Director of Public Prosecutions v Hand
[2012] VCC 928
•5 July 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-00056
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL TROY HAND |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 May 2012 | |
DATE OF SENTENCE: | 5 July 2012 | |
CASE MAY BE CITED AS: | DPP v Hand | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 928 | |
REASONS FOR SENTENCE
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SUBJECT –
CATCHWORDS –
LEGISLATION CITED –
CASES CITED –
JUDGMENT –
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms D. Hogan | Office of Public Prosecutions |
| For the Accused | Mr P. Higham | MH Legal |
HER HONOUR:
1 Daniel Hand, you have pleaded guilty to one charge of sexual penetration of a child under the age of 16 when the complainant, NH, was between 12 and 16 years of age and under your care, supervision or authority. The maximum penalty applicable for that offence is 15 years’ imprisonment. You have also pleaded guilty to two charges of committing an indecent act with a child under 16, the maximum penalty applicable to both those charges is 10 years’ imprisonment.
2 Your crimes arise from events which occurred on two occasions, 8 May 2011 and again on 21 May 2011.
3 It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient for present purposes to say the facts in this case, in my opinion, are most serious and disturbing.
4 At the time of your offending, you were 39 years of age and NH was 13 years of age. You were a close friend of the parents of NH.
5 Turning to Charges 1 and 2 committed on 8 May 2011. On Saturday 7 May 2011, NH was babysitting your two daughters. It was arranged that she would sleep at your home, as you and your wife were going out for the evening and intending to return late.
6 NH went to sleep in the guest room of your house and, when she went to that room to sleep, she closed the bedroom door. Whilst she was sleeping, you came into her room at approximately 3.30am and put your hands down her pyjama pants approximately three times. NH woke as a result. She could hear you breathing and whispering and could smell alcohol on you. You shone a torch into the face of NH then inserted your finger into her vagina, causing her pain (Charge 1).
7 NH tossed and turned, being too scared to wake, but did that to indicate to you to “back off”. She said she was really scared and that her heart was beating really fast. You stopped touching her for a while, then put your hands down her pyjama pants again and touched her buttocks (Charge 2). Again, NH tossed and turned to dissuade you. After a while, you left the bedroom.
8 NH did not tell anyone about what you had done to her, rather, wrote about that incident in her diary. She also wrote in her diary that she felt terrible, had lost her appetite and did not want to talk to anyone. She wrote, “It’s like a nightmare all the time in your mind and you can never wake up or be comforted. You feel cold and very distant”.
9 Thirteen days later, on 20 May 2011, you and your wife and your two daughters were at dinner at the home of NH with her family and another family. You and your family arranged to stay over the night. You and your family were sleeping in the guest room on the ground floor of the house. There was an en suite bathroom connected to that guest room. The bedroom of NH was located on the first floor of the house. You were familiar with the layout of the house, as your wife designed the house, and both that house and yours were similar. You had also used the downstairs toilet during the course of that evening.
10 During the evening the adults consumed alcohol but no-one was drunk. The mother of NH observed that you did not seem affected by the alcohol you had consumed. After dinner NH and her friends went upstairs and watched a film. You went upstairs and said, “Goodnight”, and asked where the bathroom was. NH replied, “There’s one downstairs where you’re sleeping”.
11 NH and one of her friends, JD, went to sleep in the bedroom of NH. At approximately 1.00 am NH woke when she heard something in her room. She heard footsteps and her doona moved. You put your hand down her pyjama pants and on top of her underwear (Charge 3). NH tossed and turned and, when she did, you removed your hand. NH turned on her bedside light as she was afraid you would approach her friend. When she did this she saw you crouching beside the bed near her friend. NH said to you, “What the fuck are you doing in my room?” and you told her you were lost.
12 NH ran from the room, went downstairs and yelled out to her mother. You told her not to tell her mother. NH went into her mother’s room and started crying and told her mother you had tried to touch her and that you had done it before.
