Director of Public Prosecutions v Hore
[2022] VCC 663
•13 May 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT GEELONG
CRIMINAL DIVISION
CR 21-02682
Indictment No. M11716982.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL LESLIE HORE |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 May 2022 | |
DATE OF SENTENCE: | 13 May 2022 | |
CASE MAY BE CITED AS: | DPP v Hore | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 663 | |
REASONS FOR SENTENCE
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Catchwords: Supply drug to child (x2) - use carriage service to transmit indecent communication - summary offences: Fail to report pursuant to Sex Offender Registration Act2004 (x3), fail to comply with police direction re passcode - 34 years old at time - quite lengthy criminal history - early guilty plea – Worboyes - COVID-19.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A Moore | Office of Public Prosecutions |
| For the Accused | Mr D. Langton (at Plea) Mr A. Paull (at Sentence) | Adrian Paull Criminal Lawyers |
HIS HONOUR:
1 Michael Hore, you have pleaded guilty to two charges of supplying a drug of dependence to a child and one charge of use of a carriage service to transmit an indecent communication. There are also four summary offences being three charges of fail to comply with your reporting obligations under the Sex Offenders Registration Act 2004 and one charge of fail to comply with a police direction in relation to a data storage device.
2 You have a criminal history. You are 35 years of age born in August 1986.
3 You have been in custody since your arrest on 14 August 2021.
4 The summary marked as Exhibit A sets out the maximum penalties. They are all correct other than the maximum for the Commonwealth offence. The actual maximum is 10 years not the 15 years that is mentioned in that document.
Facts
5 On 2 May, Mr Moore who appeared to prosecute on the plea relied upon a written summary of prosecution opening that was dated 29 April 2022. That was, as I say, marked as Exhibit A. Your counsel Mr Langton told me that it was an agreed statement.
6 I see no need then to set out the full sentencing facts in these my reasons. I will sentence pursuant to that agreed summary. It is pretty straightforward.
7 By way of only very brief summary then, you connected up with two young girls. They were 12 and 13 years of age. Those two young girls were friends and the younger of the two was at the time of the first charge (May 2021) living with her mother at the Best Western Hotel in Geelong. It would seem the mother was escaping from some sort of domestic violence setting, though nothing hangs on that at all. That was just the setting. You were living in Happy Valley with your parents and you were living therefore quite some distance away. How then did a 34-year-old man connect up with girls of this age and why for that matter? Well the how is easy enough to answer. You were using a Facebook profile in your name and engaged in conversation over Facebook messenger. You offered to pick these girls up and in fact, you did so. As I say, you lived in Happy Valley, they in Geelong, so it was a decent enough trip that you were prepared to make. Having picked them up after midnight, you drove the two girls in the backseat of your car to Bannockburn, stopped the car and pulled out a bong and some cannabis. You then supplied them with that bong and that drug. The supply of the drug is the subject of Charges 1 and 2. The setting of that supply is relevant. As I say, you picked them up and then driven them in the early hours of the morning a distance from their home in Geelong. Their ages are relevant, so too yours. This was not an 18-year-old spontaneously offering up a joint at a party to a child close in age. You were 34 years old. Having given them the drug, they became drowsy and fell asleep and you drove to a rural property in Skipton at which point they awoke. The summary sets out what took place in the remainder of the night leading to their being dropped off back at the hotel at around 7 am.
8 An adult ‘got wind’ of what had happened.
9 Charge 3 relates to sending a photo of an erect penis to the 12-year-old girl. This did not take place in a vacuum. The summary discloses that between 22 June and 22 July, you had used Facebook messenger and sent several messages to the younger girl and made several audio calls which were not answered. On 22 June, you sent the indecent image which is the subject of Charge 3. The messages, or at least some of them, had an unmistakeable sexual flavour, as is conceded by your counsel.
10 That summary then sets out how this wound up in the lap of the police and the nature of the investigation, including the circumstances of your arrest.
11 You were interviewed by the police twice, once where you told a number of lies about having no contact with any girls in your car, not having any in the car or using drugs or even having a bong and one interview, where you chose to no comment. It was your right to do each of these things of course. It is not a matter in aggravation that you lied or exercised your rights. The summary also sets out the listing chronology of the matter before the court.
12 So much then for what is really only a short summary of the summary. I sentence pursuant to the more detailed agreed written statement which was marked as Exhibit A. Plainly enough, I must not sentence you for the improper alleged touching mentioned by either girl in their VARE’s. So indecent touching following on from the use of the cannabis. There had been charges of sexual assault, but they have not proceeded. The matter has resolved on the factual basis set out in the agreed summary. Nor for that matter in relation to Charge 3, can I deal with you for the offence of grooming or using a carriage service to procure a sexual act. I am dealing with you for the sending of that image, though your counsel concedes the other communications spell out a context, being one of some obvious sexual interest or attraction to that 12-year-old girl.
