Director of Public Prosecutions v Grey

[2019] VCC 1493

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

KIERAN GREY (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:	25 July 2019, 4 September 2019
DATE OF SENTENCE:	12 September 2019
CASE MAY BE CITED AS:	DPP v Grey
MEDIUM NEUTRAL CITATION:	[2019] VCC 1493

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. White	Office of Public Prosecutions
For the Accused	Ms C. Prince	Malkoun & Co

HER HONOUR:

1Kieran Grey[1], you have pleaded guilty to before me to four charges of sexual penetration of a child under 16, one charge of sexual assault and one charge of producing child abuse material.  The facts underlying your offending are as follows. 

[1] Kieran Grey is a pseudonym.

2There are two complainants, each of them previous girlfriends.  You were aged between 18 and 20 at the time of the offending.  The first complainant, TW, met you at the high school you both attended when she was in Year 9 and you in Year 12.  You knew she was 15 and the two of you began a relationship which lasted, as I understand it, for more than a year.

3The offending against TW occurred when she was both 15 and 16 years of age.  During November and December 2015, you and TW were in your bedroom at your family home, when you inserted your penis into her vagina.  She was a virgin at that time and the sexual intercourse lasted for about 10 minutes.  That action underlies Charge 1 on the indictment, sexual penetration of a child under 16. 

4On one occasion during the relationship, you asked to have anal sex with TW, saying you wanted to try it and she saying she did not.  You insisted but she continued to say 'no'.  TW was lying on the bed on her stomach, you were behind and over her and you held her down by her back and pushed your penis in between her buttocks, pressing against her anus.  TW was able to push you off, got dressed and asked you to take her home.  These actions underlie Charge 2 on the indictment, sexual assault. 

5The next victim, HW, was aged 15 at the time of the offending, which took place about two years later.  You and HW commenced a sexual relationship during October 2017 which involved multiple penetrative acts.  You were not, however, aware that she was under 16 until 27 November 2017, when HW turned 15 and had a birthday party, which you attended.

6The offending against HW, which occurred between December 2017 and January 2018 includes two representative charges, being Charge 5 - digital penetration and Charge 6 - penile penetration, of a child under 16 years. 

7Between 26 and 31 December 2017, you and HW stopped in at your home on the way to the beach where, in your bedroom, you began kissing and cuddling, and HW masturbated your penis.  You then inserted your penis into her mouth, which underlies Charge 3 on the indictment, sexual penetration of a child under 16.  You then inserted your fingers and then your penis into her vagina. 

8Soon after, the two of you were lying naked on the bed and you took a photograph of the two of you, which you subsequently sent to HW, those actions underlying Charge 4 on the indictment, producing child abuse material. 

9In January 2018, soon after New Year, the two of you were on a couch watching a movie in a back room at HW's home and began kissing and cuddling before you started touching her breasts and inserted your fingers into her vagina.  HW masturbated your penis and then you inserted your penis into her vagina.  Your actions in digitally penetrating HW on this occasion underlie part of Charge 5, and your actions in penetrating with your penis underlay part of Charge 6. 

10That same month the two of you were watching a movie in HW's bedroom and began kissing and cuddling before having sexual intercourse for approximately 20 minutes, involving you inserting your fingers and then your penis into HW's vagina.  These actions also underlay part of Charge 5 and part of Charge 6.  At the time of this offending, you were 20 and HW was 15. 

11The maximum penalty for sexual penetration of a child under 16 is 15 years imprisonment.  The maximum penalty for sexual assault is 10 years imprisonment.  The maximum penalty for producing child abuse material is 10 years imprisonment. 

12I now turn to your personal circumstances.  You are 21 years old and have no prior convictions.  You are the eldest of three children.  Your younger brother, now aged 13, has a developmental disorder as well as autism spectrum disorder and has, apparently, the mental age of about four years.  Your sister, aged 17, has a coeliac disease, juvenile arthritis and depression.

