Director of Public Prosecutions v Howell (a pseudonym)

[2020] VCC 1328

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

OLIVER HOWELL (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:	19 November 2019, 22 April 2020, 11 August 2020
DATE OF SENTENCE:	25 August 2020
CASE MAY BE CITED AS:	DPP v Howell (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2020] VCC 1328

REASONS FOR SENTENCE

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Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Warren	Office of Public Prosecutions
For the Accused	Mr D. Dann	Stary Norton Halphen

HER HONOUR:

1Oliver Howell[1], you have pleaded guilty before me to one charge of involving a child in the production of child abuse material, three charges, sexual penetration of a child under 16, sexual assault of a child under 16 and possession of child abuse material.  The facts underlying your offending are as follows.  The victim of your offending Caitin Thompson[2] was 14 years old at the time of the offending and you and she initially met via a mobile application called MyLOL, which is a dating application for teenagers.  Caitlin's personal profile was on MyLOL showing that she was 14 years of age.  It contained her username for another mobile application called Snapchat.  You added Caitlin on Snapchat and the two of you began communicating with each other.  Initially Caitlin asked you how old you were, to which you responded you were 24 years of age, which was your correct age at the time.  She told you she was 14 and was not interested.

[1]A pseudonym

[2]A pseudonym

2A few weeks later, you sent Caitlin a message via Snapchat and told her you were 19.  Caitlin thought you looked familiar and began communicating with you again, telling you she was 14 and you confirming that you were 19.  After a few days of communicating on Snapchat, the conversation turned sexual and the two of you decided to meet.  On 14 March 2019, at 12.26 am, Caitlin met you at the corner of two streets near where she lived and where she was collected by you in your car.

3You drove to the Jack Roper Reserve in Broadmeadows, but the gates were closed and as a result, and with her assistance apparently, you found another location on Google Maps being Seabrook Reserve in Broadmeadows.  You drove there and on arrival, parked the car and moved the front car seats forward.  You and Caitlin then got into the back of the car and began talking and kissing.  You then removed both your and her clothing and penetrated her vagina with your penis.

4These actions underlie Charge 1 on the indictment, sexual penetration of a child under 16.  The sexual encounter lasted about twenty minutes before you were disturbed by another unknown car and the two of you got dressed and spoke for a short time before you drove her home.  Following that incident, you both continued to communicate daily through Snapchat and a few days after that, you asked her to send naked photos of herself.  She did this and sent approximately four to five photographs.  These actions underlie part of Charge 2, involving a child in the production of child abuse material, which is a rolled up charge.  That is a charge which involves several incidents.

5The two of you then planned to meet again, this time on 20 March 2019 and at about 12.30 am that morning, you met at the same location and drove to the Anderson Reserve in Glenroy.  There were too many cars at this location, so you drove again to Seabrook Reserve where you parked your car, moved the front seats forward and you and Caitlin moved into the backseat.  You began having sex, whereby you began kissing her and removing both your clothes and hers.  You then penetrated Caitlin's vagina with your fingers.  These actions underlying sexual penetration of a child under 16, being Charge 3 on the indictment.  You then penetrated her with your penis being underlying Charge 4, sexual penetration of a child under 16.  You filmed these sexual activities on this occasion, using a GoPro video camera.  The date of that video being stamped as 20 March 2019.  Caitlin's face was covered with her hair and black clothing.  These actions also underlie Charge 2, involving a child in the production of child abusive material.

6After that incident, you and Caitlin continued to communicate via Snapchat and on 26 March 2019, arranged to meet up later that evening.  At about 12.06 am, on 27 March 2019, you again picked up Caitlin at the same location and drove to Anderson Reserve.  Again, there were numerous cars there and you continued driving and proceeded to the gravel carpark near Sewell Reserve nearby.  Again after parking your car, you moved the front car seats forward, got into the backseat of the car with the victim and began kissing.  You touched her breasts over and under her clothing, removed her tops and pulled her pants halfway down her thighs.  These actions underlie Charge 5 on the indictment, sexual assault of a child under 16. 