Impact
13 There are no impact statements here.
In Mitigation
14 Your counsel Mr Langton conducted the plea on your behalf and relied upon a written outline dated 2 May 2022.
15 He took me to your personal and family background, as well as your educational and employment history. He also made submissions about your past offending, as well as your prospects of rehabilitation. He made submissions as to the relative seriousness of the offending.
16 He relied upon the following matters in mitigation:
· Your early guilty plea in the midst of the global pandemic;
· The presence of some remorse to be implied from your guilty plea;
· An increased burden flowing from your concern about your parents' serious health predicaments; and
· The impacts also of COVID-19 upon your custodial experience to date.
17 Your counsel conceded the inevitability of a prison term, but argued that a term equating with or close to that period of pre-sentence detention, in combination with a community corrections order would be open, or perhaps a head sentence with a non-parole period falling in that zone. He was arguing implicitly that your release or possible release might be secured in the not-too-distant future.
Prosecution
18 The prosecution was calling for a prison term with a non-parole period and Mr Moore pointed to the age of the two children who were supplied the drugs, the circumstances in which they were supplied drugs and the effect of the drugs upon them, submitting that it was a mid to high end example of the offence. As to the summary offences, he argued that unlike some related summary offences which come before the court, which were almost sundry and just involved a mopping up exercise, these ones represented serious enough criminal conduct, where you had failed to comply with your known obligations under the Sex Offenders Registration Act and deliberately ignored a direction made by the police in relation to your device.
Background
19 I turn to your background and I will do so briefly, as I have no reason to doubt the details of your personal and family background placed before me in the written and oral submissions.
20 Very briefly then, you were born in August 1986 and you are now 35 years of age. You are the youngest of four children with two sisters and a brother. You grew up in the Ballarat area and had pretty limited education, passing Year 8 at a local secondary college. You had, and still have, limited literacy skills and have not gained any formal qualifications. You have been working since you were 14 or 15 years of age, initially in welding. You have worked in a range of hard jobs, including at abattoirs and as a factory hand. You have also worked doing farm jobs and woodcutting and would like to start your own business cutting wood. You had a serious car accident in 2005. The written submissions detail some of your criminal history. Your counsel expanded upon the detail of some of that past offending in his oral submissions. You have prior convictions for serious driving matters, as well as for violence offences. You also have a prior conviction for trafficking in drugs. You have been sent to prison on a number of occasions, though not for some years. You have breached a number of court orders. I note that there are no previous breaches of your obligations under the Sex Offenders Registration Act. Up until the time of your arrest, you were living with your parents and caring for them. They are neither of them in good health at all and you understandably worry about them. You have three children of your own and you have maintained contact with them.
21 I have the sentencing remarks of Judge Crossley marked as Exhibit 2. It was he who dealt with you for the crime of sexual penetration of a child back in 2007. You were 18 and your victim was 15, almost 16. It was that conviction undertaking to be of good behaviour, which triggered your reporting obligations under the Sex Offenders Registration Act for 15 years. That sort of contact between people of those relative ages is not that unusual. Your preparedness as a 34-year-old to be communicating with, picking up, and supplying drugs to children who were 12 and 13 years of age and then sending an indecent image to the 12 year old is more troubling.
22 I accept that the offending before the court does represent the only known failures to comply with your obligations under the Sex Offenders Registration Act. They were serious enough failures though in my view. You have been on remand at John Hopkins Correctional Centre.
23 Though by no means the longest of criminal records, your criminal history is still relevant to my task. I must pass proportionate sentences here and you do not fall to be sentenced a second time for any of that past offending. You received those sentences in the past and served them. Undoubtedly though, those matters have some relevance to my task, as I have to make judgements about your risk of reoffence, your prospects of rehabilitation, the need to deter you from future offending, as well as the need to protect the community from you.
24 I turn then to consider the other matters raised by your counsel.
Guilty plea
25 The first of those matters is your guilty plea. I will treat it as a plea at the earliest opportunity, given the existence of sexual assault charges which did not ultimately proceed, and the interruptions brought about by COVID-19. There was no committal here. None of your victims have had to be subjected to any court sequel. By pleading guilty, you have taken early responsibility for your offending.
26 As a result, the time, the cost and the effort of a committal hearing in the lower court or a trial up in this court, has been avoided. Witnesses have not been required to give evidence. That is important as it can be a distressing experience giving evidence before a court.
