Director of Public Prosecutions v Hanna
[2018] VCC 576
•27 April 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-02503
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| WADHAH BAHNAM HANNA |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 12 and 27 April 2018 | |
DATE OF SENTENCE: | 27 April 2018 | |
CASE MAY BE CITED AS: | DPP v Hanna | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 576 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords:
Legislation Cited: Criminal Code Act 1995 (Cth); Sex Offenders Registration Act 2004 (Vic)
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr T. Crouch | Office of Commonwealth Public Prosecutions |
| For the Accused | Mr M. White | Daniel Lawyers |
This matter has been anonymised and a pseudonym allocated per the Court’s Anonymisation Protocol to ensure there is no possibility of identification of the victim and family or witnesses.
HER HONOUR:
1 Wadhah Hanna, you have pleaded guilty to one charge of using a carriage service to procure a person under 16 years of age, contrary to s474.26 of the Criminal CodeAct 1995 (Cth). The maximum penalty applicable to that offence is 15 years’ imprisonment.
2 You have also pleaded guilty to one charge of using a carriage service to solicit child pornography, contrary to s474.19 of the Criminal CodeAct (Cth). The maximum penalty applicable to that offence is 15 years’ imprisonment.
3 Your offending relating to both Charges 1 and 2 occurred between 29 July 2017 and 30 July 2017 at Melbourne.
4 It is not necessary to summarise in great detail the facts of this matter, as it has been opened in detail by the learned prosecutor, consistent with the prosecution opening (Exhibit A). 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 simply say, the facts in this case, in my opinion, are most serious and disturbing. Your behaviour was obviously quite unacceptable.
5 You are 28 years of age, having been born on 28 September 1989. You came to Australia in February 2013 as a refugee from Iraq. At the time of this offending you were working at a cheese factory in Epping.
6 I turn to a summary of your offending.
7 On 29 July 2017, you “matched” with another user who used the name Joshua[1] (the victim) on the social network “Skout”. The victim had a profile which identified his age as being 31, however subsequent enquiries confirmed the victim was an 11 year old child. The victim initially stated in the chats with you that he was 20 and sent you a photograph of himself and his phone number. Subsequently, the victim asked you, “Has a kid sucked your cock before?”
[1] Joshua is a pseudonym
8
You asked the victim to send you a photo of his body and the victim replied that he could not because his mother was in the room. You suggested he take a photo in the bathroom. The victim then sent a photograph which showed his
t-shirt pulled up revealing his body and clearly showing his face.
9 An exchange then occurred between you and the victim, as set out in the prosecution opening at (paragraph 5). During that conversation, Joshua said he was 12 years old.
10 Subsequently, Joshua suggested you meet him at a park and you agreed to do so. You were aware he was 12 years of age. You stated in your record of interview you contacted the victim to arrange details of the meeting and a number of messages were set out in the prosecution opening referable to that discussion (paragraph 6).
11 The following day, 30 July 2017, commencing at 5.39am, a number of messages were exchanged between yourself and Joshua, as set out in Exhibit A (paragraph 7). I will not repeat those details here.
12 After that, you asked the victim to “send you ass pic” and the victim replied, “Fuck off”. You asked, “Why?” No further communication occurred between you and Joshua.
13 Subsequent enquiries confirmed that Joshua was an 11 year old child who lived with his mother in Thomastown. He was unwilling to participate in the police investigation. I note, however, a statement from his mother within the depositions.
14 On 14 September 2017, police executed a warrant at your home and seized a number of items (Exhibit A, paragraph 10).
15 You were arrested and taken to Broadmeadows Police Station where you were interviewed. A number of your responses were set out within Exhibit A (paragraph 11). Some of those responses included the following.
16 You said you sometimes used the chat application Skout to meet people. You used Skout to meet new people from different backgrounds.
17 Regarding your offending you said:
"He come to me, he send me a message, ‘hi – hi’ and send me his number. ‘Call me’. I call him and then he speak with me. He’s from Lalor. We talk and then he said to me, ‘I'm gay’. "And I don’t – the person I didn’t realise he’s underage until when I saw him. And then I just left him.” “That he asked me to come to meet him. I said, ‘Okay’. I didn’t thought he’s, like, underage until when he send me the picture and I meet him. That’s it.” “But we haven't done nothing. And he asked me, he was doing the thing for his dad. His dad teach him to do this thing.”
