 1958 (Vic)
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| JUDGE: | HER HONOUR JUDGE COHEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 16 March 2016 |
| DATE OF SENTENCE: | 21 March 2016 (at Melbourne) |
| CASE MAY BE CITED AS: | DPP v Foley (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 321 |
REASONS FOR SENTENCE
---Subject: Sentencing; sexual assault
Catchwords: During domestic relationship; brief episode; serious mental health issues and no prior sexual offending
Legislation Cited: Sentencing Act 1991 (Vic) s 6AAA
Cases Cited: R v Verdins & Ors [2007] VSCA 102
Sentence:TES: CCO for 2 years with 50 hours of unpaid community work and rehabilitative conditions.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Triandos | OPP |
| For the Accused | Mr M. Turner | Dwyer Robinson |
1HER HONOUR: Jackson Foley, you have pleaded guilty to a charge of sexual assault. The maximum penalty for this offence is ten years' imprisonment.
2You have also admitted to a lengthy criminal history starting more than 15 years ago, to which I shall refer later.
3This charge arises out of events on 13 July last year - that is, 2015. At that time, you were living in Warrnambool in a unit provided by the Department of Human Services. You were in a relationship described as "on again, off again" with Lily Lane[2] who at the time was aged 30, and you were 34. There had been some instances of violent domestic disputes between you and Ms Lane as a result of which a Family Violence Intervention Order was in place to protect Ms Lane from you.
[2] The name of the victim in this matter has been allocated a pseudonym to protect her identity pursuant to section 4 of the Judicial Proceedings Reports Act 1958 (Vic)
4However, on the day in question, Ms Lane arrived at your address about midday, upset and depressed after seeing her son. You comforted her and she lay down and fell asleep on the couch. When she awoke about 9 pm, you were seated on the couch next to her, and continued to comfort her as she was still upset. She then walked into the bedroom and got into bed fully clothed. You followed and got into the bed also, asked her, "Don't you have somewhere else to go?" and she replied, "No, I'm here with you because I love you." You then started to take her clothes off, roughly taking off her pants, and she told you to stop two or three times. You observed a number of bruises on her upper thigh, asked where she had got them from, and accused her of cheating on you.
5By this time she was laying on her back and you got on top of her, spread her legs and pulled your erect penis out of your pants. She was resisting and telling you to stop, and you were angry and lay down on top of her with your penis exposed and erect. She was pinned underneath you, and could not break free and continued telling you to stop. You then did stop. You got off the bed and walked away into the en suite. That is the basis of the charge of sexual assault.
6Ms Lane remained on the bed crying for a short time then walked out to the lounge room, still wearing no pants. She sat on the couch, shaking and in tears, and you then walked into the lounge room. She then returned to the bedroom to get her underwear and pants, and as she did this you pushed her out of the unit through the front door, and she had to put her clothes on on the front veranda.
7After this incident, Ms Lane tried to reconcile her relationship with you, and that apparently led to further instances of domestic violence which resulted in other charges against you.
8On 24 August 2015 - that is about 5 weeks later - you were arrested following a physical assault on Ms Lane. While in custody, police requested that you participate in a recorded interview about the sexual assault incident, but on legal advice you refused. There is therefore no explanation at all by you about this incident.
9You were remanded in custody from 24 August last year. During the time since, Ms Lane has advised that you and she have resumed your relationship. Indeed, she has written a letter to me for this hearing saying that she is looking forward to your release from custody as you both have plans for your future, and she wants to start a family with you soon.
10She has moved away from Warrnambool to Wodonga where your mother lives. She says that when you are released you will be living in a place with her, arranged through the Salvation Army, until you can arrange your own place. She has been living with and had support from your mother while in Wodonga.
11I have some concern, as did the community corrections officer who assessed you for a possible CCO for this offending, that it is intended that you live with the woman who was the victim of the offence for which I am sentencing you, as well as of other charges you have faced.
12Nevertheless, I accept that the victim of the offence for which I sentence you regards you as remorseful for what you did to her, says she has completely forgiven you and she says it was the drugs affecting your behaviour and decision making. She is certainly not saying that she is still suffering from the effects of your offence against her.
