Director of Public Prosecutions v Hermann (a pseudonym)

[2023] VCC 1043

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

 Suitable for Publication

AT BENDIGO

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

KOBY HERMANN (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Bendigo
DATE OF HEARING:	4 May 2023
DATE OF SENTENCE:	5 May 2023
CASE MAY BE CITED AS:	DPP v Hermann (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2023] VCC 1043

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW – Sentence

Catchwords:  Person sexually penetrate child under 16 – produce child abuse material – recklessly cause injury – persist in contravening family violence notice – contravene family violence final intervention order – standard sentencing – youthful offender -  serious offender provisions apply – Bugmy not applicable   

Legislation Cited:  Sentencing Act 1991; s5(2), s5A, s5B, s5B(2)(b), s5B(3)(b), s6D, s6E, s6F

Cases Cited:Worboyes v The Queen [2021] VSCA 169; R v Wyley [2009] VSCA 17; Azzopardi v The Queen [2011] VSCA 372; R v Mills (1998) 4 VR 235; Bugmy v The Queen [2013] HCA 37

Sentence:Convicted and sentenced to four years’ and two months’ imprisonment with a non-parole period of two years’ and six months’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. van Dyk	The Office of Public Prosecutions
For the Accused	Mr N. Rolfe	Rolfe Criminal Law

HIS HONOUR:

1Koby Hermann[1], on 4 May 2023 at the County Court of Victoria at Bendigo, you appeared via Webex and you pleaded guilty to the following charges on Indictment No.M12316600:

·   Charge 1, sexual penetration of a child under 16 years.  That was between 1 June 2021 and 31 July 2021;

·   Charge 2, sexual penetration of a child under 16 years.  This was a rolled-up charge and occurred on 25 September 2021;

·   Charge 3, producing child abuse material.  Also a rolled up charge, and also occurred on 25 September 2021;

·   Charge 4, sexual penetration of a child under 16 years.  These occurred on 1 November 2021 and through to 2 November 2021;

·   Charge 5, recklessly cause injury, which was the 1 November 2021;

·   Charge 6, sexual penetration of a child under 16 years, which occurred on 1 November 2021 and through to 2 November 2021;

·   Charge 7, persistent breach of a family violence intervention order between 16 September 2021 and 13 October 2021.  There were nine occasions; and

·   Charge 8, persistent breach of a family violence intervention order between the dates of 14 October 2021 and 2 November 2021. There are 11 occasions on this charge.

[1] A pseudonym name.

2In relation to Charge 3 the maximum penalty for that is 10 years.  In relation to Charge 5 the maximum penalty is five years.  In respect of Charges 1, 2, 4
and 6, a maximum penalty of 15 years' imprisonment for each of the offences.  These offences are also subject to the standard sentencing regime.  In this case the standard sentence for those offences is six years' imprisonment.  In respect of Charges 7 and 8 they have a maximum penalty of five years' imprisonment for each offence.  You have no prior convictions.

The circumstances of your offending

3The prosecutor tendered the Summary of Prosecution Opening for Plea Hearing dated 16 January 2023.  It was read into the record of the court.  It was Exhibit “A”.

Background

4Your victim, who I shall refer to as DRR, was 14 years old at the time of your offending.  You were 20 years old.  You lived with your mother in a house in a regional town in Victoria.  The offending in this case occurred at your mother's home.  You knew that DRR was 14 years of age when you first met her which occurred on April Fool's Day, 2021.  You maintained a sexual relationship with DRR between 1 June 2021 and 1 November 2021.  You first met DRR's mother through a Facebook Messenger application on 1 April 2021.  DRR's mother and DRR picked you up from your mother's home.  In the course of your communications, you were told DRR was 14 years old.