27 You have in these various ways then facilitated the course of justice.
28 Your guilty plea is worthy of extra weight for the many reasons set out in the decision of Worboyes.[1] There is a large backlog of cases waiting for a hearing. Your case is not one of them.
[1]Worboyes v The Queen [2021] VSCA 169
29 So I take these various matters into account in mitigation.
Remorse
30 Your counsel pointed to your plea and argued that there was some remorse in this case. Well you lied to the police and you denied any role in collecting or having young girls in your car or providing drugs to them. In your later interview, you no commented. As I said earlier, it was your right to do both these things. I asked your counsel if there was anything other than your plea indicative of any remorse and he said there was not. I am prepared to accept there is some limited remorse to be implied from your plea. I am certainly not satisfied that it is fulsome in this case.
31 I take the existence of some limited remorse into account in your favour.
Rehabilitation
32 I turn now to your prospects of rehabilitation. I was told by your counsel of an outstanding driving matter which I put aside altogether.
33 As to your prospects, it is a bit hard not to be guarded here, given the nature of this actual offending. There really is no sensible explanation placed before me as to why you are online engaging with a child, why you chose to meet these two and collect them in your car to drive them away from Geelong. No explanation as to why you chose to supply drugs to them or send the 12-year-old an indecent image. All of this was done by a man who was subject to the obligations existing under the Sex Offenders Registration Act. You lied to the police about having a new phone, but when they made it clear they knew you had one, you then indicated it was under the car seat. That was a phone you had to report. You had not. You deliberately chose not to comply with the direction to provide the passcode. You had an email address and a username which you failed to report. You had no business having any dealings with a child, without reporting it in a timely fashion and yet you chose to, providing drugs in the setting I have described and then sending the image. I must say, I feel I know very little about what actually makes you tick.
34 You have pleaded guilty at what I will treat as the earliest stage and as I have said, you have some limited remorse. I hope and trust that the time you have served to this point in prison, quite difficult time in the course of the global pandemic, and the time that lies ahead will have some role in deterring you from future offending.
35 Having considered all of the materials, I am prepared to find that you have reasonable prospects of rehabilitation.
COVID-19
36 At the end of the plea, there had been no mention of any COVID-19 increased burden in this case and so I asked your counsel if that was, to any extent, relied upon. It was.
37 It is clear to me that that the COVID-19 virus and the response to it by those running the prisons has increased your burden, as it has for most prisoners. Prison has undoubtedly been a more stressful environment in the time that you have been there to this point and that is for a period exceeding 270 days. Social distancing has not been easy. No doubt there has been worry about catching the virus in such a setting where, unlike someone in the community, there is no level of autonomy. There have been some lockdowns and no doubt, not the full range of courses.
38 Given your reception date back in August 2021, you would have had some limitations to visiting and courses in much of the period in which you have been held.
39 It has not been a good time to be locked up.
40 On the COVID front though, things have looked up, both in the community and in prisons. Personal visits resumed for prisoners from March.
41 What lies ahead in the future is really impossible for me to determine. Those whose job it is to run the prisons, will be able to reflect on the impact of any past and ongoing limitations on a case-by-case basis. In relation to the State sentences that I will be imposing, they will have the power to address any increased burden in your case, by way of conferring emergency management days. I cannot know if that will take place or not and I do not proceed on the assumption that it will. So I cannot know and to take it into account would be to contemplate 'executive action' which of course is prohibited.
42 I take into account the increased burden posed by the response to COVID-19 in the ways contemplated by your counsel in his brief oral submissions on that topic.
