Director of Public Prosecutions v Grant (a Pseudonym)

[2016] VCC 1095

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL GRANT (A PSEUDONYM)

---

JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	22 July 2016
CASE MAY BE CITED AS:	DPP v Grant (A Pseudonym)
MEDIUM NEUTRAL CITATION:	[2016] VCC 1095

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K. Breckweg
For the Accused	Mr G. Hughan

HER HONOUR:

1Michael Grant,[1] you have pleaded guilty to one charge of using a carriage service to access child pornography material, contrary to sub-s.474.19(1) of the Commonwealth Criminal Code; one charge of accessing child pornography material using a carriage service, contrary to sub-s.474.19(1) of the Commonwealth Criminal Code; two charges of producing child pornography, contrary to s.68(1) of the Crimes Act Victoria; and one charge of knowingly possessing child pornography, contrary to s.70(1) of the Crimes Act 1958.

[1] A pseudonym.

2The facts underlying your offending are as follows:  On April 23 2015, police executed a search warrant at your home in [an outer Melbourne suburb].  During the search, an HTC mobile phone and Seagate hard drive were seized.  One thousand, four and forty-eight child pornography files were located on both devices. 

3The material was classified a child pornography material, in accordance with the Australian National Victim Identification Library as follows:  

4Level 1, material featuring depictions of children with no sexual activity, including nudity, sexually suggestive posing, explicit emphasis on genital areas, solo urination.

5Level 2, material featuring solo masturbation by a child or sex acts between children, non-penetrative.

6Level 3, material featuring non-penetrative sexual activity between children and adults, including mutual masturbation and other non-penetrative sexual activity.

7Level 4, material featuring penetrative sexual activity between children and between children and adults, including intercourse, cunnilingus and fellatio.

8Level 5, material featuring sadism, bestiality, humiliation, including urination, defecation, bondage et cetera, or child abuse.

9In relation to Charges 1 and 2, on your HTC mobile phone, a total of 1,368 child pornography files were located, of which 1,157 were unique files.  These films were categorised as Level 1, 843 images, two videos; Level 2, 33 images, one video; Level 3, 334 images; Level 4, 146 images, six videos; and Level 5, three images. 

10Video file names referred to acts of incest performed by a father on his young daughters and so forth. 

11On Seagate hard drive, a total of 80 child pornography files were located, of which 61 was unique files.  The files were categorised as level 1, 60 images; Level 2, five videos; Level 3, four images, one video; Level 4, two images; and nothing in relation to Level 5. 

12Example files depicted infants and toddlers being penetrated by adults. 

13Charge 5, knowingly possess child pornography.  Forensic analysis of the seized items also revealed that you held a drop box account, that is, a file hosting service offering cloud storage, with the ability to store files externally on a remote service.  A total of 2,589 child pornography files were located in your drop box account, of which 1,796 were unique files. 

14These files were categorised as:  Level 1, 643 images and 13 videos; Level 2, 235 images and 18 videos; Level 3, 877 images, five videos; level 4, 626 images and 133 videos; and Level 5, 32 images and seven videos.  The files included images of infants and young children being sexually posed or assaulted by adults. 

15Charge 3, a charge of making or producing child pornography occurred because a video of your daughter, then aged 12, was located on your mobile telephone, it appearing to have been taken from her bedroom window from the outside on May 11 2014.  The video depicted your daughter naked and subsequently getting dressed with her breasts and genitalia clearly visible.  The video was uploaded to your drop box account on May 11 2014. 

16Charge 4, making or producing child pornography related to a video made on 23 April 2015, the same day the police executed the search warrant, which was located on your mobile phone.  About a minute and seven seconds in length, it depicted your daughter sleeping in bed with a focus on her genital region, which was covered by underwear.  She was 13 at the time.  Police located 122 still images of your daughter on your mobile phone, depicting her genital region, covered by underwear.  The images appearing to have been still shots from the video, using a high speed camera application located on your phone and downloaded in a file on the phone. 

17Analysis of the seized items also revealed video footage of your daughter, taken inside the car, focusing on her torso region.  In some of the videos, she was wearing a bikini and she was unaware that she was being filmed.  Seventy-five additional photographs of her were found on the Seagate hard drive, your mobile phone and in your drop box account.  These images covertly taken depicted your daughter in a bikini, lying on a couch with her legs in the air and sitting in the front passenger seat of a car whilst wearing shorts and in a tank top.

18Charges 1 and 2 are split, according to the date of offending.  Charge 1 relates to activity between 14 July 2009 and 14 April 2010.  The maximum penalty for this charge was ten years' imprisonment.  Charge 2 relates to activity between April 15 2010 and April 21 2015, by which time the maximum penalty had been increased to 15 years' imprisonment.  The maximum penalty for Charge 5 is five years' imprisonment.  The maximum penalty for Charge 3 is ten years' imprisonment, which is also the maximum penalty for Charge 4. 

19You participated in several records of interview with police.  In your first record of interview, on April 23 2015, you admitted accessing child pornography, you said, "for a few years now", commencing some time in your 30s.  You said personal problems in your 30s had made you realise you had supressed memories from your childhood and that through this you started accessing child pornography.  You said you first came across it by accident when looking for movies ten years earlier.  You told police you had "some sort of addiction" and had made many attempts to stop using child pornography and also deleted stores you had made.

20You told police that you accessed child pornography once every couple of months, not every day and did not go near the internet on days when you were "ashamed".  You explained that when you downloaded files on your phone, they were automatically saved and then the software moved the files into another folder.  In explaining your offending, you admitted initially it was curiosity "and it just snowballed from there."  Consequently you recognised that you became "a little desensitised from the internet".  You told detectives that over the years you may have downloaded "probably a thousand movies".  It disgusted you, however, you would stop then eventually, get the urge for it" and start accessing the material again. 

21In a second record of interview, you told police you assumed they wished to discuss the video of your daughter loaded on your phone, admitting that it was her that was depicted there.  

22In a third record of interview, you told police that you did not know of a video showing a girl wearing pink underwear moved aside to depict her genitals, not that did you recognise the underwear in that image and had no idea how it was located on your hard drive. 

23At committal mention on January 17 2015, an adjournment was granted in relation to funding, as was a further committal mention on 14 August that same year.  Eventually, however, at a further committal mention on 16 October 2015, you indicated an intention to plead guilty to most of the charges and then at committal case conference on 23 October 2015, a number of charges were withdrawn and the matter resolved at a contested committal hearing, where another charge was drawn and a plea of guilty was entered.  It is accepted that this was an early plea.

24You have admitted your previous convictions, which I accept, though fairly extensive, are of limited relevance to the sentencing exercise before me, as none are for offending of this kind. 

25I now turn to your personal circumstances.  You are now 36 and reported an extremely difficult and traumatic upbringing.  You are one of four children born to your parents.  They moved the family constantly around Melbourne and then Adelaide.  Your father worked as a truck driver and your mother spent large amounts of time in hospital, which you later discovered it was because she was a prescription drug abuser.  Your father was gaoled for significant periods of time. 

26You reported that when you were ten, your father became involved in drug dealing.  You then described a childhood to psychologist, Dr Aaron Cunningham, whose report dated 10 May 2016 was tendered on the plea, as "horrible".  You reported having no food, being forced to steal to eat, that when you went to bed, "a couple of other junkies" would be passed out in your room.  You reported witnessing people being murdered and bashed, "to a pulp with baseball bats" at home, which was regularly raided by police.

27You said that your elder brother attempted to sexually abuse you on several occasions.  You believe that you had been sexually abused by your mother, however believed you had repressed some of these memories; that you, in your early years, were sexually abused by a neighbour, as a result of which you were sent for psychiatric attention, and that you were also sexually abused by a sister, when you were in your teens.

28You attended up to 11 different primary schools.  You left Jamieson Park Secondary College during Year 7, by which time you were barely attending school, as you stayed at home to clean the house. 