13Your mother works as a community activities manager at a large hardware firm and your father is a shift supervisor at a printing firm.  They separated about seven years ago, then reconciled about four years ago.  You told psychologist Pamela Matthews, whose report dated 4 January 2019 was tendered on the plea, that you had a difficult time during your parents’ separation. 

14Your father left the family home, became unwell, and stopped eating for a period of time.  Then you had to break in your mother's bedroom door because she tried to overdose, and on the same day you received a call from a public safety officer, informing you that your mother had also been removed from the train tracks.  On several occasions in that time, she was admitted to a psychiatric ward.  It was clearly a deeply disturbing time for you.

15However, you told Ms Matthews that overall there had been no exposure to domestic or substance or child abuse and that there had been happy times in your family.  Your parents attended marriage counselling and eventually reconciled, as I have said, about four years ago. 

16You continue to live with your family and enjoy their support.  You were seriously sexually abused when aged six by two older boys at primary school, which incident was reported to the education department and you received some counselling.  According to the psychological material, you have little memory of this event and it played no part in the current offending. 

17You reported no social or behavioural problems in primary school, although you do have trouble reading, which you describe as still deplorable.  You were school captain in Grade 6.  At secondary school, you were academically below average, only excelling at maths, but again having no social difficulties. 

18You left school during Year 10 because of developing behavioural problems whilst your parents were separated and because you were struggling, as a result, to keep up with school work.  You then worked, attended a TAFE and completed a Year 11 equivalent course and then a Certificate II course in Electrotechnology.  You returned to your high school in Year 12, completing VCAL. 

19At the same time that you left school you began working as a kitchen hand for two years, at the same time working at a local football club as a barista on weekends and also began working full-time as an apprentice electrician, but a year later that company went out of business and you were subsequently rendered unemployed.  It was at this stage that you returned to high school for Year 12. 

20After finishing school, you tried to find another apprenticeship but were unable to do so, and instead worked at a large hardware warehouse, which work you had started in a casual role while still at school.  You then worked full-time for a steel fabrication company in the period of the time where you left school on a temporary basis but left this after your first suicide attempt in 2015. 

21You then found further full-time work with an electrical company, but again attempted suicide two months later, then resumed work at the same location until you were charged.  You reported to Dr Matthews a routine of working about 80 hours a week, saying it also contributed to a poor state of mental health. 

22In the last year, you have been undertaking an electrical apprenticeship, having a junior supervisory role, overseeing and directing other apprentices, and you are completing your Certificate II in Electrotechnology at TAFE.  Your employer wrote a supportive reference and is aware of the charges, and indicated satisfaction with the work that you are undertaking and a readiness to continue employing you once these charges are resolved. 

23You told Ms Matthews you did not come into puberty until late, when you were about 16 or 17, and your first two relationships were with TW and HW.  For the last seven months you have been in a relationship with an age appropriate girlfriend who also remains supportive of you. 

24You reported having a good social circle but in the month prior to seeing Ms Matthews you said you had been having what you described as serious issues with people who you had thought were close friends.  This arose because they became aware of the charges and then vandalised your car and home on several occasions as well as hacked your Facebook account.  This has affected your whole family; your sister becoming scared of going home after school and therefore frequently staying with her grandparents, and eventually, it would seem, the family was forced to move. 

25You began drinking alcohol when you were 15, but this is not a problem for you.  You told Ms Matthew you began smoking cannabis from the age of 15 soon after your parents separated, which then escalated to a daily habit but which you ceased use two and a half years ago.  You have occasionally used cocaine but have no involvement with other illicit drugs, nor do you gamble. 

26You played football until 2016 when you shattered your elbow, and you were tested for epilepsy in 2016 or 2017, after fainting at work and hitting your head on the ground. 

27Following your first suicide attempt, you sought therapy through Headspace.  That suicide attempt comprised you jumping in front of a train in 2016, which you said occurred because you could no longer cope with your parents’ separation, your family situation and keeping up three part-time jobs.  You attended regular sessions until about two years ago.  You resumed counselling in March 2019 in relation to this offending and I will refer to that counselling shortly.

