Director of Public Prosecutions v Hardin (a pseudonym)
[2016] VCC 1189
•4 August 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAMES HARDIN (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 3 May 2016 | |
DATE OF SENTENCE: | 4 August 2016 | |
CASE MAY BE CITED AS: | DPP v Hardin (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1189 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentencing – Rape – Victim asleep – Plea of guilty – Sentence of imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M Fisher | John Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr B Johnson | Doogue O’Brien George Pty Ltd |
HER HONOUR:
1 James Hardin.[1] You have pleaded guilty to one charge of rape and a relevant summary charge that was transferred pursuant to s145 of the Criminal Procedure Act2009.
[1] James Hardin is a pseudonym.
2 You have pleaded guilty to summary charge 2, which is a breach of s123(2) of the Family Violence Protection Act2008. Particulars of that charge are that you are a person against whom a Family Violence Intervention Order was made pursuant to the Family Violence Protection Act 2008, and, having been served with a copy of such order and had an explanation of the order given to you in accordance with s96 of the Act, you contravened that order by sexually abusing the affected family member on 23 January 2015 at Hallam.
3 Each of the offences are serious, and that is reflected in the maximum penalty prescribed by law, being 25 years’ imprisonment for rape and two years’ imprisonment or 240 penalty units in respect to contravention of a Family Violence Intervention Order.
4 In addition, you admitted a prior criminal record. I accept that the prior criminal record is limited, and note that you do not have any prior matters for sexual offending.
5 There are two court appearances, the first on 13 June 2000 at Frankston Magistrates’ Court where, without conviction, a charge of burglary and theft was adjourned for 12 months to 13 June 2001, and on 24 November 2014 at Dandenong Magistrates’ Court, without conviction, in respect to one charge of unlawful assault, the matter was adjourned for 12 months on the condition you continue counselling with Relationships Australia.
6 The charge of unlawful assault is a related matter in the sense that it involves the same victim, Ms Rainey.[2] Apparently you sent an abusive text message to her, which later formed the basis for the intervention order granted on 30 October 2014.
[2] Ms Rainey is a pseudonym.
7 I note the offending that I am to sentence you on occurred during the currency of your adjourned undertaking, and that is an aggravating feature.
8 I shall proceed to sentence you on the basis of the Crown opening. No issue was taken with that opening at the plea hearing.
9 You are now aged thirty-three, and you were thirty-two at the time of the offending. The victim was aged forty at the time of the offending. You had known each other for between five to seven years prior to this incident. At the time of the offending you had been in an intimate relationship with the victim that was of about six months’ duration. You would regularly stay at each other’s homes.
10 On 30 October 2014 the Dandenong Magistrates’ Court granted an intervention order to Ms Rainey. The order contained numerous conditions, one of which prohibited you from committing any family violence (which included any sexual abuse) against Ms Rainey. The order was for 12 months’ duration.
11 It is not in dispute that on 30 October 2014 a copy of the order was served upon you at the court, and the magistrate explained the conditions of the order to you as well as the consequences that might flow from a breach of the order.
Circumstances of the offending – the subject of the indictment and summary charge 2
12 On 21 January 2015 you stayed at Ms Rainey’s house and during the night you engaged in consensual sexual intercourse. On the morning of 22 January 2015 you left the house and returned later that afternoon, having collected Ms Rainey’s daughter from the train station. You shared a meal together with one of Ms Rainey’s friends and her children. Sometime between 7 and 8pm you went to bed. At about 9.30pm Ms Rainey went to the same bed and watched some television, and a short time later she fell asleep.
13 At about 1am the following morning (23 January 2015) you picked up a bottle of lubricant that was on the bedside table. You applied the lubricant to your penis and you pulled down Ms Rainey’s underwear below her knees. You then put your penis inside her vagina whilst she was asleep. Moments later she woke and realised that you were having sex with her. She was frozen with fear. You continued to move your penis backwards and forwards inside her vagina. She became short of breath (she suffers with emphysema) and was unable to get away from you. In an attempt to make you stop she asked you to get a towel. You momentarily stopped to get a drink from the bedside table. At that point she got out of bed and told you to leave because you had raped and violated her. A little while later you left her place.
14 At about 1.46am that morning you returned to Ms Rainey’s house and put money under the doormat. You sent a text message to her stating “The money is under your front doormat. I’m so sorry for what I did to you. You don’t deserve shit like that. I feel so bad for violating you.”
