Director of Public Prosecutions v Johnathan
[2015] VCC 883
•25 June 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 14-00784
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ZACHARIAS JOHNATHAN |
---
| JUDGE: | HER HONOUR JUDGE SEXTON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 26 March 2015 |
| DATE OF SENTENCE: | 25 June 2015 |
| CASE MAY BE CITED AS: | DPP v Johnathan |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 883 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Pleaded guilty to three charges of sexual penetration of a child under 16, one charge of possession of child pornography, nine charges of using a carriage service to transmit an indecent communication to a child under 16, three charges of using a carriage service to groom a person under 16 for sexual activity – created false online profiles to give impression accused was teenage boy – offending involved 13 girls between 13 and 15 years old – protracted period of offending – very serious offending involving number of victims, lengthy duration, sophisticated deception, large age difference and calculated nature of offending – no reason for offending but for sexual gratification – over 200 prior convictions – guarded prospects for rehabilitation – deterrence highly important -
Legislation Cited: s11 and s 34(1)(c)(ii) Sex Offenders Registration Act 2004, s370 Criminal Procedure Act, Commonwealth Crimes Act
Sentence: Sentenced as a Serious Sex Offender on State charges – registered for life as a sex offender – imprisoned for a maximum of 5 years 6 months, with a minimum of 3 years 6 months.---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr N. Leslie | OPP |
| For the Accused | Ms R. Harper | Valos Black |
HER HONOUR:
1Zacharias Jonathan, you have pleaded guilty to three charges of sexual penetration of a child under 16, an offence against Victorian law which has a maximum sentence of 10 years' imprisonment; one charge of possession of child pornography, an offence against Victorian law which has a maximum sentence of five years' imprisonment; nine charges of using a carriage service to transmit an indecent communication to a child under 16, an offence against Commonwealth law which has a maximum sentence of 7 years' imprisonment; and three charges of using a carriage service to groom a person under 16 for sexual activity, an offence against Commonwealth law which has a maximum sentence of 12 years' imprisonment.
2I proceed to sentence you on the basis of the Prosecution Opening with Appendices[1]. It is necessary, however, in the sentencing remarks to set out a summary as briefly as I can, given the number of victims you offended against.
3Between January 2011 and January 2012 you, as a man aged 40 to 41 years, used a number of social networking internet sites and created false online profiles using various names, ages and photographs of teenage boys downloaded from the internet to give the impression that you were in fact a teenage boy. You used these profiles to lure teenage girls to chat with you online and also used female profiles to bolster your reputation with the teenage girls. On occasion you were communicating with one girl whilst simultaneously using a number of profiles. You made online connections with teenage girls in Australia and the United States of America, and after gaining their trust, you encouraged them to send you sexual photographs and videos of themselves, which some of the girls did.
4Charlotte Fitzgerald[2] was aged 13 years and living in Melbourne when you made contact with her in January 2011 using the name Adam and purporting to be 18 years old. After constant communication over two months you arranged to meet Charlotte after which she regularly met you at your house. Charlotte turned 14 in May 2011, and in June you and she argued and you sent her abusive text messages. You then created a profile as Adam's younger brother, Adrian, aged 15, and began communicating with Charlotte under that name. Charlotte began to think you were boyfriend and girlfriend. As Adam you resumed contact with Charlotte and so she thought she was communicating with two brothers. She continued to meet you as Adam at your house. As both Adam and Adrian, you gave Charlotte gifts including phone credits so she could keep in contact with you. As Adam and Adrian you exchanged sexually explicit material with Charlotte.
5You also created multiple false profiles to communicate with Charlotte and these communications included sexually explicit material. In December 2011 you used two of these profiles with other profiles to threaten Charlotte with distribution of her naked images. Then, as Adam, you offered to stop this and made up a story to this effect.
6On 19 January 2012 you, as Adam, collected Charlotte in your car and took her to your house. There you engaged in sexual activity with her, putting your penis in her vagina (Charge 1- sexual penetration), putting your penis in her mouth (Charge 2 - sexual penetration) and putting your tongue in her vagina (Charge 3 - sexual penetration). Although Charlotte willingly participated in the sexual activity, she was aged 14, which you knew; she thought she was engaging in sexual activity with an 18 year old called Adam; and you had been grooming her for this sexual activity for 12 months.
