Director of Public Prosecutions v Jury
[2016] VCC 277
•9 February 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-01679
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| HORI JURY |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 February 2016 | |
DATE OF SENTENCE: | 9 February 2016 | |
CASE MAY BE CITED AS: | DPP v Jury | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 277 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr J. Manning | Office of Public Prosecutions |
| For the Accused | Ms T. Kenny | Victoria Legal Aid |
To ensure there is no possibility of identification, this sentence has been anonymised
by the adoption of pseudonyms in place of names of the victims and family
HER HONOUR:
1 Hori Jury, you have pleaded guilty to two charges of procuring sexual penetration of a child, one charge of procuring a minor for child pornography, five charges of sexual penetration of a child under 16, four charges of indecent act with a child under 16, and one charge of possessing child pornography.
2 The maximum penalty applicable to each of Charges 1 to 12 inclusive is 10 years’ imprisonment, and the maximum penalty applicable to Charge 13, possess child pornography, is five years’ imprisonment.
3 These crimes arise out of events which took place on 13 October 2014 to 20 October 2014 and involved the victims of your offending, Brooke Sutton[1] and Riley Keller.[2] It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor, consistent with Exhibit A, and as discussed with counsel during your plea hearing. I do not intend to refer to that summary in great detail. It is, however, incorporated into these reasons for sentence in its entirety.
[1] Brooke Sutton is a pseudonym.
[2] Riley Keller is a pseudonym.
4 The prosecution also tendered a chronology (Exhibit B) which included the dates of your arrest and hearings in the Magistrates’ Court prior to your plea hearing.
5 At the time of sentence you are 19 years of age, and at the time of this offending, you were 18 years of age.
6 The two victims at the time of your offending were 14 years of age, best friends, and attended a High School in Knoxfield.
7 You attended TAFE at the school each Wednesday and met Ms Sutton through your attendances there throughout the year. In September 2014, you became friends with her on Facebook and began communicating through Facebook and text messages. Prior to your offending, Ms Sutton had never been to your home and had never engaged in sexual intercourse with you, although approximately one month prior to your offending she had kissed you. Prior to your offending Ms Keller had not met you.
8 Relied upon as context for your offending were the events of 16 September 2014 through to 14 October 2014. On 16 September 2014 you initiated conversations through Facebook with Ms Sutton. You sent her a message, including a photograph of yourself in the bathroom topless, and asked her if she wished to get together with you at a later stage. You were aware from that conversation Ms Sutton was 14 years of age. In one conversation you asked if she was masturbating and requested she send a photograph to you. You also asked if she had had sex before (Exhibit A paragraphs 5(a) to (h)).
9 On 17 September 2014 you and Ms Sutton continued your Facebook conversation over approximately five hours. You again requested a photograph of her and asked if she wanted to have sex with you. You asked her about her sexual experience (Exhibit A, paragraph 6(a) to (e)).
10 The following day, 18 September, you and Ms Sutton again conversed on Facebook, this time over approximately four hours. You confirmed meeting the following day and you asked if you could have a threesome. Ms Sutton said she would try to bring a friend. You provided your phone number and asked for hers, which she provided (Exhibit A, paragraphs 7(a) to (c)).
11 The next contact was on 6 October 2014 over a period of approximately four hours. You suggested you meet and Ms Sutton indicated she had found someone with whom you could have a threesome, namely “Liv”.
12 On 13 October 2014, you and Ms Sutton again spoke on Facebook over approximately an hour during which, amongst other things, you asked Ms Sutton if she had had phone sex before. You confirmed that she was still coming over to your home, and sent a photograph of yourself naked, covering your genitals with your hand. You again requested she send you some “pics”, which she did.