7At about 12.30 am, while on supervision duties, two police officers saw your car and turned their marked police Sedan into the car park to inspect it.  When you saw the police car, you told Caitlin to tell police that you did not know each other and had met at a service station.  One of the police officers, Sergeant Millar, saw the front car seats reclined forward, the two of you in the back and both officers saw you and Caitlin in different states of undress.  You got out of the car and identified yourself to Sergeant Millar, producing your Victorian driver's licence.  Sergeant Millar then spoke to Caitlin who was still in the backseat of the car, asking how old she was and she saying that she was 14.  You were then arrested and taken to the Fawkner police station where you later provided no comment answers to a record of interview with police.  Caitlin was also taken to the Fawkner police station where she participated in a video and audio recording of evidence, that is, a VARE.

8The two police officers searched your car, which remained at Sewell Reserve, locating a packet of condoms inside the driver's door, an iPhone, the GoPro camera, a wallet containing your identification and a black computer bag in the boot of the car.  Later that day, another police officer, Senior Constable Bjorn Kaandorp, reviewed footage on the GoPro device seized from your car, showing you and Caitlin engaging in sexual activity on 20 March.

9On 11 April 2019, Caitlin participated in a second VARE and detailed the circumstances of the second incident on 20 March 2019.  The iPhone and GoPro were taken for analysis and on 3 April 2019, Senior Constable Kaandorp, located child abuse material on the Dell laptop's internal hard drive.  I should have added that the black computer bag contained a number of devices, including an external hard drive and a Dell light laptop and some USB sticks.

10The device on the laptop contained 1,833 child abuse materials and 122 child abuse videos.  That content included images and videos of children under 10 posing naked and some of the images and movies depicted sexual penetration of children aged between four and 16 years by adults.  Your possession of this material underlies Charge 6 on the indictment, possession of child abuse material.

11Your iPhone was also analysed and naked photographs of the victim were found on it.  Police located a total of 45 child abuse images and one child abuse video also on the phone.  The images located on this device were primarily of Caitlin and appeared to have been saved or possibly edited, creating duplicate images of Caitlin's original photographs.  There were also images of an older man penetrating a young female child, aged about 12.   The same images were also seen on the Dell laptop.  Your GoPro camera was also analysed by police, where eight child abuse videos depicting you penetrating Caitlin's vagina, both and digitally and with your penis and one child abuse image were located.  Your possession of these items also underlie Charge 6 on the indictment, possession of child abuse material, as does the other material contained on your iPhone.

12The maximum penalty for involving a child in the production of child abuse material is 10 years imprisonment. The maximum penalty for sexual penetration of a child under 16 is 15 years imprisonment. The maximum penalty for sexual assault of a child under 16 is 10 years imprisonment. The maximum penalty for possession of child abuse material is 10 years imprisonment. Sexual penetration of a child under 16 is a standard sentence effect, pursuant to s.49D(1) of the Crimes Act.  The standard sentence for sexual assault of a child under the age of 16 is six years.  This matter resolved at a committal mention stage on 4 July 2019.  It is conceded this was an early plea of guilty.

13In the event that you are convicted, as you are, of two sexual offences for which you are sentenced to a term of imprisonment, you fall to be sentenced as a serious sexual offender pursuant to s.6B(2) of the Sentencing Act for all subsequent offences in this matter, as they are sexual offences pursuant to Schedule 1 of the Sentencing Act.  You are also to be placed on the Sex Offenders Register for life.  Victim impact statements were tendered, which were made by both Caitlin and her parents.  In her victim impact statement, Caitlin talked about the effect of this offending upon her.  She has developed trust issues with people, feels ashamed of having been involved in this offending.  Is very concerned about the effects this has had on her family.  She stated:

'I felt ashamed of going to doctors to get pregnancy and STI tests done or just talking about the incident in general.  The judgmental look on people's faces broke my heart.  I felt like people would blame for what had happened.  For a long time, I felt as if it was my fault that it happened, since I was the one who did not understand the dangers associated with social medias and the predators out there in the real world.  I was so guilty and consumed by these thoughts that I self-harmed on many occasions'.