13In the meantime, in December last year, you were sentenced in the Magistrates' Court for other offences committed against Ms Lane of threatening to inflict serious injury on her, breaching an intervention order, unlawful assault, and you were also convicted of breaching a Community Corrections Order imposed earlier last year. You were sentenced to a total of seven months' imprisonment to be followed by an 18 month Community Corrections Order with therapeutic and rehabilitative conditions. The period you have been in custody from 24 October was reckoned served, and you are due to complete that seven month term of imprisonment this Thursday 24 March 2016.
14In fact, since September last year you have spent most of your imprisonment in Thomas Embling Hospital. This was a result of your mental health having deteriorated soon after your incarceration to the extent that a Secure Treatment Order was made in respect of you under the Mental Health Act.
15I must assess the seriousness of your offence and your role in it. The maximum penalty of 10 years' imprisonment reflects that Parliament on behalf of the community regards offences of sexual assault as serious. That this instance arose during a domestic relationship can be no excuse, and the community is now much more critical of such offending within a relationship, however fluctuating or tumultuous that relationship may be.
16For this reason your sentence must convey adequate denunciation and general deterrence. That means it must send a message to other men who might become frustrated, angry or jealous in the course of a relationship, that if they try to force sexual contact without consent of their partner it is a serious offence that will attract serious punishment.
17However, in this case, I accept that you did not approach or make contact with Ms Lane on the day, but she came to your home looking for comfort which you gave her for a long time. I accept that she is the one who entered the bedroom and the bed. I note that she also said immediately before this occurred that she was staying at your place because she loved you. Nevertheless, she did make clear, according to the summary of the circumstances, that she was not looking for sexual contact at that time and you were apparently influenced at first by frustration and then some jealousy.
18You removed her pants and saw some bruising on her and assumed she had had sexual contact with someone else. You continued to hold her down as you lay on top of her, obviously much more physically strong than her, and she continued to tell you to stop. It seems you did eventually stop and move away before satisfying your sexual urges.
19Although not at the lowest possible level of offences of sexual assault such as mere momentary indecent touching, I regard this instance as still at a relatively low level of seriousness for this offence.
20I take into account that you have pleaded guilty to this charge and are entitled to some leniency for that. As I have said, you were not interviewed about this incident. You were charged on 24 August 2015 and after a filing hearing in late October, and a mention in late November, the matter was adjourned for a committal hearing on 20 January. On that date, you entered a plea of guilty and no witnesses were required to give evidence.
21Your plea of guilty cannot be said to have occurred at the earliest possible opportunity, and I note as an aside that had it occurred earlier it might have led to the charge being heard together with the other charges before a Magistrate in December 2015, particularly as several of those involved your relationship with Ms Lane. However, I do take into account that within a month of being remanded in custody you had been placed under a Secure Treatment Order, and although I am not told this directly, I infer it may have been difficult for instructions as to your intended plea on this matter to be obtained at that time.
22There has been considerable utilitarian value in your pleading guilty to this charge, in saving the community the time and cost of disputed hearings, and witnesses including Ms Lane the inconvenience and stress of having to give evidence in court. I also take your plea of guilty to reflect a willingness to facilitate the course of justice and to accept responsibility for your actions.
23It is unclear to me whether your plea of guilty reflects genuine remorse for your offending. I note that the comments you made during a psychiatric examination last October acknowledge that your assaults and breaches of the intervention order against Ms Lane were the wrong thing to do, that you were supposed to be her protector and you described yourself as “ a scumbag” for putting your hand on her. That, of course, was not in relation to this specific incident, which does not appear to have been revealed to the psychiatrist examining you. I am also unsure whether your mental state impedes your sense of remorse and again I have no firm information about that. Nevertheless, as I have said, you will receive considerable credit for your plea of guilty in your sentence, and I shall tell you what your sentence would have been if you had not pleaded guilty but been found guilty of this charge after a trial.
24I turn now to your personal background and circumstances.