18 You further stated:
“I was surprised and then - because at that time my wife, she was bearing the baby and I cannot meet with her. At that time I was, like, my stupid mind, I said yes”.
19 You further said:
“I think he – first he say to me he’s 22. And he said to me when – after that, he said to me, ‘I'm 12 years old’”.
20 You agreed you called the victim on the phone, discussed oral sex and arranged to meet in a park near the victim’s home. You told police that when you arrived at the park, you rang the victim and said, “Look, I’m there” and that he replied, “Just wait”. You waited, saw him and that he was young. He came over and you went back home. You told police, “At that moment, my brain was not – does not work”. You told police that the victim entered the front passenger door of your car, sat down and told you to, “Just go”. That after driving for a few minutes, the victim asked you to return home and you dropped him back from where you picked him up. You could not recall any further contact with the victim. You said that the victim told you he was 12 when you met in person.
21 You agreed a photograph of your penis was sent by you to the victim, a photograph you had previously taken. You told police you were unable to remember the part of the conversation where the victim asked, “Has a kid sucked your cock before?". Nor could you remember why the victim would have said to you, “Hey, your dick feels nice” following that meeting. You did not remember discussing a second meeting with the victim.
22 On that date you were arrested and bailed. There was a filing hearing on 13 December 2017 and were committed to this Court by way of straight hand-up brief for a plea hearing.
23 Regarding Charge 2, I was advised by the prosecutor, Mr Crouch, that specifically referred to one photograph following your request for a photo of the victim’s "arse". The prosecution concedes that request was on 30 July 2017 at 6.27am, but not responded to.
24 The photograph was assessed by the informant to be a Category 1 photograph, consistent with the Child Exploitative Material (CEM) classification of pornographic material.
25 As you have pleaded guilty to two registrable Class 2 offences on the Sex Offenders Registration Act 2004 (Vic), you are required, pursuant to s34(1)(b)(ii) of that Act, to comply with reporting obligations for a period of 15 years, such being mandatory. Your counsel agreed such classification and duration would apply to you.
26 You have pleaded guilty to these charges and you are entitled to have that fact taken into account in your favour and I do so. The community has, by your plea, been spared the time and cost of a trial and witnesses have not been required to give evidence upon your trial. There is utilitarian benefit in your plea of guilty.
27 Further, I take into account, in your favour, you intimated early your intention to plead guilty to these charges and made some admissions in your record of interview.
28 In the circumstances, I am prepared to accept your plea of guilty indicates remorse for your offending.
29 There are a number of aggravating features of your offending. That the victim was a real person (not a covert police operative) and a child known to you to be aged 11/12 at the time. Further, disturbingly, there were attempts by you to arrange a second meeting with the victim, fully aware of the victim’s age at that time.
30 Putting that latter aggravating circumstance into context, you commenced your discussions with the victim via text communication on 29 July 2017 at 7.29am. On that date a significant number of text messages were exchanged, as outlined in the Depositions (p.61 and following) and discussed with your counsel. Within approximately five minutes of commencing the chats, you were asking the victim to send a picture of himself. A picture was then sent within a matter of seconds. Further within approximately 10 minutes of commencing those conversations, you sent a picture of your penis (p.71), although I note at that time, you were not aware of the victim’s true age at that time, the victim having then described himself as 20 years of age.
31 The contact between you and victim by text continued, where you requested the victim send you a picture of his “ass” (arse). There was also a photograph of the victim in the bathroom sent at your request. Those pictures were sent, it would seem, on 29 July 2017 from the victim to you at 8.09 and 8.12am.
32 You told police you knew from the photographs the victim was young and by 8.18am on 29 July 2017, the victim had said that he was 12 years of age. Being aware that the victim was 12 years of age, you made arrangements with him to meet at a park.
33 At that meeting it was conceded by the prosecution and I accept, there was no physical sexual contact between the victim and you. The victim did, however, get into your car with you.
34 As I understand from your instructions and accepted by the prosecution, the victim indicated he needed to get home quickly and you then drove him there, before returning to your own home.
35
Unfortunately, your contact with the victim did not cease at that time. On
30 July 2017, further text communications occurred between the two of you from 5.39am. There was discussion about you wanting to see the victim again, "maybe that night" (p.63 Depositions). You made a second request for an “arse” picture. The prosecution accepts, as do I, that second meeting did not eventuate.