13 The following day, Ms Sutton and yourself communicated via Facebook over approximately seven hours. During that conversation, you asked if Ms Sutton was "keen for tomorrow," and despite some reservations expressed by her (see paragraph 10(a)), you asked her to come anyway. During the conversation Ms Sutton told you Ms Keller was a virgin. You also said that you and Ms Sutton would have sex in front of Ms Keller (Exhibit A, paragraphs 10(a) to (c)).
14 On that same day, 14 October, whilst conversing with Ms Sutton you commenced a conversation on Facebook with Ms Keller over approximately two hours in which Ms Keller confirmed she was a virgin (Exhibit A, paragraph 11(a) to (g)).
15 In addition to the Facebook conversations between 18 September and 14 October 2014, you and Ms Sutton exchanged 384 text messages.
16 On 15 October Ms Sutton and yourself exchanged 57 text messages. You then met both victims at Woolworths in Emerald at about 11.00 am and the three of you walked to your home. On the way you asked Ms Keller how old she was and Ms Sutton told you Ms Keller was 14. Your offending and specific charges relating to it are set out at Exhibit A and I will not further refer to that.
17 Charge 1 is a representative charge relevant to two separate occasions and Charge 7 is a representative charge of two acts, as identified in the prosecution opening.
18 Both counsel agreed R v SBL[3] was applicable and authorities since which have addressed sentencing on representative charges, including DP v The Queen[4], DPP v EB[5] and DPP v HPW[6]. That list is not exhaustive.
[3] [1999] 1 VR 706
[4] [2011] VSCA 1
[5] (2008) 180 A Crim R 314
[6] [2011] VSCA 88
19 On 16 October 2014 a school counsellor and Ms Keller’s parents became aware of your offending, as did the police.
20 On 20 October 2014 you were arrested and taken to Narre Warren Police Station where you participated in a record of interview and made some admissions, contained within the prosecution opening (Exhibit A, paragraphs 47(a) to (v)).
21 The prosecution submits, and I accept, that despite your assertion in the record of interview you were not aware of the age of Ms Keller or Ms Sutton prior to your offending, you had in fact been told and knew both girls were 14 when you offended. It is clear from your record of interview you knew that sexual penetration of a 14 year old was ‘wrong’.
22 You provided police with access to your Facebook messages which revealed that you were still in possession of the images sent to you by Ms Sutton on 13 and 14 October 2014.
23 It is sufficient for present purposes to simply say that the facts in this case, in my opinion, are most serious and disturbing. Your behaviour was obviously quite unacceptable. As I have said it is clear you knew their ages and that to offend this way was ‘wrong’.
24 There are no victim impact statements before me. However, there is nevertheless a presumption of harm to victims of child sexual offending, in particular but not limited to, cases of penetration.
25 By virtue of your plea of guilty to the charges before me you are required, pursuant to the Sex Offenders Registration Act 2004, to report for life. Such an order is mandatory.
26 For completeness, given your age at the time of your offending, you are not to be sentenced as a serious sexual offender. Sentencing Act 1991
27 You have pleaded guilty to these charges, and are entitled to have that fact taken into account in your favour and I do so. The community has, by your plea, been spared the time and cost of a trial and witnesses, in particular the two victims of your offending, have been spared the ordeal of having to give evidence upon your trial.
28 Further, I take into account in your favour you intimated early your intention to plead guilty to these charges.
29 I was advised by Ms Kenny, who appeared on your behalf, that at the committal mention in September 2015, you indicated your intention to plead guilty to a suitable indictment and thereafter discussions continued with the prosecution in an attempt to resolve this matter.
30 On 24 September 2015 at another committal mention you entered your pleas of guilty to the charges before me and this matter proceeded by way of straight hand-up brief.
31 I also note you made admissions to your offending to the police in the record of interview conducted on 20 October 2014.
32 I therefore take into account in your favour you intimated your intention to plead guilty to these charges at an early stage, and such is relevant in mitigation of your sentence.
33 In the circumstances, I am also prepared to accept that your plea of guilty indicates remorse for your offending.
34 Ms Kenny filed an outline of submissions for your plea hearing and also addressed those during the course of the hearing.
