Director of Public Prosecutions v Jensen (a pseudonym)
[2018] VCC 1403
•31 August 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GABRIEL JENSEN (Pseudonym) |
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| JUDGE: | HIS HONOUR JUDGE CARMODY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 23 August 2018 |
| DATE OF SENTENCE: | 31 August 2018 |
| CASE MAY BE CITED AS: | DPP v Jensen (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 1403 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Child Pornography
Legislation Cited: Crimes Act (Cth) 1914, Sentencing Act 1991, Sex Offender Registration Act 2004
Cases Cited:R v Hutchinson [2018] NSWCCA 152, Zarb [2014] VSCA 347, DPP (Cth) v Garside [2016] VSCA 74, DPP v Smith [2010] VSCA 215, R v Gent [2005] NSWCCA 370.
Sentence:Total Effective Sentence for both State and Federal sentences is four years imprisonment with a minimum term of two years and six months imprisonment before eligible for parole.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Plea - Mr B. Stevens Sentence - Ms O. Go | Commonwealth Director of Public Prosecutions |
| For the Accused | Ms E. Clark | Ms S. Crowe, Victoria Legal Aid |
HIS HONOUR:
1.Gabriel Arthur Jensen[1], on 31 August 2018, you pleaded guilty to three charges on indictment CR-18-01159:
Charge 1, accessing child pornography using a carriage service. This charge has a maximum penalty of 15 years' imprisonment;
Charge 2, transmit child pornography using a carriageway. This charge has a maximum penalty of 15 years' imprisonment; and
Charge 3, which is a State offence of knowingly possess child abuse material. This charge has a maximum penalty of 10 years' imprisonment.
[1] A pseudonym name
2.You also admitted prior convictions to sexual penetration of a child between the ages of ten and 16, and charges of indecent act in the presence of a child under 16 years, for indecent assault. For all of those charges, you were convicted at the Melbourne County Count on 9 October 1994, and sentenced to a total effective sentence of three years' imprisonment and 18 months non-parole period.
Circumstances of your offending
3.The prosecution tendered a summary of prosecution opening for the plea. It was Exhibit “A” on the plea. The email address of [email protected] was registered to you on and before 13 October 2017. On 13 December 2017, police attended at your residence and executed a search warrant. Police located child pornography material on electronic devices and in hard copy. During the search, you participated in a recorded conversation under caution. You stated the following:
·There was child pornography material located on the electronic devices at the offender's premises.
·That you were in possession of hard copied pictures of naked children.
·That you knew why police were there because you were on the computer at the time looking for that kind of stuff.
·You would view child pornography on your electronic devices but you do not go out and do anything about it anymore.
·There is a site on the internet that you go to, to obtain child exploitation material.
·The site has normal pictures of children but then other users will send you links to other sites that contain child pornography material.
·You have been looking at child pornography material for the past 12 to 18 months.
·The three main websites that you used to access child pornography material were megaimage.com and yardstick.
·You transmitted child pornography material twice, but Google had banned you or your email account due to your inappropriate use.
·You believed your email account was probably banned because of the child pornography image you had sent to another person.
·That you put comments on the bottom of your imgsrc.ru account, which other users would then use to contact you via email.
·You knew that you had “fucked up”.
·You mainly used the website, to access child pornography material.
·The search terms that you used to search for child pornography material on the internet were:
(1), naked boys;
(2), naked girls;
(3), child porn.
·You mainly used the Acer desktop, the computer to access child pornography material.
·You uploaded 12 images of cars to your imgsrc.ru account so you could comment on the website, as you need to upload a minimum of 12 images to do so.
·Mega is an application that you used and that you can get everything on mega, child porn, child molestation photographs and videos of boys and girls.
·You viewed the website every day after work around 5 pm when you arrived home from your work.
·If you wanted to keep an image, you would save it onto your computer, but you predominantly viewed images and videos of boys of 15 years of age and below, posing naked, engaging in oral sex or having sex with men.
·That you would spend 15 to 20 minutes on that website, each time you accessed the website to see what new images or videos had been added to the website.
·That you do not know why you view child pornography material but admitted that you masturbated to it.
·That you did not produce any of the child pornography material on your electronic devices.
·That you transmitted the child pornography material via email by attaching a file to an email and sending it to the email of account of an unknown person.
·That you believed the email was sent from your email account approximately 12 to 18 months ago.