15 At about 1.20pm that afternoon you returned to Ms Rainey’s house to collect an item that had been left outside. Ms Rainey filmed you, and in the footage she captured a conversation that she had with you where she tells you that she was disgusted with what you did, and you reply, “I’m sorry about last night.” She also said that you did not have any respect for her feelings, to which you said “None whatsoever.” You left the premises shortly thereafter.
16 Police arrested you on 24 January 2015. You were taken to the Dandenong Police Station where you participated in a formal record of interview, during which you maintained that the sexual intercourse was consensual. You acknowledged to police that you had been served with a copy of the Family Violence Intervention Order at Dandenong Magistrates’ Court on 30 October 2014, and that the conditions of the order had been explained to you.
Impact of offending
17 The impact of your offending has had a devastating effect upon Ms Rainey. I have had regard to the admissible passages of her victim impact statement that was declared on 27 July 2015 and the supplementary statement declared on 20 December 2015.
18 I have specifically not had regard to the matters referred to that are not admissible against you (as detailed in defence submissions on the plea).
19 Ms Rainey states that prior to the morning of 23 January 2015 she was a positive, confident person who trusted and loved you. She felt physically sick and violated by your actions. She believed that you would not hurt her in any way.
20 Following the rape she felt empty, scared, hurt physically, emotionally, and sexually. She felt like a convenience and not a partner. She was shocked and horrified. She felt totally disregarded, used and abused by your actions. Her trust in you has dissolved completely, and she no longer feels safe.
21 She fears your lack of compassion towards her feelings, her body and her poor health. She now distrusts all men in general. She has been an emotional mess since this offending and has felt suicidal on a number of occasions.
22 With the help and support of SECASA and Dr Tolan, psychiatrist, she has not taken any action in this regard. Her life has literally been turned upside down.
23 Ms Rainey filed a statutory declaration to supplement her original victim impact statement because of the particular chronology of the proceeding.
The chronology
24 Charges were filed following your arrest on 24 January 2015. On 24 April 2015 the matter was listed for a contested committal, with the question of leave to cross-examine the victim to be determined following the receipt of a psychiatric report.
25 A report was obtained from Dr Katinka Morton, psychiatrist, advising, in her opinion, that the victim was cognitively impaired by virtue of her psychiatric condition. Leave to cross-examine the victim was therefore refused by his Honour Magistrate Reardon on the basis of Dr Morton’s expressed opinion.
26 On 9 July 2015 at committal hearing the matter resolved as a plea of guilty to one charge of rape and one charge of contravene a Family Violence Intervention Order, without the necessity for any witnesses being cross-examined. You were committed to this court and a plea date given of 9 October 2015. On 21 September 2015 defence solicitors notified the prosecution that you had decided to plead not guilty and wanted to proceed with the trial.
On 7 October 2015 you sought to change your plea. The plea date was vacated and a trial listed for 7 March 2016. A trial indictment was filed on 16 October 2015. A special hearing for the pre-recording of the victim’s evidence was set down for 11 December 2015. On that date the matter settled. You were re-arraigned on the trial indictment and pleaded guilty prior to any evidence being given. A plea hearing was listed for 7 March 2016. Due to funding difficulties, that date was adjourned until 3 May 2016.
27 Therefore, from the time of the first indication of your entering a plea of guilty to the two charges, that is from 7 October 2015 until 11 December 2015, at which stage you were re-arraigned and pleaded guilty to the two charges, the victim was anxious and concerned about having to come to court to give evidence on your trial. That period was wrongly referred to as 11 months of unnecessary stress in the victim’s supplementary declaration. I have taken it into account. That is, that it was only for the period from October to December and not 11 months as stated.
28 Ms Rainey expressed the view in her second statutory declaration that she has no sympathy for you, and the fact that you changed your plea led her to believe that you had no regrets, empathy or sympathy for what you have put her through.
29 Previously, having regard to the earlier plea of guilty, she accepted that you felt sorry for your actions and that your guilty plea had given her the chance to heal.
Seriousness of offending
30 Mr Hardin, objectively your offending is very serious. The seriousness of the offence of rape is reflected in the 25 year maximum penalty. In addition, your actions constitute a serious breach of trust. You had sex with Ms Rainey in the manner described in the opening when she was asleep and vulnerable. You were aware from your relationship, further, that she is a person who suffers with mental health difficulties and physical disabilities related to her emphysema and she has a long and complex mental health history pre-dating the offending.