13 You came downstairs, said you were sorry and that you had lost your way. NH and her mother went to NH’s bedroom where NH showed her mother the diary entry relating to the first incident involving Charges 1 and 2. Everyone then went back to bed. You and your family left the house the next morning at approximately 8.00am. It would appear you had not told your wife of that incident before you left the house.
14 On 21 May you attempted to phone the stepfather of NH, however, he did not answer the phone. A few hours later he received a text from you saying, “Hi guys, I’m deeply sorry about last night. It’s the stupidest thing I’ve ever done. I know our friendship will be compromised now and I regret that very much. Loz and the kids will still be a great part of your lives so please don’t bring them into this, you’re a great family, stay cool”.
15 On 23 May, the mother of NH phoned SECASA regarding your offending. She subsequently attended the Frankston Sexual Offences and Child Abuse Investigation Team and NH then attended on 24 May 2011, at which time a video recorded statement was taken from her. In addition, NH provided police with the diary entry relating to your offending on 8 May 2011.
16 On 17 June 2011, you attended Mornington Police Station and were interviewed. You answered, “No comment” to the allegations. Of course, it was your right to answer the questions in that way.
17 An aggravating aspect of your offending is the gross breach of trust involved in your offending against NH. Such is already incorporated within the penalty applicable to Charge 1, however, your offending in Charges 2 and 3 also involved a breach of trust. Both your family and the family of NH had been close friends for a number of years, which included going on holidays together. The parents of NH trusted you with their daughter. You abused that trust in the most repugnant of ways when you sexually abused NH. This abuse occurred not only on one occasion but also on another. Your apparent reason for this abuse was discussed at length with your counsel, to which I shall shortly refer, and was disturbing to say the least.
18 NH has suffered considerably, as has her family, as a result of your offending and I shall return to pass some remarks on that subject shortly.
19 You have pleaded guilty to these three charges and are entitled to have that fact taken into account in your favour, and I do so. By your plea, the community has been spared the time and cost of a trial and, more importantly witnesses, in particular NH, have been spared the ordeal of having to give evidence upon your trial. I accept you formally entered your plea of guilty at the committal mention on 20 January 2012 and thereafter pleaded guilty at a directions hearing in this court on 1 February 2012. I accept that from November 2011 your solicitors were in discussions with the prosecution in an attempt to resolve your offending to a suitable Indictment. I also note that a contested committal was not required.
20 The entering of a plea of guilty and the stage at which such is indicated entitles you to a significant sentencing discount.
21 I accept your plea of guilty indicates remorse for your actions, and that remorse is further referred to in references and reports before me, to which I shall shortly refer.
22 You do not have any prior convictions or court appearances and therefore are sentenced as a person of previous good character. I also note there are no subsequent court appearances or involvement with police, such being relevant when assessing your prospects of rehabilitation.
23 I was told something of your background and history by Mr Higham. You were born in 1971. Your parents were happily married until you were approximately 12 years of age. You grew up in Mount Eliza and your father was a well-known and respected builder. Your mother was involved in home duties and part-time fashion design. You have two siblings, both brothers, one older and one younger than you. You attended Mount Eliza Primary School, then Mount Eliza High School and were academically described as average.
24 There was no pressure placed upon you to study, your parents being happy for you to follow in your father’s footsteps and become a builder.
25 You described your early childhood as happy, in particular, enjoying time at the beach. That ideal, I was told, ended when your parents separated when you were about 12 to 13 years old. Following the end of their marriage, there were lots of arguments and disruption, apparently over the custody and care of the children, which involved, as I understood it, a number of court appearances. As a result of the unrest at home, you lost interest in school.
26 Ultimately, your mother had primary custody of you and your two brothers. Your mother eventually met a new partner and went to Queensland to live and at that time you were left with your two brothers in Victoria. Subsequently, the house in which you were living was sold and you then lived on your own at the age of 17. You described this as a fairly upsetting period of time for you and you commenced cannabis use to block out distressing feelings.