·That conversations between you and the recipient of the email commenced on imgsc.ru, where the recipient and you asked each other what images and videos the other had.
·That you then exchanged email addresses with the recipient and the recipient sent an email to you containing child pornography material.
·You then replied with an email attaching child pornography yourself.
·The child pornography material that you sent via email was images of naked boys and girls under 15 years of age in posing positions.
·That the email that you sent, which included the attachment of child pornography material, is likely still on your email account.
·That you only used child pornography in your premises and do not commit any other offences outside of viewing child pornography material in your premises.
·That no other person used your electronic devices at the premises, which you advised, contained child pornography material and no other person had access to your Wi-Fi internet.
4.As a result of the search, the police seized the following electronic devices, each of which contain child pornography material:
(a) Samsung mobile phone;
(b) Samsung tablet;
(c) an Acer desktop pc;
(d) a Toshiba desktop pc;
(e) a Seagate 2 terabyte hard drive; and
(f) USB drives - Equip, SanDisk and Verbatim.
5.Police also seized the following hard copy items of child abuse material: two A4 printouts of naked children, one purple folder and one green folder, each with pictures of naked children inside and numerous A4 pages with handwritten notes on them. One white folder with pictures of naked children, one A4 page entitled "Stories xnxx.com". You were arrested and conveyed to the Boxhill Police Station.
6.Charge 1, is between 6 December 2014 and 11 December 2017, you accessed material using a carriage service, the material being child pornography material. The child pornography files contained on your devices had creation dates between 6 December 2014 and 11 December 2017. You used the internet to access child pornography between those dates, then saved the material to your devices. The search history on your Toshiba desktop computer contained eight searches for naked boys between 28 April 2016 and 14 July 2016. This offending is consistent and persistent over a three year period till the day of your arrest.
7.Charge 2, which is on 6 March 2017 and 7 August 2017, you transmitted material using a carriage device, the material being child pornography material. And analysis of your devices revealed emails between you and unnamed persons on 6 March 2017 and 7 August 2017, in which you transmitted child pornography. On 6 March 2017, at approximately 5 pm, Tyson Lorimer[2] sent you an email which said, "Hello, thanks for your invitation. But I am soon on mega." You have replied at 6.15 pm with an email containing no text but attaching Category 1 images and Category 2 video. At 6.41 pm, Dennis replied with a link commencing with mega.nz. At 9.57 pm, you have then replied with another email with no text, but attaching Category 3 images.
[2] A pseudonym name
8.On 6 August 2017 at 11.42 pm, you have received an email from David Burne[3] on 7 August 2017 at 8.19 pm. You have replied, "What more have you got?" And you attached a Category 1 image. At 9.03 pm, David, has sent you an email with no text but attaching an image. The image was a primary school aged male in school uniform sitting on a chair. At 10.06 pm, you have replied with an email containing no text but attaching a Category 1 image. The transmission of child pornography occurs on two separate days, five months apart in 2017.
[3] A pseudonym name
9.Charge 3, relates to the day the police arrived, which is 13 December 2017. The police subsequently examined and classified the child abuse material contained on the devices and located in hard copy at your premises. The material was classified pursuant to the Australian National Victim Image Library, which is known as ANVIL. Descriptions of the ANVIL categories are attached and I will not go through those here.
10.The child abuse material on the electronic devices was classified as follows: In terms of images, Category 1, there was 2388. Category 2, there were 304. Category 3, there were 260. Category 4, there were 390. Category 5, 35. And Category 6, 26. All up, you had 3400 images. In respect of videos, on Category 1, you had 27 videos. Category 2, you had 115. Category 3, you had 35. Category 4, you had 171. Category 5, you had six. And there were none in Category 6. In total, you had 354 videos.
11.In hard copy form, the police also seized a total of 115 images and I will not go through their various categories. Three text documents were also identified as child abuse material. And the first document was entitled, "Me and my best friend, and depicts two 14-year-old males engaging in oral and anal sex with one another. This document is a typed document, approximately one page long. The second document was entitled, "Popping Ashley's little cherry, part one", and depicts a father masturbating his nine-year daughter to orgasm. This document is a typed document approximately three pages in length.
12.And the third document was entitled, "Popping Ashley's little cherry, part two", and depicts a father performing oral sex on his nine-year-old daughter, including digital penetration to the daughter's vagina by the father and then having his nine-year-old daughter perform oral sex on the father. This document is a typed document approximately three pages long.