36 There was no further discussion between you following a text message sent by you at 6.28 on 30 July 2017.
37 It is in this context that I regard your planning of a second meeting to be an aggravating feature of your offending. This reflected your preparedness to meet the victim at least aware from an earlier photograph on 29 July and from the victim telling you that he was 12 years of age and seeing him, the circumstances of your offending, in my opinion, are very serious.
38 You do not have any prior criminal history, nor anything pending or subsequent. I shall return to that later in these sentencing remarks.
39 Mr White, who appeared on your behalf, prepared an outline of submissions for your plea hearing and addressed them during the course of it.
40 You are currently 28 years of age. You arrived in Australia in 2013. Mr White described your tragic background in Iraq and I have no reason to doubt your instructions in that regard.
41 You married in Australia in 2016. You and your partner are from the same ethno-religious community, Chaldean Christianity. There is a child of your relationship, a son, born 3 April 2017. Your wife was pregnant with your first child at the time this offending occurred. I discussed that at some length with your counsel, who conceded that whilst your background in Iraq formed part of your history, there was no causative link between that history and your offending behaviour. In your record of interview with police you explained your offending behaviour as due to your wife being pregnant and not "intimate" with you at that time.
42 Whilst Mr White submitted a term of imprisonment may be more onerous to you because of your background in Iraq, his submission however in that regard is absent any "link" between your background and the impact of imprisonment. I do note, however, that this will be your first time in custody.
43
Ultimately, in my opinion, your background in Iraq is not a matter I take into account consistent with general sentencing principles. I do, however, accept you will likely find imprisonment onerous, in part knowing your
partner/ex-partner is coping with your child in your absence. Whilst not amounting to exceptional circumstances relevant to family hardship, I accept such is consistent with general sentencing principles and applies in your case.
44 Not surprisingly, as a result of your offending, your marriage has suffered. Your wife is aware of the gravity of your offending and, as I understood, once you are sentenced, your separation from her will be permanent. She intends to divorce you.
45 Child Protection Services also became involved with your family as a direct result of your offending, which meant that for a time, you were only able to see your son in a supervised setting and not permitted to be alone with him.
46 Despite the Department of Health and Human Services having ceased involvement with your family in late-February 2018, I was told you are still only able to see your son one or two times a fortnight for short visits and under supervision. You were not able to live in the former matrimonial home.
47 Although apparently you accept your relationship with your wife is over, you hope to have an active role in the upbringing of your child.
48 You have also been homeless as a result of this offending, living either in your car or at your brother’s house.
49 I was advised that up until recently, you had been employed for approximately four years as a machine operator at a cheese factory in Epping. You resigned about a month ago, as you had been advised it was highly likely you would be incarcerated for this offending. An update was provided to that by Mr White during your plea hearing. You had returned to that employment, albeit your employer did not know why you had originally resigned.
50 Mr White, in his submissions, referred to you now being virtually “financially destitute”. I accept that is so.
51 Mr White, whilst not, as I have said, urging "exceptional circumstances", submitted as a result of your offending, your life had been turned “completely upside down”. Of particular contact, as I have said previously, is your concern regarding your restricted contact with your son. Further, you anticipated further being ostracised and isolated within the Melbourne Chaldean community as a result of being sentenced for this offending.
52 Turning to your offending, I am aware it occurred over a period of two days, ie a limited period. I also accept, as urged by Mr White, that neither of the offences before me relate to there being actual physical contact between you and the victim.
53 Mr White, in my opinion, sensibly conceded that from the online conversations you had with the victim and the photographs provided by him, you were aware of the true age of the victim at the time of the meeting at the park. You, however did not cease contact after that first meeting. That is very troubling.
54 Mr White submitted it was the victim who initially sexualised the conversation, however, he acknowledged you were willing to "go along with it", long after you knew the victim to be underage. As observed by Mr White, after you realised the age of the victim, that did not stop you from continuing to seek the sexual gratification you desired.
55 Mr White conceded that an actual meeting having occurred and there being a “real” victim were aggravating features of your offending. He is correct.
56 Mr White submitted, however, your offending was not sophisticated sexual grooming over a lengthy period of time. That is so. However, he is correct that does not mitigate the seriousness of your offending. You engaged in sexualised conversation with the victim being aware he was 11/12 years of age. You did not need a lengthy period of time to engage the victim to meet you at the park for your sexual gratification.