31 The fact that previously you had had consensual sex in the days leading up to the offending does not minimise what you did on this occasion. You had no right to impose yourself upon your sleeping victim. Your actions constitute a serious violation of Ms Rainey’s rights over her own body, which is not to be tolerated.
32 Any act of rape is a very serious matter. By your plea of guilty you acknowledged that when the act of sexual intercourse took place you knew that Ms Rainey was not consenting. You now acknowledge that the offending has had a significant impact on the victim, Ms Rainey.
33 Expressly, when asked by Dr Gee, forensic psychologist, what you would say if given an opportunity to speak directly with the presiding Judge, you stated:
“I know what I done was wrong. Didn’t know at the time of the offence. Had no respect for her at the time. Now see what have done and harm I brought to her. I realise, understand I done wrong and need to be punished. We were pretty good friends, I still got feelings for her.”
34 Your actions must be condemned, and on behalf of the community I formally denounce your behaviour.
35 Your counsel, Mr Johnson, conceded that this offending was serious and involved a breach of trust, however, he submitted it was an example of this sort of offending at the lowest end of the spectrum. Mr Fisher, on behalf of the Crown, submitted that the offending was a serious example of this sort of serious offence.
36 I accept that your offending did not involve any aggravating features that are sometimes common to this type of offending, such as threats or use of violence or use of a weapon. It did not extend over a long period of time, nor did it involve ejaculation. You were not a stranger. When asked to stop you did so, and you apologised to Ms Rainey for your actions via text message and in person on the following day.
37 Whilst accepting that there is an absence of aggravating features, nonetheless the offending still occurred in the context of you having had a long-term association with your victim, knowing her vulnerabilities and fragilities and knowing that she was asleep when you had sex.
38 The act itself is one of violence. It also constitutes a contravention of the Family Violence Intervention Order. I therefore consider it to be a serious example of this sort of serious offending.
Mitigating factors
39 In your favour I have had regard to the various mitigating factors put on your behalf and I have had regard to your personal history and background.
40 You are now thirty-three. You are currently single and living with your mother and stepfather in Cranbourne at their family home. You enjoyed a loving, caring, supportive and nurturing childhood, and you continue to be supported by your close family members, many of whom were present at the plea hearings.
41 You are the eldest child, born into a sibship of two to your biological parents. They separated soon after your younger sister was born. Your mother then entered into her current relationship some time later. There are two older paternal stepbrothers, two younger maternal half-siblings (a brother and sister who are twins), and a biological sister. Tragically, when you were aged twenty you lost your younger sister, who died as a result of a road traffic accident. You have had no real contact with your biological father over the years following your parents’ separation. You have three half-brothers who are the sons of your biological father.
42 In the past you had a long-term association with Angela Nolan,[3] with whom you have a son who is aged six. You currently see him on a twice-weekly basis for access visits. Ms Nolan apparently has a relationship with the victim’s ex‑husband.
[3] Angela Nolan is a pseudonym.
43 You have some limited formal education. You achieved the equivalent of Year 10 from the Cranbourne Chisholm Institute of TAFE. You left school part-way through Year 9 at Cranbourne Secondary College.
44 You have an excellent work history, working in various roles in retail, welding and in the past eight years you have had long-term employment as a plasterer. You are currently employed by Walters Plastering.[4]
[4] Walters Plastering is a pseudonym.
45 Written references have been provided from your employer, friends and family. David Walters[5] confirms you are employed by him as a supervisor. He is aware of the offending. He notes that you are a kind and supportive person. You are charged with teaching young apprentices and also directing other tradesmen.
[5] David Walters is a pseudonym.
46 Ms Reese[6] states that she has known you for seventeen years. She too is aware of the charge. She has always found you to be respectful and very trustworthy. You are long-term friends of both she and her husband. She describes you as being somebody who shows love and respect to his family members, and in particular your grandmother. You were an amazing support to your family following the tragic death of one of your younger siblings, who died as a consequence of a car accident.
[6] Ms Reese is a pseudonym.
47 Your mother writes of the support and assistance you provided to both her and your father whilst dealing with the grief associated with the loss of their young child. She describes you as a loving and caring brother to your younger siblings. She describes you as being a supportive role-model to your young son, and that you provide for him emotionally as well as financially. She confirms that you have been a great grandson to her mother, who lives at the family home.
48 Gabrielle Crane[7] confirms she has known you since 1987, and knows you through her relationship with your mother. She describes you as being courteous and helpful.
[7] Gabrielle Crane is a pseudonym.