35 Your father left home when you were 4 years of age. You have one older brother and one older sister.
36 Your mother has re‑partnered and been in that relationship for eight years, however, it seems her partner does not reside with the family. You are currently living with your family in the family home, as you were at the time of this offending.
37 Your brother moved out of the family home when you were about 5 years of age and your sister moved out initially when you were about 9 years of age, but recently returned to the family home with her young child. Your mother was in court to support you during the course of your plea hearing. She is employed.
38 Turning to the written outline of submissions. You attended Emerald Primary School for Grades 5 and 6 and excelled at sport, in particular basketball, then attended Emerald High School until Year 12.
39 At 12 years of age you commenced odd jobs for family friends and when you were 15 worked as a basketball umpire. You continued that work until you were 17 years of age.
40 You commenced making and installing gates for Gates R Us in mid-2014, when you were 17, working two days per week whilst completing your VCE through VCAL at Emerald High School.
41 Whilst completing VCAL you were attending a High School in Knoxfield every Wednesday, it seems, for one of your subjects. It was at this School that you came into contact with the two victims. You were arrested and interviewed in relation to the charges before me on the last day of school. As a result you were unable to hand all your work in for VCAL and failed.
42 You then worked full time for Gates R Us until approximately mid-2015, when you then began working with Speed Panels Australia Ltd, and are currently working with that company. It appears your employer does not know of these charges.
43 Ms Kenny, addressing her written submissions, conceded that, save in exceptional circumstances, sexual penetration of a child under 16 would require the imposition of a custodial sentence. However, she submitted there were exceptional circumstances in your case which could lead to the imposition of a non-custodial sentence, in particular the imposition of a community correction order.
44 Ms Kenny relied upon your age at the time of your offending. You are a young offender. That, of course, is correct and the importance of rehabilitation of a young offender is paramount when sentencing. However, it is important to note that the principles in R v Mills[7] are general propositions and not of usual and automatic application. Each case depends on its own circumstances, including the circumstances of the offending, as well as the offender. See DPP v Lawrence[8]. See also Connolly[9], DPP v SJK and GAS[10] and R v JED[11], to name just a few authorities referrable to sentencing young offenders.
[7] [1998] 4 VR 235
[8] (2004) 10 VR 125
[9] [2004] VSCA 24
[10] [2002] VSCA 131, at 61
[11] [2007] VSCA 102
45 I was also referred to Boulton and Ors v The Queen[12]. There is no doubt courts are required to rethink the conventional wisdom of a term of imprisonment being the only appropriate disposition. I discussed with Ms Kenny the decision of Boulton, which has been referred to and addressed in a number of cases since, including DPP v Maxfield[13], Alam v The Queen[14], Marocchini v The Queen[15] and Hutchinson v The Queen[16], although of course being mindful of different offending in those cases from yours.
[12] [2014] VSCA 342
[13] [2015] VSCA 95
[14] [2015] VSCA 48
[15] [2015] VSCA 29
[16] [2015] VSCA 115
46 I did not, however, understand Boulton to mean that a sentencing judge should not take into account s.5 Sentencing Act 1991, nor did I understand Boulton to mean that sentencing principles stated by the Court of Appeal, relevant to this type of offending, now amounted to nought. Nor did I understand Boulton's decision to remove the instinctive synthesis when sentencing. Nor did I understand Boulton to remove the need for consideration of the maximum penalty for this type of offending as determined by Parliament.
47 Of course in some cases it may be that, despite the serious nature of the offending, a community correction order would satisfy all sentencing considerations. The question is whether or not such a disposition is appropriate in your case, taking into account your offending and all matters in mitigation of your sentence and personal to you.
48 I note of significance you do not come to the court with any prior court appearances, nor is there anything subsequent or pending. Also I note that at the time of this offending before me you were 18 and that the communications between yourself and Ms Sutton commenced when you were 17 but just prior to turning 18.