Charge 1

5Between June and July 2021, DRR and two of her girlfriends went to visit you at your home.  The three girls waited at a nearby park until late at night when you told them to come to your home.  You were the only person at home when they arrived.  The three girls and yourself sat on the couch.  You laid down on the couch and DRR lay down beside you.  You were touching and cuddling DRR.  The other two girls left the room, leaving you and DRR alone on the couch in the lounge room.  You then had penile/vaginal sexual intercourse with DRR.  You wore a condom. This was the first time you had sexual intercourse with DRR.  You asked her to be your girlfriend.

6Later during 2021, DRR's mother became aware that you and DRR were spending time together.  By August 2021 DRR's mother was accusing you of having sex with DRR.  You denied it in Facebook Messenger communications between yourself and DRR's mother.

7On 9 September 2021, police applied for and were granted a family violence intervention order (“FV IVO”) at the Bendigo Children's Court.  Pursuant to the FV IVO, the protected person was DRR and you were the respondent to that application.  The conditions of the order included that you were not to contact or communicate with DRR by any means and you could not approach or remain within 10 metres of her or her home address and could not commit family violence against DRR.

8On 10 September 2021, Senior Constable Derecki served a copy of the FV IVO on you and explained the conditions to you.  You continued to see and contact DRR in contravention to that court order.  Around this time DRR told her mother she was in a relationship with you and that she loved you. 

Charges 2, 3 and 7

9On 25 September 2021 you were with DRR at your home.  You found a photograph of DRR's former boyfriend's penis on her Snapchat application on her phone.  You told DRR you wanted to make a video because she had photographs of her former boyfriends. 

10You then used DRR's phone to film four separate videos of you sexually penetrating DRR.  The videos were located on DRR's phone by police and the background was the lounge room of your home.  It also showed your distinctive tattoos. The video showed DRR's face.  Three of the video's showed penile/vaginal intercourse.  The fourth video showed you penetrating DRR's vagina with your penis and fingers.  All of the videos were made on 25 September 2021 between 4.57 am and 6.21 am.

Charge 8

11On 19 October 2021 you sent a number of text messages to DRR. 
On 23 October you again sent a number of text messages to DRR with statements of how much you loved her.  On 27 October 2021 you rode an electric scooter with DRR to her home.  All of these activities are and were in breach of the court order.

Charges 4,5, 6 and 8

12On the evening of 1 November 2021 DRR was at your home.  When she arrived, she saw that you had cut all of your hair off and that you appeared to be bald.  The two of you smoked a bong of cannabis which you had supplied.  You had penile/vaginal sexual intercourse on your bed with DRR.  You were not wearing a condom.  You asked DRR to have a shower with you.  DRR finally agreed to have a shower with you.  DRR told you her vagina was sore and swollen.  After the shower DRR got dressed.  You grabbed her around the neck with your hands and started strangling her.  DRR was having trouble breathing.  Eventually you let her go and you got her a glass of water.  You were behaving erratically and she wanted to leave your home.  You threatened to kill yourself.  DRR agreed to stay at your home.

13You then asked DRR about being with other men.  You became aroused. 
You ripped the footy shorts and underpants from DRR and penetrated her vagina with your penis.  You ejaculated inside her vagina.  You were not wearing a condom at that stage.  This is Charge 6. 

14You then both smoked cannabis and DRR stayed at your home for the night.  DRR's mother contacted the police early on 2 November 2021 and on the same day the police attended at your home at 7am.  Ultimately DRR left your premises with the police.  DRR had bruising on the front of both her legs.

15On that day after arriving home DRR told her mother what had happened that night, including the sexual penetration between the two of you and that you had strangled her and that you had threatened to kill yourself if she left.  DRR said her neck and vagina and legs were sore.  She became distressed, upset and was crying.  DRR told her mother that you had ejaculated inside her.  DRR said she did not want to make a statement to police because she loved you and that you would tell people that she had made a statement to police. DRR was subsequently medically examined at two hospitals. 