13.I have not viewed any of the child pornography or child abuse material referred to in the summary of offending. Exhibit “A” contained very detailed and explicit description of the Category 1 to 6 material referred to above. The descriptions are set out in paragraphs 12 to 17 of Exhibit “A”. I will not repeat them here.
14.I follow the guidance given to intermediary courts such as this one by the Court of Appeal in Zarb's case and followed in the New South Wales Court of Criminal Appeal in Hutchinson's case. It is not necessary for a presiding judicial officers to view child pornography material when there is a detailed description of it by the prosecution and there is no dispute by the defence about that description. I find that child pornography material is obscene, base and depraved, with levels of cruelty inflicted on the subjects of the images. This is an inhumane, depraved and cruel trade.
Personal Circumstances
15.You are 51 years old, you have never married, and you have no children. You grew up in the Frankston area, you completed your education to the Year 10 level. Upon leaving school, you attended Burnley Horticultural College for six months but withdrew from that course. You then worked in supermarkets and factory work at Nylex, before becoming a greenkeeper and subsequently working as a taxi driver.
16.In 1994, you were incarcerated for offending against two of your nephews. At your court hearing in 1994, for the first time, the allegations of your father sexually abusing you, when you were between the ages of 10 and 14 were revealed. Your mother sided with you, you have not seen your sister, that is, the mother of the two boys you offended against, or your 47 year old brother, much or at all since then. Your father was not charged with those allegations.
17.Since serving your sentence in 1994 and 1995, you have had two sets of long term employment of approximately ten years' duration. Your last job was a courier driver for the local Mitre 10 store. Prior to your incarceration last week, you lived in a mobile home at the rear of your mother and stepfather's mobile home in the Boxhill area. Your mother is elderly and you are concerned about her welfare.
18.After you were charged with these offences, you attended David Lococo, a psychologist on seven occasions under a mental health plan.
19.There was no report tendered on the plea from Mr Lococo. But a letter confirming your attendances was Exhibit “3”. You present as a sad, lonely person, who has resigned to his fate.
Sentencing Considerations
20.Charges 1 and 2, are Commonwealth offences. Section 16A of the Crimes Act (Cth) sets out the central sentencing principles to be applied in your case. There are many factors I must take into account when sentencing you, and they include the following:
(1) the principles of general deterrence;
(2) the nature and circumstances of the offence, including your moral culpability;
(3) the maximum applicable penalties to the charges;
(4) if the offence has formed part of a course of conduct consistent with a series of criminal acts of the same or similar character to that course of conduct that is applicable here;
(5) the fact that you have pleaded guilty to the charges;
(6) the degree to which you have cooperated with the law enforcement agencies and in the investigation of the offences;
(7) the deterrent effect of any sentence, order made under consideration, may have on you personally, that is specific deterrence;
(8) I need to ensure that you are adequately punished for the offences;
(9) your character antecedence, age, means and physical and mental condition;
(10) the probable effect of any sentence or order under consideration might have on your family or dependence;
(11) your prospects of rehabilitation; and
(12) that under Commonwealth legislation, prisoners sentenced at the last resort.
21.I have regard to the current sentencing practices for this type of offending across Australia in respect to Charges 1 and 2, and in Victoria in respect of Charge 3. I have noted the bundle of case summaries which were helpfully provided to me by the prosecutor. I am also required to take in account current sentencing practices in fixing your sentence. That enquiry is directly particularly but not exhaustively to the kind of sentence imposed in comparable cases and the statistics of those sentences.
22.I have considered the statistics and the current sentencing practices, mindful that each case must be considered in the light of their particular circumstances and many of the cases would be distinguishable from your case, as indeed they are from one another. Of course, current sentencing practices is but one of the many considerations I take into account when fixing your total sentence for all of your offending in this case.
23.You have pleaded guilty to these charges and indicated your intention to do so at an early time. You have cooperated with the police at the time of the search, and at the time of your record of interview. I gained the impression from your answers to police that you were rather relieved you had been caught. Your plea of guilty has utilitarian value of allowing the orderly administration of justice. There is a certainty of outcome and a resolution of the substantive issues raised by your offending. Your plea also allows for the preservation of the Court and Police resources to deal with other matters. Your plea vindicates a public confidence in the legal process set up to protect the community. I accept your plea of guilty indicates and demonstrates some remorse on your part.