28It was Ms Matthews' view when she interviewed you that you were depressed, largely due to the actions of your former friends, who had slashed your car tyres, broken the windscreen and thrown rocks at your family home.  You said this caused your anxiety to go 'through the roof', and that as a result of the attacks on your family, your sister had attempted suicide at school and was subsequently hospitalised in a psychiatric ward. 

29You reported some suicidal thoughts arising from the actions of your former friends and said you also said felt suicidal after being charged but that you had no plans on acting on any of these thoughts. 

30After administering tests to determine the risk of your re-offending in a similar manner, Ms Matthews concluded that risk was low.  It was her opinion that that risk would continue to lessen as you aged and matured and your mental health stabilised. 

31Whilst of course acknowledging that sexual behaviour involving a 15-year-old and an 18- to 20-year-old is against the law, Ms Matthews believed your behaviour was normative adolescent behaviour, in that apart from Charge 2, it was consensual sexual behaviour and involved no more than a five year age different.  She stated:

'His behaviour is consistent, both consensual and non-consensual, with the risk-taking of adolescence and the neurological limitations in decision making, "Hot emotional context", that adolescents experience.'

32She also noted that sexting, or the sharing of sexually suggested photographs or messages through cell phones, had become part of the dating process for the adolescent age group.  She noted research showing that about one in 10 teens post sexually suggestive material online, and about one in five sext on their mobile phones. 

33She described your action of taking pictures of your penis and HW's buttocks as being normative sexual behaviour for your age and stage of development.  She described you as having a history of anxiety and depression and suicidal behaviour, noting that your mother and sister also have a similar history, she stated:

'All three family members have required mental health assistance over the past seven years.  This symptom cluster suggests an additional genetic and perhaps an environmental component to Mr Grey’s mental health problems.'

34She further stated:

'Developmentally Mr Grey, aged 21 years, remains an adolescent on the cusp of adulthood.  In that, he is still very much an integrated part of his family of origin yet to establish financial, emotional, psychosexual, and personal independence.  Developmentally within this stage of development, he is also prone to greater levels of risk taking, particularly in a peer context, than that of an adult.  Developmental brain research would indicate that adolescence as a stage of development extends into the mid-20s, with development resolving around aged 24 to 25 years.'

35She described you as presenting as:

'A very vulnerable young man who is a high risk of emotional collapse, suicidal acts and potential completion in the context of psychosocial stress.'

36It was her view that your mental state would be likely to deteriorate in a custodial environment, which you would in any event find challenging, and that you would require a great deal of psychiatric care in such a situation.  She believed that any time you spent in custody, as I said, would be challenging for you.

37You have also undertaken nine sessions of what was essentially sex offender treatment with psychologist Dario Sawczenko.  In her report dated
4 August 2019, Ms Sawczenko noted that you attended upon her between 22 March and 26 July 2019.  She described you as cooperative and open in the sessions, 'Readily challenging his past thoughts and beliefs'. 

38In summary, Ms Sawczenko said you initially presented as minimising your behaviour in relation to TW and HW, in failing to see an issue in your relationships with them, as you felt they were normal relationships and that you did not feel much older than either girl.  She stated that as a result of your treatment sessions, you have:

'Moved from initially minimising his behaviour in early treatment sessions to no longer doing so, taking responsibility and demonstrating understanding of the impact of his behaviour on the complainants; for example, acknowledging the harm caused to each and that he should've known better as the older person.' 

39Ms Sawczenko also noted your ongoing struggle with depression and anxiety which had been exacerbated by these court proceedings, recent harassment from former friends, as well as concern for your family, and particular, your sister's psychological well-being.  You also admitted some anxiety associated with having sex in your current relationship, as this had been what 'got you into trouble'. 

40Both Ms Sawczenko and Ms Matthews believed that because of your progress through this treatment program, you may not require further intervention for rehabilitation in sexual offending; I do not agree with this conclusion.  However, they also both believe that you would require ongoing regular therapeutic support to address your mental health difficulties. 