57 Whilst I accept your offending was not over a prolonged period, ie specifically only on 29 and 30 July, and does not show a pattern of behaviour entrenched in your history, it is nevertheless very concerning behaviour by you.
58 The prosecution, Mr White, submitted - conceded and I accept, you were not “trolling” the internet in search of a young person to engage in sexual activity.
59 Mr White relied also on your lack of any prior criminal record since arriving in Australia in 2013 or anything subsequent.
60 Mr White also referred to your pleas of guilty to these charges as being a relevant sentencing consideration in mitigation of sentence. He is correct. I accept your pleas of guilty were also entered at the earliest opportunity and that such is indicative of remorse by you, although, as I discussed at some length with your counsel, I am concerned about some of your responses in the interview with police of admissions “up to a point”. I discussed that with Mr White during the course of your plea hearing.
61 Mr White conceded that whilst you had assisted police in their investigation, at the time of the interview, he described you as "broadly co-operative" and he accepted there had been attempts by you to minimise your involvement, in particular your contact subsequent to the first meeting, also of requesting a further photograph from the victim.
62 Mr White referred to a report obtained from Dr King, Clinical Psychologist, dated 26 March 2018. I have read that report. Mr White was concerned about the incomplete nature of the report and having been advised recently that the prosecution took issue with some aspects of the report, in particular his assessment of you as being a low risk of future sexual offending. That conclusion being based on your self-report of your offending, which in many respects, was inconsistent with the prosecution opening before me and to which you have pleaded guilty.
63 Mr White was given the opportunity to obtain an Addendum report from Dr King, if he wished, to specifically address his conclusion that you were a low risk of sexual re-offending and whether such would continue to be his opinion if made aware of the full circumstances of your offending. To enable that Addendum report to be obtained, this matter was adjourned to 27 April, however I do note, not - a single sentence which would have assisted in that regard was missing from it, but nevertheless, an Addendum was tendered (Exhibit 3). In that report Dr King unfortunately did not specifically confirm "low risk" of re-offending, nor any other specific risk.
64 He did, however, address your intentions that a sexual encounter was contemplated (p.2).
65 Dr King, being aware of that, remained of the opinion you were "not similar to" habitual sexual offenders. That your offending reflected a blurring of two motivations, your desire for friendship and your desire for sexual gratification.
66 You are not of a similar profile, he said, compared with entrenched sexual predatory offenders. You now recognise the wrongfulness of your intentions and actions.
67 In his opinion, you require close clinical monitoring and assistance over a significant period (at least one year) as a high priority.
68 The Addendum at best it seems can be interpreted, as Mr White submitted, that you are not medium to high risk.
69 As at the date of your plea hearing on 12 April and 27 April 2018, I did not consider I would be assisted by a pre-sentence report from Forensicare.
70 Mr White submitted you were ashamed and embarrassed by your offending and as a result, you had not sought references or other material, apart from the report of Dr King, as you did not want others to know about it.
71 Turning to sentence, Mr White conceded a term of imprisonment was the appropriate disposition for your offending. He urged, however, that the sentence could involve a recognisance release order to be served after a portion of imprisonment had been served. He urged concurrency in the sentence imposed on Charge 2.
72 In support of his submission that a term of imprisonment with a “heavily weighted recognisance release order period” was appropriate, Mr White relied upon your early plea of guilty and utilitarian value of it, in that the victim was not required to make a statement or give evidence. Also, that your admissions in the record of interview, it reflected you were “broadly” co-operative during the police investigation. Mr White also submitted the adverse impact upon your own personal life, addressed the need for specific deterrence. Further you do not have any prior convictions or subsequent matter relevant to this offending. The confined period over which your offending occurred and that you did not pursue online activity following discussions with victim via text on 30 July at 6.28am.
73 Mr White submitted that during the period of the recognisance release order, conditions analogous to those imposed on a community correction order could be imposed. You would be monitored and could receive appropriate treatment. The remainder of any prison sentence would also be hanging over your head as a deterrent to future offending.
74 Mr White’s secondary submission, without abandoning his primary submission, was that you could be sentenced to a combination term of imprisonment together with a community corrections order.