14She has had to attend counsellors and she stated, 'The images of this crime haunt me everyday'.  She concluded that she felt she was not the same person that she had been before, a happy, carefree teenager.  She said 'I was lied to, confused and used by a horrible man, he hurt me in so many ways'.  In their victim impact statement, Caitlin's parents talked about the effect that your offending had on them and their discovery that their 14 year old daughter had engaged in this sexual activity with you.  They stated:

'The trauma of the aftermath experience by us can never be simply explained in a statement.  As time is passing, the after effects are appearing to deepen and become more entrenched'. 

15Caitlin's parents talk of their distress, their anger, their ongoing pain and grief.  They are terrified that you have seen their house and afraid that you would come and hurt them.  I interpose here to say that I accept that this is entirely unlikely.  They do not regard their house as safe any longer.  They are thinking about relocating to a different state.  They talked about becoming over protective of their child and intruding in her life 'to keep her safe'.  They say they are constantly checking on her and 'because of this, our relationship with the child has become strained.  We just don't want to let her out of our sight'.  They now pick her up from school half an hour before home time to ensure she is always supervised.  They stated 'This over protectiveness is preventing our daughter from developing an age appropriate level of separation'.  They said 'Their once happy family had been torn apart and they believe it will take a lifetime to lead the normal life they did before'.

16I now turn to your personal circumstances.  You are now 27 years old and have no prior convictions.  You are the youngest of three children born to your parents.  Your father is a retired solicitor and your mother a retired research scientist.  You have an older sister who is a lawyer working in London and your brother is an IT consultant.  You were educated privately, completed Year 12 and then a Commerce Degree at Monash University which you completed in 2011.

17You then worked for two major accountancy firms over about three years, then for a business until your arrest in 2019.  Along the way you obtained your chartered accountancy.  After your release on bail, you worked as a senior financial consultant for a clothing retail business.  At school and university you participated in sports and musical activities and at university, developed part time work as a DJ which continued until your arrest working at functions up to four nights a week.  That business ended when you were bailed, a condition being that you not use social media, making it impossible for you to continue that enterprise.  You have always lived at home with your parents.  You described to psychologist Patrick Newton and Professor Michael Daffern, a conventional, comfortable and well supported upbringing involving no ill treatment.

18Your counsel described what he submitted was a more than usual participation by you, in community service including involvement in the University Musical Society, assisting your former school's band for two years on a voluntary basis, your service on the University Faculty of Education Committee, the Social Committee and the Diversity Committee for which you were recognised by the dean.  Your involvement in a local community store, involvement in the Red Shield Appeal for seven years and in the Relay for Life in 2015, as well as DJ at Freezone a Bayside City Council series events designed to raise money for the disadvantaged.

19You told both Mr Newton and Professor Daffern that you had several long term age appropriate relationships and that you were currently involved with a 22 year old woman who has, however, had to return to London, from where she apparently hails.  In about the year leading up to this offending, when you were single, you said you engaged in a series of one night stands.  You drink little alcohol and have never used illicit drugs.

20Although you have no prior criminal history, your counsel informed me that when at school, a teacher notified police about material that she saw on your device, for which you received a warning.  Presentation of psychological material was problematic and took place over several hearings.  The first plea hearing on 19 November 2019, was adjourned as that stage, after twelve sessions with psychologist Geoffrey Burrows of the Central Melbourne Psychology Practice for private sex offence treatments and two sessions with Patrick Newton who wrote the court report and the despite entering a guilty plea of the charges, you maintain the victim approached you saying she was 17.  You also maintain you obtained the child abuse material as untitled files, during downloading from mainstream sites.