25You are now aged 35 and, as I have said, were 34 at the time of this offending. I am told that you were born in Mount Beauty, Victoria but your parents separated when you were only five months old. You lived with your mother until you were 13. That involved moving to other parts of Victoria and also a period in Fiji where you attended school for a couple of years. Your mother remarried and has had another child.
26At age 13 you were made to leave your mother's house although I am not told the circumstances. You went to live with your father in the Warrnambool region, but you say that he kicked you out when you were 15. Again, I am not told the circumstances of that. Your relationship with your father has been described as complex but you have had contact with him intermittently by telephone, and I am told that he has been in touch with you while you have been in custody.
27Your father is of Aboriginal background. I am not told whether that has had any implications for your relationship with him. However, I am told that when you were first on your own at age 15 and were homeless, you were assisted greatly by an Aboriginal co-operative as a result of your connection with your father's heritage. That organisation encouraged you to continue with schooling, and then to obtain an apprenticeship in carpentry and employment. That employment ceased, but you were helped through the same co-op to obtain alternative employment with a carpenter in the building industry, and you did sustain work in that field for some time.
28However, you also became involved with using illicit drugs - both cannabis and amphetamines. I am told that both cannabis and methylamphetamine have been your major problems.
29Your criminal history began more than 15 years ago, and has been relatively constant for the last 10 years as reflected in your criminal record. It ranges through offences of dishonesty, cultivating using and trafficking cannabis, various assaults, possession of weapons, many breaches of previous sentencing orders, and breaches of intervention orders. Noticeably, it does not include any prior sexual offence.
30Given the extent of your prior offending I assume that the reason that you have not served many previous sentences in prison - only one for a month - is that you also have a long history of mental health disorders. Clearly many therapeutic orders have been attempted in relation to you, although, as I have already said, many were breached by you.
31You have history of serious mental health problems. Your mental health history is set out in reports tendered - especially those of consultant psychiatrist Dr Ivers who reported in March 2009, and Dr Reid who provided a Forensicare report to the Magistrates' Court in early December last year.
32Taking an overview, it seems to me that your first admissions to inpatient psychiatric care were connected to drug induced psychosis, and a diagnosis of schizophrenia was made in 2004. You have had several further admissions to hospitals with similar diagnoses. At times you have had paranoid symptoms and also hallucinations. You have been prescribed medication but often have been non-compliant. Your condition has been exacerbated by illicit drug use. Your use of cannabis has been significant in your condition, and in your offending as appears from your record as well as described to doctors.
33In March 2009, Dr Ivers reported that your reluctance to remain under psychiatric care was the biggest factor predicting your poor prognosis, and that your reluctance to engage with alcohol and drug rehabilitation was also a major worry. He said that if you were unable to change in that regard your prognosis was poor. His predictions proved correct.
34A few days after the offence for which I sentence you, you were admitted as a psychiatric inpatient at South West Health Care - that was on 19 July 2015. You were diagnosed on that occasion with polysubstance abuse, drug induced psychosis and antisocial personality traits. You were treated with medication and discharged as an inpatient on 22 July. It was recommended on discharge that you engage with drug and alcohol services.
35A month later you were arrested and remanded on this and other charges. Your behaviour in prison apparently deteriorated to the extent that you were transferred to Thomas Embling Hospital and have been treated there since late September.
36I have said I have read a report from Dr Shannon Reid who assessed you there. He confirms a diagnosis of schizophrenia with periods of psychosis complicated by illicit substance use. When he saw you on 31 October 2015, which seems to be the last date he saw you notwithstanding that his report is dated December 2015, he considered you were subject to acute symptoms of psychosis including hallucinations and persecutory delusions regarding police. He set out his views on whether your condition contributed to the offences about which he was asked, including some disturbing incidents that occurred just before your inpatient treatment - about 19 July last year.