49 Ms Kenny submitted the imposition of a community correction order with conditions to undergo treatment and rehabilitation as directed, to be supervised and undertake community work, would address all relevant sentencing considerations, including the protection of the community.
50 Ms Kenny also relied upon a report of Dr Aaron Cunningham, Forensic Psychologist, dated 28 January 2016, although not to enliven any principles in R v Verdins and Ors[17]. Her concession in that regard was appropriate.
[17] (2007) 16 VR 269
51 Dr Cunningham provided further details regarding your background and history.
52 You have had two significant romantic relationships. You are in a new relationship with Ms Taylor, who is 18 years of age, that is, with an age-appropriate female.
53 Regarding your education and employment you told Dr Cunningham you always wanted to work as a sports photographer. You are currently playing basketball for Melbourne Tigers Under 23s B Grade.
54 Your counsel, Ms Kenny, submitted drugs and alcohol were not issues for you. However, I note with some concern the report of Dr Cunningham that you had used ecstasy when 18, that is only recently, and used that drug socially on weekends. You said you had not used ecstasy for a period of 14 weeks. You told Dr Cunningham you used amphetamine and cocaine at clubs. All this is concerning. Whilst I note there is no suggestion of drug use by you in this offending your use of these drugs concerns me. Simply if you want to avoid further court appearances you would be best to cease illicit drug use permanently.
55 Turning to your mental state assessment, you did not meet the criteria for a mental illness. Testing also revealed no indication of intellectual impairment.
56 Dr Cunningham assessed your risk for sexual re-offending and concluded you did not present with significant risk factors, rather presented as a low risk of sexual re‑offending. This is of some comfort to the community and to me.
57 Regarding your offending, and of some concern, was your report to Dr Cunningham that you did not consider you were engaging in sexual behaviour with a minor. You told Dr Cunningham you were naive regarding the criminal offence and court system. That, in my opinion, is contrary to your own answers when questioned by police about your awareness of your offending being ‘wrong’ involving victims of 14 years of age. And you knew the complainants, victims, were 14.
58 Dr Cunningham concluded your cognitive functioning was in the average range, and you did not meet the criteria for paedophilia.
59 Dr Cunningham referred to a number of current protective factors that he concluded may reduce your risk of re-offending. I discussed these with your counsel Ms Kenny. It is apparent, however, that through analysis that many of those so called ‘protective factors’ that applied at the time of your offending also applied then and yet did not prevent you from committing this offending.
60 Since then you have had a girlfriend and have been assessed as low risk of sexual re-offending and have at least acknowledged your awareness that this behaviour was illegal and inappropriate.
61 Ms Kenny conceded there was a need for general deterrence to be reflected in sentencing, and also specific deterrence. I agree with both.
62 Ms Kenny also submitted you had good prospects for rehabilitation which included your youth, lack of prior convictions, current protective factors and Dr Cunningham’s conclusion you do not meet the criteria for paedophilia and were at low risk of sexual re-offending. I accept your prospects of rehabilitation are good.
63 Ms Kenny further submitted the community would be better protected by you being rehabilitated through appropriate programs in the community, and you had instructed that you concede you knew you need treatment in relation to sexual offending and instructed you wanted to engage in rehabilitative activities.
64 Mr Manning, who appeared on behalf of the prosecution, submitted a community correction order would be within the range of appropriate dispositions should you be suitable for such an order. He also, however, referred to the seriousness of your offending, noting the maximum penalties applicable to it.
65 Mr Manning correctly referred to the concerns expressed over the years by the Court of Appeal and Parliament regarding the seriousness of sexual offending committed against children.
66 He also noted the age difference between yourself and the complainants, although conceded it was not as great as in some cases that come before the court and therefore perhaps of somewhat less concern (although of course not acceptable) than where the age gap was greater. I agree.