24.The objective seriousness of your offending is indicated by a number of factors. You have accessed child pornography over a period of three years. On two separate occasions, you have engaged in transmitting and seeking in return, child pornography material. This was not done for profit but rather to feed your perversion. You had downloaded and possessed a large number of images and videos. In total, you have more than 3,500 images in digital and hard copy form. You have also downloaded and possessed a total of 354 videos.
25.The majority, or in statistical terms, the mode of the images and videos were in Category 4 of the ANVIL classification categories. The description of Category 4 images in your case, were described by the prosecution as follows:
“The Category 4 images and videos depict children of various ages between infants and teenagers, and include (a), an image of a male child under 12 months of age being anally penetrated by an adult penis and; (b), a video of a girl aged five to six years old being vaginally penetrated by an adult male, whilst a girl lies on her back on a bed with a male person standing between her legs”.
26.You also accessed and possessed materials from Category 1, 2, 3, 5 and 6 of the ANVIL classification. Possessing and accessing and transmitting child pornography is very serious offending. In essence, you are an end user in this market of depravity where young children are exploited and violated. In general terms, child pornography is depraved, abhorrent, and remorseless exploitation of young people who are the subjects of the videos and the photographs.
27.These children are manipulated by cruel adults who subject them to degrading and distressing experiences that affect their self-esteem, their physical and psychological well-being and their personal development. It is all done for profit. If there were no consumers or market for this material, there is no profit and hence no affected children. Your criminal activity is the basis of this child pornography market.
28.In Victoria it is now the law that unless exceptional circumstances exist, the sentence involving an immediate term of imprisonment is ordinarily warranted for these offences and I refer to the cases of DPP v Garside, a Victorian Court of Appeal decision as authority for that proposition. The broad principle of sentencing is that each case must be decided according to its own circumstances.
29.The basic sentencing principles are set out in the case of DPP v Smith and I will now refer to them. In that case, Justice of Appeal Nettle, as he then was, enunciate the principles which apply to sentencing child offenders and pornographers. First, the nature and gravity of the offence ordinarily falls to be determined by reference to four criteria set out by Justice Johnson in R v Gent, and they are as follows:
(a) the nature and content of the material, in particular the age of the children and the gravity of the sexual activity depicted;
(b) the number of images or items possessed;
(c) whether the material is for the purpose of sale or further distribution and;
(d) whether the offender will profit from the offending. In the case of child pornography for personal use, the number of children depicted and thereby the victims, is also regarded as a relevant consideration.
30.Secondly, general deterrence is regarded as a paramount sentencing consideration because of the public interest in stifling the provision and use of child pornography and less or limited weight is given to the offender's prior good character because it has been the experience of the courts that such offences are committed frequently by persons of otherwise good character. In your case, you have prior convictions for sexual penetration of children between the ages of ten and 16 in 1994.
31.In your record of interview, you show little insight into your offending and no empathy for the children who are the subject of the images. You view it for your own sexual gratification. You told investigators, "I view child pornography material on the electronic devices but do not go out and do anything about it anymore." You were assessed by Mr Jeffrey Cummins, psychologist, for the purpose of this plea. Mr Cummins noted in his report that you had completed eight to nine weeks of a 14-week sex offenders program at the time of your sentence in 1994 and 1995.
32.Mr Cummins assessed you as suffering from Paedophilic Disorder and Hebephilic Disorder. Mr Cummins' opinion was that there was a nexus between your offending here and in the earlier offending in 1994, with you being a victim of child or sexual abuse by your own father when you were a ten to 14-year-old boy. I note there was no investigation and report to the police in respect of that allegation.
33.In combining Mr Cummins' diagnosis and your prior criminal convictions for child sex offences, I regard your prospects of rehabilitation as poor. A previous partly completed sex offenders program did not stop your offending in these matters. There was a period of 20 years between the two sets of offending. In that time, you maintained long term employment. That employment history at least maintains a glimmer of hope and all hope is not lost for your rehabilitation. You need close and supervised offence specific treatment at the earliest time of your time in custody, and again prior to your release from custody.
34.Mr Cummins has assessed you as a moderate to high risk of sexual reoffending against young people. I would assess you as a high risk of offending in this manner. Under the serious offender provisions of the Sentencing Act, if you have been convicted and sentenced a term of imprisonment in respect of Charges 1 and 2, I am required on the sexual offences charges thereafter to regard the protection of the community from you as a principal purpose for which the sentence is to be imposed. If necessary, in order to achieve the purpose of protecting the community, I am empowered under s.6D of the Sentencing Act to impose a sentence greater than is proportionate to the gravity of the offences.