21In his report dated 7 November 2019, Mr Newton said you denied any problems of dysfunctions, presented yourself in an unrealistically positive light and that your ongoing denial of deliberate involvement in the offending made it 'impossible to discuss the psychological, interpersonal and emotional factors contributing to his offending'.  Testing placed you at a moderate to high risk of reoffending, which is an elevated risk significantly higher than that of a typical sexual offender undergoing sentence.  Mr Newton believed the offending pointed to 'a strong likelihood of deviant sexual cognition and arousal patterns' on your part.  The matter was adjourned to 22 April 2020 to allow you to further attend counselling and another report obtained.  By that date you had attended further sessions with Central Melbourne psychologist Peter Hanley and a further session with Mr Newton.

22In his report dated 26 March 2020, Mr Hanley wrote you told him you unwittingly downloaded the materials in folders containing music for your DJ work.  He said there had been progress and then ultimately you said you held yourself responsible for the production of filming of the victim, but that you believed she was interested in blindfolding and video recording of sex.  He did believe you would genuinely try to understand your own personality and offending behaviour.  However, he stated:

'Mr Howell's reported perception of his offending continues to emphasise his passivity and does not reflect thorough awareness of the inherently exploitative and manipulative nature of his offending behaviour'.

23In his report dated 8 March 2020, Mr Newton wrote:

'You did recognise the wrongfulness of your conduct and specifically acknowledged you engaged in sexual intercourse with the complainant, knowing she was underage, although you said you were unsure of this on the first occasion, but were aware of it by the second, that is, you admitted to more than one occasion of sexual penetration'.

24He said:

'This time you are able to acknowledge your offending more openly and also to demonstrate some insights into your effects on the victim'.

25You said that you felt awful about it.  He said you also acknowledged to him actively engaging with the child abuse material and that you experience sexual arousal to it and showed a better understanding of the damage done to children used in such material.  Mr Newton re-administered testing for recidivism and again concluded that was moderate to high.  He believed you had shown clear capacity to engage in and benefit from sex offence specific treatment.

26The matter was adjourned to 11 August and a Forensicare report obtained to specifically address the reasons underlying your offending.  In his report dated 23 July 2020, Professor Daffern, who interviewed you for 155 minutes via video conferencing, during which you apparently sat in your car outside your parents' home, wrote that you denied contacting the victim via your MyLOL account, which you said had been dormant since you were in Year 8 and that she contacted you via Snapchat.  You said you met up with her with a view to having sex and noticed she was small, that you felt anxious about breaking the law, but arranged for a second meeting and on that occasion, the victim suggested filming the sexual activity and said she wanted to be blindfolded.  You also reverted to saying you downloaded the child abuse material accidentally.  You refused Professor Daffern permission to talk to your parents.  Professor Daffern said you also reported impaired ejaculation, that is an inability to reach ejaculation during sexual intercourse, until recently in the context of a relationship with your girlfriend.  Professor Daffern said that while your offended remained unclear and was made 'difficult by his unwillingness to acknowledge his deviant sexual interests'.

27He stated:

'Although he has a history of age appropriate sexual partners, his sexual preferences seem to extend downwards and include children and adolescence'. 

28Professor Daffern concluded:

'I will suggest, however, they are indications to paedophilia as evidenced by his offending conduct and sexual dysfunction, that is delayed ejaculation.  Interpersonally, he has some narcissistic features, specifically a grandiose sense of self- importance.  However, it is not possible to confidently diagnose any of these disorders on the basis of one interview conducted via audio visual conference'.

29He agreed with Mr Newton's view as to the strong likelihood of deviant cognition and arousal and strongly recommended you participate in a Sex Offenders Program. I have gone into some detail as to the psychological material, as your offending must result in my declaration of you, as a serious sexual offender in relation to some of the charges, and s.6D(A) of the Sentencing Act provides that if I sentence you to a term of imprisonment, in determining the length of that sentence, I must regard protection of the community as the principal purpose for which sentence is imposed.  Thus assessment is to your risk of reoffending, which involves remorse, and insight shown by you and your prospects of rehabilitation, are in my view, of particular importance in this sentencing exercise.