67 Mr Manning referred to your Facebook conversations with Ms Sutton. It was clear, he submitted, and I agree consistent with those messages, you had different life experiences from Ms Sutton, who was significantly younger than you. Further, regarding Ms Keller, you were aware she had not had sexual intercourse before.
68 Mr Manning submitted that whilst your offending did not occur over a significant period of time, the overall context (or background) in which your offending occurred was important.
69 In that regard, he referred to the ongoing contact to show your offending was not an isolated moment of weakness. That there was planning with ample opportunity for you to reflect upon your actions and desist from them. I agree.
70 The cessation of your offending, Mr Manning submitted, did not originate from you, as it was you who suggested they visit you again.
71 Mr Manning submitted your role in these earlier conversations and texts were relevant. This was not a loving relationship between yourself, Ms Sutton and Ms Keller, and it was you who initially sent the photo of yourself topless. You were the one who raised the issue of masturbation, and provided your phone number. Mr Manning submitted you were driving the sexual conversation. I agree.
72 Mr Manning submitted your directing of activity continued to the bedroom where you persisted in requesting Ms Sutton and Ms Keller kiss each other.
73 He submitted there was a strong need for denunciation, just punishment and general deterrence. I agree.
74 Mr Manning submitted that whilst there might have been a level of naivety in your offending you knew sexual offending was inappropriate with someone who was 14 years of age. I agree.
75 He submitted Verdins principles did not apply, and again I note Ms Kenny was, in my opinion, quite appropriately not relying upon those principles. I do, however, note Ms Kenny submitted at your age you would find adult prison particularly onerous. That you would be vulnerable in such an environment. I accept that submission, noting also this would be your first time in prison.
76 Mr Manning conceded your plea of guilty was early and that you made admissions, apart from acknowledging the age of the complainants. He also submitted you initially denied sexual intercourse, although ultimately conceded such had occurred, at times downplaying your role in it. I agree.
77 Mr Manning conceded admissions by you in the record of interview to oral penetration was the only basis on which those charges could have been laid against you. That, in my opinion, is significant. Also in relation to the Facebook conversations with Ms Sutton, you willingly provided access to your Facebook account.
78 Both counsel referred me to a number of authorities where offending such as this have been considered, including DPP v Campbell[18], DPP v Hughes[19] and DPP v Burton[20].
[18] [2012] VCC
[19] [2014] VCC
[20] [2015] VCC
79 As I discussed with counsel, it is very difficult comparing cases factually as facts vary enormously case to case, as do all matters in mitigation of sentence. Ultimately, I am assisted by principles from the Court of Appeal relevant to sentencing for offences of this type and, of course, also taking into account all matters in mitigation of sentence and the features of your offending.
80 Ms Kenny also referred me to sentencing snapshots relevant to the offences before me. There is no doubt sentencing snapshots and statistics are relevant. However, there is much material missing from those statistics, including whether or not sentences took into account the principles of Verdins or whether or not there were issues of parity involving co-offenders and so on. Ultimately, I must determine the proportionate sentence based on all the circumstances of your offending and taking into account all matters in mitigation of your sentence.
81 I arranged to have you assessed for a community correction order and you were assessed by Mr Temple-Camp on 2 February 2016, and have consented to the making of the order should I consider such an order appropriate.
82 As well as taking into account matters personal to you, including your prospects of rehabilitation, which I find to be good, I must also take into account such matters as deterrence, especially general deterrence, which is of considerable importance in a case such as this.
83 There is also an element of specific deterrence required in this case, although I note you do not have any prior court appearances.
84 I must also consider the question of protection of members of the community from you and bear in mind the likelihood of your re-offending. In that regard, I take some comfort from the conclusions of Dr Cunningham that you are a low risk of sexual re-offending and do not attract a diagnosis of paedophilia.