35.This means that the sentencing task in respect of Charge 3, on the indictment is to be undertaken on the basis of the protection of the community from you as a principal purpose for which the sentence is imposed. To achieve that purpose, a sentence may be imposed longer than that which is proportionate to the gravity of the offences considered in the light of the objective circumstances. Section 6E of the Sentencing Act also requires, unless I otherwise direct, with respect of Charge 3 on the indictment, that the sentence that I impose on you is to be served cumulatively. I note that the prosecution did not call for a disproportionate sentence for all of the cumulation contemplated under s.6D and 6E of the Sentencing Act, allowing for the matters which I have outlined in these reasons.
36.In my view, it is appropriate to impose only that degree of cumulation to which I subsequently refer, reflecting as it does, several events of sexual offending by you. To do otherwise may produce a sentence which is not appropriate and would breach the principles of totality in sentencing. The principles of general and specific deterrence are significant factors in assessing your total sentence to achieve a just sentence and for protection of the community.
37.I have fixed a non-parole period to afford you the opportunity to enter society under strict supervision of the Adult Parole Board which is specifically targeted to your risk of reoffending. I sentence you as a serious sexual offender on Charge on the indictment. Further, you are required to report for the remainder of your life, pursuant to the provisions of the Sex Offender Registration Act.
38.Would you stand, please?
39.In respect of Charge 1, using a carriageway to access child pornography, I sentence you to three years and three months' imprisonment. That sentence is to commence six months after the sentence on Charge 3. Charge 2, transmitting child pornography, you are convicted and sentenced to 12 months' imprisonment. That sentence is to commence nine months before the expiration of the sentence in Charge 1. And Charge 3, is the base sentence, and you are convicted and sentenced to 18 months' imprisonment. I fix a non-parole period in respect to Charge 1 of two years imprisonment.
40.That means you have a total effective sentence of four years' imprisonment, a non-parole period of two years and six months. Now, I just want to check. The s.6AAA, is that to cover all of the charges or just Charge 3?
41.MS GO: My understanding, it's all of the charges, Your Honour.
42.HIS HONOUR: Yes, thank you. But for your plea of guilty, I would have sentenced you to a total sentence of five years' imprisonment, with three and a half years' non-parole period. My calculation on the pre-sentence detention is seven days. Is that correct?
43.MS GO: It please Your Honour.
44.HIS HONOUR: Yes.
45.MS CLARK: Not including today, yes, Your Honour.
46.HIS HONOUR: Yes. I declare that you have served seven days pre-sentence detention. As I have said before, you have been sentenced as a serious sexual offender and you are on the sexual offenders register for life.
47.MS CLARK: Sorry, Your Honour, just doing ‑ ‑ ‑
48.HIS HONOUR: You're all right.
49.MS CLARK: ‑ ‑ ‑ calculation about the pre-sentence detention.
50.HIS HONOUR: All right, sorry. One at a time. Take your time about that, every day counts. The 23rd was the day he went into custody. Three, four, five, six, seven, eight, nine ‑ ‑ ‑
51.MS CLARK: Eight days then, including the date that he went in.
52.HIS HONOUR: Yes.
53.MS CLARK: Yes, I'm grateful to my learned friend, Your Honour.
54.MS GO: Your Honour, I might need some time to ‑ ‑ ‑
55.HIS HONOUR: Certainly. I'll just read out the cumulation. So the base sentence is 18 months' imprisonment, with a non-parole period of 12 months. So that's possessing that child pornography material, Charge 3. But then the sentence of three years and three months, which is the Charge 1, is to commence six months after Charge 3 has commenced.
56.MS CLARK: Could Your Honour just announce the non-parole period again, just so I have that? The head sentence is right by my calculation ‑ ‑ ‑
57.HIS HONOUR: Yes.
58.MS CLARK: I just want to make sure the non-parole period is right.
59.HIS HONOUR: Yes, the non-parole periods are - so I announced two separate ones. So there's non-parole period for the Charge 1 of 18 months, and for the non-parole period for Charge 3 is 12 months. And as I understand the parole, they are added together to be two and a half years. The total non-parole is two and a half years.
60.MS CLARK: It appears right with my calculation, Your Honour.