Family hardship
43 Submissions were made about the known health issues of your elderly parents and the likelihood it would increase your prison burden. Those arguments proceeded on the assumption that there was a need to demonstrate exceptional circumstances before third party hardship could be taken into account. Your counsel was not suggesting it rose to that level here and plainly it did not. However, since the date of the plea in your matter, the recent grant of leave by Kyrou JA in one of my matters, the case of (Rodgerson[2]) has directed my attention to a recent pronouncement in the NSW Court of Criminal Appeal as to the interpretation of section 16A(2)(p) of the Crimes Act 1914 (Cth). That provision relevantly provides that in sentencing a person for a Federal offence, in addition to any other matters, the court must take into account certain other matters ‘as are relevant and known to the court’. Those matters include ‘the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants’. In that NSW case of Totaan[3] a five-member bench of the New South Wales Court of Criminal Appeal determined that decisions holding that a court imposing a sentence for a federal offence may only have regard to hardship to a family member or a dependant where the circumstances of hardship satisfied the epithet ‘exceptional’, are plainly wrong and should no longer be followed. In the light of Totaan, the Crown conceded in the Rodgerson leave application, that leave to appeal should be granted, in relation to the relevant ground, being Ground 4. That is yet to be determined and as far as I am concerned, the legal position currently in this State requires that exceptional circumstances be established before third party hardship can be taken into account. That is plainly the position in relation to any of the State matters that I am dealing with, as that is not informed by the provisions of the Crimes Act (Cth) and is in no way impacted by that decision of Totaan. So I take into account your increased burden flowing from your knowledge of your parents health predicament. However, given that recent concession by the Crown in the case of Rodgerson, and more significantly, the concession made before the NSW Court Criminal of Appeal, and the fact that the issue remained undecided in this State, I will proceed on the most favourable basis to you and take into account, not just your prison burden, but the impact upon your parents as well in relation to the Federal matter. It is not a large matter at all actually, as there is very little before me as to the impact upon them. But I do accept, given their age and health situation, that your absence will have had and will continue to have some impact on them, and I will take that into account.
[2]Rodgerson v R [2022] VSCA 82
[3] [2022] NSWCCA 75
44 That is probably unduly favourable to you, but it seems to me better to err in that direction. As I discussed earlier, before commencing these reasons, I had an email sent to the parties advising of these two decisions and asking if anyone wished to make any further submissions or provide any evidence and no one did. Mr Langton emailed back the court indicating that he did not wish to be heard. No doubt that is because it is not a sizable matter. The written submissions noted that your sister was apparently picking up some of your duties. So no doubt that has, to some extent, eased the impact upon your parents
General
45 I turn to some general matters. I am required to take into account a large range of matters, including the maximum penalty and the nature and gravity, as well as the impact of the crimes. I note that the maximum penalty for the supply of drug charge is 15 years and 10 years for the Commonwealth matter.
Current Sentencing Practice
46 I am required to take into account current sentencing practices. Current sentencing practices are only one factor amongst many and they are not a controlling factor. There are very few examples of sentences imposed for the charge of supplying a drug to a child. Very few. I have looked at a variety of materials. I have looked at the online statistics for that offence. The statistics disclose a very high custodial sentence rate with sentences spanning periods of under one year, to between five and six years.
47 I have looked also at the Judicial College of Victoria sentencing manual case collection of sentences for that crime, which are set out in what is a miscellaneous section dealing with drug offences. Again, there are very few examples.
48 I am well familiar with the sentencing practices for the Commonwealth offence. That is a common enough offence brought before this court. So too am I familiar with sentencing practices for the Sex Offender Registration Act offences and the offence related to failing to act on the police direction.
49 Statistics have got inherent limitations and of course they say nothing at all about the individual features of any case. They say nothing about the offender. Nothing about the crime.
50 Other cases, even comparable ones, if one can find them, have significant limitations.
51 And as, because what I must do is pass an appropriate sentence in your case for your crimes.
52 That outcome will never be driven by what has happened in other cases, or by what the statistics might disclose as to what has been most commonly done in the past.
Purposes
53 I have to take into account the various purposes of sentencing. Now I am dealing with both State offences and a Federal offence. There is a different sentencing regime in the Commonwealth sentencing exercise, but very much the same principles come into play. They are set out in the relevant provisions of the Crimes Act 1914 (Cth), including section 16A(2) of that Act. There is sometimes different wording or terminology that is employed in the Federal sphere. I will continue to express myself in language more akin to a State sentencing task, but I take into account all the relevant Commonwealth sentencing factors that I am required to.
54 Rehabilitation is a relevant purpose. I give that purpose due weight here. You have reasonable prospects of rehabilitation.
55 But it is not the only purpose of sentencing here. It would be given more weight if you were younger and with a lesser criminal record.
56 Punishment is a relevant sentencing purpose. You must be punished for your crimes justly and proportionately and the gravity of these crimes is not aggravated by your having that` prior criminal history which I have mentioned.
57 I must also denounce your conduct. You just must not supply drugs to children. It is a serious crime to do that. So too sending an indecent image to a 12-year-old or breaching your responsibilities under the Sex Offenders Registration Act.
58 Community protection is also plainly of relevance to my task here
59 Specific deterrence relates to the need to deter you and again, it is obviously of some importance in this case. You must be deterred from offending in the future. Courts have tried in the past to deter you with limited success. Plainly, I must deter you. Some of these acts involved clear and deliberate breaches of your obligations under the Sex Offenders Registration Act.
