Director of Public Prosecutions v Incorvaja
[2017] VCC 469
•21 February 2017
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No.16-00372
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JUSTIN INCORVAJA |
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JUDGE: | HER HONOUR JUDGE QUIN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 January 2017 | |
DATE OF SENTENCE: | 21 February 2017 | |
CASE MAY BE CITED AS: | DPP v Incorvaja | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 469 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms L. Skoblar | Office of Public Prosecutions |
| For the Accused | Mr A. Kennedy | Ann Valos Criminal Law |
HER HONOUR:
1
Justin Incorvaja, you have pleaded guilty to four charges against the Commonwealth Criminal Code and one State offence. The Commonwealth offences relate to using a carriage service to do various things: namely;
1) Charge 1, accessing child pornography (Maximum penalty fifteen years); 2) Charge 2, grooming a person under 16 years for sexual activity (Maximum penalty twelve years); Charge 3, making available child pornography (Maximum penalty fifteen years); Charge 4, soliciting material being child pornography (Maximum penalty fifteen years).
2 The State offences. Charge 5, possession of child pornography. (Maximum penalty for that offence is five years).
3 The details of your offending including the content of the relevant communications is included in the prosecution opening for the plea (Exhibit A). On 3 February 2015, Victoria Police began investigating one of your Facebook accounts. As part of this investigation a Victoria Police online covert operative CO1, assuming the persona of a 13 year old girl commenced chatting with you on Facebook. In August 2015, the Australian Federal Police or the AFP also commenced an investigation into the sharing and distribution of child pornography by persons using the BitTorrent file sharing program on the Internet. BitTorrent is a readily available application and is used commonly for sharing of movies, music and other information on the Internet. This network facilitates the sharing of files between users and is sometimes described as peer to peer, as it involves the transfer of files directly from user to user. Each user download files or part of them from another computer on the network. Once the file is downloaded other users on the network can download the files from their own computer, a process known as uploading or seeding.
4 The user of the Internet protocol or IP address to which you subscribed was identified as making available or sharing digital videos and image files to other Internet users. Those digital video and image files have been classified by law enforcement as child pornography.
5 On 25 October 2015 an AFP online covert operative CO2, using the persona of a 14 year old girl commenced chatting with you on Facebook. This was a different Facebook account than that to which the Victoria Police had used CO1.
6 As to Count 2, using a carriage service to groom a person under 16 years of age, you accepted a random friend request on Facebook from CO1 on or about 3 February 2015. In the course of messaging you supplied your mobile number to CO1 and indicated that texting was your preferred method of communication. Between 27 October and 11 November 2015, CO1 received or sent texts on seven occasions from you during which she purported to be a 14 year old female, the content of which is contained in the prosecution opening. (see paragraph 5).
7
Conversations included a reference to you wanting to kiss and cuddle her, and to bringing alcohol with you when you met up. In the last text you arranged to meet up with CO1 at the Williamstown Botanic Gardens on
11 November 2015. At 10.40 am you went to the gardens and were arrested by the AFP while you were awaiting in your car.
8
Count 4, using a carriage service to solicit child pornography material. You commenced chatting on Facebook with CO2 on 25 October 2015. Between
24 October and 3 November 2015 CO2 sent messages to and received messages from you via Facebook. The content of these conversations is contained in the prosecution opening, paragraph 7. In summary the messages revealed that CO2 was 14 years old that you requested nude or sexy photos of her and you provided her photos of male genitalia. The messages also revealed a plan to meet up with her, though this did not eventuate.
9 Charge 3, using a carriage service to make available child pornography. Between 25 August 2015 and 9 November 2015 the AFP made a number of direct connections to your IP address to which you subscribed and downloaded 40,560 files from a single source, your IP address. You were running uTorrent software, and you could thus share this material. A member of the Joint Anti Child Exploitation Team viewed the unique files downloaded from the IP address and classified the files as child pornography in accordance with the Commonwealth Criminal Code.