85 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
86 I want you to listen very carefully to the next part, very carefully. In all the circumstances I have determined that to impose a community correction order is appropriate. You have to listen very carefully to this because it has a real sting to it. I therefore intend, subject to your consent, to impose a community correction order. It will be with conviction, so a conviction is recorded. It is for a period of 3 years but over those 3 years there will be a number of conditions attached to that order.
87 I have to tell you something about that order so you understand the conditions of it, so that when I ask if you consent to the order being made you will do so, or otherwise, being fully aware of the impact upon you should you breach the order.
88 I note you reported to Mr Temple-Camp no health issues or other impediments to completing unpaid community work. On that I digress and note you have not told your employer of these charges and this court appearance. Beware, you cannot say to me, should you not complete the hours or be unable to complete any hours, that you could not do it because of your work commitments. I will not accept that. Nor can you say to me that you could not complete the hours on a weekend because you are playing sport or because you are otherwise busy with your partner. Beware, any such excuses will not be considered acceptable by me, or to put it another way, will breach this order.
89 There will be a number of core conditions attached to the order and they apply to everyone on one of these orders and you:
· You must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment. Now, just stop there for a moment so you understand what that means.
90 OFFENDER: Yes, Your Honour.
91 HER HONOUR: There are a lot of offences out there which carry a potential gaol term. Driving offences, for example, apart from anything else, like, thefts and so on, but simple driving offences. You will be back before me and I have to re‑sentence you on these charges.
92 OFFENDER: Yes, Your Honour.
93 HER HONOUR: In other words I have to think of another sentence and I can tell you, you will go to adult gaol. So beware, even driving offences can see you back before me breaching this order and I have to re-sentence on these sexual charges and you will go to gaol.
94 OFFENDER: Yes, Your Honour.
95 HER HONOUR:
· You must report to and receive visits from the Secretary to the Department of Justice, or his or her nominee, during the period of the order. So for 3 years you are going to have to report to and receive visits from your corrections officer.
· You must report to the Community Correction Centre at Ringwood within two days after the commencement of this order, that is by 4.00 pm on 11 February, that is this Thursday by 4.00 pm. Make sure you attend if you don't you have breached the order. You come back before me. You go to gaol, adult gaol.
· You must notify the secretary, or his or her nominee, of any change of address or employment within two clear working days after that change.
· You must not leave Victoria except with the permission of the Secretary to the Department of Justice, or his or her nominee. No holiday unless you get permission. No moving interstate unless you get permission.
· You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure you comply with the order. If you are given a direction by the community corrections officer do it.
96 There are a number of other conditions which will be attached to your order:
· You must perform 200 hours of unpaid community work over a period of the first 18 months as directed by the Regional Manager (s48C). I digress. No excuses will be entertained, so you had better think hard about your boss. I will not accept an excuse, "I couldn't tell my boss. I thought I'd lose my job." I am not interested.
· You must be under the supervision of a community corrections officer for a period of 3 years.
· You are required to be supervised, monitored and managed as directed by the Secretary, or his or her nominee (s48E).
· You must undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the regional manager (s48D(3)a)).
· You must undergo mental health assessment and treatment including, (but not limited to) mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility as directed (s48D(3)(e)). So if they want you assessed you go and do it.
· You must undergo programs or courses aimed at addressing factors relating to the offending as directed by the regional manager, and I specifically refer to the Sex Offenders Program (s48D(3)(f)). You must do it.
· You must attend for review of your progress and compliance or otherwise with conditions of this order and you must come back before me on 9 February 2017 at 9.30 am (s48K). You are going to see me every so often during this order.
97 OFFENDER: Yes, Your Honour.
98 HER HONOUR: Now, this is another sting.
· I direct that any non-compliance of these conditions is to be notified to me immediately (s48(1)). I will then determine if the matter should be mentioned before me prior to your next judicial monitoring attendance. Now, that is a condition that I add because sometimes correction officers might allow two or three unacceptable absences from community work or from any of these programs before they come back to me. I am not going to allow that. I want to be advised of the first unacceptable absence. Now, if there is an unacceptable absence that means you are going to come back before me. You will breach the order. I have to re-sentence you. You will go to gaol. There will be no second chance.