41You have also expressed an interest in participating in relationship counselling with your current partner because of the intimacy difficulties you are now experiencing as a result of the charges against you.  Both psychologists believe you would also benefit from attending a men's behavioural change program.  Ms Matthews expressed the appropriateness of this as assisting you and improving your understanding or relational perspective taking and expectations.

42It is clear that your actions have had a significant impact on both TW and HW and their families.  In her victim impact statement, TW spoke of the impact your offending against her had on her relationship with her new partner, as it took for her a long time for her to trust him to do anything sexual.  She stated:

'I know this will impact any future relationship I have with my partner as I will never be able to completely trust someone when having sex.'

43She is fearful of seeing you as you live in the same area.  She missed school due to anxiety and had to time off work for court related appearances and appointments. 

44In her victim impact statement, HW said your offending had taken away her chance of having normal teenage years and that she feels she can no longer enjoy things as she used to.  She worries about seeing you, has a constant sense of nervousness and avoids speaking about the situation for fear of others judging her, she feels embarrassed and hurt, she feels humiliated and withdrawn, she has trouble sleeping and feels constantly sad, has withdrawn from sporting activity and has difficulty attending school and engaging in class, which is particularly difficult for her as she is undertaking VCE. 

45Your offending has affected her relationship with her family and she feels embarrassed 'thinking about the things that they know about me'.  She now has difficulty with male teachers, who make her feel uncomfortable, even if they do not do anything wrong. 

46TW's mother, described your actions as a betrayal of the trust she had placed in you, stating of her daughter:

'Her innocence at 14 years old has been taken, denying her of normal experiences and happy memories through the most vulnerable, yet important years of her life'. 

47She wrote that she feels endlessly guilty for not protecting her daughter, that she has now become overprotective and hyper vigilant, stating:

'The fear of failure as a parent has put an enormous amount of pressure on myself and my family.  All relationships within my family are fractured, especially my relationship with my husband, as we look to shift the blame and make sense of this tragic series of events.' 

48She has had to take a day off work a week in order to deal with the appointments for herself and her daughter, which has had produced financial suffering for her own family as a whole.  She wrote of the toll taken by meeting with police, counsellors, teachers and lawyers as a result of these proceedings and stated:

'I have lost friendships, possibly due to other parents not trusting my parenting skills or judgement, but more likely due to me not trusting other parents and their judgement.  Mostly though, because I am too embarrassed and ashamed to talk about this, therefore isolating myself.  This experience has affected me mentally, physically and socially.' 

49HW's father, wrote of his feelings of anger and upset with himself over being deceived and taken advantage of by you.  He wrote:

'As a parent, you always worry about your children's safety and well-being and this ordeal has shattered my ability to trust any friends my children bring into our home'.

50He concluded:

'Failure to protect a child from predatory behaviour is every parent's nightmare and we now find ourselves dealing with the guilt and shame of having to do just that.'

51It was conceded by the prosecutor Mr White that due to your age, both at the time of offending and at the time of sentence, rehabilitation is a key sentencing consideration for this court.  He also conceded there were mitigating factors in the early plea you made this offending, your engagement with psychological services, and the fact that you have not further offended.

52Mr White also conceded that a combination disposition, that is a disposition consisting of a term of imprisonment and then release onto a Community Corrections Order was justified in this case.  He conceded that any term of imprisonment could be a short one.

53Nevertheless, it was his submission that the prevalence of sexual offending against young people and the fact that you offended in this way against two victims meant that the principles of just punishment, general deterrence and denunciation were significant sentencing principles to which this court must have regard, and meant that the imposition of a term of imprisonment was appropriate and should be imposed in this case.

54Mr White pointed out that in cases involving allegations of sexual offending against children under 16, s.37B of the Crimes Act requires courts to have regard to the fact that there is a high incidence of sexual violence within society, that sexual offences are significantly under-reported, that a significant number of sexual offences are committed against women, children and other vulnerable persons and that sexual offenders are commonly known to their victims. 

55In addition to the psychological material, I received a raft of references from your family and friends.  It is clear that you have been candid in discussing this offending and expressing remorse for it. 