10 These unique files along with the files already classified by law enforcement have been categorised in accordance with the Australian National Victim Image Library Model, the terms of which are set out in appendix 1 of the prosecution opening. The material included the following files. In respect of category 1, a total of 39,691 files or alternatively 97 per cent. In category 2, a total of 77 files. Category 3, 159 files. Category 4, 545 files. Category 5, 45 files. Category 6, 44 files. That makes a total of images and videos a total of 40,560.
11 At the time of analysis, 40 Torrent files were in the process of being downloaded using uTorrent. Torrent files contain information about files and folders which can be downloaded as well as information on how to locate them. Each torrent can download one or more files depending on what information is inside it. The names of some of these files included One Pre-Teen Underage; Incest Raunchy porn; PTHC pre-teen sex incest (real thing); eight year old school girl, Kelly 1 oyo. The start date for this charge is the first date that there was evidence that you made the material available, 25 August 2015, and the end date is on 11 November 2015, when you were discovered downloading some material.
12 Charges 1 and 5 use carriage service to access child pornography and possession of child pornography. After you were arrested at the gardens, a warrant was executed at your home and your mobile phone was seized. During the course of the search, child pornography material was identified on your computer and/or devices belonging to you and were subsequently seized. In particular, a black computer tower was found running in the study at the residence which was downloading child pornography upon police attendance. The items seized under the search warrant included a computer tower and laptop.
13 Police examined and classified the files contained on the computer and laptop and a large number of files were determined to be child pornography. I have had available a sample of the child pornography material the subject of these offences and with the agreement of the parties have viewed it in my chambers. Using the ANVIL classification, the following specific material was located in the various categories.
14 In categories 1, 3, 4, 5, children were aged between approximately one year and fourteen years. In category 1 there were images and videos of female and male children posing naked or partially clothed, in a sexually explicit manner, many with a focus on the genitals. Also there were images and videos of female children holding their legs apart with the camera focusing on their genitals.
15 In category 2, children identified in this category were aged between approximately six and 14 years. There were images and videos of female children engaging in self-masturbation and inserting sex toys and other objects into their vaginas. And 2, images and videos of male and female children kissing, touching each other's genitals and masturbating each other.
16 In category 3 there were images and videos of male and female children holding, touching or preferring to perform oral sex on the penis of adult males; Images and videos of an adult male hand spreading the vagina of a female baby; Images and videos of children masturbating adult male penises; Images of an adult male penis positioned in front of a baby's vagina with what appears to be semen over the baby's genitals and chest; And images of an adult male licking the outside of a female child's genitals.
17 In category 4, images and videos of female and male children being anally or vaginally penetrated by the penis of adult males; Images of babies being anally or vaginally penetrated by the penis of adult males; Images and videos of female children being both orally and digitally penetrated by adult men and women. And images of female babies being both orally and digitally penetrated by adult men and women.
18 In category 5, images of naked female and male children bound with ropes, chains and packing tape often with their legs and arms spread to expose their genitals; An image of a female baby with a screwdriver inserted in her anus and a male hand holding a pair of pliers positioned near the baby's vagina; Images of female children approximately eight years of age being penetrated by the penis of a dog.; Images of a naked female child approximately eight years of age performing intercourse on an animal.
19 The description of this material particularly in these latter categories, and the volume of it supports an assessment of this offending being at the high end.
20 The total number of 43,004 images and video files were located on all the devices seized and were categorised using level 1-6 as follows. In category 1 there were 37,796 images or 87 per cent. In category 2, 790. Category 3, 1,835. Category 4, 2,316. Category 5, 184. Category 6, 83. That makes a total of 43,004l.
21 When police were at your home you participated in a digital record of conversation with them. During that conversation you admitted that you accessed child pornography using 9 “Google” search. You searched a name on uTorrent and downloaded it. You thought that you had typed “incest” which led you to the material. When you downloaded child pornography you saved it in a uTorrent download file or deleted it. You thought that you had started downloading child pornography this year, that is in 2015. Though you had searched for child pornography a number of years ago because you were curious. You had saved child pornography onto discs in the past, which you had put a password on.
22 You later participated in a digital record of interview with police and stated the following. You thought that CO1 was fake and there were some indicators that she was not real. That you went to Williamstown Gardens to meet the person you were messaging because you were curious. You said you expected police would be at the gardens. You maintained that if a real girl had met you, you would have chastised her for meeting with strangers, and you would have told her she was lucky you were a nice person.