49 I have also had regard to the report of Dr Dion Gee, forensic psychologist, dated 20 June 2016, who noted that you enjoy good physical health. You have had limited previous contact with medical/psychiatric services. You had some counselling with your ex‑partner (the victim in this offending) at Relationships Australia. You told him that you had recently attended a psychologist at Cranbourne Psychology but that has now been demonstrated to be not true.
50 Dr Gee diagnosis is that
“You do not currently demonstrate psychopathology suggestive of a major psychiatric illness; however, you clearly present with an enduring and presently active mood disorder.”
51 He states you labour under a major depressive disorder with moderate severity with mixed features. You have moderate alcohol use disorder and a severe stimulant (amphetamine type) use disorder.
52 I note that it was not suggested that at the time of the offending that you were under the influences of either drugs or alcohol.
53 Accepting your recent aberrant sexual behaviour, he says that you do not appear to fulfil, nor have you seemingly ever met, the DSM‑V criteria for a paraphilic disorder. He opines you demonstrate a pathological disturbance in personality functioning, meeting DSM‑V diagnostic criteria for personality disorder traits specified.
54 He assessed your risk of future sexual violence having regard to the various methods set out in his very comprehensive report. He assessed you by the Static-99R tool, noting that your level of historical risk is in the moderate-high range which is consistent with the assessment that has subsequently been performed in the pre-sentence clinical assessment that was prepared at the request of the court.
55 A comprehensive and tailored analysis of your sexual violence risk using RSVP showed you represent a low-moderate risk of reoffending sexually, whilst an assessment of your risk of intimate partner violence using the SARA highlighted a low risk of reoffending currently. In the light of the foregoing he assessed you by the SAPROF, and said your current circumstances afford a moderate level of protection against a relapse into sexual violence.
56 Taken together, and based on the information presented in his report, he assesses you currently as a low-moderate risk of reoffending sexually in the future, meaning that you are less likely than the typical convicted sex offender to reoffend. I accept that assessment.
57 He further opined that at the time of this offending you would have been in a position where you were more vulnerable than the average person to act in the manner you did without having given due consideration to the consequences of your actions, nor may you have had reason and ordered judgment or been in a position to appreciate the wrongfulness of your conduct.
58 That being said, while your impaired mental functioning may have contributed to your aberrant behaviour, he states that there does not appear to have been a direct causal link between the two, but instead such a connection was mediated through your dysfunctional self-regulation and deficits with interpersonal functioning.
59 He accepts that it would appear that your presenting condition (both at the time of the offending and the point of assessment) was not causal in the commission of the offending, although in his view it certainly contributed to your aberrant behaviour.
60 As stated in the plea hearing I do not accept the submission made on your behalf that limb one of the Verdins principles is enlivened with respect to the offending being linked to any recognised psychological condition.
61 Given Dr Gee’s expressed opinion I am not satisfied that you were affected by a particular mental condition so as to reduce your moral culpability. There has not been shown a realistic connection between your mental condition that is now documented by Dr Gee and the commission of the offence.
62 I am not satisfied that such a condition has caused, or contributed to, the offending. I, therefore, assess your moral culpability as being high.
63 Dr Gee opined, given the potential for you to receive a custodial sentence, some consideration of the impact of incarceration was warranted. He considered that because of your impaired mental functioning it would likely be that incarceration would weigh more heavily on you than a person in normal mental health. He also said there was an increased likelihood of a deterioration in mental health following incarceration, potentially into a more severe depressive illness with accompanying suicidal ideation.
64 Given those expressed opinions I accept that limbs five and six of the Verdins principles are enlivened and have taken that into account.
65 Dr Gee highlighted the difficulties of obtaining specialist psychological intervention within custody, and the likelihood of further social isolation and considerable distress as a result of finding yourself without access to your support networks. He recommended that you receive ongoing monitoring of your mental health, particularly following sentence. He recommended a referral to investigate the need for psychotropic medication and the need for further psychological treatment and support around stress, anxiety and depression.
66 In the light of your history of sexually aberrant behaviour and your current risk profile, he recommended that you participate in a group-based sexual offender intervention program (SOIP) like those run by Corrections Victoria. He confirmed they can be accessed through either a custodial setting or community-based setting.
67 Further, he recommended that you participate in a suitably tailored drug and alcohol intervention program to provide you with the necessary knowledge and skills to manage lapsed behaviour and potentially avoid relapse. Longer term you may also benefit from a substance-use maintenance program like Narcotics Anonymous to facilitate ongoing abstinence from drugs and increase your pro‑social coping network.