27 When you were 17 to 18 years of age you began an apprenticeship with your father. You described him as being a perfectionist and, at times, difficult to get along with. At that time you began to “party”. You and your older brother moved from house to house and sometimes slept in the back of the car, effectively homeless.
28 Your paternal grandparents had a holiday home in McCrae, and at one stage offered that to you and your brother, Matthew, for accommodation. You again enjoyed the beach culture, partying, and at that stage, drinking alcohol, often to excess.
29 You met your wife, Lauren, when you were 20 years of age, and you would visit her every weekend at Foster where she then lived. When Lauren completed her education she moved to Kew to attend Melbourne University.
30 In your mid 20s your maternal grandmother gave you and your brothers $20,000 each to buy a home in Rosebud. You lived there for three to four years, although spent a significant amount of time visiting Lauren in Melbourne.
31 After finishing your apprenticeship you worked with your father full-time until he sold the business. In 1999 a friend of your brother, Matthew, gave you $25,000. I understand you then purchased a block of land. building a first house, taking four to five months to complete it. According to Mr Higham, when “things did come together for you”, you resorted to a pattern of alcohol and drug use.
32 You married in 2004 and your wife is an architectural designer. In 2009 you built the home where the offending in Charges 1 and 2 occurred.
33 In 2007 you were diagnosed with melanoma. You have, fortunately, recovered. Your mother, unfortunately, was diagnosed with cancer and passed away in 2008. At that time there was again an escalation in your substance abuse.
34 Mr Higham submitted that as a result of this offending you were separated from your children as the Department of Human Services became involved. Your marriage had, to date, survived your offending, although your house was on the market, I was told, and you have had to move due to the notoriety of your offending.
35 Mr Higham was not relying on family hardship in mitigation of sentence, nor the finding of exceptional circumstances. In my opinion, that was an appropriate concession based on authorities such as Yates (1998) 99 A Crim R 483 and Markovic v R andPantelic v R (2010) A Crim R 510, (see paragraphs 3, 5 and 20). In my opinion, whilst the hardship caused to family members does not reach the standard of exceptional circumstances in your case, I do however, consider I can take into account that being away from your family and your children will make imprisonment more burdensome for you and such is a matter in mitigation of your sentence.
36 A number of reports were placed before me during the course of your plea hearing. There was a report from Dr Kelly Vlamakis, General Practitioner, The Village Clinic Mount Eliza, dated 22 May 2012. You initially consulted with her on 22 September 2011 when you discussed these offences. You presented in great distress and expressed deep shame regarding your offending, which you said occurred whilst under the influence of alcohol. You expressed deep remorse for your actions and regret for the effect your actions have had on your wife, Lauren, and your children. She referred you to a psychologist.
37 You next presented to her on 2 November 2011, again in a very distressed and anxious state. You continued to have insomnia and other symptoms of severe anxiety and depression. Anti-depressant medication, Avanza, was commenced.
38 On 27 November 2011, you again presented to Dr Vlamakis with continuing symptoms of severe depression, anxiety and stress, and feeling devastated regarding your offending. You were continuing to commit to total abstinence from alcohol. Your Avanza medication was increased to 45 milligrams.
39 You next appeared approximately five months later on 18 April 2012 with severe symptoms of anxiety, stress and depression. You again expressed remorse for the harm you had caused to NH and her family, as well as the harm and anguish you had caused your own family. In her opinion, your current mental condition was severe stress, anxiety and depression. You repeatedly stated your intention to never drink alcohol again.
40 I note Mr Higham, on your behalf, did not submit that your alcohol consumption on the occasions before me constituted a mitigating feature. Such again was an appropriate concession. I state for completeness and clarity, nor is it an aggravating feature.
41 Your wife also attended with Dr Vlamakis first on 27 May 2011 to attempt to deal with the significant adverse effects upon her of your offending.
42 I also received a report, dated 28 May 2012, from Mr David Ball, Forensic Psychologist. You attended his office for assessment on 14 December 2011. Psychometric assessment at that time indicated dysthymic mood and a high level of anxiety relating to your current situation.