30Your counsel Mr Dann QC conceded that by your plea, it was specifically admitted you had deliberately downloaded the child abuse material.  He also conceded that the only appropriate sentence in light of the offending was the imposition of a term of imprisonment to be immediately served.  He submitted I should take the following mitigatory factors into account.  One, your early plea of guilty which he submitted was of considerable utilitarian benefit, saving the victim the trauma of giving evidence and the community the time and expense of a trial.

31Two, remorse to the extent that whilst not straight forward, you had proceeded to the point that you had accepted responsibility for your offending and the impact on the victim.  Three, your lack of prior convictions.  Four, your exceptional contributions to the community, which he said were unusual in a person of your age.  Five, the fact that in December 2019, you gave prosecution evidence about the location and premises where a rape was committed and of which the accused was ultimately convicted and gaoled.  This, he submitted, may cause you extra difficulty in custody.

32Six, as a result of this offending, you will not be regarded as a fit and proper person to continue to a chosen profession, amounting to extra-curial punishment and at a young age.  Seven, your fulfilment over a long period of time of stringent bail conditions.  Though I should add here, Mr Dann also referred to delay in this matter.  Ordinarily, this is a matter of some significance in the imposition of a term of imprisonment.  In my view, however, that delay was largely contributed to by the attitude you took to the ongoing psychological treatment you are undergoing.  I accept the necessity for this to continue, but it was continued because of the difficulty you clearly demonstrated in accepting responsibility for your offending.  It therefore has less than the normal effect than it would have, but I do accept that over that period of time, you have continued to attend upon therapy and to abide by the stringent bail conditions that have been imposed.

33Eight, the restrictive conditions in custody due to the COVID pandemic, preventing personal visits, isolation in cells and the cessation of education and recreation programs and activities which I accept are particularly important for younger offenders.  Nine, the fact that you are likely to be a more vulnerable prisoner.  Ten, the efforts you have undertaken to rehabilitate involving twenty-five sessions with both Mr Burrows and Mr Hanley.  Eleven, your strong prospects of rehabilitation given your intelligence, employability, strong family support, friendships and general background.  Twelve, the certainty that gaol will have a strong salutary effect upon you.

34Another factor mentioned by Mr Dann, was the fact that the child abuse material located by police, subject of Charge 6, showed it was downloaded in October 2014.  He said whilst it was not urged upon me that this was proof that you had downloaded this material and never looked at it again, the fact that it was of that age, was of some benefit to you in it indicated that you had not continued to engage in this.

35On the other hand, it cannot be said that you did not return to this material and use it again.  I take into account in relation to this, your admission that you did derive sexual satisfaction from use of this material and comments particularly by Mr Newton, that it is unusual for persons who download material and retain it, that it is not then used again by them for sexual satisfaction.  Mr Dann correctly pointed out that if I was to use this fact as an aggravating feature in relation to sentencing you, I would have to be satisfied of it beyond reasonable doubt.  Overall, I do not regard this particular point as being of enormous significance in the sentencing exercise I must undertake.  It was possibly likely that you revisited this material, but in my view this does not add overall to the seriousness of the offending as such that it would effect the sentencing exercise I am to undertake in this case.

36Mr Dann submitted, and the prosecution agreed, that I could not be satisfied on the material beyond reasonable doubt that you are a paedophile.  I accept the submissions by Mr Dann and they have been factored into the sentence I will impose.  I also accept Mr Dann's submission that totality, that is a need to ensure that any sentence I impose should not be crushing in all the circumstances of this case, including your relative youth, is an important consideration.