68 He also recommended psychological treatment to increase your capacity for emotional and behavioural regulation, enhance self-awareness, strengthen social interpersonal connectedness, enhance intimacy, and support the development of more assertive and autonomous relationships.
69 His report will be made available to Corrections for their assistance in the future.
70 Mr Hardin, this is a very difficult sentencing exercise. This crime of rape is objectively serious and has resulted in great harm to the victim. You have also breached a Family Violence Intervention Order.
71 In formulating an appropriate sentence I have taken into account current sentencing practices, I have read and had regard to the decided cases that were submitted by the parties and have further considered the discussions I had with counsel during the plea hearing.
72 Ultimately, you must be punished having regard to the particular circumstances of your offending. In sentencing you I have had regard to your plea of guilty.
73 By your plea you have saved the time and cost of a contested committal and a trial, and importantly you spared the witnesses, particularly Ms Rainey, the inconvenience and trauma of giving evidence at committal and trial. I accept there is real utility in your plea. You facilitated the course of justice and your sentence will be discounted accordingly.
74 In addition I accept the plea is some evidence of remorse for your wrongdoing. I have had regard to your early apology and expressed insight into your behaviour as reflected in your discussions with Dr Gee as further evidence of remorse. I accept that you now know what you did was wrong and showed a total lack of respect towards Ms Rainey and her personal integrity and has had a significant impact on her.
75 I consider your prospects for rehabilitation are good, albeit guarded, having regard to the material that is currently before the court, and in particular, the fact that you have lied to your Corrections Services officers in terms of you adhering to the condition of your current Community Corrections Order that you undergo psychological counselling.
76 However, there are other factors in your case which do lead me to the conclusion that there are still prospects for rehabilitation, and they are the fact that you did finally enter the plea of guilty; you do show insight into your offending; you do demonstrate some remorse and you do have a nurturing and supportive family and community of friends, and I have also had regard to the low-moderate risk of reoffending expressed by Dr Gee. Also, you have the ability to obtain ongoing employment as a plasterer. So all those factors together mean that with appropriate support and treatment your rehabilitation prospects will be enhanced.
77 You have now had this morning the opportunity of discussing with your counsel the terms of the Community Correction Order that I have proposed and you have indicated that you understand the effect and conditions of such an order and you consent to it being made.
78 Given your past relationship with Community Corrections I understand that you are fully aware of the mandatory terms of such an order, and I will not be going into those in any further detail, and they are written on the Community Corrections Order. I will be discussing the terms of the special condition shortly.
Submissions regarding sentence
79 Mr Johnston, on your behalf submitted, having regard to the unique circumstances and in the light of the guideline decision in Boulton v The Queen[8] (Boulton), that a Community Correction Order would adequately address both punitive and rehabilitative aims of the sentence.
[8]Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queen [2014] VSCA 342
80 In that decision the Court of Appeal specifically examined the appropriateness of a Community Correction Order for serious offending, and in particular at paragraph [131] stated:
“It follows from what we have said that 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.”
81 Mr Johnson referred the court to the operation of s5(4C) of the Sentencing Act1991.
82 Mr Fisher, on behalf of the Crown, accepted that the matter was settled on the basis that when you penetrated Ms Rainey’s vagina you were aware that she might not be consenting or you did not give any thought to whether or not she was giving consent. Nonetheless, he highlighted that the complainant was sleeping, that there was penetration, and it was without her consent.
83 He initially submitted that, having regard to the objective features and the gravity of the offending, it was appropriate that an immediate term of imprisonment be imposed. But he acknowledged your remorse, having regard to the apology, and he conceded having regards to the contents of Dr Gee’s report that limbs five and six of the Verdins principles were enlivened.
84 He submitted that whilst the primary position was that an immediate custodial sentence was warranted, having regard to the expressed opinion of Dr Gee and the operation of limbs five and six of the Verdins principles that a combination of gaol to be followed by a Community Correction Order was within range of sentencing options available to the court.
85 He submitted that such a Community Correction Order should be lengthy in duration and of sufficient duration to enable you to benefit from supervision, treatment and to undertake the Sex Offenders Treatment Program.
86 Given that a Community Correction Order can be imposed for a period of years, with conditions attached which would be both punitive and rehabilitative, I must consider whether there is any feature of this offence, or the offender, which requires the conclusion that imprisonment, with all its disadvantages, is the only option.