23 You denied you mentioned anything of a sexual nature in your communications and could not see anything wrong in befriending a 14 year old girl.. You maintained that you had asked for Jessica, that is CO2, to send you a topless image of herself, but straight after requesting the image you thought you should not have asked for that. You said you were not sure if Jessica was a real person and asked her to send a topless image to see if she was a police officer.
24 In sentencing for Commonwealth matters, s.16A(2) of the code provides a non-exclusive list of factors that the court must take into account where relevant and known to the court.
25 In respect of the impact on victims, s.16A(2)(ea) - Given the nature of the offending in respect of Charges 2 and 4 involving covert operatives or fictitious characters, there were no victims. However in relation to the child pornography, thousands of different children are depicted in the images. Though there is no material before me as to the direct impact on each individual child, the effects on children, some very young, being exploited and engaging in some of the conduct encompassed in the images is likely to be significant.
26 The character, antecedence, age means and physical or mental condition of the person, s.16A(2)(m).
27 You are currently aged 37. You grew up in Deer Park and are the youngest of three children. You were married for approximately ten years and still remain on good terms with your ex-wife. Prior to your arrest you lived with your partner Ms Timea Mentis and your son Maverick aged two and a half. You have been in a relationship with Ms Mentis for about four years. As a consequence of these matters, DHS became involved and you have had supervised access with your son since then. It is unlikely you will be able to continue any contact with him when you are in custody. Immediately before being remanded you were living with your mother.
28 Your family is from Malta and during your childhood you spent extended periods in that country. You completed year 12 at Sunshine Secondary College. Your first job was at the Toyota car factory where you were employed as a welder for about eight years, though you suffered a work related injury and could not continue that job. After leaving Toyota you started your own timber flooring business which you ran for approximately ten years. This business was successful and you had a number of employees, though publicity in respect of these matters saw a downturn in trade. You have effectively closed the business down in anticipation of being incarcerated. This has had a financial impact on your capacity to provide for your partner and your son. Your other interests include race car driving though your involvement has fallen away also due to these matters.
29 I received a report from Dr Karen Owen, clinical and forensic psychologist dated 16 November 2016, and an addendum report dated 6 December 2016. In her opinion you have no indicators of major mental illness, psychological dysfunction or any problems with substance abuse. At the time of writing her report you had only had limited engagement with her, having attended three times. She had not embarked on offence specific treatment with you given the more immediate stressors on you regarding your relationship, these proceedings and their likely outcome for you.
30
The degree to which the person has shown contrition, the plea of guilty and degree of cooperation with authorities – s.16A(2)(g); s.16A(2)(f); s.16A(2)(h). I take into account your plea of guilty. You indicated an intention to plead to Charges 3 and 5 at the committal mention on 7 March 2016. At the final directions hearing in this court on
25 October 2016, you were arraigned in respect of all of these charges. Your indication you would plead to all these matters came at a relatively early stage. There is a utilitarian benefit in the plea and you have avoided the need for a trial. You have saved the cost to the community and avoided the need for any witness to give evidence. You made admissions to police regarding your offending.
31 As to remorse.
32 Dr Owen is of the opinion that you were particularly evasive regarding your details of the offending. I note this was an area that you disputed in the addendum report. Dr Owen notes,
"Mr Incorvaja has expressed that he regrets his engagement in the alleged offending. However as would be expected of a person at this stage in the legal process, and in the absence of offence specific treatment, he remains focused more immediately upon dealing with the impacts on his own life and is evident that his account of the offending is significantly minimised and justified."
33 Later she notes,
"It is the writer's view that no assessor is able to discern the genuineness of another's remorse. Suffice to say that while in part driven by his own sense of loss, there did also appear to be feelings associated with the damage that his behaviour has caused others in general."
34 The prospects of rehabilitation of the person (s.16A(2)(h)).
35 As to your risk of re-offending, Dr Owen provides the opinion that you represent a moderate risk of re-offending relative to other known sexual offenders. Further, she is of the opinion that you appear to represent a person likely to progress to contact offences. Your rehabilitation prospects and the risk of you re-offending are linked to your participation in, and successful completion of, a specialist offenders assessment and treatment services program.