60 You made a conscious decision to drive quite some distance to pick up these girls. You then supplied them with drugs. You sent this image to that 12-year-old. You knew what you were doing was quite wrong and quite illegal. You knew that you had to report contact with children. You had to report various other matters under the Sex Offenders Registration Act and you failed to do so. You must be deterred.
61 I accept that being arrested and remanded in custody for as long as you have been, has not been easy, especially in light of your parents’ predicament. I am sure that this time to date has had some role already in deterring you. I also believe that the sentence I will soon impose, which will extend your stay in custody, will also serve to further deter you.
62 General deterrence relates to the need to deter other offenders in the future. It is an important sentencing purpose in this sort of case. That is accepted to be so by Mr Langton.
63 The courts have a role in deterring other people in the community who might be minded to commit these types of serious offences. The supply of a drug to a 12- or 13-year-old child is no joke. It is a serious crime. The maximum penalty should make that clear enough to you. So too the sending of the image and the failure to honour your obligations under the Sex Offenders Registration Act. When police require you to provide a passcode or password, you must comply. You had no right to refuse. You chose not to provide the code here and it is quite apparent that you were exercising a calculated choice in doing that.
Gravity
64 I have to pay regard to the gravity of the offences before the court.
65 I have already mentioned some of the features which, in my view, make this a serious enough example of the offence of supplying a drug to a child. The age of the children, the steps you took, the setting of the supply in a private vehicle many miles from where they lived and the effect of the use of the drug. It was no minor offending, Mr Hore. Quite deliberate. Quite premeditated. The image you sent was a single one and I take that into account but it was a pretty bad image to be sending to a 12 year old girl. Your breaches of the Sex Offenders Registration Act were not minor. Nor the decision to refuse to provide access to your device.
66 I take into account, as I must, the principle of totality. The first two charges occurred in that single episode where you provided drugs to each of the young girls. I believe that an aggregate sentence is open in such a case as that, but it will obviously reflect the fact that two girls were provided the drug in that setting. If I was not aggregating, I would impose two identical sentences and then make an order for some very modest cumulation to reflect the fact of their being two children. The same end destination is reached by passing an aggregate sentence on those two offences. There is no real relationship between those two charges and the third. It was about a month later and a very different style of offence. The summary offences occur on a variety of dates and with the exception of Charge 10, bear no real overlap with the other offending. Charge 7 related to failing to report the new mobile number and email address and username and that was on 3rd August. Charge 10 connected up in part with the meeting with the two girls by your failure to report child contact. Charge 12 related to the 14th August where you had failed to notify your address and the final charge related to your failure on the 14th August to provide the code to your device. So this is not some single episode of offending deserving of complete concurrency and nor was your counsel suggesting it was. I regard the supply of drugs as comfortably the most serious of the charges.
67 I have engaged in a last look at the effect of the sentences and the orders for cumulation to satisfy myself that the overall effect of sentence is commensurate with your overall criminality. There must be some cumulation in relation to the Commonwealth offence and it is not as easy as just pronouncing it, though it should be. Indeed the Commonwealth sentencing regime is to my mind quite hellish. It does not get much harder than when there is a mix of State and Commonwealth offences as there is in this case and a need to produce a level of cumulation. It brings into play all the difficult issues spoken of in the Court of Appeal decision of Swingler.[4] In that case, the Court of Appeal said the following: “this entire area is fraught with unnecessary complexity and is full of hidden traps for the unwary.”[5] Well, as far as I am concerned it is not just the unwary. I have spent hours trying to negotiate my way around these traps. Courts have over more than 30 years complained loudly and frequently about the unwieldy nature of the Commonwealth sentencing regime, especially in a setting where there is a mixture of State and Federal matters as here. The Court of Appeal in Swingler cited criticisms expressed in a case of Carroll[6] from 1991, where the Court of Criminal Appeal as it then was in that year, expressed strong criticism for what they described as this ‘legislative jungle’ that has been created. That Court 30 years ago spoke of the many wasted hours of time various people spend threading their way through this jungle. It seems not to matter how many times concerns are expressed or how many times the need for legislative reform is raised. Nothing is done and so it is I am the next person to weave my way through this ridiculous jungle and have the additional misfortune of having to try to explain to you the structure of the sentence that I have selected, having spent some hours seeking to understand the options open. Knowing the end destination is not too difficult in this case. Knowing how to arrive at it with appropriate orders is much harder. It should not be, but it is.
