Director of Public Prosecutions v Keller (a pseudonym)
[2021] VCC 515
•29 April 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BENJAMIN KELLER (a pseudonym) |
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JUDGE: | Leighfield | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 March 2021 | |
DATE OF SENTENCE: | 29 April 2021 | |
CASE MAY BE CITED AS: | DPP v Keller (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 515 | |
REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords: Sentence – rape – indecent assault – common law assault – criminal damage – circumstances of family violence – plea of guilty – significant delay – rehabilitation – impact of COVID-19
Cases Cited:Bourne v The Queen [2011] VSCA 159; Mercer (a pseudonym) v The Queen [2015] VSCA 257.
Sentence: 12 months imprisonment and a 3 year community correction order
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr Damien Hannan | Office of Public Prosecutions |
| For the Accused | Mr Pardeep Tiwana | Dribbin & Brown Criminal Lawyers |
HER HONOUR:
Introduction
1Mr Keller[1], you have pleaded guilty to an indictment containing four charges being common assault (Charge 1), criminal damage (Charge 2), rape (Charge 3) and indecent assault (Charge 4). The maximum penalty for Charge 1 is five years’ imprisonment, for Charges 2 and 4 is 10 years’ imprisonment and for Charge 3 is 25 years’ imprisonment.
[1] A pseudonym.
2These charges arise from incidents which occurred between 1 January 2009 and 30 June 2013, when you were aged between 34 and 39 years of age, and the complainant, Anna Yates,[2] was aged between 26 and 29 years of age.
[2] A pseudonym.
Circumstances of Offending
3The full circumstances of the offending are set out in the summary of prosecution opening for plea dated 11 January 2021, which was tendered on the plea as Exhibit A. Whilst I will not refer to every matter set out in the opening in these reasons for sentence, it is necessary to set out the facts in some detail.
4You and Ms Yates commenced a relationship in 2006. At the time, both you and she had a daughter each from your previous relationships. In 2009, another daughter, Katrina,[3] was born from your relationship together. During the course of the relationship, there were a number of separations, and the two of you eventually separated in 2013.
[3] Also a pseudonym.
5Charge 1 is a rolled up charge which covers three occasions of assault committed by you, prior to that separation.
6The first occasion occurred in January 2009 at your family home. Ms Yates’ mother and father were present, as was a friend. Ms Yates was 16 weeks pregnant at the time with Katrina. Ms Yates used your mobile phone to make a phone call to order dinner, and whilst doing that noticed that an upsetting message about her had been sent to you by a third party. She confronted you about the message and an argument started. As she began to walk away from you, you grabbed her and pushed her to the ground. Ms Yates landed on her hands and knees. She did not suffer any injuries as a result of the incident.
7The second occasion occurred between 18 and 20 October 2010, again in the home, and in circumstances where Ms Yates’ young daughter was present. You and Ms Yates had an argument regarding you wearing jewellery to work against workplace policy. At the time of the argument, you were eating a Cornetto ice-cream which you then threw at the complainant. The pointy end hit her in the neck. You then stood up from the couch and grabbed Ms Yates’ iPhone. You threw it against the wall, causing it to smash (this conduct constitutes Charge 2 – criminal damage). You then grabbed Ms Yates around the throat and started yelling at her. Ms Yates was scared and tried to get away from you, but you grabbed the side of her face and pushed her into the wall near the exit of the lounge room. She suffered bruising as a result of this incident.
8The third occasion occurred between 5 and 15 November 2012, in the aftermath of a comment made by a family friend to Ms Yates at a family birthday celebration. Some days later, as a result of that comment, Ms Yates took your phone whilst you were in the shower. Before she could look at the phone, you got out of the shower and chased her. You grabbed Ms Yates with both arms and pulled her down to the floor. You straddled Ms Yates whilst trying to get the phone off her and pushed her head into the floor. All three children were present whilst this was happening and one of the children told you to stop. You let go and Ms Yates left the house.