29When you were 16, your parents left the family home, leaving you behind.  They left in haste, your cousin apparently having been murdered at this time and they giving evidence against those who had committed the crime and fearing retribution.  You had nowhere to live so you stayed with your sister for 12 months. 

30When you were 16, you moved into live with your partner, with whom you have remained for 20 years, in the process four children being born of that relationship, two daughters and two sons. 

31You then began what was a reasonable work history.  You are the possessor of a heavy rigid licence, forklift licence and truck driver.  You began employment as a cabinetmaker for 12 months, then worked as a qualified picture framer for two years, and then for 12 months after that, worked for a council.  Essentially after that you have worked via agencies, reporting to
Dr Cunningham, having worked for, "a hundred different transport companies" as a truck driver, your longest sustained period of employment being 18 months to two years. 

32Your children are now aged 18, 14, 12 and four.  Your 14 year old daughter is the subject of these charges.

33You have lived in an [outer Melbourne suburb] for nearly nine years. 

34Your partner, who remains supportive of you, however, separated from you after these charges remained, and she remains your sole emotional support.  You have no significant relationships with your parents or siblings.  The Department of Human Services became involved once you were charged and - and up until the time of you being incarcerated at the end of the plea hearing, you were allowed only supervised contact with your children. 

35You have struggled with drug addiction since childhood.  You were introduced to cannabis at the age of ten and have continued to use it daily, almost since.  You were bailed in relation to these charges and moved to rental accommodation away from the family, during which time you reported to
Dr Cunningham that your cannabis use increased greatly.  You have used amphetamines from the age of 14.  You were introduced to it by your father, who used you to help him cut it down before it was sold.  You weaned yourself off amphetamine use, but age 30 began re-using it and then graduated to ice. 

36From about the age of 30, you told Dr Cunningham you were using methamphetamine daily.  This offending apparently coincided with what became a significant addiction to methamphetamine.

37You reported to Dr Cunningham that when you began using methamphetamine or ice, you could not control your sexual urges.  It was Dr Cunningham's opinion, "that it was likely that the methamphetamine had a disinhibiting effect" upon you.  You ceased using methamphetamine on your arrest, however, you reported daily abuse of alcohol in the period between being placed on bail and then in custody at the conclusion of the plea hearing. 

38It is the opinion of Dr Cunningham that you meet the DSM-5 criteria for
post-traumatic stress disorder, stemming from your years of child sexual abuse and abandonment.  He found that you presented to him with:

"Negative alterations in cognitions and mood, in the forming of feeling of self-hatred and emotional disconnection from others." 

39You told Dr Cunningham that you were sickened by your behaviour, when you were sober, that is, you were disgusted by your continuing interest in child pornography and in particular, by your offending towards your daughter.  You said you were "too scared" to engage in treatment and said you had believed you had been a good father before you offended. 

40Dr Cunningham said you continued to present in a significantly distressed state when recounting your background.  It was his view that you had dealt with your post-traumatic stress disorder, which has always remained untreated, by numbing your feelings with drugs.  He stated:

"In my opinion, [the Offender’s] inability to address his childhood trauma contributed to an increase in his emotional distress.  In line with this distress, [the Offender’s] drug use escalated.  He reported daily use of methamphetamine."

41Importantly, Dr Cunningham believed that your childhood sexual abuse from multiple perpetrators and the sexual relationship with your sister when she was a similar age to your daughter:

"Set up a deviant pattern of sexual arousal to minors.  In my opinion,
[the Offender] was unable to suppress this arousal and the context of his escalating methylamphetamine use, abuse and trauma symptoms."

42I regard that opinion as particularly important, as it describes, in my view, what could be said to be a vicious cycle, that is, as a result of your childhood abuse, you emerged as an adult with a post-traumatic stress disorder which remained untreated for years.  This led to an increase in distress, in your emotional circumstances, notwithstanding the stable relationship you have with your partner, which you sought to dealt with by drug use, which you had been introduced to from the age of ten. 

43This very much explains what you confessed to police in your record of interview about essentially long-term child pornography use.  The situation escalated dangerously when you turned to methamphetamine in your 30s, which had an effect of an increase in your sexual desires, if you like, which then led to the abuse of your daughter, although I note that it was remote abuse and that one of the tragedies relating to your situation being that your partner discovered it, as did your daughter. 

44Now I do not know what would have gone on had you not been arrested - one simply cannot say, but fortunately at the time of your arrest, your daughter was unaware of your offending against her.  But in my view, the sort of vicious cycle I am talking about, which is a grave psychological condition, also set up in your childhood, a predilection to drug use, set up in your childhood has to led to a toxic cocktail of events underlying your offending. 

45Testing by Dr Cunningham did not reveal any intellectual impairment in you, however, he also administered the risk of sexual violence protocol and reported that you presented as a moderate risk of sexual re-offending.  He believed you had protective factors, in that he found you to be insightful, that is, that you had insight into the wrongfulness of your offending, were open to discussing it and motivated to engage in treatment.  Again, I regard this as a significant finding.  

46Your counsel conceded that these offences are very serious.  He did note that of course they were not commercially motivated and that many of the files on the mobile phone, hard drive and drop box account were duplicated.  Further he submitted that your early plea of guilty represented a significant utilitarian benefit in preventing witnesses from having to give evidence and avoiding the cost of a trial, and also submitted that your plea demonstrated an acceptance of responsibility and remorse. 

47I do accept that in this case, you are indeed remorseful for your offending, given your capacity to maintain a stable relationship for 20 years, as well as
a reasonable work history, despite your appalling childhood experiences.  As
I said, I note that your wife has remained supportive of you, in the face of the total devastation of your family unit, as a result of your offending. 

48I accept, as I said, that as a result of your offending, this relationship has ended.  You have been removed from your family home and have lost much of the otherwise positive involvement with your children. 

49As I have also said, that on being charged, you moved to separate rental accommodation, where you did little than smoke cannabis and drink. 

50This is, in many ways, an extremely tragic case.  To a large extent, you overcame a horrendous upbringing, you established a stable relationship,
a reasonable work history and I accept that you tried very hard to create the safe and secure family life that you yourself were deprived of and that in the process, you were a loving parent. 

51I also accept, however, that the great untreated psychological damage, wreaked upon you by your childhood, underlies your offending, as I have said, that is, post-traumatic stress disorder, for which you have self-medicated by drug use, to which you had been introduced as a child. 

52I further accept that the foundation of the deviant sexual arousal were laid in your own childhood experiences of sexual abuse, which were horribly exacerbated by your eventual use of methamphetamine, resulting in the offending against your daughter. 

53It is clear that your offending is so serious that it must be dealt with by way of a term of imprisonment to be immediately served.  However, I also accept that most unusually, in this case there is a causal link between your psychological condition and your offending, such that in my view, it mitigates to some extent your moral culpability.  Further I accept Dr Cunningham's opinion that you will find a sentence of imprisonment more difficult to endure because of your
post-traumatic stress disorder.

54It is also clear that you are in tremendous grief at the loss of your relationship with your partner and your family, whom I have no doubt you dearly love. 

55It is quite clear, in my view, that protection of the community lies significantly in intensive treatment of the difficulties which plague you.  Yours, in my view, is
a singular and tragic case and in sentencing you I do take into account the mitigatory factors I have outlined, but also accept that the authorities have made it clear that the terrible exploitation of children involved in the child pornography industry, must always be met with by a stern response from sentencing courts. 

56I therefore propose to deal with you by way of a sentence of imprisonment - of a sentence which will involve an active term, but will also involve release on
a recognizance order with conditions as to treatment.

57So what I am saying, Mr Grant, can you stand up please, Sir, and this is important.  I am saying I understand why you came to offend, which puts me in a position not many judges have - in cases of this kind and I am extremely sympathetic to your circumstances.  Can I make it clear, however, that while
I am saying to you that I am sympathetic, that I do understand and that I am most concerned that you receive treatment, you have to understand something very clearly.  The child pornography industry is a horrendous industry.  People look at it and get desensitised and think there are no victims.  The victims are the thousands of children who are filmed, and I need to say this to you, because you need to remember this. 