61.HIS HONOUR: Thank you.
62.MS CLARK: There's just one matter and I'm sure Your Honour will pick it up when revising the reasons.
63.HIS HONOUR: Yes.
64.MS CLARK: But at the very beginning when Your Honour was talking about
Mr Jensen's prior convictions ‑ ‑ ‑65.HIS HONOUR: Yes.
66.MS CLARK: ‑ ‑ ‑ you said that he was sentenced in 2014.
67.HIS HONOUR: Did I?
68.MS CLARK: Later on in the reasons, you said 1994.
69.HIS HONOUR: Yes.
70.MS CLARK: But it was just the initial ‑ ‑ ‑
71.HIS HONOUR: Thank you.
72.MS CLARK: ‑ ‑ ‑ reading of it was 2014.
73.HIS HONOUR: Thanks very much, it certainly was 19 - you're right. 1994. Yes, thank you. We'll just get the sexual offence register order done.
74.MS GO: And also, Your Honour, just an explanation of the consequence - purpose and consequence of fixing the non-parole period to the offender, pursuant to s.16F.
75.HIS HONOUR: Why I fixed one?
76.MS GO: Yes. That the order will be subject to conditions, the order may be amended or revoked, and the consequences if a person doesn't fulfil those conditions without reasonable explanation.
77.HIS HONOUR: I will certainly do that. Mr Jensen, you have had parole before. If you breach - first step is, if you're given parole. If you get parole, you have to comply with all the conditions of your parole subject to - you have to comply with all the conditions of your parole. If you don't, then the parole board can - the term is reclaim you, and you go back and serve every day of the sentence until they re-parole you.
78.OFFENDER: Yes.
79.HIS HONOUR: You understand that? Yes. Madam Prosecutor, these - sorry. These are Class 1 charges for the - are they Class 1 charges for the sexual offences, reporting?
80.MS CLARK: Charge 3 is not a Class 1.
81.HIS HONOUR: It's Class 2. Class 2 is Charge 3.
82.MS CLARK: Yes, they're all Class 2 offences, Your Honour.
83.HIS HONOUR: Yes, thanks. Thank you. Yes, Ms Clark, you might go down with the ‑ ‑ ‑
84.MS CLARK: Yes, Your Honour.
85.HIS HONOUR: Yes. Mr Jensen, that last document you've just been handed is your requirements under the reporting sexual offenders. That document you must read very carefully. You have a large number of obligations arising from it. And if you breach any of those obligations, you're charged under that act and you come back to be dealt with that as well. Do you understand all that?
86.OFFENDER: Yes.
87.HIS HONOUR: Yes, thanks. Just check. Is there some problem with the sentence?
88.MS CLARK: Just having a discussion about the non-parole period, how that works. My learned friend takes the view that the non-parole, that it's not a matter of joining them together, but they start running from when the sentence commences. And if ‑ ‑ ‑
89.HIS HONOUR: All right. So in that case, that I ‑ ‑ ‑
90.MS CLARK: To give effect to Your Honour's order ‑ ‑ ‑
91.HIS HONOUR: Yes.
92.MS CLARK: It would need to be a two-year ‑ ‑ ‑
93.HIS HONOUR: Two-year non-parole.
94.MS CLARK: ‑ ‑ ‑ non-parole period.
95.HIS HONOUR: On the first one.
96.MS CLARK: On the Commonwealth ‑ ‑ ‑
97.HIS HONOUR: Yes.
98.MS CLARK: No, on the Commonwealth charges.
99.HIS HONOUR: Yes.
100.MS CLARK: On Charge 1 - pardon me, Your Honour. Because it starts six months after, if the non-parole period on that is two years, then he becomes eligible for parole two and a half years from today. Does that make sense?
101.HIS HONOUR: That's what I want to happen.
102.MS CLARK: Yes.
103.HIS HONOUR: That he's eligible two and a half years from now. The way I was reading the sentence is this. He has a sentence of 18 months, that starts. And six months into that sentence, the Commonwealth one starts. At the six months period, he hasn't got parole. All right? So is the Commonwealth's position that the non-parole period for the Commonwealth matters should be two years so that it becomes a two and a half year total non-parole period?
104.MS CLARK: That's my understanding, yes. And given that the term for Charge 3 is 18 months, Your Honour doesn't - does Your Honour actually need to impose a non-parole period ‑ ‑ ‑
105.HIS HONOUR: No, I don't.