7A few days later Charlotte's uncle saw you when he dropped her off to meet you, and became suspicious as to your age. You introduced an older brother into the story and provided another phone number for her to ring you on in a vain attempt to deceive her uncle. When you next planned to meet Charlotte on 23 January 2012 the police had been contacted by the uncle and you were arrested. Charlotte at first did not believe she had been deceived but contact ceased thereafter.
8At the same time as you began the deception of Charlotte, using the false profile of a teenage boy named Jorge, you contacted Nerida Adamo[3], a 15 year old girl living in America. You sent her a still image and a video of your penis and asked for naked for images of her in return. She refused but instead sent images of herself wearing bathers (Charge 9 - using a carriage service to transmit indecent material). Contact between you ceased soon after this.
9Shortly after you began the deception of Charlotte, in January 2011 you contacted Tracy Avila[4] who was a 14 year old girl living in Melbourne. Between February and April 2011 you contacted her using a profile of an 18 year old boy. You falsely told her you were a photographer and wanted photos of her. You encouraged her to send naked images of herself which she did (Charge 4 - using a carriage service to transmit indecent material). In May 2011 she blocked your profile so you could no longer contact her.
10While continuing the contact with Charlotte, in August 2011, using a false profile of a 17 year old named Patrick, you contacted Lisa Herbert[5], living in Melbourne. Lisa was aged 15 and using the name Stephanie and a photograph that was not her own. The conversations between you were sexually explicit. In October 2011 Lisa created another profile of a 15 year old using the name Soulia and you began communicating with that profile. You wanted to give Soulia a birthday present and Lisa, as Soulia, suggested you give Lisa the gift, telling you that Soulia was overseas. You agreed and took the gift of iPhone and Gucci watch to Lisa's home and gave it to her for Soulia. Contact with Lisa as Soulia continued as if you were in a relationship and you sent Soulia an image of your penis (Charge 5- using a carriage service to groom for sexual activity). Lisa later deleted both of your profiles, thereby ceasing contact with you.
11In August 2011, using a false profile of a teenage boy named Pete, you contacted Anne-Marie Ricardo[6], a 13 year old girl living in the USA. You created multiple false profiles to communicate with her. You gained her trust and the conversations over August to October became more sexually explicit, and you sent her naked images of yourself, including of yourself masturbating. You encouraged her to send naked images of herself but she was reluctant to do so, instead sending images of herself in her underwear (Charge 10 -using a carriage service to transmit indecent material.) Contact ceased after your arrest on 23 January 2012.
12In September 2011, using a false profile of a 16 year old boy named Jamie, you contacted Victoria Lundy[7], a 14 year old girl living in Melbourne. You spoke to her almost daily for two months, gaining her trust, and then asked her to send naked photos of herself which she did (Charge 6 - using carriage service to groom for sexual activity). Victoria ceased contact with you in November 2011.
13In October 2011, using a false profile, you contacted Laura Ricardo[8], a 15 year old girl living in the USA. You engaged in sexually explicit conversations with her, and following this, she sent you photos of herself naked and videos of her masturbating (Charge 11- using a carriage service to transmit indecent material).
14Also in October 2011 using a false profile of a 15 year old boy named Jorge, you contacted Gina Franco[9], a 13 year old girl living in New South Wales. You communicated regularly on a social networking site and by phone and text. You created another false profile of a 15 year old boy named Greg purporting to be Jorge's best friend and contacted Gina as Greg. As both Jorge and Greg you communicated with Gina, purchasing phone credit for her on occasions. The communications became sexual in nature and you encouraged Gina to exchange naked images with you as both Jorge and Greg (Charge 7 - using a carriage service to groom for sexual activity).
15You also created multiple false profiles to communicate with Gina. In November 2011 you used the profiles of Jorge and Greg to threaten Gina with sending her naked images to her mother. Then you introduced an older brother to Jorge into the story and, as Jon, you tried to gain her trust and resolve the issue while as Jorge and Greg you sent her hostile messages. Gina ceased contact in December 2011.
16Between October and November 2011, using a false profile as a teenage boy, you communicated with Xena Frederico[10], a 14 year old girl living in the USA. Your conversations were sexually explicit and you exchanged naked still images and videos of yourselves masturbating (Charge 12- using a carriage service to transmit indecent material). Contact stopped towards the end of November 2011.
17During November and December 2011, using a false profile of a young male named Justin, you communicated with April Avalon[11], a 15 year old girl living in the USA. Your conversations were sexually explicit and you exchanged naked still images and videos of yourselves masturbating (Charge 13- using a carriage service to transmit indecent material). Contact ceased in December 2011.