37Mr Dann also referred me to a number of decisions of this court, where sentences imposed for like offending, to which standard sentencing also applied, resulted in terms of less than the applicable standard sentence which in this case is four years.  The prosecution pointed to the various versions you gave of your offending, submitted they demonstrated inconsistency and a continuing reluctance to take responsibility for it and a tendency to instead lay much of it on the 14 year old victim.  It is submitted that the psychological material showed you continued to perceive the complainant as a willing, consensual participant, who is only technically unable to consent.  The prosecutor, Ms Warren, was particularly critical of the versions you gave to
Mr Daffern, which she stated as simply untruthful.  Ms Warren also submitted that a number of the images and videos fell into the serious high end categories involving children as young as four years.

38In terms of objective seriousness, Ms Warren pointed to the eleven year age gap between you and the complainant, her vulnerability and described your actions as predatory and persistent.  She submitted your moral culpability was high, describing you as an intelligent, well educated person from a good family, without accompanying psychological or cognitive impairment, preventing good judgment and that you are old enough and educated enough to appreciate the wrongness of your actions.

39Ms Warren accepted that you had good social supports, had engaged meaningfully and well in offence specific treatment where you were challenged by your therapist as to your version of events and had demonstrated some prospects of rehabilitation if treated.  However, she submitted the court should be guarded about those prospects.  Overall the prosecutor Ms Warren said your offending was extremely concerning and called for a significant term of imprisonment, giving full weight to the principles of just punishment, general and specific deterrence and protection of the community despite your engagement in treatment.

40While the material cannot satisfy me to the requisite standard that you are a paedophile, I am satisfied that your offending does reveal a deviant pattern of sexual arousal in you, or features of it, on which you were prepared to act and to do so more than once.  I do regard your offending as involving predatory and manipulative behaviour and also showing some persistence.  You have undertaken much rehabilitative treatment, but in my view you have a long way to go.  I understand there can be much shame in admitting to the motivating forces underlying the offending you engaged in, which can be particularly acute for a young man coming from your relatively privileged background.  Both
Mr Newton and Professor Daffern referred to narcissistic aspects of your personality and presentation which then play into your capacity for victim empathy and understanding the wrongness of your offending.

41You seem to have no concern for subjecting a 14 year old child, to the degrading experience of being blindfolded and filmed during sexual activity.  You have come up with several versions for your possession of a large amount of child abuse material, containing images of high end seriousness, which your counsel specifically conceded was deliberately sourced and downloaded by you.  In my view, you have deliberately set out to gratify your sexual desires involving underaged victims by seeking out and engaging in sexual intercourse with a 14 year old and by sourcing and downloading child abuse material.  You continued to seek sexual intercourse with the complainant and that serious offending was aggravated by your filming of it.  I do regard your moral culpability as high.

42Of course this is concerning and your well documented eventual response to offence specific therapy was slow moving and reluctant and I accept all the matters put on your behalf by Mr Dann, in particular, your strong social reports and I do accept that you are amenable to treatment which I regard as critically important to your eventual rehabilitation.  I regard you as having some positive prospects of rehabilitation, but they are reliant on you, fully understanding and accepting the seriousness of your offending.  You remain assessed as presenting a moderate to high risk of reoffending.

43Again, although I cannot be satisfied, and I am not satisfied to the requisite standard that you are frankly a paedophile, in my view, you remain dangerously un-insightful about your own latent devious tendencies.  The vulnerability of child victims and the terrible long lasting, often irreversible damage, sexual offending can have upon them.  General and specific deterrence, that is sentencing designed to deter both you and others from such offending and protection of the community loom large in this sentencing exercise.  You are an intelligent, well educated and well supported young man.  Hopefully you can emerge from custody, which I accept will be difficult for you and build a life which fulfils the undoubted promise you otherwise hold. 

44In sentencing you, I do take into account as I must, the standard sentence of six years applicable to the charges of sexual penetration of a child under 16 and four years for the charge of sexual assault of a child under 16.  Those sentences are based solely on the objective factors of the offending.  The authorities make it clear that standard sentences are but one of the range of factors to be taken into account by a Sentencing Judge and do not interfere with the exercise of instinctive synthesis, generally underlying sentencing.