75 Attached to his written outline of submissions were brief summaries of a number of authorities, specifically DPP v Katsamas[2], DPP v Allen[3], a sentence imposed by me, and DPP v Blackwolf[4]. All citations will be provided.
[2] [2016] VCC 1013
[3] [2016] VCC 837
[4] [2016] VCC 543
76 Mr White submitted at your plea hearing on 27 April 2018 that to impose a sentence of imprisonment of greater than 3 years, with a non-parole period was not supported by his research of similar offending cases. That such a sentence would be an "outlyer" when there is consideration of such cases before the Courts, not only in Victoria but in other States.
77 The prosecutor, Mr Crouch, provided a written outline of his sentencing submissions and addressed them during the course of your plea hearing.
78 Mr White had had the benefit of Mr Crouch’s written sentencing submissions and did not take issue with the principles and authorities stated within those submissions, although urged a different sentencing disposition.
79 Referring to s16A(2) such, said Mr Crouch, provides a non-exclusive list of factors a court must take into account which are relevant and known to the court when sentencing. I have taken into account all matters relevant and known when determining the appropriate sentence in your case.
80 Section 16A(1) Crimes Act 1914 (Cth) directs that I must impose a sentence that is of a severity appropriate in all the circumstances and shall not pass a sentence of imprisonment unless I am satisfied no other sentence is appropriate in all the circumstances of the case. I am also aware of that.
81 The ultimate submission by the prosecution was that the only appropriate disposition for your offending would be a head sentence of greater than 3 years, with a non-parole period and that to adopt either sentencing submissions of Mr White, would not be appropriate or satisfy all relevant sentencing considerations. I, of course, are very conscious of his submissions in that regard.
82 I was directed by Mr Crouch to the decision of R v Pham[5], a High Court decision, in which the Court referred to the need for sentencing consistency throughout Australia, requiring the Court to have regard to sentencing practices across Australia and to follow decisions of intermediate appellate courts in other States and Territories, unless convinced that they are plainly wrong.
[5][2015] 256 CLR 550 at 556 [18]
83 Mr Crouch also addressed a number of factors relevant when sentencing for your offending, including the importance and need for general deterrence (s16A(2)(j).
84 There is no doubt general deterrence is a relevant sentencing consideration and of paramount consideration when sentencing for offences of this kind.
85 Mr Crouch, in addressing s16A(2)(a), referred to a number of circumstances of your offending, relevant when assessing its objective seriousness. That your offending occurred over a period of two days, involving contact through online chat and sending and receiving images. Receipt of voice messages, phone calls and a brief meeting in person. Whilst your offending was only over two days, yours was however, consistent and repeated contact, he submitted. You did not cease contact of your own accord after knowing the victim’s age. I agree with his summation.
86 There was, he submitted, a "real" victim, not a police covert operative. This, he submitted, aggravated the circumstances in your case. Such was accepted by Mr White. This is also, in my opinion, relevant when assessing the seriousness of your offending.
87 Addressing s16A(2)(d) and s16A(2)(e), Mr Crouch referred to the presumed harm caused by sexual offences involving children applying to both “in person” offences and offences involving use of a carriage service. He is correct. In this case, the victim was 11/12 years of age, albeit you believed he was 12. Mr Crouch submitted the young age of the victim was an aggravating circumstance of your offending. I agree, as I have previously stated.
88 Mr Crouch, also referred to the meeting on 29 July 2017, you told police in your record of interview, the victim had told you he had previously been the victim of sexual abuse. That, Mr Crouch submitted, showed you were willing to continue meeting the victim, despite being so advised. Mr Crouch submitted that that elevated the seriousness of your offending. I agree.
89 Mr Crouch referred to your discussions with the victim to meeting on two occasions. That at the first meeting it was apparent to you the victim was 11 or 12, yet despite that you discussed a second meeting. He urged that scenario was “as bad as a procure could be”. That you were very close to committing the offence being in the car with the victim on the first occasion. I agree the stage this reached is very concerning.
90 Turning to the nature of the communications between yourself and the victim, Mr Crouch referred to the explicit sexual discussions and you requesting sexualised images, encouraging the victim to take photographs of his body to send to you.
91 The prosecution submits, and I accept, that the objective seriousness of your offending is “high”.
92 Turning to s16A(2)(g) Crimes Act 1914 (Cth), the prosecution acknowledged you had pleaded guilty at the earliest opportunity and I accept that is so.