[4]DPP v Swingler [2017] VSCA 305 (“Swingler”)
[5] Ibid at [82]
[6]R v Carroll [1991] 2 VR 509
68 Prison is a disposition of last resort and that is so whether I am considering the State exercise or the Commonwealth one. Your counsel concedes it is warranted here. A court must never impose a sentence which is more severe than is required to achieve the purposes of sentencing. I do not accept that this offending can be dealt with by a combination sentence with a prison term equating to or close to your existing pre-sentence detention with release onto a Community Corrections Order. Such an outcome would not achieve the purposes of sentencing and would give inadequate weight to a number of purposes including denunciation, specific deterrence, community protection and general deterrence. The offending is too serious for that mooted outcome. I accept that a head sentence is required and one of a dimension where I must fix a non-parole period. Whether you get parole is not a matter that I can consider. That will really be between you and the State Adult Parole Board.
69 Again though, there is the difficulty presented by the existence of a Commonwealth offence, one that is deserving of a sentence with some level of cumulative effect but also one of a magnitude which would normally attract a release mechanism by way of a Recognisance Release Order. That is the position for any sentence in the Federal sphere that is greater than six months. The sentence itself must be in part cumulative, or produce a cumulative effect, upon other sentences but it is being imposed in the setting of a State sentence being imposed for more serious offences which will require the fixing of a State non-parole period. That State non-parole period has no role to play at all as a release mechanism for any Commonwealth sentence. I cannot just make an order for cumulation of the Federal sentence and then make a single non-parole period. I have considered the three approaches referred to in that case of Swingler as set out at paragraph 78 of that judgment. I have at one point considered sentencing in order of the charges on the indictment, imposing State sentences, with the Commonwealth offence commencing immediately and then making some form of cumulation order of the State sentences upon the Federal sentence to engineer the appropriate level of cumulation. I am not at all confident that outcome is open as a matter of law. There is some suggestion in the Judicial College of Victoria manual that there is no such ability to cumulate in such a setting with reference to a case of O’Brien[7]. I have considered passing the State Sentence and the non-parole period, fixing the Commonwealth sentence to commence either at or prior to the expiration of the State non-parole period with a recognisance release order conditioned upon your immediate release at that time from the service of the Federal sentence. That outcome would extend the notional global sentence but it would have you eligible for release on parole from that moment of parole eligibility. If there was no such release mechanism, then the Commonwealth sentence would then impact upon the ability of the State Adult Parole Board to order any release on parole even if you had reached the end of the non-parole period.
[7]R v O’Brien (1991) 57 A Crim R 80
70 In the end, I have taken the view that it is open to me to impose the sentence on the Commonwealth matter first. You will then be undergoing a Commonwealth sentence and I can then apply to my task the provisions of s16(4) of the Sentencing Act. It is only those provisions that permit a court to direct when the State sentences will commence. Otherwise, State sentences commence on the day that they are pronounced (by virtue of s17 of the Sentencing Act). I understand some question marks were expressed in Swingler as to the approach that I will be adopting and the potentially problematic nature of this exercise. However, I will take my chances on that score. At least these reasons will explain what I intended to achieve and that I was not lacking in diligence in endeavouring to understand and comply with these ridiculous legislative requirements. I have done my best but I join the long line of Judges to plead for some legislative reform in this area. Yet again a Judge of this court has spent many wasted hours seeking to satisfy the strict legal requirements. It is a massive waste of time and money and frankly, sentencing is hard enough without this added nightmarish legislative tangle that I have described.
Sentence - Commonwealth sentence
71 Turning first then to the Commonwealth charge on the Indictment, so that is Charge 3 on the indictment. I am going to pass sentence in relation to that matter first. I can only pass a sentence of imprisonment if, having considered all other available sentences, I am satisfied that no other sentence is appropriate in all the circumstances of the case.[8] Well, that clearly is the position here. I have no alternative but to impose a term of imprisonment.
[8]Section 17A(1) Crimes Act 1914 (Cth)
72 On that charge, Charge 3, I convict you and I sentence you to a period of 10 months’ imprisonment. That sentence will commence today. I will declare that this order is now entered into the records of the Court.
73 The total effective sentence then in respect of the Commonwealth charge is therefore 10 months’ imprisonment, because of course, there is only that single charge.
74 I do not propose to fix a Recognisance Release Order in view of the fact that you shall soon be sentenced to terms of imprisonment in respect of the State charges on the Indictment and also in respect of the summary charges related to those State charges. In those circumstances I have a discretion not to order a Recognisance Release Order by virtue of s19AC(3) and (4) of the Crimes Act 1914.
State sentences
75 I shall now turn to the State sentences, firstly for those two remaining charges on the Indictment, and then the related summary charges. I will now sign and pronounce the disposal order in this case.