58These are children, usually born to the poorest most deprived families in the world.  They are already born into situations you would never want your children - your own children to be in, all right?  They are poor disadvantage family at the bottom end of what life can dish out to them.  That is what they are like.  They do not have even the home and materials that your children have.  They have nothing.  And as a result of this, they are either sold by their parents or preyed on because they do not have parents, are living on the street, by unscrupulous adults who then strip away anything left that they have. 

59You have talked about the huge emotional difficulties you now face.  You imagine if you had been taken off the street, or sold by your own parents and subjected to the incredible depravity that they are, how on Earth they can then go on to live any sort of life.  And those are the children you are looking at in those films. 

60All I ask you to do is remember that, and that they could be your children.  And if you thought that some man sitting looking at films of your children being treated in that way was not contributing to their agony, I am sure you would think again.  It is a horrible revolting industry, built on the poorest most exploited most vulnerable people on the planet and - you must never forget that.  It is far from a victimless crime.  And that is why the courts are so stern. 

61It is not a matter of being a victimless crime, hundreds and thousands of children are utterly exploited, utterly preyed upon because of this disgraceful disgusting industry and it might seem removed because it is on a film, that that is the reality and I want you always to remember that. 

62The second thing I want you to understand is this.  I am giving you an opportunity to address these issues that have plagued you.  Now, a court can move Heaven and Earth to provide a person with those opportunities, but they cannot make the person participate. 

63Now, I know that you are in a situation now where you feel that your whole life is fractured and you may even think what is the point of going on?  I do not know, but at the end of the day, you would be adding immeasurably to your children's suffering if you were to think of removing yourself from this world early.  Kids never get over that. 

64That being the situation, what do you do then?  And all you can do is do the time in gaol that you have got as best you can and then undertake the sort of rehabilitative programs that hopefully will be offered to you, as hard as you can and if they are not working for you, seek more out.  All right?

65OFFENDER:  Yes, Your Honour.

66HER HONOUR:  You know, it will take time, but you can undo a lot of the damage that you have done, but you are going to have to work on it and it is going to be really hard for you and at times you are going to feel like giving up.  But you cannot.  You know, you have clearly been a good dad to your kids for a long period of time.  And that will still be there in your children and they still will love you, but you have got a lot of bridges to build and you are actually going to have to face your horrible childhood all over again and work through it.  Do you understand me?

67OFFENDER:  I do, Your Honour. 

68HER HONOUR:  All right.  It is a matter for you.  I can give you the chance, but I cannot go with you every day and make you do it.  That is a matter for you. 

69OFFENDER:  I will, Your Honour.

70HER HONOUR:  And it is really - you are just going to have to man up and face some really terrible times, in terms of what you are going to have to go through, but at least you have got a good basis for a relationship with your children and you can come back from that, and I have got no doubt your partner will always support you in this.

71OFFENDER:  Thank you.

72HER HONOUR:  All right?  It is a matter for you.  I am sorry to give you the big lecture, but I do not want you to go away and just drop your bundle.

73OFFENDER:  Probably something I need, Your Honour.

74HER HONOUR:  All right.  You are just going to have to, just put - you are just going to have to, as I said, man up and do it. 

75OFFENDER:  Will do.

76HER HONOUR:  All right?  You have built something pretty good there over
a period of time against the odds, I am sure you can do it again.

77OFFENDER:  I'm good.

78HER HONOUR:  All right, so have a seat, because now I have got to go through a very technical exercise with the learned prosecutor her and work out the sentencing.

79OFFENDER:  Thank you, Your Honour.

80HER HONOUR:  Have a seat, Sir, thank you.  Just please bear in mind when
I say, "Just don't (indistinct words), it's too hard" and you know, you can come back from this. 

81Yes, thank you, Ms Breckweg, now how do I go about this?  So we'll start with ‑ ‑ ‑

82MS BRECKWEG:  Sentence on Charge 3.

83HER HONOUR:  All right, so it is 3, 4, and 5 I have to deal with and in fact that is what I have originally done.

84MS BRECKWEG:  Good, yes. 

85HER HONOUR:  And look, what I was thinking was, and I mean the direction from the Court of Appeal is that, even though I have to do an amount of cumulation.

86MS BRECKWEG:  Yes.

87HER HONOUR:  That really what I need to - the way to go about it is to sentence in terms of what each charge is worth.

88MS BRECKWEG:  Yes.

89HER HONOUR:  Rather than looking at cumulation in respect of the lot, so in fact what I had basically thought, that pretty much each of the charges was worth about the 12 month mark.

90MS BRECKWEG:  Yes.

91HER HONOUR:  All right?

92MS BRECKWEG:  Yes.

93HER HONOUR:  And then they I work to cumulate.

94MS BRECKWEG:  Yes.

95HER HONOUR:  In relation to that.

96MS BRECKWEG:  Yes.

97HER HONOUR:  So if I am doing 12 months on each, and I am not just doing that to make it easy mathematically.

98MS BRECKWEG:  No, no, no.  Do you mind if I sit ‑ ‑ ‑

99HER HONOUR:  But that is what I had basically thought.

100MS BRECKWEG:  Yes.  Do you mind if I sit, Your Honour, while you go through this? 

101HER HONOUR:  So what I would like to do is, I think ‑ ‑ ‑ 

102MS BRECKWEG:  So I can ‑ ‑ ‑

103HER HONOUR:  I am thinking of something in the region of about 20 months.

104MS BRECKWEG:  Yes.

105HER HONOUR:  Before release.

106MS BRECKWEG:  Yes, all right.  Yes, yes.

107HER HONOUR:  And it seems to me that I do have to give expression to what I have said.

108MS BRECKWEG:  Yes.  Yes.

109HER HONOUR:  By involving an amount of time to be immediately served, in the Commonwealth sentences, as well as ‑ ‑ ‑

110MS BRECKWEG:  Yes, that's exactly right.

111HER HONOUR:  ‑ ‑ ‑ the State ones.  I cannot just ‑ ‑ ‑

112MS BRECKWEG:  No.

113HER HONOUR:  ‑ ‑ ‑ release him on recognizance in relation to that.

114MS BRECKWEG:  No, you're right.

115HER HONOUR:  So that is where we go.

116MS BRECKWEG:  All right.

117HER HONOUR:  So overall what I am hoping - what I am thinking is something in the - 20 months gaol.

118MS BRECKWEG:  Yes.

119HER HONOUR:  Followed by ‑ ‑ ‑

120MS BRECKWEG:  Recognizance can be up to five years, Your Honour.

121HER HONOUR:  Yes, well, you know ‑ ‑ ‑

122MS BRECKWEG:  Of good behaviour and ‑ ‑ ‑

123HER HONOUR:  Yes, and thinking of something like three years.

124MS BRECKWEG:  Yes. 

125HER HONOUR:  On recognizance, with treatment conditions. 

126MS BRECKWEG:  Yes.

127HER HONOUR:  All right, so it is now the maths.

128MS BRECKWEG:  If it's treatment and ‑ ‑ ‑ 

129HER HONOUR:  And this is ‑ ‑ ‑

130MS BRECKWEG:  ‑ ‑ ‑ supervision.

131HER HONOUR:  ‑ ‑ ‑ very upsetting, because most of us did law because we were terrible at maths. 

132MS BRECKWEG:  That is ‑ ‑ ‑

133HER HONOUR:  And then we get dragged back and have to do it all over again.

134MS BRECKWEG:  It is one of the most unpleasant aspects.

135HER HONOUR:  I know, it is shocking, isn't it?  All right, here we go. 

136MS BRECKWEG:  Yes.

137HER HONOUR:  So, I think - so starting with the State charges, so there is 12 months on each, and if I did an amount of say two months cumulation in relation to those.

138MS BRECKWEG:  Yes.

139HER HONOUR:  So that that would be - that will give us 18 months.