93 Turning to specific deterrence, s16A(2)(i), the prosecution submitted such was relevant when sentencing, due to the persistence of your attempts to have contact with the victim, including arranging a second meeting. I agree such is relevant to specific deterrence.
94 Also, regarding specific deterrence, Mr Crouch submitted whilst you were generally co-operative and made admissions during the interview with police, you minimised your offending by claiming to have ceased contact with the victim after the first meeting and determining his age. You told police you could not remember any further contact, despite having contact the next day. Mr Crouch submitted your minimisation of your offending reflected the need for general deterrence. I agree.
95 Turning to s16A(2)(m), Mr Crouch submitted regarding your lack of prior criminal history, it was a well-established principle relevant to offending such as yours that less weight was to be given to evidence of prior good character, (I stress, not eliminated) as these offences are frequently committed by persons of otherwise good character. I did not understand Mr White to disagree with that sentencing principle.
96
Turning to s16A(2)(n) of the Act and your prospects for rehabilitation,
Mr Crouch expressed concern that an offender who had undergone treatment and had evinced an intention to continue with treatment, was usually viewed by the courts as having greater prospects for rehabilitation. Mr Crouch submitted that whilst you had attended with Dr King, you nevertheless minimised your sexual offending involving the victim when talking to him. Mr Crouch questioned the extent of your rehabilitation to date and your prospects for the future. That also concerns me.
97
Regarding your rehabilitation prospects, I have some concerns. You need to be closely monitored and assisted over a significant period, as referred to by
Dr King (Addendum, paragraph 3D). Effective treatment/counselling is only possible if you engage in such with full disclosure of your offending behaviour. Of course when fixing an appropriate sentence, I must, however, seek to maximise your prospects of rehabilitation.
98 Turning to your appropriate sentencing disposition, Mr Crouch relied upon the decision in Meadows v R[6] which endorsed an earlier statement by the Court in State of Western Australia v Collier[7] that:
“Anything less than an immediate term of imprisonment does not take sufficient account of the seriousness of the respondent's offending behaviour, or of the need to deter him and others from committing offences of this kind in the future. It is important to say, as clearly as one can, that adult persons who make use of the internet to locate and make contact with children, so as to procure them to engage in sexual activity, can ordinarily expect to receive a term of immediate imprisonment. As with offences concerning possession of child pornography, there is a paramount public interest in protecting children from sexual abuse.”
[6] [2017] VSCA 290 at [41]
[7] [2007] WASCA 250 at [43]
99 The prosecutor also referred to a number of comparative sentence cases, including Meadows v R[8], Gifford v R[9] and DPP (Cth) v Singh[10]. I note those decisions were subsequent to the decision of Pham. Prior to Pham were the decisions of Rampley v R[11], R v Gajjar[12], State of Western Australia v Collier[13] and DPP (Cth) v Walls[14]. As I discussed with counsel, it is difficult comparing cases factually, as facts vary enormously case to case, as do all matters in mitigation and personal to an offender. Ultimately, I must determine the appropriate disposition, taking into account all relevant sentencing principles when sentencing for offences such as those before me.
[8] [2017] VSCA 290
[9] [2016] NSWCCA 302
[10] [2017] VSCA 146
[11] [2010] NSWCCA 293
[12] [2008] VSCA 268
[13] [2007] 178 A Crim R 310
[14] [2014] VSCA 323
100 In sentencing you, I take into account the principles of totality and proportionality.
101 Mr Crouch submitted that if I considered it appropriate, I could impose an aggregate sentence on the two charges. Given the disposition, I agree that is appropriate in your case and I have adopted that approach when sentencing you.
102 Further, given the sentence I impose for your offending, I have not specifically addressed cumulation orders in relation to Charge 2 as a separate sentence. The aggregate sentence I have imposed reflects some, albeit limited, cumulation and I have addressed it by way of cumulation.
103 I sentence you as follows.
104 On Charges 1 and 2, you are convicted and sentenced to an aggregate sentence of 3 years’ imprisonment and I direct that you be released on a recognisance release order after a period of 12 months’ imprisonment.