106.MS CLARK: ‑ ‑ ‑ on Charge - no. So if Your Honour simply imposes a non-parole period of two years on the Commonwealth offences ‑ ‑ ‑
107.HIS HONOUR: Yes.
108.MS CLARK: ‑ ‑ ‑ then that give effect to Your Honour's intention.
109.HIS HONOUR: Two and a half years.
110.MS CLARK: Yes.
111.HIS HONOUR: Two and a half years, yes.
112.MS CLARK: Well no, you would impose a non-parole period of two years.
113.HIS HONOUR: Yes.
114.MS CLARK: Because the effect would be that he'd do two and a half before he'd be eligible for parole.
115.HIS HONOUR: Yes.
116.MS CLARK: Because the Commonwealth sentence doesn't start for six months ‑ ‑ ‑
117.HIS HONOUR: Yes.
118.MS CLARK: ‑ ‑ ‑ from now.
119.HIS HONOUR: That's right.
120.MS CLARK: Yes.
121.HIS HONOUR: The record, they will still read that he has a non-parole period of two years, six months. That's the problem. That's what I want to make sure happens. Excuse me, could you take the two children out and - there's a sex offender, thanks. Thank you.
122.MS CLARK: The difficulties, if Your Honour states a non-parole period of two and a half years ‑ ‑ ‑
123.HIS HONOUR: Yes.
124.MS CLARK: That will create the effect of it being three years from today that he'd be eligible for parole. If Your Honour states - and it may be done by way of OTH, and I'm sure Your Honour's associate can weave some magic with that regard, with the court system, but if Your Honour states that the non-parole period for Charge 1 is two years ‑ ‑ ‑
125.HIS HONOUR: Yes.
126.MS CLARK: ‑ ‑ ‑ but simply makes a notation on the order that the intention is that he become eligible for parole in two and a half years from today's date.
127.HIS HONOUR: From today?
128.MS CLARK: Yes.
129.HIS HONOUR: Yes.
130.MS CLARK: And at least that way, it would reflect Your Honour's intention but also correctly apply the legislation by saying that it's two years from the commencement of the Commonwealth sentence.
131.HIS HONOUR: Yes.
132.MS CLARK: And I'll certainly have my instructors follow up with sentence management or sentence calculation, just to make sure that the date ‑ ‑ ‑
133.HIS HONOUR: Yes.
134.MS CLARK: ‑ ‑ ‑ is right.
135.HIS HONOUR: What I don't want to happen, and this happens in Commonwealth matters all the time, is for your client to have to come back and me to fix it.
136.MS CLARK: Yes.
137.HIS HONOUR: Because I won't be doing it without him right there.
138.MS CLARK: Yes.
139.HIS HONOUR: But just so it's clear, my intention is his non-parole period is - for all of this offending, is two and a half years.
140.MS CLARK: Yes.
141.HIS HONOUR: And his total sentence is four.
142.MS CLARK: Yes.
143.HIS HONOUR: That's the first part. So you're saying that if I make the order in respect of Charge 1 ‑ ‑ ‑
144.MS CLARK: Yes.
145.HIS HONOUR: ‑ ‑ ‑ the three years and three months, but two year non-parole period ‑ ‑ ‑
146.MS CLARK: Yes.
147.HIS HONOUR: ‑ ‑ ‑ and lead the other cumulations. In effect, that means he gets two and a half years on the bottom.
148.MS CLARK: That's right, Your Honour.
149.HIS HONOUR: Yes. We'll see if that's what happens. All right. Mr Jensen, can you hear what I've just been discussing here with your counsel?
150.OFFENDER: Sort of, yeah.
151.HIS HONOUR: Yes. Just so you're clear, the total sentence from here today is four years with two and a half year non-parole period.
152.OFFENDER: Four years inside.
153.HIS HONOUR: Ms Clark will explain it to you. I better go. What do you say about that, Ms Learned Prosecutor? Is that the way to do it?
154.MS GO: Yes, as long as it - that would give effect to Your Honour's intentions.
155.HIS HONOUR: Yes.
156.MS GO: And there would be no gap, according to my calculations.
157.HIS HONOUR: Yes. It's not how they do it in the Court of Appeal. All right. Thanks, if you can remove the prisoner.
158.OFFENDER: Thank you, Your Honour.
159.HIS HONOUR: Thank you for your assistance, Ms Go and Ms Clark. Thanks.
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