9
In March 2013, Ms Yates left the family home and moved into a different property with her daughter and Katrina. You initially did not see each other much after
Ms Yates moved out, but after a while, the two of you went on some group dates with friends.
10On 29 June 2013, you and Ms Yates went to a restaurant to celebrate a friend’s birthday. There were approximately 25 to 30 people in attendance for the dinner. Ms Yates was intoxicated and was planning on going to another location to continue celebrating, however, you stated that she was too drunk to go out and arranged to drop her home in the same taxi that you were sharing with two friends. The taxi arrived at Ms Yates home at approximately 12.30 am.
11You helped Ms Yates inside the house. She lay down in front of the heater and was playing with her puppy for a short time, but does not remember anything after that. The next morning she woke up in bed naked from the waist down, feeling stiff and sore around and inside her vagina. You were also in the bed, naked.
12When you went to the bathroom, Ms Yates looked through your mobile telephone and found approximately ten photos and three videos that were sexual in nature from the night before. Each of the photos located by Ms Yates showed her laying on the floor in front of the heater with a top on and no clothing below her waist. In one of the photos, Ms Yates could see that a green object, which she believed to be a cucumber or zucchini, was inside her vagina. This conduct constitutes the subject of Charge 3 – rape. The videos located by Ms Yates showed you licking her vagina, in circumstances where she was unresponsive. This conduct constitutes the subject of Charge 4 – indecent assault.
13As Ms Yates started to delete the photos and videos from your phone, you came back from the toilet. Ms Yates started yelling at you and told you to leave, which you did.
14Later that same day, you sent some text messages to Ms Yates saying sorry for last night and that you could not remember what happened. You also apologised for the ‘stupid… disrespectful thing’ you had done to the complainant.
15On 1 July 2013, there were further text messages which passed between yourself and Ms Yates, in which you again apologised for your behaviour and acknowledged that you had no right to do what you had done. You also admitted in one message that you thought you had licked and played with Ms Yates’ vagina.
16In the weeks following the events on 29 June 2013, Ms Yates told a number of people what had occurred, including her mother and her GP. Ms Yates also made an initial report to police on 7 August 2013, but ultimately decided not to make a formal statement at that time, as you had told her that you were sorry and she was scared about the legal process. The police closed the matter on 10 October 2013.
17In October 2017, Ms Yates re-instated her complaint, as she was entitled to do. At the time, Family Court proceedings were taking place in relation to contact and access to Katrina. Ms Yates made a formal statement to police on 11 January 2018.
18
You were interviewed by police on 13 February 2019, whereupon you made a no comment record of interview. Charges were ultimately laid against you on
13 August 2019.
Victim Impact
19I received a victim impact statement from Ms Yates upon the plea which clearly articulated the profound psychological and emotional impact that your offending had, and still continues to have, upon her. Ms Yates identified that as a result of your offending she felt years of embarrassment and shame, and hated and blamed herself for what had occurred. She said that she felt useless and unworthy and became isolated from her friends and severed from the love and support of her family. Your actions towards her have also caused her to fear intimacy and commitment.
20
Ms Yates also detailed her fear of you, stating that she felt too scared to speak up and ask for help, and felt that she could not be truthful to her family and friends. Ms Yates stated that despite the passage of eight years, she still looks over her shoulder, double checks her windows and doors are locked at night, and feels frightened and frozen if woken by an innocent touch at night. In concluding,
Ms Yates noted that she does not feel that time has healed any of her wounds or eased any of her suffering, and that she still feels broken.
21Whilst I have not repeated all that Ms Yates had to say, I have had regard to the entire contents of her victim impact statement in sentencing you today. I hope that in hearing that statement being read in court, you also now fully comprehend the enormity of the impact which your offending has had upon the woman who was your former partner and the mother of your child.
Prior Criminal History
22You have a prior criminal history, having been sentenced for a series of offences between January 1993 and September 2004. Whilst this history is dated, it is relevant that during that eleven year period, you came before the court on two occasions with violence-related offences.