140MR HUGHAN:  Sixteen, Your Honour.

141MS BRECKWEG:  Sixteen. 

142MR HUGHAN:  I think, Your Honour ‑ ‑ ‑

143HER HONOUR:  No, there is three charges, 2, 4, 6. 

144MS BRECKWEG:  Yes. 

145HER HONOUR:  Six and 12 is 18 months.  I am better at maths then you clearly, Mr Hughan.

146MR HUGHAN:  Plainly, Your Honour, most people in this room would be better in maths than me, but I just - I think I misheard Your Honour, rather than ‑ ‑ ‑

147HER HONOUR:  All right, well - no so then - because it is Charges 3, 4 and 5.  So there you have got the 18 months.  So then, when I am dealing - I thought what I would need to do, is that what I would need to do is - with the Commonwealth sentencing, I would need to start it, that the start date would have to be fairly - not very far into the ‑ ‑ ‑

148MS BRECKWEG:  The State ‑ ‑ ‑

149HER HONOUR:  ‑ ‑ ‑ the State dates.

150MS BRECKWEG:  Yes.  Yes.

151HER HONOUR:  So we are starting today, is 22/07?

152MS BRECKWEG:  Yes, so that's - Charge 1 starts then - Charge 3. 

153HER HONOUR:  Yes.

154MS BRECKWEG:  Charge 4 will start on the ‑ ‑ ‑

155HER HONOUR:  No, that ‑ ‑ ‑

156MS BRECKWEG:  Charge 3 is today.

157HER HONOUR:  Charges 3, 4, and 5 are all the same, so they start today.  All right, so that means you have got the - 3, 4 and 5 start today and the total effective sentence is 18 months.

158MS BRECKWEG:  They can't all start today if you want cumulation, Your Honour. 

159HER HONOUR:  All right, but the only - under State sentencing, ‑ ‑ ‑

160MS BRECKWEG:  Yes.

161HER HONOUR:  ‑ ‑ ‑ they all have to start today. 

162MS BRECKWEG:  No, they don't.

163HER HONOUR:  No, no, sorry.  State sentencing has to start today. 

164MS BRECKWEG:  Not when you're also sentencing for Commonwealth matters.

165HER HONOUR:  Really?  All right.

166MS BRECKWEG:  You can start - you can commence a matter a date in the future, and that's a case of O'Neill.

167HER HONOUR:  Pardon?

168MS BRECKWEG:  O'Neill is the case.

169HER HONOUR:  Excellent.  Why did I not know that?  All right, so today - so Charge ‑ ‑ ‑

170MS BRECKWEG:  Charge 3 starts 22/07.

171HER HONOUR:  Starts 22nd.

172MS BRECKWEG:  Charge 4 ‑ ‑ ‑

173HER HONOUR:  Charge 4 starts on ‑ ‑ ‑

174MS BRECKWEG:  22nd of the ‑ ‑ ‑

175HER HONOUR:  October.

176MS BRECKWEG:  No.

177HER HONOUR:  No, I beg your pardon.

178MS BRECKWEG:  No, 9 September.

179HER HONOUR:  Of September.

180MS BRECKWEG:  Yes.  Charge 5 ‑ ‑ ‑

181HER HONOUR:  Five starts on 22 November.

182MS BRECKWEG:  That is right, yes.

183HER HONOUR:  And then ‑ ‑ ‑

184MS BRECKWEG:  Charges 1 and 2.

185HER HONOUR:  Right.  So that brings us to 18 months. 

186MS BRECKWEG:  That would start ‑ ‑ ‑

187HER HONOUR:  On the 22nd ‑ ‑ ‑

188MS BRECKWEG:  22nd ‑ ‑ ‑

189HER HONOUR:  ‑ ‑ ‑ of December, I will do that. 

190MS BRECKWEG:  No, it has to start - it starts - sorry, 22/11, so that would go through until that 12 months, to 22 January.  Sorry, forget about what I've just said then.

191HER HONOUR:  No, that's all right.

192MS BRECKWEG:  Yes.

193HER HONOUR:  So we will make - in fact if we make it 22 months, that will mean that Charge 1 ‑ ‑ ‑

194MS BRECKWEG:  Yes.

195HER HONOUR:  ‑ ‑ ‑ can start on the ‑ ‑ ‑

196MS BRECKWEG:  We just don't want a gap, Your Honour, between Charge 5 ‑ ‑ ‑

197HER HONOUR:  So that - by the end of Charge 5, we have got 18 months, but I still ‑ ‑ ‑

198MS BRECKWEG:  And the charge ‑ ‑ ‑

199HER HONOUR:  If I start at Charge 1 - what I was thinking was, I could start Charge 1.  If we moved it up to 22 months, Charge 1 could start on 22 January.

200MS BRECKWEG:  Yes.

201HER HONOUR:  2017, and Charge 2 could start on 22 March.

202MS BRECKWEG:  No, they both stay together.  Just one for that one, Your Honour. 

203HER HONOUR:  Just one for that?

204MS BRECKWEG:  Just one, just ‑ ‑ ‑

205HER HONOUR:  So 1 and 2 ‑ ‑ ‑

206MS BRECKWEG:  An aggregate for - Charges 1 and 2, an aggregate of whatever sentence you impose.  The sentence is to commence on 22/01/17. 

207HER HONOUR:  Yes.

208MS BRECKWEG:  Yes.  Yes.

209HER HONOUR:  22/01/17.  And then - all right.  Then I want - and so 20 months from 22 July, is - excuse me while I do this in my head.  That would take us up to 22 March 2018.  All right? 

210MS BRECKWEG:  Yes, so that's 18 months.

211HER HONOUR:  So, no.

212MS BRECKWEG:  Sorry.

213HER HONOUR:  Between 22 July, today.

214MS BRECKWEG:  Yes. 

215HER HONOUR:  2016 and 22 March ‑ ‑ ‑

216MS BRECKWEG:  Yes.

217HER HONOUR:  ‑ ‑ ‑ 2018, that is 20 months.

218MS BRECKWEG:  Yes.  Sorry, I meant, Your Honour, with Charge 1 and 2.

219HER HONOUR:  Yes.

220MS BRECKWEG:  If that starts 21/01/17, that ends, did you say, 22/03/18?

221HER HONOUR:  It does. 

222MS BRECKWEG:  Right.

223HER HONOUR:  And that way, that will lead to 20 months.  All right?

224MS BRECKWEG:  Yes. 

225HER HONOUR:  So I would then order a recognizance release for a period of three years from 22 March 2018, with conditions built in.

226MR HUGHAN:  Your Honour ‑ ‑ ‑

227MS BRECKWEG:  Yes.

228MR HUGHAN:  Just one question I have, just the question of pre-sentence detention might - because he has spent 70 days in custody now.

229HER HONOUR:  That is a good point. 

230MR HUGHAN:  So that, I think - I understand the logic exactly what Your Honour says.

231HER HONOUR:  No, no, no, I am saying.

232MR HUGHAN:  Yes.

233HER HONOUR:  No, that is - I know how to fix that.

234MR HUGHAN:  Yes.

235HER HONOUR:  I know how to fix that.

236MR HUGHAN:  All right.

237HER HONOUR:  So what we will do is, we will say that the recognizance release - what is - well, I will just have to go backwards from 22 March.

238MR HUGHAN:  Seventy days, effectively, Your Honour.

239HER HONOUR:  Seventy days behind that.  So we have got 22 days in March, we have got - is (indistinct) going to be a leap year? 

240MR HUGHAN:  No. 

241MS BRECKWEG:  No.  No.  

242HER HONOUR:  No?  So we have got 28 days, then we have got another 31 days in January, so that is 81 days.  All right.  So that takes us back to
1 February and then we need 20 days back, so that will be January 10 2018. 

243MS BRECKWEG:  The other way to do it, Your Honour, is to keep it at 22/03 but just reckon as already served and that gets administratively taken off the sentence.

244HER HONOUR:  So I do not have to do it for them?