16Dr Christie-Johnson noted the examination of the skin on your neck showed multiple petechiae on the right side of the neck, right sub-supra clavicular region and scattered patches on the anterior bilateral upper chest wall.  The right upper deltoid had a circular mark located on the lateral aspect with approximately a 2 by 3 centimetres with central sparing. Dr Christie-Johnson took swabs and collected DNA specimens from various parts of DRR's vagina, which were labelled and sealed in separate envelopes.  The DNA swabs were subsequently subjected to forensic analysis which indicated the presence of sperm.  The DNA testing confirmed it was your sperm.

17Whilst DRR was in hospital you called and messaged her several times via Facebook Messenger.  This contact was in breach of the court order, which is a part of Charge 8.  The police forensically examined DRR's phone and your phone.  In the relevant period you made 190 phone calls or short messages in contravention of a family violence intervention order.

18On 8 November 2021 police located you at a friend's home.  You were hiding in a walk-in wardrobe at that house.  You made a no comment record of interview which of course is your right. 

19On 4 May 2022 DRR made a VARE, a video recording of evidence, setting out your offending.  On that day when DRR was asked why she had taken so long to make the statement she stated, 'I've always thought that I loved him.  I still feel like I do'.  The matter was resolved to a plea on 14 December 2022.  A committal had not been conducted by you.  The plea was originally listed for a plea hearing on 17 February 2023.  I am informed that you have spent 469 days' pre-sentence detention in respect of this matter.

Victim impact statements

20DRR filed a victim impact statement dated 20 March 2023.  It was Exhibit “B”.  DRR states in that statement she is terrified of you.  She sets out how she cannot sleep in her own room alone and now has trouble going down the street on her own.  She says she lives in fear.

21DRR stopped going to school.  She has fear of your family.  She attends a psychologist and has been diagnosed with PTSD.  DRR described the physical effects of your offending against her.  She has had some hospitality jobs since she left school.  She leaves the jobs if any of the customers become aggressive towards her.  DRR says your offending has changed her life.  She says she no longer feels safe or confident any more but needs company wherever she goes.

22DRR's mother also filed a victim impact statement.  It was Exhibit “C”.  DRR's mother confirmed the impact of your offending upon her daughter as it had been set out in DRR's victim impact statement.

Your personal circumstances

23You are now 22 years of age.  At the time of your offending, you were 20 years old.  You have no prior convictions.  I note in the report of Gina Cidoni, dated
9 February 2022, that you had offended sexually against a 16 year old girl whilst apparently on a bus on 7 December 2020.  On 2 June 2022, you were convicted and sentenced to an aggregate sentence of three months at the Ballarat Magistrates' Court for that offending.  Your offending in this proceeding occurred between your earlier offending and your sentence for that offending.

24You were born in Werribee and have lived in Landsborough and Maryborough.  Your parents separated when you were eight years of age.  You have lived with your mother since the separation of your parents.  Your mother suffers from poor mental health and until you were incarcerated you were acting as her carer.  You have an older brother and sister.  You have two children with different former partners.  Your children are aged six, and one and a half years old. 

25Your education concluded at Year 10 level.  You left school to look after your mother, who was actively suicidal at that time.  You have limited work in your teenage years as a fruit picker.  Your drug and alcohol abuse has interfered with your ability to obtain consistent employment.  In the course of your upbringing, you have experienced physical abuse at the hands of your father.  You have witnessed your father subject your mother to physical and verbal abuse. You reported to Ms Cidoni that you were sexually abused by a female friend of your mother when you were about 17 to 18 years of age.  You told Ms Cidoni your coffee was spiked by that person and that the sexual activity followed.

26You have smoked cannabis from 13 years of age and onwards.  At 16 years old you started on alcohol and then ice.  You have also used MDMA and ecstasy.  At 18 years of age, you commenced using GHB.  Drugs and alcohol have been a constant problem for you.

27You have been assessed by Ms Cidoni in respect of your risk of sexual recidivism she assesses you as, 'a medium risk of sexual recidivism without any formal intervention' as stated in her report dated 31 May 2022 at paragraph 75. 