37Unfortunately, the offences about which Dr Reid was told did not include the incident for which I must sentence you. Your counsel sought to draw a link with your comments and expressed remorse and resolve not to repeat an offence which you admitted of striking Ms Lane in the face. I take that into account what you said about it, but at most Dr Reid considered that it was possible that there was an indirect link between that incident and your illness because your level of stress in your relationship might have been influenced by your illness. That goes nowhere near pointing to a direct nexus between the offence for which I sentence you and your illness.
38At the time Dr Reid assessed you, at the end of last October, you required a very high level of care. Given the limitations in your insight, you needed treatment undertaken by what he called "the cheating service." His opinion was that a return to a custodial environment would weigh heavily on you, and likely exacerbate your illness, but that when a custodial environment was no longer required you should be transferred to further care as an inpatient at an area mental health service. At such a unit significant improvement in your mental state would be required before management in the community could be considered.
39Unfortunately, there was no up to date medical report obtained as to your current condition under treatment which has continued at Thomas Embling Hospital ever since Dr Reid's report. During the video linked hearing of this case last week Mr Barry Janssen, who stepped forward to the microphone, he said that as a psychiatric nurse he has been your case manager your whole time at Thomas Embling. He told the court that your condition is regarded as stabilised under ongoing medication by depot, which he said was injection into muscle that creates slow release of your anti-psychotic medication.
40Mr Janssen said that there has been transition planning in your case. If you are released this Thursday, you would be collected by the area mental health unit from Wodonga where it is intended you go to live, but that you would be taken initially into inpatient care there until found suitable for discharge into the community.
41This Thursday I note is followed by the Easter break when there are several days during which I assume agencies will not be fully staffed. It is to be hoped that such planning can promptly be transferred into firm arrangements.
42On your release into the community you will still have contact and support from your mother who lives in Wodonga. I was told in a written outline filed on your behalf before last week's hearing, that it was intended that on your release into the community you will live with your mother. However, the letter from Ms Lane tendered to me indicates that she expects you to live with her, but with support from your mother for both you and her.
43Re-establishing your relationship with Ms Lane in the community will require real care and that is as much your own responsibility, your personal responsibility, as it is that of people supporting or supervising you.
44Ms Lane has written that she hopes to have a baby with you in the near future. That would pose even greater strains on your resilience, and on your relationship with Ms Lane, and would require you to take responsibility for your own condition and your life circumstances as well as for those of any baby.
45I am told that a family friend has offered you some part-time work in the Wodonga area, and has offered to train you for his business which is of sealing showers. It would obviously be good for you to be able to settle into steady work, but it seems that it has been many years since you have been able to do that, and it will be unlikely to succeed if you return to any illicit drug use or if you cease to maintain your prescribed medication and any other treatment recommended.
46With your history I can only conclude that your prospects of staying away from illicit drugs and stable under psychiatric treatment and medication are not very good. However, I understand that there will be some supervision of your mental health on an ongoing basis in the community. There will also be supervision by community corrections officers under the Community Corrections Order that a Magistrate has already imposed on you to commence at the end of this week after your release from what was the seven month term of imprisonment.
47You did not do well at all on your last CCO, imposed last year. However, after seven months in custody, mainly in treatment at Thomas Embling Hospital, it is to be hoped that you have been stabilised in your psychiatric treatment and medication and have come to grips with your need for ongoing compliance with your treatment and that your transition from there will be through area inpatient treatment until you are found suitable for discharge into the community.
48I am told that your current method of taking anti-psychotic medication is called “depot”, being injection into the muscle as slow release, and it is hoped that you can be maintained on your depot once released into the community.
49Your psychiatric history and the psychiatric opinion is to the effect that to return you to the general prison population would be very likely to cause destabilisation and deterioration your mental health. It is clear that last August and September exposure to mainstream prison life caused you serious deterioration. As you have been almost six months in Thomas Embling Hospital following that, I consider that it is not in your own or the community's interests for you to be returned to a mainstream prison situation where the psychiatric opinion is that your condition is likely to be exacerbated. That would not only be to your personal harm but, in my view, be a waste of the community’s resources that have been utilised over the last months and the attention that has been given to stabilise your condition.