43 Mr Ball referred briefly to your background and history. At the time of sentence you were 40 years of age and lived with your wife and two daughters, 5 and 6 years of age, and were a self employed builder. At the time of consultation with Mr Ball you were being prescribed Avanza, 45 milligrams daily, for depression that had an immediate onset following being arrested on 17 June 2011. Your mental state examination on 14 December 2011 was characterised by your anxiety and dysthymic mood. You had symptoms of anxiety, depression and flat effect. You exhibited no evidence of frank mental illness, such as psychotic symptoms, hallucinations or delusions. Mr Ball found no evidence of cognitive impairment. At the initial assessment, you lacked insight into your offending. He estimated your IQ fell within the upper end of the normal range. A further mental status examination occurred on 15 March 2012, at which time you were characterised with a high level of anxiety over your current situation, with a reduction in some of your depressive symptoms. You described responding reasonably well to medication and obtaining benefit from counselling with Mr Barth. At the most recent mental status examination on 23 May 2012, your mental status examination was characterised by a lower level of anxiety, and you at that stage reported no symptoms of depression.
44 Mr Ball provided details of your background and history, much of which I was told by Mr Higham.
45 Mr Ball noted you emphatically denied any sexual attraction to children or teenagers.
46 You described currently being abstinent from alcohol since being charged, and that testing had confirmed that. You said you did not develop a dependence on alcohol, although acknowledged alcohol consumption had become problematic for you. Limited illicit drug use was noted.
47 You said your behaviour with NH occurred in the context of being affected by alcohol and, additionally, on a low dose of prescribed Valium. When asked again to explain your behaviour on 23 May 2012, you said you had now learned to focus a lot more, to readily understand why, what and where all your thoughts and feeling were coming from, and why you offended.
48 Mr Ball assessed you as having genuine remorse and regret for your offending.
49 In his opinion, you did not meet the diagnostic criteria for paedophilia.
50 Using the Static-2002 assessment tool, you were considered to be a low risk of recidivism. Mr Ball also noted one of your main protective factors was the supportive relationship with your wife.
51 There was a report from Matthew Barth, Forensic Counsellor, which outlined your participation in the Sex Offender Treatment Program. You attended 11 treatment sessions with him between 16 January 2012 to 29 May 2012. It was observed that your emotional distress became slightly less intense as the treatment progressed. Despite your observable distress, you engaged in the Program and attempted all tasks required of you. Counselling was also aimed at addressing your use of illicit substances, in particular, alcohol. You described that you had abstained from the use of alcohol and other illicit substances since being charged.
52 I discussed with counsel my concern regarding your description of your offending behaviour, as contained within the report of Mr Barth. You explained to Mr Barth that you came to idealise NH at a time in your life when you felt dejected and lonely. That you misunderstood an innocent childlike affection for affection adult partners would show each other. You had a misguided belief that NH had the maturity to consent to the contact in the same manner an adult woman would. I discussed this with counsel at some length and a transcript of the plea hearing will reveal my concerns regarding that.
53 Mr Barth stated that you had now developed an understanding of the distorted thoughts that contributed to your offending and understood the destructive emotional impact of your offending behaviour on NH. You also recognised your offending involved a gross breach of trust. Part of the program had also dealt with enhancing your insight into the underlying motivations for your offending behaviour, and also focussed on relapse prevention training to allow you to be aware of emotional triggers of inappropriate behaviour to reduce the risk of recidivism. Throughout the program, you were co-operative and polite, and appropriate with responses. You had taken full responsibility for your actions and expressed remorse and empathy for the impact your actions had on NH and her family.
54 When addressing your offending behaviour, Mr Higham conceded that your behaviour was predatory. He also conceded your sexual offending involved a gross breach of trust in your relationship not only with NH but also your close involvement with her parents.
55 Mr Higham also conceded, consistent with Clarkson v R [2011] VSCA 157, the potential for long term harm to a victim of sexual offending who is under 16 years of age.