23In 1998, you were sentenced in respect of two charges of recklessly causing injury and one charge of assault with an instrument and were sentenced, on appeal, to a total effective term of imprisonment of three months, wholly suspended for a period of 12 months. In March 2004, you were again sentenced for an offence of recklessly causing injury, for which you received a sentence of two months, wholly suspended for a period of 12 months. I am told by your counsel that neither of these offences related to female victims or domestic violence – one involved a spontaneous fight in a nightclub, the other involved an incident on the street where you punched a man who was part of a verbally abusive group.
24You did not breach either of those suspended sentences, and remained out of trouble from September 2004 until the current offending. Despite the age of the prior convictions for violent offending, you cannot call in your aid on this plea that you come before the court with an unblemished character. Nor can it be submitted on your behalf, that you have never behaved in a violent manner in the past. However, it is apparent that you have not previously come before the court in respect of domestic violence or sexual offending, and that you have never previously served a term of imprisonment. It is also of relevance that despite the passage of eight years since the offending before this court, you have not further offended and consequently have no subsequent or pending matters.
Plea of Guilty and Remorse
25Your plea of guilty in this matter was not entered at the earliest opportunity. I am told that there were attempts by you to resolve the charges prior to a contested committal, however, these were unsuccessful. The contested committal proceeded on 24 February 2020, and both Ms Yates and her mother were cross-examined at that hearing. I am told that the issue in contention was the rape allegation the subject of Charge 3. After you were committed to the County Court to stand trial on the charges, there were further resolution discussions and the matter ultimately resolved between the parties on 25 November 2020, with you entering a plea of guilty to the current indictment on 4 December 2020.
26It was submitted on your behalf that despite your plea not being entered until after a contested committal, it is still a valuable plea of guilty, and one which is reflective of genuine remorse. Mr Tiwana submitted on your behalf that in assessing your remorse, I should have regard to the text messages which you sent to the complainant shortly after the offending, in which you apologised and admitted your ‘disrespectful’ and ‘disgraceful’ conduct; your expressions of remorse to forensic psychologist Ms Matthews; and the steps you have taken in the aftermath of the offending, to address your conduct, including undertaking counselling sessions at the request of the complainant, and curbing your drinking. Mr Tiwana further submitted that the running of the contested committal does not detract from your remorse, in circumstances where your recollection of the night was unclear and resolution discussions had commenced.
27Mr Hannan on behalf of the prosecution conceded that your plea is of significant utilitarian value and that you must be afforded a discount on sentence. However, whilst conceding that your plea is indicative of a level of remorse, Mr Hannan disputed whether your remorse could be said to be full and genuine, in circumstances where you persisted in running a contested committal.
28I am of the view that your plea both facilitates the course of justice and is of significant utilitarian benefit. Your plea has saved the cost and time of a trial being conducted, which is of additional value in the current circumstances of the pandemic which has caused unprecedented disruption to the smooth running of the justice system.
29I am also of the view that your plea is a reflection of genuine remorse. I accept that you genuinely regret your conduct and have a reasonable awareness of the impact that your offending has had on the complainant in this matter, taking into account your admissions and apologies shortly after the offending, your conduct in the aftermath of the offending, your pleas of guilty, and your discussions with Ms Matthews. The fact that you proceeded with a contested committal is regrettable, given that you ultimately pleaded guilty to the charge which was in dispute, and you persisted in circumstances where your own recollection of the night was unclear. However, I am not of the view that this detracts from the genuineness of your remorse.
30Overall, taking each of the above matters into account, I accept that you are entitled to a substantial discount on your sentence by reason of your plea of guilty.