50I take into account that there is evidence that less than a week after the offence for which I sentence you, you were involved in other incidents reflecting, frankly, delusional thinking by you and that you were admitted as an inpatient into a psychiatric unit as a result. Although not examined medically on the night of the offence for which I sentence you, and there is no direct medical opinion as to your psychiatric condition on that night, I accept that from your history it is likely that your thinking at the time of this offence was already subject to features of your schizophrenic illness. At least to the extent described by Dr Reid that factors associated with your illness may have - and I am prepared to find were likely to have - complicated your ability to handle the stress of situations with your then partner, Ms Lane.
51You undoubtedly do suffer from a chronic mental health disorder exacerbated by your substance abuse and non-compliance with treatment. Despite the lack of expert opinion as to a connection between that condition contributing to the offending for which I sentence you, I infer that your condition was deteriorating to the stage that it was frankly florid a few days later, and would have had some influence on your paranoid thinking on this night.
52As a result, I accept that some of the consequences outlined in Verdins case apply here in mitigation of your sentence. In particular I accept that your chronic mental illness probably indirectly affected your ability to respond appropriately and to immediately cease your sexual advances to Ms Lane that night, so as to make this case less of a vehicle for general deterrence. Also in my view that reduces the application of specific deterrence - that is, to send the message to you not to repeat this type of offending.
53I accept that there is strong evidence that further time in the general prison population is likely to exacerbate your condition, and it is clear that serving any further time in prison would be harder for you than for a person not suffering from your condition.
54I take into account that you have already been sentenced for and served almost seven months in prison for some other offending occurring at about the same time, and some of which arose out of the general difficulties in your relationship with Ms Lane. The principle of totality that requires me to moderate your sentence to allow that there was some overlap in the offending over that period, and to take into account what would be an overall appropriate sentence for the totality of the offending.
55Your counsel submitted that I should impose a sentence that in effect was wholly concurrent with the sentence you are currently serving. It was suggested that the eight days from last Wednesday when I heard this case had I sentenced you that day would be sufficient. Not only can I not back date the sentence even as far as last Wednesday, because I am imposing it today, such that any term of imprisonment of more than four days would last longer than your current term of imprisonment; I consider that such a nominal sentence would not only be artificial but would be likely to send the wrong message to you and to the community that your offending was minimal.
56I have already stated that I regard the circumstances of your offence as at a relatively low level for a sexual assault, because you did not initiate Ms Lane's visit to you nor her entry into your room or bed, and the incident itself did not last long. However, in my view, it was serious enough to warrant some aspect of real punishment that is referable to it.
57I do not take this offence as an indication that you pose any significant risk of further sexual offending. However, by resuming your relationship with Ms Lane as you apparently intend - as she does - you will need to learn to control your behaviour towards her in relation not only to general violence, but of course, also so as not to force or attempt to force unwanted sexual activity on her. I do not see any sign that you pose a risk of sexual offending against any other person, unless there came a stage when you were involved in a sexual relationship with some other person.
58Given the risk that if I imposed any further imprisonment you might be discharged from your current treatment regime at Thomas Embling Hospital into a mainstream prison situation, and its likely destabilising effect on you, I take into account that you have now served almost seven months in prison since this incident and that there are arrangements - transition arrangements - in place for you to be transferred from Thomas Embling Hospital this Thursday to the area health psychiatric unit, initially as an inpatient. I have decided in these circumstances that I should not impose a term of imprisonment that would last longer than this Thursday. However, I intend to impose a separate Community Corrections Order on you. I had you assessed for such an order and note that you have been assessed as being at high risk of re-offending, but nevertheless you were found suitable for such an order.
59I note that given your history under previous Community Corrections Orders it was noted that you have not dealt well with unpaid community work. Nevertheless I intend to impose some, although a modest amount, of unpaid community work for this offence to stand as a penalty but being of an amount that you ought to be able to complete easily over the course of the entire CCO.