245MS BRECKWEG:  No.  No, it's always just ‑ ‑ ‑

246HER HONOUR:  Thanks Mr Hughan. 

247MS BRECKWEG:  Yes.  No, I ‑ ‑ ‑

248HER HONOUR:  I have done all that - all that for nothing.

249MR HUGHAN:  No, no, I don't ‑ ‑ ‑

250HER HONOUR:  That is right.

251MR HUGHAN:  Is that right? 

252MS BRECKWEG:  Yes.

253MR HUGHAN:  It is just that, if Your Honour's setting ‑ ‑ ‑

254HER HONOUR:  No, no, what Ms Breckweg is saying, is that I leave the dates, declare the time served and then the gaol will simply take the time off.

255MS BRECKWEG:  Yes.

256HER HONOUR:  They will do it.

257MR HUGHAN:  All right, so that ‑ ‑ ‑

258HER HONOUR:  I don't need to actually specify the date.

259MR HUGHAN:  Yes.  I thought specifying the dates in the Commonwealth legislation did have a specific effect. 

260HER HONOUR:  No. 

261MS BRECKWEG:  No, that's for - she's done that because of the date the sentence starts.

262MR HUGHAN:  Yes, all right.

263HER HONOUR:  Yes.

264MS BRECKWEG:  But she just declares pre-sentence detention.

265MR HUGHAN:  Yes, I understand. 

266HER HONOUR:  I just declare - thank you very much. 

267MR HUGHAN:  All right.

268HER HONOUR:  So now what - the conditions I want is assessment and treatment ‑ ‑ ‑

269MS BRECKWEG:  Your Honour, before we do that, I just want to - I'm just trying to work one thing out.  So what is the head sentence and what is the time to be served?

270HER HONOUR:  Right. 

271MS BRECKWEG:  Because that's what I'm trying to ‑ ‑ ‑

272HER HONOUR:  No, I am not doing a head sentence.

273MS BRECKWEG:  All right.

274HER HONOUR:  Because you do not do a head sentence where you are doing a combination, it is just too complicated.

275MS BRECKWEG:  Yes.

276HER HONOUR:  So, what I am doing is, he is getting a - it is simply
a combination of ‑ ‑ ‑

277MS BRECKWEG:  A straight sentence.

278HER HONOUR:  ‑ ‑ ‑ a straight sentence.

279MS BRECKWEG:  Got it, yes.  Yes.

280HER HONOUR:  And then there is a release on the recognizance.

281MS BRECKWEG:  I understand exactly.

282HER HONOUR:  All right?

283MS BRECKWEG:  Yes.  Yes, I'm rusty on the State, you're good at that, I'm ‑ ‑ ‑

284HER HONOUR:  No, no, that's right.  And there is actually - I mean you can do it on the State.

285MS BRECKWEG:  Yes. 

286HER HONOUR:  But I do not want to. 

287MS BRECKWEG:  Yes.

288HER HONOUR:  Particularly when I am mixing it up with Commonwealth sentencing.

289MS BRECKWEG:  Yes.

290HER HONOUR:  And ‑ ‑ ‑

291MS BRECKWEG:  So you're giving straight ‑ ‑ ‑

292HER HONOUR:  ‑ ‑ ‑ the Court of Appeal's attitude is, you can do it, but it is better not to.

293MS BRECKWEG:  Yes. 

294HER HONOUR:  Because of the complications. 

295MS BRECKWEG:  Effectively you're using - I did look it up earlier in the Sentencing Act.  So you're using the provision that says, "Anything under" - you don't have to impose a non-parole period, so these are just straight sentences.

296HER HONOUR:  Yes.

297MS BRECKWEG:  We get (indistinct) up here.

298HER HONOUR:  Yes.

299MS BRECKWEG:  Then we get the Commonwealth, where you put that ‑ ‑ ‑

300HER HONOUR:  That is exactly right.

301MS BRECKWEG:  Perfect, yes, I understand.

302HER HONOUR:  That is the way I am doing it. 

303MS BRECKWEG:  Yes.  Yes.

304HER HONOUR:  Yes.  All right.  So ‑ ‑ ‑

305MS BRECKWEG:  Can I hand this up to you, Your Honour?  It is the standard form.

306HER HONOUR:  Thank you.

307MS BRECKWEG:  And if you wish to have a scribble on it.

308HER HONOUR:  That is terrific.  You have been extremely helpful, as always, thank you, Ms Breckweg.  All right, so he is going to release ‑ ‑ ‑

309MS BRECKWEG:  I will fill that in, Your Honour.

310HER HONOUR:  All right, so ‑ ‑ ‑

311MS BRECKWEG:  For you.  It is ‑ ‑ ‑

312HER HONOUR:  So he is to be - it is for three years.  For three years.  Sex offender - now, paragraph D, is that, "The defendant is to report to the X Community Corrections Centre by 4 pm on" - I am not quite sure how we are going - how I can do that, because I do not know where ‑ ‑ ‑

313MS BRECKWEG:  It could be changed, that - I've seen that changed too, within three days of his release from custody. 

314HER HONOUR:  He is to report to the Community - to the relevant - how is it phrased again, please? 

315MS BRECKWEG:  I am sorry, to the Community Corrections - to Community Corrections, which would be ‑ ‑ ‑

316HER HONOUR:  I will just say - the defendant is to report to the relevant Community Corrections Centre.

317MS BRECKWEG:  Yes.

318HER HONOUR:  Because Mr Grant ‑ ‑ ‑

319MS BRECKWEG:  Yes, what that really ‑ ‑ ‑

320HER HONOUR:  ‑ ‑ ‑ would have lost his ‑ ‑ ‑

321MS BRECKWEG:  Yes.  Yes.

322HER HONOUR:  ‑ ‑ ‑ rental property now. 

323MS BRECKWEG:  Absolutely.  Yes, yes.

324HER HONOUR:  Relevant Community Corrections Centre, and what is the phrasing? 

325MS BRECKWEG:  Within three business days of his release from custody.

326HER HONOUR:  In three business days.  So that the defendant is to report to receive Community - visits.  Address.  Yes, that is fine.  And I wanted to add, because these conditions - can I add things like drug treatment and ‑ ‑ ‑

327MS BRECKWEG:  Yes.

328HER HONOUR:  ‑ ‑ ‑ psychological treatment? 

329MS BRECKWEG:  Yes.  In that - in the part that there's - there's an "or" in there.  If you cross out the first bit, and then under the - on the front page, Your Honour.

330HER HONOUR:  Yes.

331MS BRECKWEG:  You know how there's one that says, "You - to report for - to participate in the Sex Offender Treatment Program", if you cross that one out.

332HER HONOUR:  Yes.

333MS BRECKWEG:  Then the one underneath it says, "For assessment and if assessed as suitable, treatment for programs to reduce re-offending", and that you could put there ‑ ‑ ‑

334HER HONOUR:  I do not - I have not actually got this on here.

335MS BRECKWEG:  Isn't it? 

336HER HONOUR:  I beg your pardon.  "The defendant is to" ‑ ‑ ‑

337MS BRECKWEG:  "B", yes, B.

338HER HONOUR:  B, "That the defendant is to be under the supervision for three years."

339MS BRECKWEG:  Yes. 

340HER HONOUR:  "Attend for assessment.  If assessed as suitable, treatment of Sex Offender Program or programs to reduce" ‑ ‑ ‑

341MS BRECKWEG:  That is the one, yes.

342HER HONOUR:  - - -"re-offending." 

343MS BRECKWEG:  Yes.

344HER HONOUR:  Now what worries me is Corrections will interpret that as anger management.

345MS BRECKWEG:  Yes, what you could do then is, as to reduce re-offending and then if we put a little arrow there.

346HER HONOUR:  Yes.

347MS BRECKWEG:  Specifically.

348HER HONOUR:  Yes.

349MS BRECKWEG:  And then which ones you want to order. 