Gravity of the Offending
31As conceded by your counsel, the courts and the community regard offending in a domestic violence setting as being extremely serious. The Victorian Court of Appeal has said on many occasions that ‘domestic violence will not be tolerated, and that general deterrence is a very important sentencing principle in the sentencing disposition which must be, and must be seen to be, condemned by the courts.’[4]
[4] See, eg, Mercer (a pseudonym) v The Queen [2015] VSCA 257, [54] (per the Court); and citing R v Gojanovic [2002] VSC 467, [31]; R v Robertson [2005] VSCA 190, [13]; DPP v Smeaton [2007] VSCA 256, [21]–[22]; R v Hester [2007] VSCA 298, [19].
32In the present case, Charge 1 covers three incidents of physical violence, which occurred over a three year period, against your then partner. Each incident had aggravating features. The first incident occurred in circumstances where your partner was pregnant with Katrina, the second incident occurred in the presence of Ms Yates’ young daughter and also involved you grabbing Ms Yates by the throat and smashing her phone, and the third incident was committed in the presence of all three children. In sentencing you on Charge 1, which is a rolled up charge, I take into account the entirety of that conduct. This is a serious example of the offence of common assault, committed in circumstances of domestic violence, and constituted by a number of incidents over an extended period of time.
33I do note, however, as a matter of completeness, that given my view as to the aggravating nature of the damage to the phone, as part of the second incident of assault, it is appropriate that I not order any cumulation of sentence in respect of Charge 2, to avoid doubly punishing you in respect of that offence.
34Charges 3 and 4 – the rape and indecent assault – are similarly serious examples of these kinds of offences. Whilst they did not involve threats, gratuitous violence, or use of a weapon, you committed these acts against Ms Yates’ in circumstances of a significant breach of trust – where you knew Ms Yates’ was vulnerable due to her intoxication, had insisted that she go home because of that intoxication, then took advantage of her in her own home, where she was entitled to feel safe and protected. Additionally, as conceded by your counsel on your behalf, the filming by you of your conduct was degrading and humiliating. You were correct when you described your behaviour on the day after the incident as being ‘disgraceful’, and you were also correct when you said that you ‘had no right to do what you did’.
Personal Circumstances
35You were born in Geelong and have lived there for your entire life. You are the oldest of four siblings, and you continue to have a close relationship with your family members. Your mother, father and sister all attended court on the plea, and each of them also wrote references in support of you and I believe you have got some family members in court today. It is apparent from those references that you are a much loved and appreciated family member, and are considered to be a loving and supportive father to your two daughters who are now aged 21 and 11 years of age.
36You left school in 1991, halfway through Year 12, and have worked continuously since that time, predominantly in the area of civil construction. You have worked variously as a scaffolder, rigger and dog man over the past twenty years or so, and in 2016, completed a Certificate III in Civil Construction. You have continued to work in construction on a full time basis since the offending, and have been working on a number of major construction projects over the past two to three years.
37You have also had significant community involvement over the past 30 to 40 years through your sporting pursuits – including athletics, cricket and football. I am told that you began playing football at five years of age and have continued to play for local clubs for over 30 years. Throughout your football career, you have mentored young players and coached a number of the teams you played with. You are currently a player and coach in a Masters Football Club. Your counsel provided me with a reference from the President of that club who speaks highly of your involvement in the club and in particular, your assistance with coaching, training and working bees, and in offering advice and encouragement to other players.
38Similar sentiments were expressed in a number of references which were authored by your friends, neighbours and current partner. Each of them speak of your willingness to lend a hand to those who need it, your dedication to your family and in particular your daughters, and your work ethic. Each also expressed shock at your offending behaviour, but noted a willingness to support you into the future.
Delay, Prospects of Rehabilitation and Community Protection
39As is already apparent from these reasons for sentence, it has been almost eight years since you committed the last of the offences against Ms Yates. In that time, you have made a number of positive changes in your life. You undertook counselling at the request of the complainant, reduced your alcohol intake, and at least for a period of time, resumed an amicable relationship with the complainant, assisting her with outdoor tasks at her new home and sharing parental responsibilities for Katrina. You have not committed any further offences of any kind since 2013, and until 2019, when you were interviewed and eventually charged, you had been operating under a presumption that you would not be charged, given that Ms Yates’ had initially chosen not to proceed with her complaint against you in 2013.