45Taking into account all other matters raised on your behalf, together with submissions from the prosecution, I sentence you as follows.  Can you stand up please Mr Howell.  On Charge 1, you are sentenced to 18 months imprisonment.  On Charge 2, you are sentenced to 18 months imprisonment.  On Charge 3, you are sentenced to 12 months imprisonment.  On Charge 4, you are sentenced to two years imprisonment.  On Charge 5, you are sentenced to nine months imprisonment.  On Charge 6, you are sentenced to 15 months imprisonment.

46The base charge will be the sentence imposed on Charge 2.  I order that six months of the sentence imposed on Charges 1 and 2, three months of the sentence imposed on Charge 3, three months of the sentence imposed on Charge 5 and six months of the sentence imposed on Charge 6, be served cumulatively to the sentence imposed on Charge 4 and to each other.  That makes a total effective sentence of four years.

47Ordinarily, in cases of this kind involving standard sentencing, a minimum term is to be imposed of not less than 60 per cent of the head sentence.  However, in the interests of justice, it is my view that a minimum term of two years should apply in your case.  I declare for the purposes of sentencing that you are a serious sexual offender in relation to - I probably need your assistance here Ms Warren.  It is charges ‑ ‑ ‑

48MS WARREN:  Three, four, five and six, Your Honour.

49HER HONOUR:  For the purposes of sentencing you on Charges 3, 4, 5 and 6, I declare you are a serious sexual offender.  You will be placed on the Sex Offenders Register for life.  Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of six years and order that you serve a minimum term of four years before becoming eligible for parole.  Thank you.  Now there is one day is there not of ‑ ‑ ‑

50MR DANN:  Two days, Your Honour.

51HER HONOUR:  I also declare that two days of the sentence have already been served by way of pre-sentence detention.  Yes, thank you.

52MR DANN:  Your Honour, there's just a ‑ ‑ ‑

53HER HONOUR:  Yes.

54MR DANN:  Can I move this for the moment?

55HER HONOUR:  Yes of course.  Have a seat, Mr Howell.  Thank you.

56MR DANN:  Sorry, Your Honour, to do this at this time.

57HER HONOUR:  No that's all right.

58MR DANN:  There's just an application that arose out of the adjourned date, we were listed for 3 August and Your Honour was ill on that day.

59HER HONOUR:  Yes, no you can have an appeals cost certificate ‑ ‑ ‑

60MR DANN:  Yes.

61HER HONOUR:  ‑ ‑ ‑ for that date.  Yes I was.  Thank you.

62MR DANN:  And secondly Your Honour, is there any facility for me just to speak to my client after you leave?

63HER HONOUR:  Yes.  I think it's really appropriate that you do, rather than going down to the cells.  So can I just address myself to the prison officers?  After I leave the Bench, Mr Dann is allowed to have a word with his client, which I normally wouldn't allow, but in the current circumstances, I will and of course you can have that time with your client.

64MR DANN:  Thank you, Your Honour.

65HER HONOUR:  Yes, thank you.  Can you not take too long Mr Dann, I've got another plea. 

66MR DANN:  No I won't.  I won't.

67HER HONOUR:  No, I really understand why you make the application, ‑ ‑ ‑

68MR DANN:  Yes.

69HER HONOUR:  ‑ ‑ ‑ I'm entirely sympathetic to it.

70MR DANN:  Yes.

71HER HONOUR:  It's just that I've got another plea on at 10.30.

72MR DANN:  Yes, no I ‑ ‑ ‑

73HER HONOUR:  But what I'll do is I'll stand that down to quarter to eleven.

74MR DANN:  I understand.  Thank you.

75HER HONOUR:  Is that enough time for you?

76MR DANN:  Yes, thank you Your Honour.

77HER HONOUR:  Thank you very much.  Yes, we'll stand down to 10.45.  Thank you very much.  I thank counsel for their assistance in this matter.

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