350HER HONOUR:  Treatment for drug use and psychological treatment.  Treatment for mental health.  Now, I wonder if we could - it is not very good the way I have done it.  Is there a way that we can ‑ ‑ ‑

351MS BRECKWEG:  Yes.  What I could do, Your Honour, is if Your Honour has time, perhaps - so I can just play with this and make sure we've got it squeaky clean, because I need to work out the full period of imprisonment Your Honour's imposing ‑ ‑ ‑

352HER HONOUR:  Yes.

353MS BRECKWEG:  ‑ ‑ ‑ on the Commonwealth charges to put in there.

354HER HONOUR:  Yes.

355MS BRECKWEG:  Which I'll be able to do quickly.  I could quickly ring the office, ask them to come and get it, take it back, print it and bring it back.

356HER HONOUR:  Would you mind? 

357MS BRECKWEG:  No, no, no.

358HER HONOUR:  Is that possible?

359MS BRECKWEG:  Yes.

360HER HONOUR:  I will give you that. 

361MS BRECKWEG:  If we could ‑ ‑ ‑

362HER HONOUR:  I have got plenty of time, I will just stand down until that is done.

363MS BRECKWEG:  Yes, I'll do that straightaway, Your Honour. 

364HER HONOUR:  All right.

365MS BRECKWEG:  Yes.

366HER HONOUR:  Mr Grant, the documentation has to be played around with
a bit to - so it is actually legible, so we are going to take - leave you downstairs until ‑ ‑ ‑

367MR HUGHAN:  Could I have a minute with him before he goes downstairs, Your Honour? 

368HER HONOUR:  Yes, I am sure that is fine, I will just leave the Bench, all right?

369MR HUGHAN:  Thanks, Your Honour. 

370MS BRECKWEG:  Thank you, Your Honour.

371HER HONOUR:  Thank you very much.  Just take your time, most (indistinct words) thank you very much.

372MS BRECKWEG:  No, thank you, Your Honour.

373(Short adjournment.)

374HER HONOUR:  Yes.

375MS BRECKWEG:  Thank you, Your Honour.  The document's here.

376HER HONOUR:  Thank you, Ms Breckweg.

377MS BRECKWEG:  Your Honour, only one issue that has arisen.

378HER HONOUR:  Yes.

379MS BRECKWEG:  Just going through it. 

380HER HONOUR:  My maths was wrong.

381MS BRECKWEG:  Yes, look that's all right. 

382HER HONOUR:  My associate worked that out as soon as we left.  Of course Mr Hughan was right.

383MS BRECKWEG:  I know, I ‑ ‑ ‑

384MR HUGHAN:  It is a rare thing, Your Honour, so don't worry.

385HER HONOUR:  Yes, well I am not happy about it, but you know, it can't be helped.  It should have been - I have put this - he was quite right, I had only added on 14 - four months, not six. 

386MS BRECKWEG:  Yes.  Yes.  But leaving that aside, so let's - if we assume Your Honour's intention is to - you wanted two months, that was it, cumulation.

387HER HONOUR:  Yes.

388MS BRECKWEG:  Then it's 16 months on that first charge.

389HER HONOUR:  Well, why don't we make it - it is probably going to mess it all up, but so ‑ ‑ ‑

390MS BRECKWEG:  Or you could make it, if you wanted three months, that would get 18 months, I think.

391HER HONOUR:  All right.  So we have got 12, 14, 16 - no, I wanted 20. 

392MS BRECKWEG:  Yes, you'll get that.

393HER HONOUR:  Yes.

394MS BRECKWEG:  You will still get that this way.

395HER HONOUR:  Yes.

396MS BRECKWEG:  Because what ‑ ‑ ‑

397HER HONOUR:  I will be guided by you, Ms Breckweg.

398MS BRECKWEG:  Yes, sure.  All right, so on the State charges, let's say.

399HER HONOUR:  Yes.

400MS BRECKWEG:  We have got 16 months.

401HER HONOUR:  Yes.

402MS BRECKWEG:  Then on the Commonwealth we've got 14 months.

403HER HONOUR:  Yes.  Right.

404MS BRECKWEG:  So there's your - hold on. 

405HER HONOUR:  That gives 30.

406MS BRECKWEG:  That is - yes, so that's 30.  So what we need to do is, because you wanted 20, we need to change the date that the Commonwealth charge starts. 

407HER HONOUR:  You know what, I did not muck it up, sorry.

408MS BRECKWEG:  No.

409HER HONOUR:  Just when I did the dates.  In my head I said 18 months, but in fact what I should have - and so we have got that Charge 3 starts on the 22nd, Charge 4 starts on the - in September.

410MS BRECKWEG:  Yes.

411HER HONOUR:  Charge 5 starts in November.

412MS BRECKWEG:  Yes.

413HER HONOUR:  And then I - so then what I will do is, I will start Charges 1 and 2 in February. 

414MS BRECKWEG:  So then what you're doing then, 11 ‑ ‑ ‑

415HER HONOUR:  Sorry, it's 11.  Because I will do ‑ ‑ ‑

416MS BRECKWEG:  Three months if you start it in February.

417HER HONOUR:  Yes, that's right.  Hang on, just - sorry.  So that's two, four, and then I want - because I want 20 months, so I have got - so, I mean, so we have got January, February, March, so I will start the Charges 2 and - 1 and 2 on - in March, 22 March 2017.  And that way, if you add that up, so you have got the 27 - sorry, you have got July plus two is then September, plus two is then November, plus four is March and that is eight months, plus the 12 months that I have already given him in relation - because the base sentence, if you like, is the charge received on Charge 3. 

418MS BRECKWEG:  Yes.

419HER HONOUR:  So there is 12 months, plus two months, plus two months, plus four months.

420MS BRECKWEG:  Yes.  So this is where we get to the next issue.

421HER HONOUR:  Right.

422MS BRECKWEG:  So with the Commonwealth ‑ ‑ ‑

423HER HONOUR:  Yes.

424MS BRECKWEG:  When we have a recognizance, as Your Honour knows, so you're wanting to - effectively we've got 16 months on the State charge.  You need - we need four more months to get to the 20, of service, of gaol.  So we need to get four months.

425HER HONOUR:  That is what I have done.  Sorry. 

426MS BRECKWEG:  Yes. 

427HER HONOUR:  By starting ‑ ‑ ‑

428MS BRECKWEG:  But we need a head sentence, that's the thing, you ‑ ‑ ‑

429HER HONOUR:  No, you don't need a head sentence with ‑ ‑ ‑

430MS BRECKWEG:  No, for Commonwealth you do.

431HER HONOUR:  Do I?

432MS BRECKWEG:  Remember in Commonwealth it's got, "you are sentenced to a period of imprisonment, to be released after serving four months."

433HER HONOUR:  Yes.

434MS BRECKWEG:  So what we've got to do is, get that Commonwealth sentence ‑ ‑ ‑

435HER HONOUR:  I have got to - I see what - right.

436MS BRECKWEG:  Yes.

437HER HONOUR:  So, he is to - well it is just the date, isn't it? 

438MS BRECKWEG:  It is just the date.

439HER HONOUR:  So he starts 1 and 2 on the 22nd of ‑ ‑ ‑

440MS BRECKWEG:  The 22nd of ‑ ‑ ‑

441HER HONOUR:  March.

442MS BRECKWEG:  March.

443HER HONOUR:  Right, so that's got the eight months.  So then we've got - he will have done - by the time he gets - so he will have done eight months.  And then I want him to have done 20, so he will be released on 22 March 2018.

444MS BRECKWEG:  Yes.  All right, so what we do there is, if we go - if - we want four months of that ‑ ‑ ‑

445HER HONOUR:  So ‑ ‑ ‑

446MS BRECKWEG:  Four months before 22/03, the Commonwealth has to kick in, in terms of the time to serve.  So that means ‑ ‑ ‑

447HER HONOUR:  My intention is that he serve 12 months.

448MS BRECKWEG:  To be released after four.