99 OFFENDER: Yes, Your Honour.
100 HER HONOUR: Now, if you think I am kidding try me. You will also be coming back for me even if you are doing well in a year’s time. The hearing could be quick is everything is going well. It could be a little bit lengthy if it is not. Now, I can only impose a community correction order if you agree to such an order being imposed. I have got to tell you even more about it.
101 I should advise that if you contravene or breach that order by committing further offences you can be charged and a sentence of imprisonment is one of the options that can be imposed for that breach. I have already said if you come back before me you will go to gaol because I have got to re-sentence you on these sex charges - gaol.
102 You can also be re-sentenced for the offences, this is what I am saying, for the offences before me. One option is gaol. So you have got to be extra careful for the next three years. No committing any further offences that might incur a term of imprisonment, otherwise you are back before the court and you will be re-sentenced on these charges that are before me. You are going to have to be very, very careful.
103 I also advise you that if you fail to comply with any direction of the Secretary to the Department of Justice, that is a community corrections officer, or worker if you like, as part of this order, a fine can be imposed as well (s83A(e)).
104 Now you are aware of all of that?
105 OFFENDER: Yes, Your Honour.
106 HER HONOUR: Do you want to speak to your barrister about that?
107 OFFENDER: No, thanks, Your Honour.
108 HER HONOUR: Now, do you consent to the order being made?
109 OFFENDER: Yes, Your Honour.
110 HER HONOUR: All right. Do you understand what will happen if you breach this order?
111 OFFENDER: Yes, Your Honour.
112 HER HONOUR: What is going to happen to you?
113 OFFENDER: I go to gaol. I understand that.
114 HER HONOUR: Yes. Now, that's being recorded. Now, the whole point of that is if you come back and breach the order I just play the last 10 minutes. It will end up being a very quick hearing.
115 OFFENDER: Yes, Your Honour.
116 HER HONOUR: I do that regularly. It makes for a very quick hearing. Now, I therefore make the order for three years with all those conditions that I have just referred to, both core and extra.
117 The prosecution also made application for a disposal order. Ms Kenny, on your behalf, did not oppose the making of the order and I make the order in the terms sought.
118 You are, as I have said, also subject to the Sex Offenders Registration Act 2004 and you are registered consistent with that Act for life, as I have previously stated. My associate, Ms Jackson, will in a moment approach you with documents for you to sign acknowledging receipt of the relevant paperwork. You are not being asked if you want to be on the register. I have already made that order. You are simply being asked to confirm that you have received the papers. If you do not want to sign it so be it.
119 Ms Jackson will also approach you with a community correction order which you will need to sign if you consent, as you say you have, to being on the order, being mindful of the ramifications should you breach that order in any of the ways to which I have referred.
120 Pursuant to s6AAA of the Sentencing Act 1991, had you been found guilty of these charges following jury verdict - in other words, if you had pleaded not guilty before a jury and you had been found guilty of these charges, I would not have imposed a community correction order, rather I would have sentenced you to a term of imprisonment of 5 years and set a non-parole period of 3 years and 6 months.
121 For completeness, I note there was not an application before me for a s464ZF Crimes Act sample, as such sample has already been taken.
122 For completeness only, I note that you have not spent any days in custody by way of pre-sentence detention for these offences, should I need to revisit this sentence which, of course, I hope I do not.
123 OFFENDER: Thank you, Your Honour.
124 HER HONOUR: Just stand for the moment, Mr Jury. Mr Jury, you might think you have had a good day today. I think you have had an extremely good day today. But things will go pear-shape very quickly if you breach this order. You cannot choose to go back before another judge. You come back before me. Be very careful. Three years is a long time when you are 19 years of age.
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