Disposal
76 Application is made for the disposal of the phone that is referred to in the Schedule attached to the order. Application is made pursuant to s78(1) of the Confiscations Act, with a forfeiture to the State of that property. I am satisfied that the conditions set out in s78 are satisfied here. There is no opposition to the making of this order and I order the forfeiture to the State of that property and I direct that it be held and managed in the way contemplated by that signed order.
77 As I say, you will lose track of this. I will explain to you the overall effect of these orders in due course, all right? So I have sentenced you to 10 months' imprisonment in relation to the Commonwealth matter and that order has been entered into the records of the court.
State charges on Indictment
78 On Charge 1 and 2 on that same indictment, as I have already said, I believe an aggregate sentence is both open and appropriate. On those two charges of supplying a drug of dependence, you will be convicted and sentenced to an aggregate period of two years and three months' imprisonment. That will be the base sentence.
Related summary charges
79 On the three summary charges relating to failure to comply with your obligations under the Sex Offenders Registration Act, (so Charges 7,10 and 12) you will be convicted and sentenced to an aggregate period of six months' imprisonment.
80 On the final charge relating to failing to comply with the direction issued by the police member, in relation to the data storage device, you will be convicted and sentenced to four months' imprisonment.
Cumulation - State charges
81 Let me then deal with the orders for cumulation I am going to make in relation to the State matters. I have already indicated that there is a need for some cumulation here in relation to the State sentences that have been imposed.
82 I direct that two months of the six month aggregate sentence imposed on the three Sex Offenders Registration Act summary offences and two months of the four months imposed on the other summary offence be served cumulatively upon the two year three month State base sentence and upon each other.
83 Therefore, the total effective sentence for all the State charges will be two years and seven months or 31 months' imprisonment.
Federal and State charges
84 As I have already indicated, I consider it appropriate in all the circumstances to make orders which have the effect of producing some degree of cumulative effect. The Commonwealth offence was a quite separate and discrete offence. It was a serious enough offence occurring on a quite separate date.
85 In the circumstances I believe there should be three months' cumulation arrived at, but of course, as I have said, it is not as simple as simply pronouncing cumulation. That period will be achieved in the following way.
Commencement of State sentences - s16(4) Sentencing Act.
86 I direct that the Total Effective State sentence that I have imposed will commence after you have served three months of the Federal sentence which was imposed on Charge 3. It is that order that produces that measure of cumulative effect. I make that order pursuant to s16(4) of the Sentencing Act given that you are undergoing a Federal sentence on Charge 3.
Global intended effect
87 Accordingly then, the overall Total Effective Sentence imposed this day, taking into account all of the sentences imposed in respect of the Commonwealth and the State charges is two years and 10 months’ or 34 months' imprisonment.
Non-parole period
88 Because I cannot fix a single non-parole period to cover both the Commonwealth and the State sentence, and because I decline to release you on a Recognisance Release Order in respect of the Commonwealth charge, as service of the State sentence will commence seven months before the expiration of that Commonwealth sentence, the non-parole period I intend to fix in respect of the State sentences might appear to be disproportionate, however the period will take into account the totality of all periods of imprisonment imposed today. So, it takes into account the three months Federal cumulation produced by my various orders.
89 In respect of the total effective State sentence, I direct that you serve a minimum period of 18 months before becoming eligible for release on parole.
90 So let me explain, as I have to, under the terms of the legislation[9], my order. Taking into account all the sentences imposed this day, the overall effective sentence is two years and 10 months’ imprisonment. There is no Recognisance Release Order made in respect of the Commonwealth charge. The State non-parole period has been adjusted to take into account the fact that you will not commence serving your State sentence until three months of the Commonwealth sentence has been served. The State non-parole period is 18 months, noting that this period commences the same day as the total effective State sentence commences. In short then, the overall head sentence is 34 months or two years and 10 months. So, viewed globally, you will not be eligible for possible release from prison until after you have served 21 months’ imprisonment being the first three months of the Commonwealth matter and then the 18-month non-parole period, which I have fixed. As I have said, I can make no assumptions about whether you will then be released on parole. That will rest in the hands of the State Adult Parole Board. I am sorry to have had to explain this tortured approach and no doubt, your own counsel will explain further the details of what I have done, but I hopefully have explained it in such detail that you will understand the overall effect.
Direction under s17A(2)(b) Crimes Act 1914 (Cth)
[9]Section 16F(1) Crimes Act 1914 (Cth)
91 Having come to the conclusion I have no alternative but to impose a term of imprisonment in respect of the Commonwealth charge, under the provisions of s16A(2)(b) of the Crimes Act 1914 (Cth), I direct that my reasons be entered into the records of the Court.