18During the same period, November and December 2011, using two false profiles, one as a 16 to 17 year old boy named Adam, the other as a teenage girl named Allysha, you communicated with Janet Leidhardt[12], a 13 year old girl living in the USA. She was using the profile name Jodie. You built a rapport with her as both Allysha and Adam and, as both of these people, you sent her explicit sexual material, including a video purporting to be of Allysha masturbating. Janet responded by sending videos of her masturbating and a number of similar videos were exchanged between you (Charge 14- using a carriage service to transmit indecent material.) Contacted ceased in December 2011.
19In December 2011, using a false profile of a 15 year old boy named Jamie, you contacted Greta Danilo[13], a 13 year old girl living in Perth. Her profile stated that she was 14 years old. You contacted her online almost daily and built a rapport. You exchanged mobile phone numbers and communicated by text. After about a week of contact you asked her to send naked images of herself which she refused to do, sending photos of herself in her underwear instead. You sent her images of your penis (Charge 8- using a carriage service to transmit indecent material.)
20In January 2012 you created a false profile as a 16 year old girl named Allysha. You contacted Greta as Allysha, claiming to be Jamie's girlfriend, and an online argument developed. You joined in as Jamie, playing both roles, and told Allysha that Greta was your girlfriend. After this you pressured Greta to send you naked images, including of her masturbating and, although she refused, you sent her a video of yourself masturbating to ejaculation (Charge 8- continued). Contact ceased after your arrest on 23 January 2012.
21Between December 2011 and January 2012, using the false profile of Adam, you contacted Carol Inglesias[14], a 13 year old girl living in the USA. You built a rapport with her and after exchanging in sexually explicit conversation you exchanged naked images (Charge 15 - using a carriage service to transmit indecent material). You also introduced another false profile in the name of Adrian. Contact ceased after your arrest on 23 January 2012.
22When your house was searched on 23 January, a number of computers and other devices were seized. Analysis of these showed that you were in possession of child pornography beyond those referred to in the charges I have just summarised. In total, you were in possession of over 1000 images of children in sexual situations but with no sexual activity depicted, and over 1600 images of children with non-penetrative sexual activity depicted. While these are the two lowest categories of seriousness for possession of such material, the collection of the images was not a small one (Charge 16 - possession of child pornography).
23Your offending involved 13 girls aged between 13 and 15 years and was a protracted period of conduct lasting 12 months. There are a number of unknown victims abused by others for the purpose of creating the pornography which you accessed and kept on your devices.
24Your offending is of a very serious kind because of the number of victims, the duration of offending, the sophistication of your deception, the difference between your age and that of your victims, and the fact that you set out to and did, deceive vulnerable teenage girls for what I find was your own sexual gratification, knowing that all were aged under 16 years. I find that your level of moral culpability is high.
25The laws with which you have been charged are designed to protect children under the age of 16 from sexual exploitation by predatory, older males like you, and the laws recognise that often these children need protecting from themselves as well, because they are not emotionally or socially mature enough to understand the consequences of their actions.
26I received a number of statements from the girls and/or their parents, showing the severe impact your despicable crimes have had on them[15]. They now know that they have been inveigled into sexual situations by a man 25 to 30 years older than them, rather than the teenage boys they thought they were dealing with, and they know that they have been exploited by you.
27Charlotte Fitzgerald has dropped out of school, begun harming herself and stopped eating. She has spent time as a psychiatric in-patient and tried to kill herself. She does not trust anyone and her relationship with her family has changed. Poignantly, she says that she has not grown up like she would have wanted and she has lost her “chance to be a kid”.
28Lisa Herbert says the impact has been nothing short of traumatic. She has sleepless nights and anxiety which impacted on her VCE so that she performed miserably. She and her family all feel insecure and distressed and she has lost her self-confidence and trust in her own judgement. She is embarrassed and ashamed and is worried that the experience has scarred her permanently. Her mother confirmed the family's loss of security and emotional trauma and she herself feels angry and scared.
29Victoria Lundy’s father writes on her behalf that Victoria is sad, has lost motivation, self-respect, and confidence in others and is not eating enough. He says these are not issues his family had to deal with before you interfered in their daughter's life but are now daily issues. He concludes by saying that their home life will not be the same and "there are not enough lines [on the page] to cover the tears, disputes and disharmony."