105 The Court orders your release under paragraph 20(1)(b) Crimes Act 1914 (Cth) after serving 12 months of the term of imprisonment upon you by recognisance of $1,000 to comply with the following conditions:
· That you be of good behaviour for 24 months;
· That you be under the supervision of the Deputy Commissioner, Community Correction Services or his or her nominee for 24 months;
· That you attend for assessment and if assessed as suitable, treatment for sex offender programs or programs to reduce re-offending, as directed by Deputy Commissioner, Community Correction Services;
· That you report to the Broadmeadows Corrections office within two days of your release from prison, you have to report to Corrections.
· That you report to and receive visits from a Community Corrections officers;
· That you notify a Corrections officer of any change of address or employment within two clear days after the change;
· That you are not to leave Victoria, except with the permission of an Corrections officer; and
· That you obey all lawful instructions and directions of Community Corrections officers.
106 Now I have not finished yet. I am going to come back to this, all right? Do I need his consent for a Commonwealth recognisance release order, or not?
107 MR COUCH: Your Honour, there's a form he needs to sign.
108 HER HONOUR: I understand that, but I do not need to ---
109 MR COUCH: He needs to agree ---
110 HER HONOUR: - - - explain in more detail, like I do with a community corrections order? I have told him what the conditions are. I do not need to ask if he consents to being on the order?
111 MR COUCH: There is a form. The form requires him to ---
112 HER HONOUR: And which he will sign.
113 MR COUCH: - - - agree.
114 HER HONOUR: Right.
115 MR COUCH: To state that he agrees and also to state that he's had the purpose and effect of the order explained to him.
116 HER HONOUR: All right. So what that means is, that if you breach any of those conditions, or if you commit any offences, you will have to pay the $1,000. You do not have to unless you breach the order. And it means you are likely to do the remaining 24 months in gaol. I will explain that. So you have got to be careful when you are out in the community. So what is happening is, I have sentenced you to 3 years, right? Three years. You will serve 12 months or one year. That leaves two years in the community. One plus two equals three. So when you are in the community for two years, you have got to be of good behaviour, as I just went through all those things. And you will be under the supervision of a Corrections officer for two years. Does that make sense? All right, very well, I will have you go back to explain.
117 So when you are released, after 12 months, whatever - I will come back to the exact figure - after 12 months, you have to turn up at Broadmeadows within two days of release. Broadmeadows Corrections centre. Within two days of release. Yes? Got to make sure you turn up to Broadmeadows. Two days after you are released from prison. If you do not, you have breached your order and you will see me again. You do not want to see me again. You get this? You do not want to see me again.
118 OFFENDER: If I get the address (indistinct words)
119 HER HONOUR: Yes, yes, we will give you all that, do not worry. It is not a guess. You do not have to guess. We will give you and address of Broadmeadows in a minute. All right? Yes, do not worry.
120 All right, now, before we move on, are there any other conditions that I need to consider? Do those proposed condition fit in within the - they should, within the recognisance release order?
121 MR COUCH: Yes, Your Honour.
122 HER HONOUR: Appropriate?
123 MR COUCH: I have a form here, which is in those exact terms.
124 HER HONOUR: So it is in those - it should be. I know - I think we used that.
125 MR COUCH: Yes.
126 HER HONOUR: But that is consistent with that form?
127 MR COUCH: It is, Your Honour.
128 HER HONOUR: All right, so there is nothing I have added that should not be there?
129 MR COUCH: No.
130 HER HONOUR: Or that cannot be there on a recognisance release order?
131 MR COUCH: No, Your Honour.
132 HER HONOUR: No. Excellent. Right, I move on.
133 Now, pursuant to s18(4) Sentencing Act 1991, I declare you have spent 15 days in custody (up to and including 26 April 2018) by way of pre‑sentence detention and I direct that that be entered into the records of the Court.
134 So in brief, you know you are going to do 12 months gaol, but you have already done 15 days of it. So what is left is 12 months less 15. I do not know, do the maths. Eleven days and 15. Eleven months and 15 days to go, sort of thing. All right, so you have not wasted your time, it is coming off that 12 months. Yes? All right.
135 Now, if you had you pleaded not guilty to these two charges - I know you have pleaded guilty, but if you had pleaded not guilty and been found guilty of them, I would have sentenced you to a term of imprisonment of 5 years and a non-parole period of 3 years. Now that does not apply now to you, because you pleaded guilty. But if you had pleaded not guilty, five with three. Does that make - yes. All right.