449HER HONOUR:  Because I am only giving him 12 months on each.  Sorry,
I have messed this up, sorry.

450MS BRECKWEG:  That is all right.

451HER HONOUR:  So in fact I want the Commonwealth one to start on 22 January 2017.  So that is the six months.  And then ‑ ‑ ‑

452MS BRECKWEG:  How long do you want that - I think the best way, Your Honour, would be to do it is, so if we just stick with the State, so we've got - it starts on 22/097 and it goes all the way through to 22/11/17, correct?

453HER HONOUR:  Yes. 

454MS BRECKWEG:  Yes.  All right, so that's our ‑ ‑ ‑

455HER HONOUR:  To 22/11, right.

456MS BRECKWEG:  Yes, so that's our 16 months.

457HER HONOUR:  Yes.

458MS BRECKWEG:  Now then we want to add four months extra.

459HER HONOUR:  Yes.

460MS BRECKWEG:  To that, so if Your Honour started the Charges 1 and 2 on say 22/11/17, so it's at the end of the - same date ends, and you sentence him to say - this is up to you, Your Honour, but just as an example, you could sentence him to 12 months.

461HER HONOUR:  Yes.

462MS BRECKWEG:  Then it would be - the sentence would end on 22/11/18.

463HER HONOUR:  Eighteen.  But if I say ‑ ‑ ‑ 

464MS BRECKWEG:  But to be released after serving four months, then the period from 22/11/17.

465HER HONOUR:  Yes.

466MS BRECKWEG:  To the 22/3/18, he would be in custody and there's your four months. 

467HER HONOUR:  Yes.  Yes.

468MS BRECKWEG:  So if I make - if I just - well shall we do it once more, just ‑ ‑ ‑

469HER HONOUR:  No, that's ‑ ‑ ‑

470MS BRECKWEG:  Is that ‑ ‑ ‑

471HER HONOUR:  I think that's right, ‑ ‑ ‑

472MS BRECKWEG:  Yes.

473HER HONOUR:  ‑ ‑ ‑ because from the - I just said, 22/07/16 to 22/11/16 is 16 months.

474MS BRECKWEG:  Seventeen, to 17, 20 ‑ ‑ ‑

475HER HONOUR:  Seventeen.

476MS BRECKWEG:  Yes.

477HER HONOUR:  You are absolutely right, is 16 months.

478MS BRECKWEG:  Yes.

479HER HONOUR:  And then he is released on the ‑ ‑ ‑

480MS BRECKWEG:  Yes, you want him out on 22/03/18.

481HER HONOUR:  Yes. 

482MS BRECKWEG:  So in order ‑ ‑ ‑

483HER HONOUR:  Four months, and then he is released - and so the release date is as we have said, 22 March 18.

484MS BRECKWEG:  That is right.  And to get him released on 22/03, what we do is, the sentence would be say 12 months ‑ ‑ ‑

485HER HONOUR:  Yes.

486MS BRECKWEG:  ‑ ‑ ‑ on the Commonwealth Charges 1 and 2. 

487HER HONOUR:  Yes.

488MS BRECKWEG:  To be released after serving four months of that sentence.

489HER HONOUR:  Yes. 

490MS BRECKWEG:  Which means that it has to start 12 months before 22/03 - no, sorry, if it starts on the 22nd of the ‑ ‑ ‑

491HER HONOUR:  Eleventh, 17.

492MS BRECKWEG:  Seventeen. 

493HER HONOUR:  Then he serves four months.

494MS BRECKWEG:  Yes, that goes to the 20 ‑ ‑ ‑

495HER HONOUR:  And that means he will get out on 22 March 2018, which is the 20 months.

496MR HUGHAN:  Less the PSD, of course, administratively that - yes.

497HER HONOUR:  And administratively the PSD will come off that.

498MS BRECKWEG:  Yes.  The only issue is - with that, that if we start on 22/11.

499HER HONOUR:  Yes.

500MS BRECKWEG:  And we go to 22/03, that's four months' imprisonment, but we still don't have a head sentence.  So, what we should do is eight months before the 11th, would be the third, so if it starts 22/03, the Commonwealth charge, 17, for 12 months.

501HER HONOUR:  Yes.

502MS BRECKWEG:  Which means ‑ ‑ ‑

503HER HONOUR:  When you're saying "a head sentence", do you mean as it -
I have to set a head sentence and a minimum term? 

504MS BRECKWEG:  Pretty much.  For the Commonwealth.

505HER HONOUR:  Why do I have to do that?

506MS BRECKWEG:  Because the idea of a recognizance release order is that you have to have something left.

507HER HONOUR:  I have - but the whole point is, when he is released on 22/03.

508MS BRECKWEG:  Yes.

509HER HONOUR:  He will still have eight months left.

510MS BRECKWEG:  Yes.  But the wording of the provision is, "you are sentenced to something, and you are to be released either straightaway or after serving
a certain period."

511HER HONOUR:  And that is what we have put in, because if he is - his sentence starts - the Commonwealth sentence starts on 22 November.  He is then released after four months, which means he has got eight months which will be part of the recognizance for three years.  Because all the State sentences will have been served by then.

512MS BRECKWEG:  Yes.  I agree with that, it has to start then and he's released then, but the effective sentence that he's getting for the Commonwealth charge is four months.  And that's where the ‑ ‑ ‑

513HER HONOUR:  No, the effective sentence he is getting is 12 months, four months of which is to be served and eight months ‑ ‑ ‑

514MS BRECKWEG:  I am ‑ ‑ ‑

515HER HONOUR:  Eight months of which is effective ‑ ‑ ‑

516MS BRECKWEG:  Yes, I'm sorry. 

517HER HONOUR:  Is effectively suspended under recognizance.

518MS BRECKWEG:  So the Commonwealth ends 22/11/18.

519MR HUGHAN:  Yes. 

520HER HONOUR:  That is right.

521MS BRECKWEG:  That is it, got it.

522HER HONOUR:  Yes. 

523MS BRECKWEG:  Sorry, I ‑ ‑ ‑ 

524HER HONOUR:  No, that's all right.

525MS BRECKWEG:  Yes.

526HER HONOUR:  You have been incredibly helpful.

527MS BRECKWEG:  Done it.

528HER HONOUR:  Thank you. 

529MS BRECKWEG:  All right, so 12 - yes, I've got it. 

530HER HONOUR:  That is great. 

531MS BRECKWEG:  I bet your associate's glad he hooked up with you, Your Honour.

532HER HONOUR:  No, I have got it all written down to help poor - he probably knows better than I do.  All right, so on each charge, he is sentenced to 12 months. 

533MR HUGHAN:  Your Honour, sorry, just before you announce all this, might
I just clarify?  Just in terms of structurally the way the sentence is being discussed and ‑ ‑ ‑

534HER HONOUR:  Yes.

535MR HUGHAN:  ‑ ‑ ‑ considered. 

536HER HONOUR:  Yes.

537MR HUGHAN:  It will mean, and this is not a complaint, Your Honour, it's just a clarification, that in effect, when one looks at it globally, a sentence of 28 months' imprisonment ‑ ‑ ‑

538HER HONOUR:  No. 

539MR HUGHAN:  From ‑ ‑ ‑

540HER HONOUR:  Twenty months' imprisonment.

541MR HUGHAN:  I am sorry, yes, sorry, but - sorry.  So if I could just finish.  If - I'm sort of thinking of it in sort of slightly old-fashioned terms, but ‑ ‑ ‑

542HER HONOUR:  You can't do - if you're trying to get me to compare it ‑ ‑ ‑

543MR HUGHAN:  No, no, I wasn't Your Honour, I was just ‑ ‑ ‑

544HER HONOUR:  All right.

545MR HUGHAN:  I was just trying to say - all right.  So what you've got is
a sentence that is of the Victorian - I'll do it properly if I can. 

546HER HONOUR:  The Victorian part is 16 months.

547MR HUGHAN:  Sixteen months, and then there's 12 months on top of that.

548HER HONOUR:  Yes. 