30Victoria’s mother writes eloquently about the change that has overcome Victoria as a result of your crimes. I cannot match the eloquence of her words but I inadequately summarise the impact on a girl who was one of the top students in her class, chosen to attend a future leader's conference who is now hardly attending school, ostracised by her friends and emotionally absent. Her mother has also put on a façade to keep others, including younger family members, from knowing what has happened, and to do whatever it takes to support her daughter, but it is taking its toll on her too, as she “carries [her daughter's] guilt and her grief”.
31Greta Danilo’s mother describes the anger and embarrassment your offending has brought to Greta, so much so that she was unable to write her own victim impact statement. The family continues to support Greta through what was a bad experience, one which will be with them for a long time.
32I am assisted by these statements to learn of the specific impact on the individual girls referred to, but I do not need impact statements to tell me how all of these girls have suffered and continue to suffer from your contemptible crimes. I want to say to all the girls and their parents that it is never, repeat never the child's fault when she is exploited by an adult. They must hold fast to the fact that the only guilty one in this whole sorry mess is you. I recognise the pain and concern of the parents and the shame and embarrassment of the girls. I want to tell them that this pain will ease with time and that the girls must realise that their whole lives are ahead of them. They should take the opportunity to accept professional support which will be offered, if it has not been already, by the police and the Office of Public Prosecutions. It will not be easy but it will get better. I wish them all well.
33When interviewed by police you made no comment as you are entitled to do, however this means that no reason was put forward at that time for your offending.
34From about the beginning of this year you began attending a psychologist, Dr Stephen Brown, following a referral from your general practitioner under a Mental Health Treatment plan to assist with managing your anxiety and depression. There is no mention of any assessment and treatment for any sexual disorder giving rise to your offending. I received two letters from Dr Brown outlining your attendance[16]. There are references to "identifying and reflecting on factors that significantly contributed to [your] past compromised judgments and behaviours", and that you "[recognise] that [your] past errors of judgement and behaviours were influenced by previous unhealthy lifestyle patterns."
35These letters did not really address the matters that I must consider in my assessment of your risk to the community and likelihood of re-offending. I therefore ordered that you be assessed by a psychiatrist at Forensicare to provide more material as to your requirements for treatment. The time required for such a report has resulted in the period of time that has passed from the plea date to the sentence today.
36I received a report from Dr Clare McInerney, dated 22 May 2015. In it there was reference to you attributing your offending behaviour to depression, anxiety and methamphetamine abuse, and to being bored and lonely at home.
37Unfortunately, this report did not shed any more light on your prognosis from a psychiatric perspective. On the one hand, Dr McInerney did find no credible link between low mood or anxiety and the offending behaviour and was of the view that it was difficult to draw any link between the "typically chaotic nature of the intoxication" and your offending. This would seem to remove from consideration the explanation for your offending that you have been working through with Dr Brown. Further, Dr McInerney does state that you may benefit from specialist offence-specific psychological treatment as well as drug and alcohol counselling, which treatments are available in and outside prison. However, there is no reference in her report to any assessment of your level of risk of re-offending in a sexual way, nor whether you have paraphilia, and in particular, paedophilic or hebephilic tendencies, and if so, what might be done to promote your rehabilitation and protect the community.
38I am left without any reason for your offending other than my finding that it was for pure sexual gratification to be obtained from an easy target audience. The fact that you chose girls in early to mid-adolescence rather than adults, combined with your possession of child pornography, would tend me towards the view that you do prefer underage females, but I will not reach this conclusion without the benefit of a comprehensive psychiatric examination and a diagnosis of a sexual disorder.
39I will come back to my own assessment of your risk of re-offending after I have considered your personal circumstances. Before I do that, I note some matters that the law requires I must take into account in your favour.
40First, you have pleaded guilty and you are entitled to have that fact taken into account in your favour and I do so. Because of your plea the community has been saved the time and cost of a lengthy trial. Most importantly, the girls have been spared the ordeal of giving evidence. I do not, however, treat your plea as a sign of true remorse, as showing your willingness to facilitate the course of justice, or as a true acceptance of responsibility by you[17].