60I recognise that there will be a concurrent CCO commencing this Thursday pursuant to the Magistrate’s order of December last year, and the CCO which I impose will be concurrent but will last longer. That will give a staged extended period of supervision, and extended access to drug and alcohol treatment, and mental health treatment and any other behavioural offending programs thought appropriate. It will also mean that if you breach the order you will be back in front of me as well as the Magistrate’s court if it occurs during the first 18 months.
61Because you are at the end of a video link I am not going to ask you to stand but I am now in a position to impose penalty on you.
62Foley, on the charge of sexual assault, you are convicted and to be placed on a Community Corrections Order commencing on the date of your release from custody which I expect to be this Thursday, and lasting for two years.
63The conditions will be that you complete 50 hours of unpaid community work, that you be subject to supervision for the entirety of the order, that you be assessed and undergo and attend for treatment as directed for drug abuse including testing, that you attend for assessment and treatment as directed for mental health problems, and that you attend as directed offending behaviour programs. Which programs might assist you will be decided by community corrections officers who are charged with supervising you. I note the recommendation in the pre-sentence report that you be referred to the sex offender program. I view your offence on this occasion as arising out of your domestic relationship with Ms Lane and the frustrations, jealousies and limits on your ability to control your feelings and actions towards your partner. In these circumstance and as you have no prior history of sexual offending, I would regard a men's behaviour program as appropriate in priority to the sex offender program for you. However, as I say, that is a decision for those supervising you and your CCO.
64In addition to these conditions all usual terms of a Community Corrections Order apply. I know they have been explained to you in the past but I will explain them again briefly here. The first of these requires you to report within a limited time to the nearest community corrections office. If you are to be released on Thursday on my estimation it will be two - what is two clear working days would mean that you must report by 4 pm next Wednesday, 30 March. That will be to the Wodonga Community Corrections Office. If you are still an inpatient at the health service unit in Wodonga, arrangements will no doubt be able to be made to notify the community corrections office or to assist you to attend there by 4 pm next Wednesday, 30 March.
65You must, during the course of the Community Corrections Order advise community corrections officers within two clear working days of any change in address of where you are living or where you are working. So, if you do obtain work you must notify them of the address, and if you change work you must notify them of that different address and, of course, you must keep them notified and within two clear working days of any change in where you're living.
66You must obey all lawful instructions and directions of community corrections officers, and you must accept visits from them or visit them when directed. You must not leave the state of Victoria without prior permission from community corrections officers. I note that you will be living at least initially in Wodonga which places you very close to an interstate border. I am assuming that community corrections officers there will explain carefully what your obligations are in that regard about crossing the nearby border.
67Further, and very importantly of course, you must not commit any further offences whilst on this order. That includes the taking of illegal drugs. It also includes any type of assault including on Ms Lane or any other person. It also, of course, includes a variety of other offences of dishonesty and other types.
68If you breach this order either by not complying with the conditions or by further offending you can expect to be brought back to this court on what is called a contravention hearing. It used to be called a breach hearing.
69As you learned last December before the Magistrate’s Court, a contravention of a CCO is itself an offence for which a separate punishment can be imposed. If you breach the CCO either by not complying or by further offending this court will consider the circumstances of the breach, how much of the CCO has been satisfactorily completed, and your personal circumstances at the time, and will decide whether to confirm the order, vary it by extending its duration or conditions or cancelling the order and re-sentencing you for this offence.
70Now, Mr Foley, do you understand all of the conditions and terms of this order?
71OFFENDER: Yes, Your Honour.
72HER HONOUR: Do you agree to comply with this order?
73OFFENDER: Yes, Your Honour. Absolutely.
74HER HONOUR: All right. I state for the purpose of s.6AAA that if you had not pleaded guilty but been found guilty of this offence after a trial, I would have sentenced you to six months' imprisonment commencing today, followed by a CCO for 18 months with rehabilitative and therapeutic conditions. All right. I don't think there were ancillary orders in this case?
75MR TRIANDOS: There was a forensic sample order, Your Honour.
76HER HONOUR: I had forgotten that. Is that consented to or was there anything to be said about that?
77MR TURNER: Nothing to be said, Your Honour. On my understanding - that there was one already been - there hasn't been but his is not correct, Your Honour, but nothing to say about it.