Declaration of pre-sentence detention under s16E Crimes Act 1914 (Cth)
92 Further, under s16E of the Commonwealth Crimes Act, together with s18(4) of the Sentencing Act 1991 (Vic) I declare that the total period of 272 days be reckoned as time already served under this sentence and that declaration is to be entered into the records of the court. So, just so you understand. You obviously get the credit for that period you have already served.
6AAA
93 I have taken into account your guilty plea. If you had pleaded not guilty and been found guilty of these offences by a jury, I would have sent you to prison for four and a half years. I would have by various orders provided for a period of three years for you to serve prior to being eligible for release and that declaration likewise is to be entered into the records of the court, pursuant to s6AAA.
Sex Offender Registration
94 You have been sentenced by me in relation to one Class 2 offence under the Sex Offenders Registration Act2004. However, you have been dealt with in the past for a Class 1 offence, as you well know. It was that Class 1 offence which triggered your previous 15-year reporting obligation.
95 As a result, upon your eventual release from custody, you must comply with your reporting and other obligations under the Sex Offenders Registration Act for the rest of your life.
96 Now, let me just check. Is there an envelope now in front of you, or not? Yes, all right. In that room then, there is a document that, as I understand it, explains your obligations under the Act. You know what they are anyway, of course. I wonder if you could look at that document, please.
97 Now, I have signed that document already and you are going to need to acquaint yourself with that in the future, Mr Hore. I am not expecting you to do it now, it is a lengthy document, but at this stage, all I am doing is providing it to you for you to sign and acknowledge that you have received those explanations as to your responsibilities under that Act.
98 As you know, because you have been subject to these responsibilities in the past, The Sex Offenders Registration Act imposes a number of conditions upon you. They are serious matters. They include impediments to future employment in a number of areas. There are some serious impediments to your future contact with children, as you know. You will really need to once again familiarise yourself with those matters, as you are learning today, any breach of the Act or your reporting obligations, is itself a serious criminal offence and one punishable by a term of imprisonment.
99 Now, you would normally be in Court and I would normally then been sending your counsel down to have a chat to you about these matters. Because we are doing this using the Webex, you are where you are and Mr Paull is where he is, but you have seen this sort of document in the past. All I am really dealing with here is the notification of your reporting obligations. It is a very lengthy document, it goes into all your requirements under the Act. Mr Paull, you understand, he is not being asked to read it all now, that would be impossible for him or anyone to do, really. He will need to read it in due course and seek any explanations that he wants to be receiving, but at this stage, he is being asked merely to acknowledge, by his signature, the receipt of that notice under that Act. Do you understand that?
100 MR PAULL: Yes I do, Your Honour.
101 HIS HONOUR: All right. So, towards the very end of that document, Mr Hore, if you would be good enough to sign the relevant portion of that document and so if you would sign in the particular place, towards the end of that document, please. Is there anyone in the room with you at all, or not? No. The fact of your signature has been witnessed on the video link, so we will have that co-signed in due course by my associate. So, let me just see. I am sorry to have taken so long to go through these matters, Mr Paull and Mr Moore. It is a nightmarish set of provisions that the court has got to deal with, in terms of the Federal regime. Do either of you have any issues in terms of understanding what it is that I have done and the overall effect of it?
102 MR MOORE: No, Your Honour.
103 HIS HONOUR: Mr Paull, from your perspective?
104 MR PAULL: No.
105 HIS HONOUR: No, all right. I will make my reasons available once they are revised, of course. Your client, I think, will have an understanding, but as I say, I apologise for having spent so long going into the ins and outs of it all, but I am obliged to, really. Do you want to remain online with him and have the opportunity of talking to him, using this Webex today, or not?
106 MR PAULL: Just for a few minutes, if I may, Your Honour.
107 HIS HONOUR: Well, yes, of course you can. Well, I think what we will do is, we will have you made the host of the meeting. So it will be you and your client and you will be able to speak to your client in private. You can just end the meeting by leaving it at the end. So, Mr Hore, just remain where you are then and I am going to shortly adjourn the court. I will leave the Bench, the prosecutor will probably scoot out of court as well, but you will then be in a position to speak privately to your lawyer and he can explain to you what has occurred here today, the overall effect of these sentences and your rights in relation to the sentences that I have imposed, do you understand? So you stay put there and all right. No other orders then that I need to make from either of you?
108 MR MOORE: No, Your Honour.
109
HIS HONOUR: There is nothing else listed today,
Mr Moore, is there?
110 MR MOORE: No, Your Honour.
111 HIS HONOUR: Nine-thirty on Monday we have got the sentence. So, I'll adjourn the court then until 9.30 on Monday please.
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