41Apart from what I have just said about the explanations you put to Drs Brown and McInerney for your offending, and my own tentative views, the reasons for not treating your plea in these ways are as follows: you pleaded guilty just before your trial was to be held, in September 2014, so that until that point, the girls believed they needed to give evidence. The first plea date was set for 13 November 2014 but just before it, you sought to change your plea to not guilty. This led to the girls having an expectation once again that they may need to give embarrassing evidence. On 8 December, another judge of this court refused leave for you to change your plea to one of not guilty. The second plea date was set for 26 March 2015 and the week before that you sought an adjournment in order to have more time to work with Dr Brown, but this was refused. This chronology does not reflect true remorse for the impact of your offending nor empathy for your victims.
42I turn to consider your personal circumstances and history. You are now aged 45 years. You were born in Cyprus and left in the care of your grandparents while your parents came to Australia. You and your sister joined them when you were about 3. You report witnessing the consequences of war in Cyprus during your infancy and still consider this to have impacted negatively on your mental health. You completed Year 12, and began an electrical apprenticeship, and later ran a number of small businesses. You married in 2000 and separated in 2011, but remain good friends. There were no children. Your own parents separated in 2012 and your father has a new partner. Your mother and sister came to court to support you, and consider you the head of the family, with your father effectively having little to do with your family.
43With the end of your marriage, your carwash business being stressful and unsuccessful, you apparently returned to drug use which you had ceased for about 10 years before that. You told Dr McInerney that you began smoking methamphetamine, approximately one gram daily, from the age of 39 to your arrest. This period coincides with your offending but while it might provide some explanation for a lack of judgment on your part, it does not in my view go anywhere near explaining fully the reasons for you engaging in such manipulative, predatory behaviour for over 12 months involving 13 girls in two countries.
44You have over 200 prior convictions received between 1993 and 2011, including 169 for deception, as well as drug, assault, weapons and driving offences, but none for sexual offences. The relevance of these convictions is that you have received a range of sentences in the past, and have breached a Community-based Order and a suspended sentence, and have not been deterred by any of your sentences from offending in the way that you did between 2011 and 2012. You were to plead guilty in the Magistrates’ Court on 30 March to a range of charges arising from the search of your home on 23 January 2012 including more weapons, drugs, dishonesty and driving offences. That case has been adjourned.
45You spent 134 days in custody after your arrest on 23 January 2012, then a period on bail until you were remanded in custody after your plea hearing on 26 March this year. Before this, you had not spent time in jail.
46I received two letters from long-time friends of yours to whom you are known Zac Varvanas. They clearly have seen a different side to you and support you, whilst being aware of the seriousness of your offending. This support, together with that of your mother and sister, is important for your prospects of rehabilitation.
47I find that the prospects of your rehabilitation are guarded. You have accumulated a large number of convictions over 20 years and I find that your risk of re-offending generally is quite high. I find that the risk of your re-offending in a similar way against teenage girls is at least moderate and that it is essential for your rehabilitation, and the protection of the community, that you be assessed and, if you are found to have a paraphilic disorder, treated for that.
48In the event that you are sentenced to a term of imprisonment for any two of charges 1 through to 3, 5 through to 7 and 16, you will be sentenced as a serious sex offender on the remaining Victorian charges, which means that I am required to regard the protection of the community from you as the principal purpose for which sentence is imposed on those Victorian charges and sentences on those charges must be cumulative on each other unless I order otherwise. In order to achieve that purpose, I may impose a sentence greater than is proportionate. I do not propose to do that in this case because the prosecution do not seek it, and I am satisfied that a properly constructed sentence of imprisonment on all charges will meet the sentencing objectives in this case.
49As well as matters personal to you to which I have referred, including the question of rehabilitation, I must also take into account such matters as deterrence, especially general deterrence, which is of considerable importance in a case such as this involving sexual exploitation of girls. General deterrence means that by my sentence I must seek to deter others from committing the same sort of offences. Also, specific deterrence, which means deterring you from re-offending, is of importance in this case, as your criminal record demonstrates.
50I take into account that you have not opposed the forfeiture and disposal order.
51Your counsel submitted that I should take into account in your favour the delay in your case being finalised. I have already outlined the timeframe since you were arraigned and pleaded guilty in September 2014. I do not take into account any delay since then. The timeline from your arrest in January 2012 to a trial date of September 2014 is, however, a lengthy delay. The committal was not held until 6 May 2014. Once you were committed to this court, as all the victims were under the age of 18 years they were entitled to a Special Hearing[18] within three months; however, because of the number of victims and accompanying documents in the prosecution case, the trial was estimated to take four weeks, and a trial of that length could not be accommodated within three months of committal. The court did set a date within four months of committal. On this analysis, the time from charge to committal was lengthy and was not caused by you and so I take that time into account. The time from committal to trial date was not lengthy and I do not take that period into account. I do accept that you have not committed any offences since January 2012.