56 It is clear that protection from harm is one of the core rationales for the sections in the Crimes Act 1958 referable to sexual offending against children under the age of 16. Mr Higham further conceded the significant age difference between yourself and NH was relevant, as was the power imbalance between yourself and NH.
57 I discussed at great length my concern regarding your offending and, in particular, the explanation given by you most recently to Mr Barth, as stated in the final paragraph on page 1 of his report, dated 30 May 2012. Mr Higham, quite appropriately, did not attempt to minimise the gravity of your offending, and nor could he. Your offending behaviour will no doubt have a long term impact upon NH and her parents.
58 Mr Higham submitted he was not relying upon any of the principles in R v Verdins & Ors (2007) 16 VR 269. On the material before me, in particular, the conclusion by Mr David Ball in his report of 28 May 2012, that your depression and need for prescription medication had “an immediate onset following being arrested on 17 June 2011” and by 23 May 2012, he noted your anxiety had stabilised and at that stage you reported no symptoms of depression. Such concession was appropriate.
59 A number of references were before me.
60 I received a reference from Anthony Clyne, undated, your brother-in-law. He described you as a loving and caring father to your two children. You were involved in yachting. You and your wife had a network of friends of longstanding.
61 You had expressed remorse to him for NH and her family. You were regretful and ashamed of your offending. Your offending involving NH, he said, was out of character. You had determined to address drug and alcohol issues since your offending.
62 There was a reference from Peter and J. Leonie Clyne, dated 8 March 2012, your mother and father-in-law. They have known you approximately 22 years and described your strong and loving relationship with their daughter. You had an excellent relationship with your children. You were ashamed, remorseful and embarrassed about your offending behaviour. They would continue to support you.
63 There was a reference from Glenda Shonaly, dated 27 February 2012, your wife’s aunt. She described you in positive terms, including being a good family man and provider. Your offending was out of character. You were remorseful for your offending and expressed concern for NH. You had attended Alcoholic’s Anonymous since this offending and sought counselling.
64 There was a reference from Sam Hand, dated 1 March 2012, your younger brother. The offences committed by you involving NH came as a shock to him and were out of character. You were remorseful, and had undertaken counselling to assist and educate you regarding your offending.
65 There was a reference from your wife, Lauren Hand, dated 1 May 2012. You participated in all aspects of parenting involving your two daughters. You were a loyal, caring and supportive partner and a good worker. She was shocked to hear of these allegations and, as a result, questioned all aspects of the marriage. You had shown remorse for NH and her family, and had undertaken counselling to address your offending. You also regularly attend AA meetings. She remained supportive of you.
66 There were also a number of Certificates before me (Exhibit 5) confirming your attendance at AA meetings on 12 occasions since 25 November 2011.
67 I accept, on all the material before me, your rehabilitation prospects are good, and I also note you have been assessed as being at low risk of sexual re-offending.
68 I accept you have made efforts to address your rehabilitation, in particular, attending with Mr Barth between January and May 2012 for a number of treatment sessions and were willing to continue with that work. I also noted the urine screen results attached to the report of Mr Ball, which indicated you had been alcohol and drug free. In fixing an appropriate sentence, I must seek to maximise such changes of your rehabilitation as there may be.
69 Mr Higham conceded general deterrence was a relevant sentencing consideration for this offending, and I agree.
70 He conceded there was an element of specific deterrence required when sentencing you, as your offending occurred on two separate occasions. As discussed with Mr Higham during the course of your plea hearing, whilst I also consider there is an element of specific deterrence when sentencing you, that need not loom large in the sentencing process. I am also aware you do not have any prior Court appearances.
71 Mr Higham conceded there needed to be appropriate punishment and denunciation of your conduct when sentencing.
72 I also regard it as relevant when sentencing you that this is your first time in custody. You are currently prescribed medication which, I trust, the authorities will continue, or at least have you assessed regarding the need for medication to enable you to be appropriately managed in custody.