40Ms Pamela Matthews, forensic psychologist, assessed you for the purposes of the plea, and ultimately concluded that you are a very low risk of re-offending in a sexual manner, and a moderate risk of violent re-offending. However, given your increasing age, absence of antisocial personality disorder and willingness to undertake and respond to treatment, Ms Matthews is of the view that your future risk of violent offending is likely to be lower than the rate suggested by the HCR-20V3 violence risk assessment tool which she used.
41Mr Hannan raised some concerns about Ms Matthews’ findings as to risk of recidivism – in particular, focusing on the number of offences which you committed against Ms Yates over an extended period, and Ms Matthews’ reliance on your self-report for aspects of the report, but ultimately submitted that it was a matter for me, as to whether I accepted her assessments and conclusions.
42In my view, there is nothing which would detract from the validity of the assessments undertaken by Ms Matthews, and the conclusions which she drew from those assessments. Ms Matthews’ findings are further supported by your ability to remain offence-free over the past eight years, whilst you have been in the community, unconstrained by any court order or belief that action was going to be taken against you. I accept that you are a very low risk of re-offending in a sexual manner and that minimal weight needs to be given to community protection and specific deterrence as sentencing purposes in this case.
43Your counsel submitted on your behalf that delay is a significant mitigating factor in this case. He pointed not only to your proven ability to rehabilitate throughout the period of delay, but also to the expectation which you had developed over that time that you would not be charged – and your re-ordering of your life in line with that expectation. Mr Tiwana submitted that the circumstances of your case bear similarities to the case of Bourne v The Queen [2011] VSCA 159, where it was stated by the court at [30]:
'[w]ith respect, it was plainly correct to say that no amount of delay, and no amount of rehabilitation during the period of delay, could alter the seriousness of the offending. But the argument from delay is of quite a different character. What makes delay such a ‘powerful mitigating factor’ in a case such as the present, is that considerations of rehabilitation and fairness weigh heavily in the sentencing synthesis, mitigating the punishment which the seriousness of the offence might otherwise warrant'.
44I agree with Mr Tiwana that this is a case where delay is a significant mitigating factor. In the period since the offending, you have undergone a lengthy period of rehabilitation, and as I have already indicated, there is no need to protect the community from you. Punishment, denunciation and general deterrence do still all remain alive as sentencing purposes, but I am satisfied that in the circumstances of this case, the weight which would ordinarily be given to those sentencing purposes should be tempered by the impact of the delay, and I have taken this into account in sentencing you.
Impact of COVID-19
45In determining the type and/or length of sentence to be imposed, Mr Tiwana also submitted that I should take into account that the burden of a period of imprisonment will be increased by reason of the COVID-19 restrictions which are currently in force. At minimum, you will be subject to a 14 day period of quarantine, will have limited face to face contact with your family and friends, and will have restricted ability to access courses, programs and work opportunities whilst in custody. Further, any term of imprisonment during the current pandemic will lead to an increased anxiety on your part, as to not only your own health in custody, but also the health of your family in the community.
46I take these considerations into account, and accept that this burden will be further increased for you, through the additional stressor of you not being able to support your 11 year old daughter Katrina during any period of imprisonment – especially in circumstances where you currently equally share parental responsibility for Katrina with Ms Yates.
Current Sentencing Practice
47Both Mr Tiwana and Mr Hannan directed my attention to various cases which they considered may be of assistance in sentencing you. I have read each of the cases referred to by counsel – and agree with the concessions made by both counsel that none of the cases referred to are completely comparable, in terms of the factual scenario or the circumstances of the accused. However, I have taken each of the cases referred to into account, as they do provide some guidance as to the application of the relevant sentencing principles in this area, and also can be used as yardsticks that may be able to illustrate, (although not define), the possible range of sentences available.