136 Now, having pleaded guilty to two registrable Class 2 offences, as identified in Schedule 2 of the Sex Offenders Registration Act 2004 (Vic), pursuant to s.34(1)(b)(ii) of that Act, you are required to comply with the reporting obligations, such being mandatory for a period of 15 years. Mr White conceded such classification and duration applied to you.
137 So after - following sentence, my associate, Ms Jackson, is going to approach you with a document to sign, that you have been given the documents about the Registration Act. You are not being asked if you want to be on the Act. It is not a case of consenting to it, I have made that order, but she has to give you the paperwork to tell you a bit about it and that is all she is doing. So you are only signing for the paperwork. I have made the order.
138 Now Mr White is going to come down the back there to speak to you about the other document you have to sign, which is the really important one. It sets out those conditions upon your release in the community. He will take a little bit of time to explain them to you with the interpreter. Then you will be asked to sign, knowing what the conditions are. All right?
139 So I think that is as much as I need to explain. Can I have a look at the order? Have you got a copy of it there?
140 MR CROUCH: Yes, Your Honour. I haven't shown it to my friend.
141 HER HONOUR: No, I want to have a look first, that is all.
142 MR CROUCH: Your Honour does need to sign the second page of this order as well.
143 HER HONOUR: Yes, I know. I will not sign it, I just want to have a look at it. Make sure it is - I am sure it is all right, but I am just wanting to make sure. $1,000. Twenty-four months. Twenty-four months. Broadmeadows. Have we got an address for Broadmeadows?
144 MR COUCH: I do, Your Honour, I've looked it up. It is 25 to 27 Dimboola Road. D-i-m-b-o-o-l-a.
145 HER HONOUR: Do we want to write - do you write that on the order? Yes, I think it is probably better.
146 MR COUCH: Sure.
147 HER HONOUR: I mean, you are not likely to move.
148 MR COUCH: No.
149 HER HONOUR: Just so that it is there and no one has to rush around looking for it in the Yellow Pages or whatever is there these days. Have a seat for the minute. Have a seat. Do not worry, we will get to you. Fifteen days, was that correct, up to and including yesterday? I forgot to check. PSD. Happy with that?
150 MR WHITE: I am happy with that, Your Honour.
151 HER HONOUR: I mean, it is accurate? That is what I am asking. How are we going? Have you got the address there? All right, I will have it back please. Yes. All right, now, it is coming down to you.
152 MR WHITE: I will go through - - -
153 HER HONOUR: You go and have a chat with him about that.
154 MR WHITE: Yes.
155 HER HONOUR: So there is two lots of - you know what it is. Two sets of documents.
156 MR WHITE: The registration documents.
157 HER HONOUR: And the - yes.
158 MR WHITE: And the recognisance order documents.
159 HER HONOUR: Correct, that is right. So Ms Jackson has to go down there and ask, so just - - -
160 MR WHITE: Yes, acknowledging receipt of the papers.
161 HER HONOUR: Yes, that is all it is. Just saying, "I've received them." If he does not want to sign them, I understand, but Ms Jackson has to ask. Mr Butler, can you go down the back and collect the sentencing - the sentence that the interpreter was given.
162 TIPSTAFF: Yes, Your Honour.
163 HER HONOUR: Ms Jackson, can you then -
164 MR WHITE: For him to sign them, I think he needs to actually see them.
165 HER HONOUR: Yes absolutely. Go through them. All right.
166 MR WHITE: Your Honour, the full terms of the recognisance order have been read and explained to my client. He signed that.
167 HER HONOUR: Thank you.
168 MR WHITE: And he's acknowledged what his conditions are going to be upon his release on the recognisance order.
169 HER HONOUR: Yes, and so long as he understand, he does not owe 1,000 now.
170 MR WHITE: Yes. I am going to do downstairs - - -
171 HER HONOUR: Hopefully never, but you know what I mean.
172 MR WHITE: I am going to go downstairs and more fulsomely explain everything that's - - -
173 HER HONOUR: Good. That is good. Is there anything further in this matter?
174 MR COUCH: No, Your Honour.
175 HER HONOUR: PSD was correct? Fifteen days? Excellent, all right. All right, Mr Hanna, you need to leave now. And your counsel will come down - Mr White will come and see you in a minute. Thanks Mr Interpreter. All right. Yes, all right, thank you. Thank you both.
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