73 It is difficult in these brief sentencing remarks to do justice to the Victim Impact Statements that are before me, but I have read them. There is no doubt your offending has significantly affected their lives.
74 There was a Victim Impact Statement from CHA, the mother of NH. Your offending against her daughter had made her feel sick, disgusted, angry, helpless and ashamed. You had shared holidays and social events together. You broke their trust by offending against NH, not only in your home but hers as well.
75 Your offending had affected all the members of her family. She was worried about NH’s mental health. NH had trouble sleeping and had stopped eating. NH was being monitored by her general practitioner and attended counselling at SECASA. NH had been prescribed various medication, however CHA was reluctant to have her daughter placed on medication at such a young age.
76 In addition, there had been a financial impact on her family travelling, as a direct result of your offending, to counselling sessions.
77 There was a Victim Impact Statement from NH, who said she no longer felt safe. She had trouble sleeping and often had nightmares. Your offending had adversely affected her schooling and she had lost interest in food. She did not want to take the prescribed anti-depressant medication. She was angry with you and with Lauren.
78 The effects upon a victim are a relevant sentencing consideration. See (s.5 Sentencing Act 1991). I am conscious, however, I must now allow the effects upon a victim to swamp the sentencing process.
79 I make reference at this stage to a report from Ms Bea Raymond, Consultant Psychiatrist, dated 3 August 2011, as I understood it, prepared by her to assess your risk of sexually offending against your own children following involvement by the Department of Human Services as a result of this offending.
80 This report was provided to Mr Higham a very short time prior to the plea commencing before me. Mr Higham took objection to one aspect in particular of that report and Ms Raymond did not give evidence before me.
81 I have read that report, and note consistency between Mr Ball and Ms Raymond’s ultimate assessment of your risk. Mr Higham disputed the admissibility of one aspect of her report. As I have stated, Ms Raymond did not give evidence before me, and thus Mr Higham did not have the opportunity to cross-examine her regarding the disputed passage within her report. I have determined that it is appropriate I ignore the disputed passage, and have done so.
82 Of greater assistance to me are the more recent reports of Mr Ball and Mr Barth which refer to the efforts you have made to address your offending behaviour since Ms Raymond’s report was prepared.
83 Mr Higham urged when sentencing you a shorter non-parole period be imposed to reflect the matters in mitigation of your sentence.
84 He conceded you fell to be sentenced as a serious sexual offender on Charge 3 and that some cumulation would be appropriate.
85 Ms Hogan, on behalf of the prosecution, submitted your offending had a number of serious features, including the significant age difference between NH and yourself, NH being 13 and you being 39. There was also a gross breach of trust involved and in Charge 1 you exploited her when she was in your care. You had taken advantage of a sleeping victim for your own sexual gratification. Further, your offending was not isolated, having occurred on two occasions.
86 The prosecutor referred to the significant adverse impact of your offending upon not only NH, but also her family. NH, in particular, had described ongoing nightmares and having lost weight.
87 When sentencing, Ms Hogan submitted there was a need for general deterrence with some relevance of specific deterrence.
88 Ms Hogan conceded your rehabilitation prospects were relatively good. You did not have any prior convictions, you had undertaken a sex offender program, had expressed remorse for your offending and had a supportive family. In addition, you had been assessed as a low risk of sexual re-offending. Ms Hogan expressed some concern, however, regarding your insight. On the latter, I accept, since your treatment with Mr Barth, that has significantly improved.
89 The prosecution conceded your plea of guilty was at the earliest opportunity. You indicated your intention to plead guilty at a committal mention on 30 January 2012. As I have said, I accept you were in discussions with the prosecution in an attempt to resolve this matter into a suitable Indictment from approximately November 2011. I accept Mr Higham’s submission that, as at November 2011, it was made clear by you to him you did not wish NH to be required to give evidence.