87 You have been assessed as being unsuitable for a Community Correction Order, and that has been discussed this morning. Weighing into my considerations all the factors that I must under the Sentencing Act 1991, and having regard to the need for the court to emphasise deterrence, both general and specific, just punishment, the need to provide for your future rehabilitation, and to denunciate this type of behaviour, I have come to the view that the particular circumstances of your case warrant the imposition of a gaol term to be served followed by the imposition of a Community Correction Order.
88 It is necessary for the court to mark the seriousness of your offending. You took advantage of your sleeping victim, who was your intimate partner. Your actions also contravened the Family Violence Intervention Order, made pursuant to the Family Violence Protection Act 2008. You pursued your own sexual gratification at a time when the sleeping victim could neither protest nor resist, knowing full well her particular vulnerabilities and fragilities.
89 I have already stated that I consider that the act is one of high culpability, and the fact that you in the past had shared a consensual sexual relationship with the victim plays no role in this sentence.
90 It is necessary for the court to deter persons such as you, who have been in an intimate relationship, from asserting any right or power in a like fashion against their former partners. Rape is an act of dominion by one person over another, and it is not to be tolerated.[9]
[9]R v Bastan; DPP v Bastan [2009] VSCA 157 at paragraph [36], Buchanan JA.
91 I have concluded in the circumstances of your case that some or all of the punitive, deterrent, and denunciatory purposes of sentencing can be sufficiently achieved by a short term of imprisonment coupled with a Community Correction Order with conditions tailored to your particular circumstances and the causes of the offending, directed at rehabilitative purposes.
92 The formal court orders are as follows:
93 Charge 1, rape and the summary charge, breach of s123(2) Family Violence Protection Act 2008, you will be convicted and sentenced to an aggregate term of 12 months’ imprisonment to follow, a three‑year Community Correction Order with the condition that you be under the supervision of a Community Correction officer for three years and that you undergo assessment and treatment, including testing for drug and alcohol abuse; that you undergo any mental health assessment and treatment that may be recommended or directed and that you participate in programs and courses that address factors relating to your offending as directed by the Regional Manager, and in particular consideration will be given to you being assessed as to your suitability for participation in the Sex Offenders Treatment Program.
94 An aggregate sentence is imposed as the charges are part and parcel of the one course of conduct.[10]
[10]Ss9(1) & 9(3) Sentencing Act 1991.
95 Pursuant to s6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty I would have imposed a four year term of imprisonment with a three year non-parole period.
96 I make the ancillary orders sought. I order pursuant to s464ZF(2) of the Crimes Act 1958 that you undergo a forensic procedure for the taking of a sample. The reasons for this order is that I have had regard to the circumstances and I am satisfied that they are such that an order is justified for the following reasons:
· the seriousness of the circumstances of the offending warrant the order
· the order is by consent, not opposed
· the granting of the order is in the public interest.
97 In respect to the Sex Offenders Registration Act 2004, the Crown have indicated that an order for your registration as a sex offender upon conviction is a discretionary matter, and in the circumstances the Crown did not seek such an order. I do not propose to make any orders under that legislation.
98 In respect to the Community Correction Order it will commence immediately following your release from prison, once you complete the twelve months sentence. You have had explained to you the mandatory conditions that are attached to each Community Correction Order, and you have confirmed that you understand the nature of the order and you accept the terms of the order.
99 In addition I have explained to you the special conditions relating to the Sex Offenders Treatment Program and the other programs for your treatment and rehabilitation, supervision and judicial monitoring.
100 Mr Hardin, in the event that you breach any of the terms of the conditions of the order it has consequences. Firstly, you will have contravened the order and that is an offence of itself punishable by three months’ imprisonment. It also carries the prospect that you will be re-sentenced for the original offending and for any further offending if that is involved.
101 I think that is all I need to say at this stage. An order has been prepared, I believe. I have signed that order. I just ask that, Mr Johnston, you go down with my associate to obtain the consent and signing of the order by the offender.
102 The only thing I need to explain to you, Mr Hardin, is because I have made the order for the taking of a forensic sample whilst you are in custody you will be given a little cotton bud and asked to place that inside your mouth for a scraping. I have to inform you that if you do not consent to that process of taking a mouth scraping under supervision of an authorised member of the Police Force then police may use reasonable force to enable that to be conducted. A copy of the order has now been provided to you client, Mr Johnston.
103 MR JOHNSTON: Yes, Your Honour.
104 HER HONOUR: Thank you. Adjourn the court.
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