56In an impressive letter, your parents expressed their continuing support of you, whilst at the same time describing themselves of being extremely disappointed in your behaviour and actions, and acknowledging the hurt that you have caused your victims. 

57In the case of Azzopardi v R [2011] VSCA 37, the court at paragraph 34 outline the sentencing principles concerning youth. Essentially, they are that when sentencing, a court must have consideration to the fact that young offenders are immature and more prone to ill-considered or rash decisions, and may not fully appreciate the nature, seriousness and consequences of their criminal conduct. This was certainly the case with you, I do accept, although it is in no way to your credit.

58Secondly, the courts recognise the potential for young offenders to be redeemed and rehabilitated because they are typically in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour than adults who are entrenched in antisocial behaviour.  The court stated:

'No doubt because of this potential, it has been stated that the rehabilitation of young offenders is one of the great objectives of the criminal law.'

59It is also in the community's interest that a young person be rehabilitated because it protects the community from further offending.  Thirdly, it is recognised that incarceration will more likely impair than improve an offender's prospects of successful rehabilitation, a youthful offender, being more likely to be exposed to corrupting influences, entrenching them in criminal behaviour, 'thereby defeating the very purpose of which the punishment is imposed', in other words, gaol is meant to be imposed to teach you a lesson and to make you change your ways.  Young offenders who enter gaol can, instead of changing their ways, become entrenched in that previous criminal behaviour. 

60The court further stated 'the likely detrimental effect of adult prison on a youthful offender has adverse flow-on consequences for the community'.  At paragraph 37, the court stated that in cases where the crimes have been particularly serious or persistent, the principles enunciated in R v Mills [1998] 4 VR 235 are correct.

61They are:

(1) that the youth of an offender, particularly a first offender, which you are, should be a primary consideration for sentence in court;

(2) in the case of a youthful offender, rehabilitation is usually far more important than general deterrence.  This is because punishment may lead to further offending, so that individualised treatment focussing on rehabilitation is to be preferred, this benefiting, as I have said, the community as well the offender;

(3) a youthful offender should not be sent to an adult prison if it can be avoided, the court stating, 'The benchmark for what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender, and where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified.  I hasten to add that both cases stress that in certain cases the seriousness of the offending can undermine the effect of the need for rehabilitation.

62It was conceded by the Crown that because of your age and your lack of prior criminal history, rehabilitation however does remain a major factor to which this court must have regard.  Further, because of your age now, detention in a youth justice centre is not appropriate or available. 

63It was pointed out by the prosecution that in addition to the charges of sexual penetration in relation to each victim, there are extra charges in the case of DW, being the charge of sexual assault, and in the case of HW, the production of child abuse material.  I accept that submission.

64However, in terms of the child abuse material, unfortunately it is the case that the sexting you engaged with HW, as Ms Matthews pointed out, is now considered to be the norm in youthful relationships.  I therefore do not regard the criminality of this behaviour as particular high.

65Similarly, the facts underlying the charge of sexual assault again - and I am not seeking to trivialise the charge - within the range of seriousness for that particular charge - I regard as falling at the lower end of the scale. 

66The effect of your offending has been serious for your victims, as I have stated, and their families, in particular the family of HW.  Your behaviour, as I hope you now realise, was selfish, self-centred and criminally careless.  By that, I mean that the lack of care and thought that you demonstrated for each girl was appalling.  I can well understand the prosecution submission that only a term of imprisonment to be immediately served should form part of the sentence this court must impose upon you. 

67I have considered this matter anxiously.  I am acutely aware of the distress you have caused both to your victims and to your families, as I hope I have made clear.  They have attended court, they have courageously read out victim impact statements which eloquently outlined the incredible distress and trauma you have inflicted on each.

68My concern is that you present with personal features which, in my view, militate against the imposition of a term of imprisonment.  I am satisfied this entire experience of being arrested, of being interrogated by police, and facing a prospect of gaol has been a salutary and traumatic one for you.  I am not particularly sympathetic about it, as it is the way it should have been, but I am satisfied that has been the case.