48Ultimately, however, I have sentenced you in this case on the basis of the application of the principles to the specific facts of you and your case.
Sentencing Submissions
49Turning to disposition, Mr Hannan submitted on behalf of the prosecution that despite the long period of delay, and the legitimate rehabilitation which you have demonstrated in the intervening period, general deterrence, just punishment and denunciation all still carry significant weight in the sentencing synthesis. Accordingly, he submitted that the only appropriate sentence is a term of imprisonment, with a head sentence and a non-parole period.
50
Mr Tiwana, submitted on your behalf, that absent delay and your considerable rehabilitation in this case, he would have conceded that a term of imprisonment, with a head sentence and non-parole period, would be appropriate. However, given the significant mitigation in this case, he submitted that a community corrections order on its own, or in combination with a relatively short sentence of imprisonment, would be within the range of sentences open to the court.
Mr Tiwana further submitted that Charges 1 and 2 on their own would not have attracted imprisonment, and that this should be factored into the sentencing. Further, he submitted that any cumulation between the sentences on Charges 3 and 4 should be minimal – a submission which was not opposed by Mr Hannan.
Other Sentencing Principles
51In sentencing you today, I must take into account the principles of totality and parsimony. In the particular circumstances of this case, the principle of parsimony requires me to consider whether there is any feature of you or your offending which requires the conclusion that imprisonment is the only option – given that a community corrections order can be imposed for a period of years, with both punitive and rehabilitative conditions attached.
52I had you assessed for a community corrections order in this case and you were assessed as suitable. The author of the report stated that you presented as open, forthcoming and honest, and adopted full responsibility for your offending. The author recommended that you undertake treatment for mental health and programs to reduce reoffending, as well as being under supervision during the period of any order which I impose.
53I have considered the submissions of each party, the report from Corrections, and all of the relevant sentencing principles in this case. Despite the significant mitigatory matters, the sentence which I impose today must still be of a nature which denounces your conduct, administers just punishment, and deters others from committing similar offending against their current or former partners, whilst also giving weight to rehabilitative considerations. Ultimately, I have concluded that a community corrections order on its own will not adequately address the sentencing purposes of punishment, denunciation and general deterrence in respect of Charges 3 and 4 on the indictment, given the gravity of those offences.
54However, I am of the view that the mitigatory features in this case are such that a combination of an aggregate term of imprisonment with a community corrections order on Charges 3 and 4, and a community corrections order on Charges 1 and 2, can sufficiently achieve all of the punitive, deterrent and denunciatory purposes of sentencing, whilst also giving weight to rehabilitation. I am of the view that an aggregate sentence of imprisonment is appropriate for Charges 3 and 4, given that those offences are offences of a similar nature, which were committed as part of a course of conduct during the one evening.
Sentence
55Mr Keller, if you could please stand up.
56On Charge 3 (rape), and Charge 4 (indecent assault), you are convicted and sentenced to an aggregate term of imprisonment of 12 months.
57On Charges 3 and 4, and also on Charges 1 (common assault) and Charge 2 (criminal damage), you are additionally sentenced, with conviction, to a community corrections order, which will commence upon your release from custody, and will be for a period of three years. In addition to the mandatory conditions of that order, you will be subject to the following conditions:
(i)to report to Geelong Community Correctional Services within two clear working days of your release from custody;
(ii)to perform 300 hours of unpaid community work during the period of the order;
(iii)to be under the supervision of a Community Corrections Officer for the period of the order;
(iv)to undertake assessment and treatment for mental health issues as directed during the period of the order; and
(v)to participate in programs and courses that address factors relating to your offending, as directed during the period of the order.
58Do you understand all of those conditions?
59OFFENDER: Yes I do.
60HER HONOUR: I must tell you that if you do not comply with the requirements of the order, or if you commit a further offence punishable by imprisonment during the period of the order, then you are likely to be breached on your order by Corrections and the matter will be brought back before me. One of the potential outcomes, if you breach the order, is that you may fall to be re-sentenced and you may face a further term of imprisonment. Do you understand that?