90 As well as matters personal to you, to which I have referred, including your prospects of rehabilitation, I must also take into account such matters as deterrence, especially general deterrence, which is of considerable importance in a case such as this. The courts have repeatedly referred to the seriousness of sexual offending involving children. See Burnett (1993) 70 ACrimR 469, Roosmalen (1989) 43 ACrimR 358, Wayland 14/9/1992 CA Victoria, Parente 20/2/1996 CA Victoria, and recently DPP v DJK [2003] VSCA 109, DPP v CPD [2009] VSCA 114 and Clarkson v The Queen [2011] VSCA 157. This list is by no means exhaustive.
91 Specific deterrence is also relevant when sentencing you, but as I have previously stated, this need not loom large in the sentencing process.
92 I must also consider the need to protect members of the community from you and bear in mind the likelihood of your re-offending. I am comforted by your participation in the sex offender program and your assessment as a low risk of sexual re-offending. In addition, you will have support in the community when you are ultimately released from custody.
93 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
94 I direct it be entered into the records of the Court you have been sentenced as a serious sexual offender in relation to Charge 3 on the Indictment. I am mindful of the provisions of s.6D and 6E of the Sentencing Act 1991, in particular, the need to regard the protection of the community as the main sentencing consideration. I consider I am able to sentence you without the need to impose a disproportionate sentence, and I note the prosecution did not urge a disproportionate sentence.
95 When sentencing you, I have taken into account the principles of totality and proportionality, and you are sentenced as follows.
96 On Charge 1, you are convicted and sentenced to 2 years 6 months' imprisonment.
97 On Charge 2, convicted and sentenced to 10 months’ imprisonment.
98 On Charge 3, convicted and sentenced to 15 months’ imprisonment.
99 Charge 1 is the base sentence.
100 I direct that 4 months of Charge 2 be served cumulatively upon Charge 1 and I direct 9 months of Charge 3 be served concurrently and 6 months cumulatively upon Charge 1.
101 For the purpose of clarity, I state the orders of cumulation are cumulative upon each other and upon Charge 1.
102 That results in a total effective sentence of 3 years and 4 months imprisonment, and I direct that you serve a period of 18 months before you are eligible for parole.
103 I have, in setting the non-parole period, imposed a shorter non-parole period to reflect the sentencing considerations in mitigation of your sentence.
104 Pursuant to s.18(4) Sentencing Act 1991, I declare you have spent 35 days in custody by way of pre-sentence detention up to and including yesterday, which was 4 July 2012 - I would like that confirmed or otherwise - and I direct that this be entered into the records of the court.
105 Pursuant to s.6AAA Sentencing Act 1991, had you been found guilty of these charges following jury verdict, I would have sentenced you to a term of 5 years and 6 months' imprisonment and set a non-parole period of 3 years and 6 months.
106 By virtue of your plea of guilty to these charges before me, Charge 1 is a Class 1 offence. Charges 2 and 3 are Class 2 offences. As such, you are required to comply with the reporting conditions, pursuant to the Sex Offenders Registration Act 2004, for the rest of your life, such an order being mandatory. Mr Higham agreed such classification applied to you and the duration.
107 The prosecution made application for a forensic sample, pursuant to s.464ZF(2) Crimes Act 1958. This was consented to by counsel on your behalf. I make the order on the basis of the seriousness of your offending. This will be for a saliva sample. I must advise you that the authorities may use reasonable force in order to obtain that sample. No other orders were sought.
108 First of all, you are almost on your feet and I have cut you off. PSD correct?
109 MR HIGHAM: Yes, Your Honour.
110 HER HONOUR: Mathematics, any help required with that?
111 MS HOGAN: No, Your Honour.
112 MR HIGHAM: No, Your Honour.
113 MS HOGAN: I have checked that, Your Honour.
114 HER HONOUR: All right.
115 MR HIGHAM: Your Honour, I was rising to say, yes, it was correct, the PSD.
116 HER HONOUR: All right. In relation to the order for a forensic sample, I think I have already said seriousness of the offending, and it is a mouth sample, not a blood sample, and Ms Jackson is now going to approach Mr Hand with documentation that relates to the Sex Offenders Register. He is just being asked to sign for receipt of the documents, not asked whether he consents to it or does not. It is really simply saying that he has received the documents. If he does not want to sign it, it is entirely a matter for him, but that is what he is being asked to do, acknowledging receipt of the paperwork.