36 The prosecution submitted that given your limited remorse and minimisation of the impact on victims of your offending, that your rehabilitation prospects were guarded.
37 Your counsel submitted the following factors augured well for your rehabilitation, namely that you maintain the support of your family and that your employment history was sound. It was conceded your prospects depended on you successfully completing a sex offender program with specialised offender and treatment services run by Corrections. It was submitted that this could be a condition on a recognisance release order.
38 I accept that successful rehabilitation depends on you participating in such a course or treatment. Such would give you a greater understanding of the nature of your offending and particularly the impact on victims. Given the other supports you have and presuming you complete a relevant SOAT, I regard your rehabilitation prospects as fair.
39 The nature and circumstances of the offending and if the offending forms part of a course of conduct consisting of a series of acts of the same or similar character (s.16A(2)(a) and s.16A(2)(c)).
40 In respect of Charges 2 and 4, relating to the undercover VicPol and Australian Federal Police, some of these communications were occurring simultaneously through different Facebook accounts. The age difference between you and the child was approximately 20 years. Your communications were aimed at ultimately meeting up with the victims and you offered inducements. It was conceded that there were not aggravating features present of there being real victims or that you used use of any threats.
41
I accept the more serious offending relates to the child pornography charges. In respect of sentencing principles for child pornography cases, in cases involving child pornography, the relevant sentencing principles are set out in DPP (Cth) v D'Alessandro (2010) 26 VR 477 recently approved in DPP (Cth) and DPP (Vic) v Garside [2016] VSCA 74 at paragraph 24 where six propositions are listed as relevant to sentencing for this kind of offending.
I have considered each of these matters.
42 It is noted that general deterrence is a paramount consideration and that less or limited weight is to be given to an offender's prior good character as it has been the experience of the courts that such offences are committed frequently by persons otherwise of good character.
43 A sentence of immediate imprisonment will ordinarily be warranted in cases involving child pornography but it is recognised there are cases where a sentence which does not involve a period of actual custody is not precluded. The nature and gravity of the offending ordinarily is determined by reference to four criteria.
44 (a) The nature and content of the material, in particular the age of the children and gravity of the sexual activity depicted;
45 (b) The number of images or items possessed;
46 (c) Whether the material is for the purpose of sale or further distribution;
47 (d) Whether the offender will profit from the offence.
48 In the case of child pornography for personal use, the number of children depicted and thereby victims is also regarded as a relevant consideration.
49 The sheer volume of images makes this a very serious example off offending in respect of child pornography. A high percentage of your images were category level 1. However given that there were over 40,000 images, there were a significant amount of images in each category including the more explicit material particularly in categories 4 and 5. The age range of children depicted was between one and fourteen and thus included babies and toddlers. Though it was not suggested that you had the material for profit, your activities ensured the market for this product remained.
50 As to specific deterrence. You have prior convictions for driving and assault matters though I accept these are not relevant to this offending. Specific deterrence remains relevant though given the opinion of Dr Owen as to your moderate risk of re-offending.
51 General deterrence and the need to ensure the offender is adequately punished (s.16A(2)(k)).
52 As to the circumstances of Charges 2 and 4, the existence of cyber space provides a place where adults can easily deceive children and young people as to their true identity and inveigle them into sexual behaviour beyond their maturity. The creation of those kind of offences, to accommodate the occurrence of sexual exploitation of children via this popular medium, serves to protect this vulnerable class of victim.
53 As to Charges 1, 3 and 5, the prevalence and ready availability of child pornography on the Internet makes general deterrence an important consideration. With a readily accessible market and demand for this prohibited product, those minded to exploit children in this manner must be aware that they will be severely punished.
54 The Court of Appeal has made it clear on a number of occasions, general deterrence is the paramount consideration for offending of this grave nature. The maximum penalty for some of these offences is fifteen years reflects the seriousness with which these offences are viewed by Parliament.
55 I was provided with a number of authorities and other comparative cases. They provide some assistance but each case must be determined on its own facts.