69However, you have since undertaken appropriate psychological assistance, both in terms of your own mental health difficulties and in relation to the sexual offending you have engaged in; I am not satisfied that you are entirely through that educative process.  I do accept that you did properly engage in that treatment and I accept Ms Matthews' assessment of your risk of offending as low.

70Further, I am satisfied that the trauma you suffered during your parent's separation has resulted in long running anxiety and depression, and I also accept Ms Matthews' assessment of you as a highly vulnerable young man still suffering a mental illness which is likely to deteriorate in a custodial setting.  This is a matter I must take into account according to Verdins and is a particularly serious consideration when one is dealing with a youthful offender. 

71This is for two reasons: first, where there is evidence an offender has a mental illness which is likely to deteriorate in custody, this is a mitigating factor a court must take into account.  Secondly, where that offender is a youthful offender, this has particular significance because it militates against the principle that rehabilitation is a major factor to which a court must have regard, although I hasten to add not to the exclusion of all other sentencing principles.

72Because the future rehabilitation of that offender is likely to be further seriously impeded by the exacerbation of the mental illness; in other words, because you are young and because you still have mental fragility, the combination of those two factors in your life have led me to the conclusion that I should not proceed to a sentence of imprisonment. 

73But let me make this very clear, your offending is disgraceful.  What you have done will have years and years of effect upon your victims and their families. I read the statements, as I commented, during the plea.  It is quite clear you lied, in particular to HW's parents; they expressed concern from the outset and they placed considerable trust in you and you completely and entirely betrayed that trust. 

74Revelation of this offending has been deeply traumatic, not just for HW and her family, but traumatic to the relationships within the family.  And I hope you bore in mind and heard what I had to say and what I repeated from HW's victim impact statement, that now her family knows things about her which no teenager would ever want a parent to know. 

75What you did and the revelation of the relationship you were in fact having, a relationship which at law is not meant to occur until far later in a teenage girl's life, means that the whole family, which is a close and supportive family, is questioning how they function as a family, and what their relationships are like.  This will take them many years to resolve. 

76I do not wish to leave TW out of the equation either.  She was far too young to be in the sort of relationship you were having with her.  It is my view that you do require further education in this regard, as I have already remarked several times throughout this sentence. 

77I am concerned, however,  that the combination of youth and what I accept from Ms Matthews is an enduring mental health difficulty, both arising from the trauma you endured during your parents’ separation and because it may be genetic may simply be too much, and the concern would be not so much that you would leave gaol entrenched in criminal offending, but that it could have such an effect on your mental health that your capacity to go on and resume any sort of productive life would be very much undermined.  Ms Matthews continued to express concern in her report that although you are telling her that you would not act on any suicidal ideation, that my well change in a prison setting.  It is these circumstances that have led me to the conclusion that I have come to, and underlies a great deal of that reasoning that I should not imprison you.

78There are, however, other powerful mitigatory matters in your case.  You have no prior convictions - always an important factor.  You pleaded guilty at an early stage, sparing your victims the trauma of having to give evidence and being cross-examined at trial, and saving the community the time and expense of a trial.  Your prospects of rehabilitation are, in my view, very good.  You are gainfully employed, you have the strong protective factors of a supportive law-abiding family and friends. 

79As I have said, there is a further concern that the mental illness, which I am satisfied you continue to suffer, which includes a propensity to suicidal ideation, has arisen not just because of trauma in your life, but because of genetic predisposition within your family.  These issues are being attended to.  Your rehabilitation prospects have been enhanced by engagement in gainful employment as an apprentice in a position of some authority, with the support of your employer, who has full knowledge of the offending you face. 

80As your counsel stated on the plea, any term of imprisonment could well amount to what he termed a 'wrecking ball' through these positive features in your life in terms of your family support, employment and the gains you have made through psychological treatment.  Such a result would be directly at odds with the long-term interest of the community and rehabilitation of youthful offenders as outlined in Azzopardi and Mills. 

81There has also, in my view, been some extra curial punishment in this case, being the violence inflicted upon your family and yourself through friends seeking vengeance on behalf of the victims in this case. 