28Ms Cidoni also diagnoses you as suffering from borderline personality disorder, PTSD with anxiety.  Ms Cidoni says this:

'He also requires support from reliable family members or other suitable contacts, who serve to monitor, containing stability, help normalise his interpretations and adaptively manage his emotions.  Meaningful occupation occurs by way of training and employment. 

Prison is onerous for many people and more so for Mr [Hermann], as it would cause many different symptoms in response, including intense emotional reactions, dramatic mood swings, intensely painful feelings of anxiety, distress and sadness and impulsive behaviours that can lead to dramatic conflict with others.  The isolation leads to rumination, distress and depressive episodes and self-harm'.

29In the final Cidoni report dated 7 February 2023 you give a history of being romantically involved with DRR's mother prior to offending against DRR.  That matter was raised during the course of your plea and you had been involved sexually with DRR's mother before she brought her own daughter to meet you.  As I have said before, you have served 469 days of pre-sentence detention in respect of these charges.  Your plans are to leave prison and obtain work in the mining industry in Stawell.

Sentencing considerations

30The basic purpose for which a court may impose a sentence of just punishment, deterrence, both specific and general, rehabilitation and denunciation of your actions and the protection of the community.  In sentencing you I must have regard to a range of factors such as the seriousness of your offending, your culpability for it and your personal circumstances. I am also required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure as far as possible that you as an offender are rehabilitated and reintegrated into society. 

31I am also required to take into account current sentencing practices in fixing your sentence.  That enquiry is directed particularly but not exhaustively to the kinds of sentences imposed in comparable cases and the statistics for those sentences.  I have considered the statistics in current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances and many of those cases would be distinguishable from your case, as indeed they are from one another.

32The standard sentencing regime applies to Charges 1, 2, 4 and 6 on the indictment.  The maximum sentence for Charges 1, 2, 4 and 6 is 15 years' imprisonment.  Pursuant to s5A and s5B of the Sentencing Act these charges are also subject to the standard sentencing provisions.  The standard sentence for these offences is six years' imprisonment.  The standard sentence only takes into account the objective factors affecting the relative seriousness of the offence of sexual penetration of a child under 16 years.  The maximum sentence and the standard sentence are to be taken into account as guideposts in the sentencing process.

33In s5B(3)(b), the Parliament enacted the standard sentencing provisions that are not intended to affect the approach to sentencing known as the instinctive synthesis.  In the case of R v Brown, Champion J set out the standard sentence is not to take a predominant role in sentencing, and is just one of factors to be taken into account.

34It follows that standard sentencing does not assume a dominant role in the determination of the sentence for your charges. The standard sentence prescribed by Parliament for the offences is simply one of the relevant sentencing factors to which the court must have regard, along with other sentencing factors identified, which are required to be taken into account in s5(2) of the Sentencing Act.  Further, insofar as a consideration of the current sentencing practices is concerned s5B(2)(b) requires a court when considering current sentencing practices for a standard sentence offence to only consider sentences previously imposed where the relevant offence was subject to the standard sentencing regime.

35The serious offender provisions of the Sentencing Act apply to Charges 3, 4 and 6 on the indictment.  Under the serious offender provisions of the Sentencing Act on your conviction and sentence to a term of imprisonment in respect of Charges 1 and 2, I am required on the sexual offences thereafter to regard the protection of the community from you as a principal purpose for which the sentence is to be imposed.

36If necessary, in order to achieve that purpose of protecting the community, I am empowered under s6D of the Sentencing Act to impose a sentence greater than is proportionate to the gravity of the offences.  This means that the sentencing task in respect of Charges 3, 4 and 6 on the indictment is to be undertaken on the basis that the protection of the community from you is a principal purpose for which the sentence is to be imposed.  To achieve that purpose a sentence may be imposed longer than that which is proportionate to the gravity of the offence considered in the light of the objective circumstances.