56 As dictated by the code, the court must impose a sentence that is of severity appropriate in all of the circumstances. The court must not impose a sentence of imprisonment unless it is satisfied no other sentence is appropriate in all the circumstances of the case.
57 The prosecution submitted that no other conclusion was open in the circumstances of this case. The prosecution also submitted that the charges related to separate activities regarding child pornography and that a degree of cumulation was warranted. Additionally it was submitted that there should be some cumulation in relation to the activities the subject of Charges 2 and 4.
58 Your counsel conceded a term of imprisonment was warranted but submitted that the term should be such as to allow you to be placed on a recognisance release order.
59 In sentencing you I have taken into account all relevant matters listed under s.16A(2) of the code. Child pornography cases in particular present a very difficult sentencing task given the disturbing nature of the material, its volume, the maximum penalty and the impact on so many victims, vulnerable children. It is necessary for me to balance matters personal to you, your plea of guilty with what I regard in this instance particularly because of the number and categorisation of the images, of a serious example of child pornography offending. I have determined that you should spend a period of time in custody before you are released on a recognisance release order with condition that you participate in a sex offender treatment program.
60 On Charge 5, the State sentence, I impose a sentence of eight months.
61 On Charge 3, a Commonwealth charge, I impose a sentence of two years to commence six months before the expiration of the sentence imposed on Charge 5.
62 On Charge 1, I impose a sentence of two years to commence 18 months before the expiration of the sentence imposed in Charge 3.
63 On Charge 4, I impose a sentence of four months to commence two months before the expiration of the sentence imposed on Charge 1.
64 On Charge 2, I impose a sentence of two months to commence one month before the expiration of the sentence imposed on Charge 4.
65 That should give you a total effective sentence of 35 months. It gives a total effective sentence of 33 months on the Commonwealth matters. I require you to serve a period of 15 months before being released on a recognisance release order for a period of 24 months. And during that 24 month period of the recognisance release order, you will be required to undergo a sex offender treatment program.
66 So as a consequence of the partial concurrency proposed in respect of your sentence, the total effective sentence is 35 months or 33 months as to the Commonwealth matters. I am required to consider the making of a recognisance release order given that figure.
67
It is my intention that you be required to serve
15 months of that sentence or that you will be released after serving a period of 2 months of the State sentence and 15 months referable to the Commonwealth matters upon giving security in the sum of $1,000 to be of good behaviour for a period of two years. You must not during that period of two years commit any further breach of the law and you must abide by the condition.
68 If that occurs you will have breached the terms of the recognisance and should expect to be brought before the court and ordered to serve the whole of the sentence that I have just imposed. As part of the order I have included a condition you participate in the sex offender treatment program. The purpose of making this order is to give you the opportunity not to serve the whole of the term of the imprisonment imposed on you and to give you the chance to continue to work on your issues and to continue your progress to ultimately make a valuable contribution to society.
69 Pursuant to the Sex offenders Registration Act, you have pleaded guilty to five registrable Class 2 offences under the Sex Offenders Registration Act, that is all of the charges and by virtue of the relevant provisions you are required to report for the remainder of your life.
70 Pursuant to s.6AAA if you had not pleaded guilty to these matters I would have imposed a sentence of imprisonment of four years with a non-parole period of two and a half years.
71 I should formally declare -pre-sentence detention of 25 days.
72 In respect of Charge 5, Mr Incorvaja it is noted on the file that he is a serious sex offender who is sentenced as a serious sex offender pursuant to s.6D of the Sentencing Act.
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HER HONOUR: What I am going to do is stand down now and I want counsel to check that that sentence is as I have indicated and then I will have you sign the recognisance order and I will explain to you the consequences of breaching such an order. I'll just stand down for a moment.
(Short adjournment.)
HER HONOUR: Sorry Mr Incorvaja, we just need to sort this out, it becomes more complicated when there are State and Commonwealth offences trying to be determined at the one time. I think I've made it pretty clear what my intention is in respect of your sentence but that is what we need to discuss now with counsel, all right, you can sit down thank you. What I had proposed was that the sex offenders treatment be provided to Mr Incorvaja pursuant to the recognisance release order, a condition of the recognisance release order. So that was a period of time when he was outside of custody.