82It is clear that a Community Corrections Order has punitive aspects.  (And as I said to you on the plea, Mr Grey, you are not going to enjoy the Community Corrections Order that I am going to impose).  It can be a suitable response, even in cases such as this which would ordinarily, were the circumstances as those I outlined, not present in your case, result in a term of imprisonment involving a maximum and minimum term. 

83As was stated in DPP v Borg [2016] VSCA 53 at paragraph 110:

'… a CCO may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment (such as, for example, aggravated burglary, intentionally causing serious injury, some forms of sexual offences involving minors, some kinds of rape and some categories of homicide). The sentencing judge may find that, in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly-conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation.'

84The court there was citing with approval the key passage of Boulton at paragraph 131. Further, and significantly, in my view, s.36 of the Sentencing Act outlines the purpose of a Community Corrections Order; at s.36(1): 'The purpose of a community correction order is to provide a community-based sentence that may be used for a wide range of offending behaviours while having regard to and addressing the circumstances of the offender'; sub-s.2, 'Without limiting when a community correction order may be imposed, it may be an appropriate sentence where before the ability of the court to impose a suspended sentence was abolished, the court may have imposed a sentence of imprisonment and then suspend in whole that sentence of imprisonment'.

85In my view, this is one of those cases where a suspended sentence may well have been an appropriate response to the offending before the court.  In DPP v Buhagiar And Heathcote [1998] 4 VR 540 at paragraph 457, the court stated:

'Whilst the purpose of the criminal law is to bring wrongdoers to justice for the protection of the community, and whilst that protection must be borne in mind as primary and paramount, there are cases where a judge may reach the view that suspension of a sentence is appropriate, not because it would be less unpleasant for the offender, but because it may be productive of reformation, which offers the greatest protection to society.'

86The court went on:

'A suspended sentence of imprisonment is not an unconditional release or a mere exercise in leniency.  Rather, it is an order made in the community's interest and generally designed to prevent reoffending.  In deciding whether to suspend in whole or in part a term of imprisonment, a judge is deciding whether in all the circumstances the offender should have the benefit of a special opportunity for reform, to rebuild his own life or to make some recompense for the wrong done or should have the benefit of the mercy or for some other sufficient reason should have this particular avenue open to him.'

87As I have said, it is my view, after considerable reflection that I should not impose a term of imprisonment.  Again, I am anxious to stress that although I have reached this decision, I regard your offending as serious, damaging and abhorrent.  In my view, however, a lengthy Community Corrections Order involving extensive work hours, continuing mental health treatment, attendance on programs designed to prevent reoffending and judicial monitoring, that is regular visits with me, Mr Grey, will adequately answer both the demands for regard for rehabilitation and the issues of general deterrence, just punishment and condemnation of your behaviour, which this case presents. 

88You have been found suitable for placement on the Community Corrections Order following assessment.  I note the comments of the assessing officer that you can still continue to show unsatisfactory insight into your offending.  For that reason, you will continue to undertake programs designed to prevent reoffending, specifically, a sex offender behaviour program; do you understand?  Thank you. 

89On Charges 1 and 2, I am sentencing you to a Community Corrections Order which will last for a period of three and a half years.  On Charges 3 and 4, I am sentencing you a Community Corrections Order of three and a half years.  They will run concurrently.  Before I can place you on this order, I must gain your consent.  And in order to obtain that, I have to outline to you the conditions that attach to this order. 

90They are, first, you must report to the community corrections office within two working days of the making of this order, that is by Monday of next week.  Whilst on the order you may not leave Victoria without the permission of the community corrections office.  You must obey all lawful directions of the community corrections office.  You must report any change of address of employment to the community corrections office within 48 hours of the making of this change.

91You must not commit any offence punishable by imprisonment whilst on this order.  What that means, Mr Grey, is not that you have to be sentenced to a term of imprisonment; if you commit any offence for which you could be imprisoned, like knocking off a box of matches from Woolworths, theoretically, you could be jailed for that, that will breach this order, you will be brought back before me on a breach and I assure you, if you breach this order, I will gaol you, do you understand?