78HER HONOUR: It's not correct, all right. I think, given the criminal history generally I understand that in the past it had to be certain categories of offences committed that before there was one - such an order would be made but I think there is one for recklessly causing serious injury but I may have misunderstood that.
79Anyway, given the past history as well as the fact that it's not opposed, I do intend to make that order. I limit it to a - what's called a scraping from the mouth. Mr Foley, this means that it's just ‑ ‑ ‑
80OFFENDER: Excuse me, Your Honour?
81HER HONOUR: Yes, can you not hear?
82OFFENDER: Sorry, that was done - that was done yesterday.
83HER HONOUR: It was done yesterday?
84OFFENDER: Yeah, by Collingwood detectives.
85HER HONOUR: All right, that's interesting. Had another court made that order?
86OFFENDER: It was an order of Rebecca Leichardt from (indistinct) 900.
87HER HONOUR: The Magistrate didn't make that order; did he?
88OFFENDER: I think they said back in December that - that there was but I was - I was unsure but I just complied anyway.
89HER HONOUR: Well, I - the application has been made for it. I won't make another order but if it is found they're - that this - what occurred yesterday isn't for the purpose of the DNA being placed on the State's database it can be brought back on before me, I think. I think that order can be made subsequent to the sentencing order. I won't make it if it's already been done.
90All right, now there is a bit of extra complication in the creation of the paperwork for this order because Mr Foley is not physically here and it is going to have to be - is it emailed or faxed?
91The first thing I need to confirm is the address of where Mr Foley will be - it's intended he be living once released from the psychiatric unit there.
92MR TURNER: 312 Beechworth Road, Wodonga.
93HER HONOUR: Is that the address of where Ms Lane is currently living or is it where ‑ ‑ ‑
94MR TURNER: Yes, Your Honour.
95HER HONOUR: Yes, I'm getting nods from the back of the court here. It's not his mother's address?
96MR TURNER: It's the same address.
97HER HONOUR: It's the same address.
98MR TURNER: Yes, Your Honour.
99HER HONOUR: I see. I thought there was mention of a different address where - Ms Lane's currently living with his mother?
100MR TURNER: That's true, Your Honour.
101HER HONOUR: I see.
102MR TURNER: It is proposed that once they're released they'll stay with the mother for a short period of time until they can find their own accommodation.
103HER HONOUR: There was mention of the Salvation Army having accommodation in place. That's where they are now?
104MR TURNER: They will be ‑ ‑ ‑
105OFFENDER: That's transition.
106HER HONOUR: Transition, all right. We need an address to go into the CCO. So, it's 312 Beechworth Street, Wodonga. Was that Wodonga or Beechworth?
107MR TURNER: Yes, Your Honour.
108HER HONOUR: Or Beechworth?
109MR TURNER: Beechworth Road.
110HER HONOUR: Wodonga. Wodonga. All right, well once the order is - you - is there something else to raise?
111MR TURNER: If I may, Your Honour.
112HER HONOUR: Once the ‑ ‑ ‑
113MR TRIANDOS: Just the discretionary sex offenders registration order, Your Honour.
114HER HONOUR: Yes. For reasons I have said, I am of the view that this incident relates more to the domestic - the specific domestic relationship with Mr Foley's partner at the time rather than a risk to the population generally that is part and parcel of registration of sex offenders. I don't have any material to make any judgment as to whether he posed a risk of sexual offending against a domestic partner in future but that's not really part of the intentions behind the register and for that reason I - I won't make the order in this case.
115MR TRIANDOS: Yes, Your Honour. As Your Honour pleases.
116OFFENDER: Thank you, Your Honour.
117HER HONOUR: It's not a free for all, Mr Foley.
118OFFENDER: I understand.
119HER HONOUR: It means you have got to monitor and control your own behaviour in all respects. Sexual and otherwise.
120OFFENDER: Yes, for sure.
121HER HONOUR: From here on.
122OFFENDER: Yes, Your Honour.