52As a result of my sentencing you today, you become a registrable sex offender under the Sex Offenders Registration Act 2004. Charges 1 through to 3 are Class 1 offences but are treated as a single offence as defined in that Act, as they were committed within one 24 hour period. Charges 5 through to 7, and 16 are Class 2 offences. For the purpose of this Act you have therefore been found guilty of a Class 1 offence and one or more Class 2 offences.
53You will be required within seven days of your release from custody to report your personal details and begin a regime of annual reporting required by the Sex Offenders Registration Act 2004 and be otherwise subject to the Act for the remainder of your life under section 34(1)(c)(ii).
54I will now have my Associate hand to you a form which tells you about your reporting obligations. Mr Leslie, you can accompany my Associate if you wish.
55MR LESLIE: If Your Honour pleases.
56HER HONOUR: I am asking you to acknowledge where indicated that you have received the form. Thank you.
57MR LESLIE: Thank you for that time, Your Honour.
58HER HONOUR: I have taken into account the matters to which I must have regard under the Commonwealth Crimes Act, many of which I have referred to in these remarks.
59The prosecutor submitted that a term of imprisonment for all your offending was the only option. Your counsel conceded that an immediate term of imprisonment was appropriate, but submitted that it could be followed by release on the conditions of a Community Corrections Order. In my view, such a sentence would not reflect the totality of your offending, nor provide the denunciation by the court that is required in the circumstances of your serious offending.
60The sentences of imprisonment I will now impose will reflect, for Charges 1 through to 3 that they occurred in the same incident but were committed against a 14 year old whom you had groomed over the course of 12 months; for Charges 7, 8, 14 and 15, that the girls were only aged 13 years; and for Charges 5 and 7, some threatening or abusive communications were sent by you to the victim during your communications with her.
61You are convicted and sentenced as follows.
62On Commonwealth charge 7 (grooming) – two years’ imprisonment. That sentence starts today.
1 On Commonwealth charge 6 (grooming) – 20 months’ imprisonment. That sentence starts on 25 January 2016.
2 On Commonwealth charge 5 (grooming) – 18 months’ imprisonment. That sentence starts on 25 June 2016.
3 On Commonwealth charge 8 (transmit) – 14 months’ imprisonment. That sentence starts on 25 November 2016.
4 On Commonwealth charge 14 (transmit) – 14 months’ imprisonment. That sentence starts on 25 December 2016.
5 On Commonwealth charge 15 (transmit) – 14 months’ imprisonment. That sentence starts on 25 January 2017.
6 On Commonwealth charge 4 (transmit) – 12 months’ imprisonment. That sentence starts on 25 April 2017.
7 On Commonwealth charge 9 (transmit) – 12 months’ imprisonment. That sentence starts on 25 May 2017.
8 On Commonwealth charge 10 (transmit) – 12 months’ imprisonment. That sentence starts on 25 June 2017.
9 On Commonwealth charge 11 (transmit) – 12 months’ imprisonment. That sentence starts on 25 July 2017.
10 On Commonwealth charge 12 (transmit) – 12 months’ imprisonment. That sentence starts on 25 August 2017.
11 On Commonwealth charge 13 (transmit) – 12 months’ imprisonment. That sentence starts on 25 September 2017.
63That makes an effective sentence on the Commonwealth charges of three years, three months' imprisonment. I direct that you be released on condition that you give security by recognisance of $500 to be of good behaviour after serving two years, three months on the Commonwealth charges.
64On State charge 1, you are convicted and sentenced to two years' imprisonment. That sentence starts two years and three months after the commencement of the Commonwealth sentences.
65On State charge 2, you are convicted and sentenced to two years' imprisonment. That sentence starts two years and three months after the commencement of the Commonwealth sentences.
66On State charge 3, you are convicted and sentenced to two years' imprisonment. That sentence starts two years and three months after the commencement of the Commonwealth sentences.
67On State charge 16, you are convicted and sentenced to six months' imprisonment. That sentence starts two years and six months after the commencement of the Commonwealth sentences.