61OFFENDER: Yes I do.
62HER HONOUR: Given all of those matters which I have told you and the conditions which apply, do you consent to undertaking that community corrections order?
63OFFENDER: I do.
64HER HONOUR: All right, you can have a seat, I am just going to go through a couple of other things and then I will have that order brought to you to sign.
s.6AAA declaration
65Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have imposed a term of imprisonment of four years, with a non-parole period of two years and six months.
Ancillary Orders
66As a matter of completeness, I note that there were no ancillary orders sought by the prosecution.
Other Matters
67I also note that the making of a sex offender registration order is discretionary in this matter. Mr Hannan did not seek to make an application for the court to impose such an order and I do not intend to do so.
68Mr Tiwana, are there any custody management issues to be noted, aside from the fact that this will be Mr Keller’s first time in custody?
69MR TIWANA: No, Your Honour.
70HER HONOUR: No, all right. Are there any other matters which either of you counsel wish to raise about the sentence, or the reasons for sentence at this stage?
71MR TIWANA: Not from me, Your Honour.
72HER HONOUR: All right. Mr Hannan? You're on mute I think Mr Hannan.
73MR HANNAN: No Your Honour there isn't, no, nothing.
74HER HONOUR: All right, thank you.
75MR HANNAN: Thank you. Sorry, Your Honour, I didn't make a note of it, but the Serious Sexual Offender provisions - - -
76HER HONOUR: Don't apply, as both of you told me on the plea.
77MR HANNAN: That's - yes, that's - yes I think that's right.
78HER HONOUR: I think once you get to the third, they start applying and we only had two sexual offences.
79MR HANNAN: Yes.
80HER HONOUR: And I'm not sure that common assault counts as a violence offence for the purposes of the Serious - - -
81MR HANNAN: No I think that's right, Your Honour, sorry. I'm looking at my notes and I've confused myself. That's fine.
82HER HONOUR: Very well. I'm happy for you to double check though Mr Hannan because I don't want to make a mistake obviously.
83MR HANNAN: Of course, yes.
84HER HONOUR: And the reality is, it wouldn't change the actual sentence, it would just mean I needed to declare - - -
85MR HANNAN: Yes.
86HER HONOUR: Because nobody would be submitting in this case that community protection is an issue and nobody would be - - -
87MR HANNAN: No.
88HER HONOUR: - - - submitting, I would've thought, that there needed to be a disproportionate sentence in this case.
89MR HANNAN: That's right, Your Honour. No, I don't wish to make any further submission now, but after this, I will still make another - I'll research it again just to make sure Your Honour and I'll contact my opponent in the - - -
90HER HONOUR: All right, very well. If there is a problem, I'll get it relisted and the parties can - but I don't think that should be a problem.
91MR TIWANA: No, Your Honour.
92HER HONOUR: I'm happy for you to check as well Mr Tiwana.
93MR TIWANA: I will, I don't think there's an issue.
94HER HONOUR: All right.
95MR HANNAN: No, my instructor also confirms with me, like we did on the last occasion, it doesn't apply.
96HER HONOUR: Does not?
97MR HANNAN: Does not.
98HER HONOUR: Very well, good. All right, thank you.
99MR HANNAN: Does not. Thank you.
100HER HONOUR: You did give me a slight heart attack though.
101MR HANNAN: I gave myself one.
102HER HONOUR: All right.
103MR HANNAN: Not the same (indistinct).
104HER HONOUR: All right, so Mr Tiwana, I've just signed the community corrections order.
105MR TIWANA: Yes.
106HER HONOUR: Are you happy to go with my - - -
107MR TIWANA: Yes I am.
108HER HONOUR: - - - associate to just go through that with your client? Thank you. All right, if there's nothing further, then I'll ask my tipstaff to adjourn the court. All right, Mr Hannan nothing further? I'll just double check with you? No? All right, thank you.
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