123HER HONOUR: But, in particular taking a very, very firm approach to yourself about complying with your medication that is prescribed and not going anywhere near the illicit drugs you have taken for many years in the past.
124OFFENDER: Yes, Your Honour.
125HER HONOUR: Otherwise you will be back in front of me and as I have said, depending on all the circumstances, I may set aside the order and resentence you.
126OFFENDER: I understand, yes.
127HER HONOUR: All right, we will just check this. I have checked the CCO I will have a (indistinct) to counsel. We are going to have to have this faxed through for Mr Foley to sign and so that I can sign it too while I'm here and I'm leaving the court building after that. So, it can't be done later in the day.
128MR TURNER: Your Honour, I'm just wondering whether I might be excused. I have got to ‑ ‑ ‑
129HER HONOUR: No, I'm sorry, you can't. I have gone out of my way to come here today.
130MR TURNER: I appreciate that, Your Honour.
131HER HONOUR: When I shouldn't be sitting today to get this completed and I want you to stay while your client is before me.
132MR TURNER: Yes, Your Honour.
133HER HONOUR: If you need to get notice to another judge at this court my associate can email but ‑ ‑ ‑
134MR TURNER: It's in Magistrates' Court.
135HER HONOUR: No, I'm sorry. I don't think it will go that far. She has got to fix up this.
136MR TURNER: Yes, Your Honour.
137HER HONOUR: There was delay initially with the set-up at the Thomas Embling end, I gather, just originally. I was first told that there may have been a breakdown of the arrangement. There hadn't been, it was just a bit late being put in place. Has that been checked, that order?
138MR TRIANDOS: I checked it, Your Honour.
139MR TURNER: Yes, Your Honour.
140HER HONOUR: It's got to be signed in the court's presence.
141MR TURNER: I know, Your Honour.
142HER HONOUR: That's why we have got to do it this way.
143(Fax sent to Thomas Embling.)
144Mr Foley, it has gone through from this end so hopefully it will soon be brought from reception to you. Has it arrived?
145OFFENDER: No, not as yet. Here it is now.
146HER HONOUR: All right, is that the document that says at the top, "community corrections order?"
147OFFENDER: Yes, it is, Your Honour.
148HER HONOUR: All right, your counsel has checked it but it would be wise for you just to look at it all. So, read it through and you've said you agree but you are asked to sign at the bottom where it says signature of the offender. The top - the first dotted line.
149OFFENDER: Yes, Your Honour, that's been signed.
150HER HONOUR: All right, could I ask you just to hold that up in front of you so that we can see it that way?
151(Witness demonstrates)
152Yes, all right, thank you. The letter that you're holding in your left hand, sorry, the CCO itself will be either emailed or faxed back to my associate and signed by me.
153OFFENDER: Okay. Oh yes, I see.
154HER HONOUR: And then there will be a copy with both signatures forwarded to your representatives.
155OFFENDER: Signature of the judge.
156HER HONOUR: Yes, I will be signing there once it gets back to this end by email or by fax and there will be a copy for you, how it's arranged to get it to you, I'm not quite sure. Certainly one will be provided to your lawyer but I think also one probably sent to - through Thomas Embling to you.
157OFFENDER: Thank you.
158HER HONOUR: All right. That is the conclusion of this matter, Mr Foley. You have got a long path ahead of you but you can be released this Thursday at the end of the other sentence but if you don't stick to what you say you're going to try to do, you will find yourself back in front of this court as well probably as others. All right, good luck with that.
159OFFENDER: Thank you. Thank you very much, Your Honour and we will not see each other again.
160HER HONOUR: Sorry, I didn't hear that. Do you want to speak to your client?
161MR TURNER: No, Your Honour.
162HER HONOUR: You want to leave, yes. Can we discontinue the link please? You are free to leave Mr Foley. I didn't want to keep you here unnecessarily, Mr Turner but he had to have a representative here for this matter. The court will be adjourned. My associate will give the copies of the orders to the others and I will be signing that CCO once it comes back. I have to stay here until that happens - stay in the court building but I won't stay on the Bench.
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