37Section 6E of the Sentencing Act also requires that unless I otherwise direct with respect to Charges 3, 4 and 6 on the indictment, the sentence I impose on you is to be served cumulatively. I note here that the prosecution, did not call for a disproportionate sentence or for the cumulation contemplated in s6D or s6E of the Sentencing Act, allowing for the matters I have and will outline in this sentence, in my view, it is appropriate to impose only the degree of cumulation to which I subsequently refer, reflecting as it does, several episodes of offending.  To do otherwise may produce a sentence which is not appropriate and is unjust.

38You have pleaded guilty to these charges.  Your plea of guilty was indicated at what I consider an early stage.  Your plea does have utilitarian value of allowing for the orderly and effective administration of justice.  There is a certainty of outcome and a resolution of the substantive issues raised by your offending.  Your plea allows for the preservation of the court and police resources to deal with other matters.  Your plea vindicates the public confidence in legal process set up to protect the community.  Your plea has also avoided the necessity for DRR and her mother to give evidence in your case.

39Your plea is also a clear acknowledgment by you that you accept responsibility for your criminal behaviour.  Your plea also recognises you are willing to facilitate the course of justice in the community and I accept that your plea of guilty to these charges indicates and demonstrates remorse on your part.

40Your plea of guilty is entered at a time when the courts and the criminal justice system is still under enormous backlog pressures due to the COVID-19 pandemic.  The Court of Appeal in the case of Worboyes v The Crown, reported at [2021] VSCA 169, stated that:

'A plea of guilty in pandemic times should attract a more pronounced amelioration of sentence than in ordinary times.  The sentencing court must ensure that a plea of guilty results in the perceptible amelioration of sentence'.

41I have taken that matter into account when finalising your sentence.  You were 20 years of age at the time of your offending.  You are now 22.  In chronological terms you are no longer a youthful offender, never-the-less you have spent from the age of 20 incarcerated.  You have by your criminal past denied yourself an opportunity to grow up and mature in mainstream society. 

42In the case of Mills, three propositions of sentencing were set out:

“i. Youth of an offender, particularly a first offender, which you aren’t quite, should be a primary consideration for a sentencing court where the matter properly arises.

ii. In a case of a youthful offender, rehabilitation is usually far more important than general deterrence.  This is because punishment may in fact lead to further offending.  Thus, for example, individualised treatment focusing on the rehabilitation is to be preferred.  (Rehabilitation benefits the community as well as you, the offender.)

iii. A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he's beginning to appreciate the fact of his past criminality. The benchmark for what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender and where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified. (This proposition has particular application on the general principles expressed in s5(4) of the Sentencing Act.)”

43In more recent times the Court of Appeal in Wyley's case has made pronouncements on the consideration of youth and sentencing practices.  In this case President Maxwell, as he then was, stated:

'Mills constantly reminds the sentencing courts and this court on appeal that there is a great public benefit in the rehabilitation of offenders and in maximising the prospect that the offender will carry on a law abiding life in the future. But the consideration is not unique to young offenders, nor is there any one correct answer as to how the balance is to be struck between that consideration and others which may point towards a longer period of imprisonment rather than a non-custodial sentence.  Thus understood, the latter cases in Lyonson and Nguyen are not to be viewed as excluding the principles of Mills, but simply as instances of how these principles are to be applied'.

44The offending in this case calls for due weight to be given to the principles of general deterrence and the protection of the community.  This was raised in a case of Azzopardi v The Queen where the court said: 

'The general proposition which flows from these authorities is that where the degree of criminality of the offences requires a sentencing objective of deterrence, denunciation, just punishment and the protection of the community, become more prominent in the sentencing calculus.  The weight to be attached to youth is correspondingly reduced.  As the level of seriousness of criminality increases there will be a corresponding reduction in the mitigating effect of the offender's youths, but only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation made and mitigatory considerations due to youth all be but extinguished'.