Now my understanding was that these programs take 18 months and that was the reason why there was 18 months. So when you have a total effective sentence which I understand there is some difficulty with because I can't do that with the State (indistinct) but in any event what I had always intended was for there to be effectively a sentence of 35 months with 17 months being served and 18 months in the community on the recognisance release order. now what do I need to do to change that?
MS SKOBLAR: Yes, Your Honour, I'll just perhaps clarify. In terms of the sex offender program, for it to be completed out of custody, the recognisance release order needs to have a period of not less than two years which is what I understand Your Honour's intention to be, that is that effectively the sentence is suspended for two years. And for it to take - - -
HER HONOUR: No, no, that's not the situation at all. What I was informed from people within the court was that it was 18 months not two years.
MS SKOBLAR: My understanding was that the 18 month period relates to the sentence in custody to be completed.
HER HONOUR: No, 17 and 18 equals 35.
MS SKOBLAR: It does yes Your Honour.
HER HONOUR: So 18 months out because I had been informed that that was what was necessary for a sex offenders treatment program to be completed within the community was an 18 month period. Now you're telling me it's two years.
MS SKOBLAR: No, the period of 18 months that Your Honour has set I understand is to be the sentence to be suspended but the operational period of the order is the separate - - -
HER HONOUR: Yes,, that's right, it's still two years.
MS SKOBLAR: Yes two years, yes Your Honour.
HER HONOUR: The operational period is two years, that's correct.
MS SKOBLAR: That's correct, that's what I was confirming.
HER HONOUR: Yes, no that's right.
MS SKOBLAR: And I ask if it's Your Honour's intention that the total effective sentence be 17 months' imprisonment, then on the figures that Your Honour gave before as sentences with respect to each of the counts, that would amount to the a total effective sentence on the Commonwealth sentences of being 33 months' imprisonment with 15 months to serve.
HER HONOUR: All right, so I can separately sentence on the State sentence which I did.
MS SKOBLAR: Yes Your Honour.
HER HONOUR: Which was the eight months. And I can also then say in respect of the Commonwealth offence, which the longest one was Charge 4 for two years.
MR KENNEDY: No, 3 and 1.
HER HONOUR: Charge 3 sorry
MS SKOBLAR: Yes.
HER HONOUR: So what you're saying is that I can't incorporate the declaration of the total effective sentence with the State sentence and the Commonwealth sentence.
MS SKOBLAR: In the recognisance release order no.
HER HONOUR: In the recognisance release order. But I can just in general terms in terms of Mr Incorvaja understanding what his sentence is.
MS SKOBLAR: Yes.
HER HONOUR: I can.
MS SKOBLAR: Yes Your Honour.
HER HONOUR: All right.
MS SKOBLAR: So effectively if it's Your Honour's intention that Mr Incorvaja serve two months on the State sentence - - -
HER HONOUR: Yes.
MS SKOBLAR: - - - followed by 15 months on the Commonwealth sentence.
HER HONOUR: That's correct yes.
MS SKOBLAR: Which I understood Your Honour's intention to be.
HER HONOUR: Yes.,
MS SKOBLAR: Then the recognisance release order would be for a period of 33 months to be released after serving 15 months.
HER HONOUR: Yes that's right, that's correct.
MS SKOBLAR: Yes.
HER HONOUR: That's correct. That's correct. So if we can get that in that terms.
MS SKOBLAR: We can Your Honour, yes, I just - - -
HER HONOUR: For a duration of two years.
MS SKOBLAR: Yes, for a duration of two years which is the minimum requirement for the - - -
HER HONOUR: Yes.
MS SKOBLAR: Yes.
HER HONOUR: That's what I was always proposing to do.
MS SKOBLAR: Yes, yes.
HER HONOUR: I just got confused about how long it was necessary to do the course outside of custody, that was always my intention that he did the sex offenders course outside of custody.
MS SKOBLAR: Yes, and that that requires the operational period that Your Honour set.
HER HONOUR: Yes.
MS SKOBLAR: So that's - - -
HER HONOUR: All right. So are you able to prepare that order?