117 MR HIGHAM: Can my instructor go with Your Honour's associate?
118 HER HONOUR: Absolutely.
119 MR HIGHAM: Thank you.
120 HER HONOUR: All right. You can be seated, thank you. There were no other orders, no?
121 MS HOGAN: No, Your Honour.
122 HER HONOUR: All right, any other matters?
123 MR HIGHAM: Yes, Your Honour.
124 HER HONOUR: Yes, absolutely.
125 MR HIGHAM: Can I just raise one custody matter?
126 HER HONOUR: Yes, absolutely.
127 MR HIGHAM: Your Honour, it has been brought to my attention by Mr Hand that in the intervening 35 days since he was last in front of Your Honour a mole very close to the site of his earlier melanoma has flared up. I am somewhat concerned and I raise it with the court.
128 HER HONOUR: Yes.
129 MR HIGHAM: He has been told that it may be possible for him to see an oncologist within a period of six months. Your Honour, given his prior history and given the potentially aggressive nature of such things, that causes us immense concern. I raise it with the court.
130 HER HONOUR: Yes. I think I might mention this, Mr Prison Officer, and Ms Jackson, I do not know whether you have any ability to contact the authorities, but certainly, Mr Prison Officer, can you make a note, please? I do think it is an important matter. I do understand, I am well aware, how long it takes to get into cancer specialists. I am very much aware of that, but if the estimate is currently six months I think there should be concerted effort to manage it a lot less than that. My experience is that you can usually get in, if you have a specialist that you have previously been to, a referral and back in within about a few months, a couple of months, maybe three. I cannot speak for everybody but I would have thought six months is just a bit too long. These things need to be acted upon and all I can do in these sentencing remarks, which will become part of the revised sentence, which will be forwarded to the authorities, that is about all I can do.
131 MR HIGHAM: Thank you for that, Your Honour.
132 HER HONOUR: Is there anything more you think I should do? So, Mr Prison Officer, will that meet - - -
133 MR HIGHAM: Your Honour, those remarks will go - - -
134 HER HONOUR: Sorry, just one second.
135 MR HIGHAM: Sorry, Your Honour.
136 HER HONOUR: Will that be passed on? I am told that the authorities do take note of these things.
137 PRISON OFFICER: Yes, Your Honour.
138 HER HONOUR: I guess at the end of the day if I am making these observations and putting out these warnings, then it is highly advisable that perhaps someone looks at them.
139 MR HIGHAM: I have had recent experience of a comparable matter and I know that Your Honour's comments and observations certainly, if they reach the appropriate voice, do have some impact.
140 HER HONOUR: I have spoken to the authorities myself about that and I am assured that they do take that on board.
141 MR HIGHAM: Yes.
142 HER HONOUR: I cannot go beyond that or behind that but I have asked.
143 MR HIGHAM: No. I know that and I am very grateful to Your Honour for doing what Your Honour can in this regard.
144 HER HONOUR: Yes. I think, Mr Officer, could you please ensure that information is passed on, and that will also appear in this. Yes, I think Ms Jackson, on the order, can type something like, immediate attention required in relation to melanoma, question mark, something like that.
145 MR HIGHAM: That would be of great assistance and then we can follow it up.
146 HER HONOUR: Beyond that, I am afraid, it is out of my hands.
147 MR HIGHAM: But I am very grateful for that. Your Honour is doing what you can. I can run with that.
148 HER HONOUR: That will be on the order that goes with the prisoner today.
149 MR HIGHAM: Yes. Thank you for that.
150 HER HONOUR: All right. Yes, right, Mr Hand, thank you, you will have to leave. Thank you very much.
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