45Your counsel submitted that the principles of Bugmy's case have application in your sentencing process, and I accept that your upbringing and your family background has been less than ideal but it does not amount to the deprivation and disadvantage which activates the principles in Bugmy's case. 

46I accept that your diagnosis of borderline personality disorder and post-traumatic stress disorder with anxiety gives rise to the fact that your time in custody will; and has been more onerous than a person who enjoys normal mental health. 

47You also have a diagnosis of substance use disorder.  This diagnosis, combined with a medium risk assessment of sexual offence recidivism means that your prospects of rehabilitation are guarded.  You have, whilst been incarcerated and on remand, consistently engaged in programs to deal with your drug problem, combined with training programs to increase your chances of employment upon release from prison.  You will return to live with your mother when released.

48Your offending is serious.  The maximum sentence of 15 years' imprisonment for four of the eight charges on the indictment are a clear indication of the seriousness which Parliament places on this offending.  Further, the same four charges are subject to the standard sentencing regime with a six-year standard sentence for each of those charges.  The indicators of the level of seriousness are as follows. 

(1)  The age difference between yourself and DRR is six years.  DRR was 14 years of age.  You were 20. 

(2)  A breach of trust.  On this aspect you were in or had had a sexual relationship with DRR's mother prior to her introducing her daughter to you.  I see this factor as having limited consideration in the seriousness of your offending in terms of it being a breach of trust.

(3)  Sexual penetration charges continued over a period of some five months.

(4)  On occasion you did not use a condom, increasing the risk of pregnancy for DRR and the risk of sexually transmitted infections.

(5)  You used drugs during your meetings and/or liaisons with DRR.

(6)  On one occasion you took film of the sexual activity with DRR.  That filming was done on DRR's phone.  There is no suggestion in this case that you had access to that video film or were disseminating it to any other person.  She was the only person who had control of that film.

(7)  On one occasion you were violent to DRR by strangling and grabbing her in an aggressive manner.  This is the base sentence offence which occurred on 1 November 2021.

(8)  You persistently contacted DRR by phone and/or Facebook after a court order was made to prohibit you from having any contact with DRR at all.

(9)  You only ceased your offending when DRR reported you to her mother.

(10)   Both you and DRR thought you were in a relationship until the events of 1 November 2021.

49I take into account, as I have previously mentioned, that in 2020 you had sexually offended against a 16-year-old girl whilst travelling on a public bus.  This offending is not a prior conviction but you were sentenced whilst you were on remand for these offences.  You have served your sentence of three months' imprisonment whilst on remand, waiting the finalisation of these charges before the court.  Ms Cidoni has assessed you as being a medium risk of sexual recidivism.  You have been in custody continuously in adult prison since
8 November 2021, and I take that matter into account in terms of totality.

50At the time you were first incarcerated you were 20 years of age.  I have accumulated those parts of the sentences that reflect the seriousness of each offence whilst at the same time considering the sentencing principle of totality to ensure that a crushing sentence is not imposed upon you. 

51The sentencing principles of general and specific deterrence, just punishment, protection of the community, denunciation of your actions and your rehabilitation dictate that the only appropriate sentence is a term of imprisonment with a fixed non-parole period.  If you are granted parole the Adult Parole Board will supervise your rehabilitation. 

52Would you stand, please:

(a)   on Charge 1 you are convicted and sentenced to two years and six months' imprisonment;

(b)   on Charge 2 you are convicted and sentenced to two years and six months' imprisonment;

(c)   on Charge 3 you are convicted and sentenced to six months' imprisonment;

(d)   on Charge 4 you are convicted and sentenced to two years and six months' imprisonment;

(e)   on Charge 5 you are convicted and sentenced to six months' imprisonment;

(f)     on Charge 6 you are convicted and sentenced to three years' imprisonment.  That is the base sentence;

(g)   Charge 7, you are convicted and sentenced to six months' imprisonment;

(h)   Charge 8, you are convicted and sentenced to six months' imprisonment;

(i)     in the related summary charge of breach of bail charge, you are convicted and sentenced to one month's imprisonment.