549MR HUGHAN:  Which makes, 16 and 12 is 28 months.

550HER HONOUR:  Yes.

551MR HUGHAN:  That is right.  And then when you look at it in a global sense, what Your Honour is doing is saying, "Okay, the 16 months for the Victorian sentence needs to be served, then four months of the Commonwealth sentence and then eight months of that is to be held" ‑ ‑ ‑

552HER HONOUR:  That is right.

553MR HUGHAN:  You know, sort of suspended.

554HER HONOUR:  Exactly.

555MR HUGHAN:  On the recognizance ‑ ‑ ‑

556HER HONOUR:  It is essentially - it's a Commonwealth suspended sentence.

557MR HUGHAN:  Yes. 

558HER HONOUR:  With conditions.

559MR HUGHAN:  All right.  And I just wanted to - so that when we look at it globally, Your Honour, there's 28 months' gaol, in the pot in that sense, globally, with eight months suspended ‑ ‑ ‑

560HER HONOUR:  Yes.

561MR HUGHAN:  ‑ ‑ ‑ in that fashion.  The only reason I raised that, Your Honour, because when - in the discussions earlier, before the break, you'd mentioned about 20 and 22 months, and I'm not sure whether Your Honour had in mind ‑ ‑ ‑

562HER HONOUR:  No, no, no.

563MR HUGHAN:  Yes, that's right.

564HER HONOUR:  No, no, it's how much - I was discussing how much time
I wanted him actually to serve.

565MR HUGHAN:  I wasn't sure what that meant.

566MS BRECKWEG:  That is right.

567HER HONOUR:  Not about the global sentence, how long I want ‑ ‑ ‑

568MR HUGHAN:  Yes, yes.  I wasn't certain, yes.

569HER HONOUR:  No, it's how long I wanted him in for. 

570MR HUGHAN:  No, that's all right, I just wasn't sure whether ‑ ‑ ‑

571HER HONOUR:  That is all right.

572MR HUGHAN:  What that 22 ‑ ‑ ‑

573HER HONOUR:  No, that's what it ‑ ‑ ‑

574MR HUGHAN:  ‑ ‑ ‑ there did feature in discussion. 

575HER HONOUR:  It is 20, it's not ‑ ‑ ‑

576MR HUGHAN:  Yes.

577HER HONOUR:  Twenty-two has never come into it, 22 is the date. 

578MR HUGHAN:  Thank you, Your Honour.

579HER HONOUR:  It is 20 months. 

580MR HUGHAN:  I see, yes, the 22nd. 

581HER HONOUR:  Yes, all right.  All right, so I will formally sentence him now. 

582MR HUGHAN:  Yes. 

583HER HONOUR:  And you can stay seated, Mr Grant, because it is all too complicated. 

584On each charge there is a sentence of 12 months.  The way it will be structured is this: 

585Charge 3 will begin today, 22 July 2016. 

586Charge 4 will commence on 22 September 2016. 

587Charge 5 will commence on 22 November 2016.

588Charges 1 and 2 will be served concurrent - well it is an aggregate sentence in relation to Charges 1 and 2, and that charge is to commence on 22 November 2017, and he is to serve four months of that sentence and be released on
a recognizance for three years, to be of good behaviour for three years. 

589The conditions of that recognizance are contained - there are the core conditions relating to reporting, being under the supervision of the Community Corrections office;

·That he must not commit another offence in that time;

·That he must report to the relevant Community Corrections Office within three working days of his release from prison;

·That he must report any change of address or employment to Corrections within 48 hours of that change;

·That he must report to and receive visits from the Community Corrections Office;

·That he must undergo assessment and treatment for drug use;

·That he must undergo assessment and treatment for mental health;

·That he must attend a sex offender's program, and I think that is it. 

590MS BRECKWEG:  Recognizance amount, Your Honour.

591HER HONOUR:  The recognizance amount will be the sum of $1,000.  Mr Grant, you only pay that $1,000 if you commit an offence in the three years that you are going to be on the order, after you get out of gaol.  All right?

592OFFENDER:  Thank you, Your Honour.

593HER HONOUR:  So you will be released from gaol on - it will be early - I declare pre-sentence detention of 70 days.  So the expected release date should be in early-January 2018, and then you will be on this order for three years.  And
I have already given you the big urging talk about the conditions.  All right? 

594OFFENDER:  Thank you, Your Honour.

595HER HONOUR:  Do you agree - I don't think it is a question of agreeing, no, it is not like the Victorian one.

596MS BRECKWEG:  No.

597HER HONOUR:  I have covered everything, have I? 

598MS BRECKWEG:  The only thing was the - on Charge 1 and 2, the technical sentence was 12 months with four months - to be released after serving four months.

599HER HONOUR:  To be released after serving four months, yes.

600MS BRECKWEG:  Yes.  Then the only other issues, Your Honour, was the Sex Offenders Registration, which is life.

601HER HONOUR:  Yes.  And you will be placed on the Sex Offenders Register for life.  We will serve the papers on you, Mr Grant, and your counsel will explain them to you, all right? 

602MS BRECKWEG:  And 6AAA. 

603HER HONOUR:  Now this comes automatically with this sort of offending. 

604OFFENDER:  That's fine, Your Honour, thank you. 

605MS BRECKWEG:  And 6AAA, Your Honour.

606HER HONOUR:  Do I have to?  Pursuant to s.6AAA, without going into cumulation and so forth, I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of four years and six months.  No, five years and ordered that you serve a minimum term of two years and nine months. 

607Thank you, here are the papers to be served. 

608COUNSEL:  If Your Honour pleases. 

609HER HONOUR:  Five years with a minimum term of two years and nine months.  I am very sorry for all the officers and so forth who have had to sit in court while we go through that torturous explanation, I am sorry.  All right. 

610Now do we have the form? 

611MS BRECKWEG:  Yes. 

612HIS HONOUR:  I probably should not say this, Mr Grant, and you may come across it.  There is every chance in the world that you will come across some sort of drugs in gaol.  We know that happens.  Just, you know, use your brains about that one.

613OFFENDER:  Oh, Your Honour, I've been offered it before and ah I've turned it down since, so ‑ ‑ ‑

614HER HONOUR:  Good. 

615OFFENDER:  Thank you, Your Honour.

616HER HONOUR:  Yes, that is all right.  I mean I am probably stating the obvious, but you do not look as if anything has been happening, so ‑ ‑ ‑

617OFFENDER:  Not at all.

618HER HONOUR:  Thank you.

619OFFENDER:  Thank you, Your Honour.

620HER HONOUR:  Have a seat.  That is all right.  I see why you needed that, yes, thank you.  That is excellent.  Now I actually - I don't think - no, I have to do that, that is the order he has been issued.  And then he signs that in front of you.  Which has to be witnessed by my associate please, Mr Hughan, so could you please give it to ‑ ‑ ‑

621MR HUGHAN:  Of course, Your Honour. 

622MS BRECKWEG:  It certainly feels like wine time to me.

623HER HONOUR:  Absolutely.  Thank you so much.  That was just so helpful.

624MS BRECKWEG:  No, it's all right, Your Honour.  I hope so.  I think I've confused myself.

625HER HONOUR:  It really was.  I could not have got through it without you, I am incredibly grateful to you, thank you very much.  All right, so you will get a copy.  Now good luck with this, Mr Grant. 

626OFFENDER:  Thank you, Your Honour.

627HER HONOUR:  All right?

628OFFENDER:  Thank you.

629HER HONOUR:  And again, can I formally thank everyone who's been - (indistinct) people that just sit through court, but are very much - without trying to single out Ms Breckweg, you were just invaluable, thank you so much for your assistance today.

630MS BRECKWEG:  My pleasure, Your Honour.  Thank you.

631HER HONOUR:  That was terrific.  Everyone have a nice weekend.

632MS BRECKWEG:  Yes, thank you, you too.

633HER HONOUR:  Go Pies.  Thank you.

‑ ‑ ‑