MS SKOBLAR: I am, yes Your Honour, I'll draft orders in those terms, thank you.
HER HONOUR: All right.
MS SKOBLAR: I suppose the other question that my friend has raised is to which sentence does the pre-sentence detention attach.
HER HONOUR: I just make a pre-sentence detention and Corrections work it out I think. I just make the declaration and Corrections will work it out.
MS SKOBLAR: All right, thank you.
HER HONOUR: What is the PSD?
MR KENNEDY: Twenty-five days.
HER HONOUR: Thank you.
MS SKOBLAR: I'll draft orders in those terms Your Honour.
HER HONOUR: Thank you. I don't need to stand down do I?
MS SKOBLAR: No Your Honour, I should be able to do that fairly - - -
HER HONOUR: All right thank you.
(At this stage the court proceeded with another matter.)
MS SKOBLAR: Can I ask my friend to look at the order extract.
HER HONOUR: Yes sure.
MS SKOBLAR: Your Honour, we've drafted the order in the terms Your Honour.
HER HONOUR: Thank you, thanks I'll just have a quick look at that. Thank you. All right, so Mr Incorvaja, what has happened is that it is the sentence that I pronounced earlier except because one of them is a State offence, it means that although effectively you will be serving - that you will have a period of imprisonment of 35 months imposed on you, because I am imposing a Commonwealth recognisance release order, what it means is that that period of time relating to the Commonwealth offences, the total effective sentence is 33 months not 35 months.. So what that means is that if you breach the recognisance release order after having served a period of 17 months in total, 15 referrable to the Commonwealth, 2 referrable to the State, you will be brought back before me and if there is any breach I will have no other option but to reimpose the remainder of the sentence which will be about 18 months' period. Do you understand that?
OFFENDER: Yes Your Honour.
HER HONOUR: Thank you. Now here's the recognisance release order, if you could take that and if you could go and have that signed and then I will sign it thank you. Have you go the sex offenders registration one as well?
MS SKOBLAR: I'm just about to do that Your Honour.
HER HONOUR: All right.
MS SKOBLAR: Your Honour, while the order is being signed I'll indicate that there's consent to forfeiture of the relevant electronic devices and mobile phone in this instance.
HER HONOUR: All right. Have you got a forfeiture order?
MS SKOBLAR: Yes.
HER HONOUR: Yes thanks.
MS SKOBLAR: Forfeiture by consent.
HER HONOUR: I see, with Commonwealth matters are they just orders signed by the relevant - - -
MS SKOBLAR: Yes.
HER HONOUR: All right. What happens to that?
MS SKOBLAR: It's destroyed Your Honour.
HER HONOUR: No, what happens to the order.
MS SKOBLAR: The order, the order is copied for the court file and also electronically filed a copy for the system.
HER HONOUR: All right, than you.
MS SKOBLAR: So if could trouble your helpful associate for some copies.
HER HONOUR: All right.
MS SKOBLAR: Thank you.
HER HONOUR: Thank you. Now the only other order that we need to organise is the sex offenders registration order. I think my associate is just working on that at the moment. I should formally declare pre-sentence detention of 25 days.
MS SKOBLAR: Your Honour, just one more matter.
HER HONOUR: Yes.
MS SKOBLAR: Just in terms of the serious sex offender provisions declaration in respect of that the accused is to be sentenced as a serious sex offender with respect to Count 5.
HER HONOUR: Yes is that under s.6D of the Sentencing Act.
MS SKOBLAR: Yes, that's correct for the State offence.
HER HONOUR: All right. In respect of Charge 5, Mr Incorvaja it is noted on the file that he is a serious sex offender who is sentenced as a serious sex offender pursuant to s.6D of the Sentencing Act. We will make sure that is formally on the court order. The only other order Mr Incorvaja is the sex offenders registration order. You will be required to report for the remainder of your life. There are various conditions in relation to that for sex offenders. Your counsel can explain to you the details in relation to that but is the information that you need in relation to that. Thank you. Anything else?
MS SKOBLAR: No Your Honour.
HER HONOUR: Thank you. I'll just stand down.
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