53The cumulation order is as follows.  As I have previously announced, Charge 6 is the base sentence of three years' imprisonment, but to that, and cumulated on each other, from Charge 1, four months is to be cumulated on the base sentence and each other.  Charge 2, three months of that sentence is to be cumulated.  Charge 3, one month of that sentence is to be cumulated.
Charge 4, three months of that sentence is to be cumulated.  Charge 5, one month of that sentence is to be cumulated. Charge 7, one month of that sentence is to be cumulated, and Charge 8, one month of that sentence is to be cumulated.  That is a total effective sentence of four years and two months' imprisonment.

54I fix a non-parole period of two years and six months' imprisonment.

55But for your plea of guilty, this is a s6AAA declaration, I would have sentenced you to six years and three months with four years and two months' non-parole period for this offending.

56I declare you have served 469 days of pre-sentence detention in respect of the sentence I have just imposed.

57Pursuant to s6F you have been sentenced as a serious sexual offender for Charges 3, 4 and 6, and you are placed on the Sexual Offenders Register for life.

58Is there anything else?

59MS van DYK:  No, Your Honour.  I am just calculating, because my maths is atrocious, to make sure that the non-parole period is approximately 60 per cent of the head sentence, given, Your Honour, it is the standard sentence.  Is it
60 per cent?  It is, thank you, Your Honour, sorry.

60HIS HONOUR:  No, no, well, that is - - -

61MS van DYK:  Sorry.

62HIS HONOUR:  I can tell you it is two years and six months is 30 months and four years and two months is 50 months.

63MS van DYK:  Thank you.  That is a much easier way of calculating it.  Great, thank you, Your Honour.

64HIS HONOUR:  I will just repeat the cumulation.

65MS van DYK:  Yes, Your Honour.

66HIS HONOUR:  So I will do them one, two, three, four through to eight. 
So there is four months' cumulation for Charge 1, three months for Charge 2, one month for Charge 3, three months for Charge 4, one month for Charge 5, Charge 6 is the base sentence which is 36 months.  One month for Charge 7 and one month for Charge 8.  On my calculation that is 15 months.

67MR ROLFE:  That is correct.

68HIS HONOUR:  Thank you.  So that is a total effective sentence and then the non-parole period, as I say, is two years and six months.  Just so it is clear, the breach of bail, there is no cumulation for that offence.  thanks.

69I think the Sex Offenders Registration paperwork will come out shortly and I will hand that down and your client can sign it.

70HIS HONOUR:  Mr Rolfe, I would just ask if you could attend at the dock and show your client the Sex Offender Register order and he will have to sign it and my tipstaff will witness the signature.

71MR ROLFE:  Certainly, Your Honour.

72HIS HONOUR:  You will get a copy of this order, Mr Hermann.  Mr Hermann, the sentencing process is finished.  You do not have to listen to anything I have got to say, all right.  This period of incarceration is a big slab out of a young man's life.  I understand that.  You know that.  What I am saying to you now is that do the best you can whilst you are in gaol.  Get out, go home to Mum and look after her.  She is here, listening to this.  Go home and look after her and get yourself a job.  You have got a life outside of this system.  You are a young man.  No fun being dressed up in a green uniform.  You have got better things to do with your time.  You will have challenges with your brother and maybe Dad.  You have got to stay strong about that.  Is there anything further?

73MS van DYK:  no, thank you, Your Honour.

74HIS HONOUR:  Thanks, counsel, for your assistance.  I will sign these orders and you will see your client downstairs, Mr Rolfe, is that the deal?

75MR ROLFE:  I have already spoken to him, Your Honour.

76HIS HONOUR:  All right.  Good, thanks.  Just sometimes it is difficult to get access to your clients. Thank you, counsel.  You can remove the prisoner.

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