92You must report to and receive visits from the community corrections office.  You must not attend upon the community corrections office under the influence of drugs and/or alcohol.  There will be special conditions attached to this order.  You will undertake 200 hours of unpaid community work.  You will attend for assessment and treatment for mental health difficulties, you will be supervised, there will be judicial monitoring. 

93In relation to the second community corrections order, 150 hours - no, sorry, they are the special conditions I impose in relation to each community corrections order.  In relation to the second community corrections order, I order that 150 hours of the 200 hours imposed in that order are to be served cumulatively, carried out cumulatively to the 200 hours, which means you are going to be doing a total of 350 hours of unpaid community work.  Those are the conditions of this order.  Do you consent to being placed on this order? 

94ACCUSED:  Yes, Your Honour.

95HER HONOUR:  Thank you, take a seat.  Thank you, Mr White.  Mr Grey is to be placed on the Sex Offender's Register; is that correct?

96MR WHITE:  Yes.  Also, Your Honour - and it may just have been in the enunciation of it - I am just a little unclear, you mentioned Charge 1, 2, 3, and 4; I did not hear you verbally mention Charges 5 and 6.

97HER HONOUR:  Five and six.  Yes, I am sorry.  I did that the wrong way.  What I was trying to do is not - you are absolutely right, I did not.  That is the effect of it, what I was trying to do, what I was trying to avoid was a Community Corrections Order on - a separate one on each one.  I apologise for that.  So what I will do is in relation to five and six, I think there will be a third Community Corrections Order in the same terms, again, lasting for three and a half years.  What I will do is that I will say that 75 hours of the work hours imposed in the second Community Corrections Order and 75 hours of the 200 hours imposed in the third Community Corrections Order be performed cumulatively to the 200 hours imposed in relation to the first Community Corrections Order, leading to total ‑ ‑ ‑

98MR WHITE:  The net effect being the same, 350 hours of community service.

99HER HONOUR:  The net effect is the same, I am simply stating it in open court, as I am bound to do, Mr White.

100MR WHITE:  Yes, thank you, Your Honour.

101HER HONOUR:  Thank you very much.  Yes, now he is on the Sex Offender's Register for?

102MR WHITE:  It is life, mandatory reporting.

103HER HONOUR:  It is for life.

104MR WHITE:  Yes.

105HER HONOUR:  Thank you.

106MR WHITE:  By virtue of there being more than one victim and his age.

107HER HONOUR:  Yes.  Thank you.  Yes, there will also be programs to reduce reoffending, which is the sex behaviour program.  So the judicial monitoring will involve you going to the community corrections office, you can be beamed in and I will be getting a report of your progress.  Understand that if you fail to attend the programs, the appointments that I have set out for your mental health treatment and for the sex offender's program, that will constitute a breach, all right?  All right.  Yes, thanks for that, Mr White, that is unbelievable that I did that.  Thank you very much. 

108MR WHITE:  It is all right.

109HER HONOUR:  We will just have the paperwork typed up. 

110MR WHITE:  Yes.  Your Honour, the one final matter, and I think it was all e-filed, and it was, I think, discussed with my learned friend Mr Sheales, that it was by consent, there were some ancillary orders, they may been made on a previous occasion ‑ ‑ ‑

111HER HONOUR:  No, I have not made any ancillary orders.

112MR WHITE:  There was the 464 ‑ ‑ ‑

113HER HONOUR:  I am not doing a s.464, it is not the appropriate case for it.  He is, having his ‑ ‑ ‑

114MR WHITE:  And the other ancillary order, I believe there was a forfeiture request on the tainted phones - I have not got it to hand.

115HER HONOUR:  All right, yes, that is fair enough.  Yes, I grant that.  Thank you very much.

116MR WHITE:  Thank you, Your Honour.

117HER HONOUR:  I apologise, we are having some trouble with the printing out of the orders.  So I will just stand down.  Thank you very much.

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