68Charge 3 is the base State sentence. I direct that the sentences imposed on State Charges 1 and 2 be served concurrently with the sentence imposed on State Charge 3 and on each other and that three months of the sentence imposed on State Charge 16 be served cumulatively on the sentence imposed on State Charge 3. That makes an effective sentence for the State Charges of two years, three months' imprisonment.
69I direct that you serve a minimum of 15 months before becoming eligible for State parole on the State charges.
70It is my intention for all your offending that you serve a maximum of five years, six months' imprisonment with a minimum term of three years, six months.
71I declare that the period you have spent in custody is 225 days not including today and these are to be deducted administratively from your sentence.
72I direct that on State charges 1, 2, 3 and 16, you are sentenced as a serious sex offender and that this be noted in the record.
73If you had not pleaded guilty to the State charges but had been found guilty after a trial, the sentence I would have imposed on those offences alone is 5 years' imprisonment with a minimum of three years, six months.
74In respect of the Commonwealth Charges, I will not state the sentence that would have been imposed if you had not pleaded guilty. Until the Commonwealth legislation specifically provides for this, or an authority which binds me states the Victorian law applies in this instance to a Commonwealth sentence, I do not propose to do so.
75I have made the forfeiture and disposal order.
76In terms of the Recognisance Release Order, yes, we have that?
77MS HARPER: My instructor has a draft order, Your Honour.
78HER HONOUR: Thank you. Ms Harper, could I just check that in terms of the conditions - yes, it's a matter for me which conditions are imposed, beyond the giving of the recognisance.
79MS HARPER: Yes, Your Honour.
80HER HONOUR: Yes, thank you. Just one further question, in terms of the period of supervision or to complete any program, can that extend beyond the term of the imprisonment?
81MS HARPER: I believe it can but, Your Honour, in this case the period extending beyond the case will be in custody. So perhaps if it's confined to the - it probably won't matter actually because it extends - often they're done the other way around and it becomes more of an issue but where the Commonwealth sentences take priority there will be 15 months remaining on the recognisance order.
82HER HONOUR: I think what I will do is provide Condition (a), that he be of good behaviour for one year, because that's the remaining period of his term of imprisonment, although of course he will be in custody on the State charges at that point, and the only other condition would be the second one for (c), that is, completing the Sex Offenders’ Program within a period of two years because that will take into account whether he's in or out of custody, as opposed to being under the supervision of the Community Correction Services.
83MS HARPER: That would also extend it - that wouldn’t extend it beyond the period of the - Commonwealth sentence - sorry, within two years of today's date?
84HER HONOUR: Yes.
85MS HARPER: Two years of today's date is appropriate, yes, sorry, Your Honour. I had it around the wrong way.
86HER HONOUR: Yes, very well, thank you. All right, Mr Leslie, do you understand that?
87MR LESLIE: Yes, Your Honour.
88HER HONOUR: Do you have anything you want to say about that?
89MR LESLIE: No, no issues, Your Honour.
90HER HONOUR: Thank you. Very well, I've initialled the numbers that I've crossed out on the first page and so it's really only the two conditions (a) and (c) and I have signed that order. So once again if, Mr Leslie, you can accompany my associate for Mr Johnathan to sign that.
91Ms Harper, do you require three copies to be signed?
92MS HARPER: I don't know how many I require, Your Honour ‑ ‑ ‑
93HER HONOUR: I've been given three.
94MS HARPER: We'll take three, Your Honour. If perhaps one could remain on the court file and we'll take ‑ ‑ ‑
95HER HONOUR: Yes, sorry, it just means we just need to have these provided to Mr Johnathan as well.
96MS HARPER: Yes.
97HER HONOUR: Yes, this is exactly the same document, Mr Johnathan, we're just getting two other copies signed. Thank you. Yes, are there any other orders required?
98MS HARPER: No, Your Honour.
99HER HONOUR: Could I thank counsel for their assistance in what was a somewhat complex sentence and we'll adjourn now until 12 noon.
100COUNSEL: If Your Honour pleases.
‑ ‑ ‑
[1] Exhibit A.
[2] A pseudonym
[3] A pseudonym
[4] A pseudonym
[5] A pseudonym
[6] A pseudonym
[7] A pseudonym
[8] A pseudonym
[9] A pseudonym
[10] A pseudonym
[11] A pseudonym
[12] A pseudonym
[13] A pseudonym
[14] A pseudonym
[15] Exhibit D
[16] Exhibit 2
[17] Phillips v R [2012] VSCA 140
[18] Section 370 Criminal Procedure Act
0