Director of Public Prosecutions v Kendrick
[2013] VCC 1100
•12 July 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-12-01422
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ADAM KENDRICK |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 July 2013 | |
DATE OF SENTENCE: | 12 July 2013 | |
CASE MAY BE CITED AS: | DPP v Kendrick | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1100 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms L. Palmisano | Commonwealth Office of Public Prosecutions |
| For the Accused | Ms S. Pillai | Victorian Aboriginal Legal Aid Service |
HER HONOUR:
1 Adam Kendrick, you have pleaded guilty to one charge of using a carriage service to access child pornography. The maximum penalty applicable to that offence is ten years' imprisonment.
2 You have pleaded guilty to one charge of using a carriage service to transmit child pornography. The maximum penalty applicable is ten years' imprisonment.
3 You have pleaded guilty to one charge of accessing child pornography material using a carriage service. The maximum penalty applicable to that offence is fifteen years' imprisonment. The dates of this charge, i.e. Charge 3, reflect the increase in penalty from ten years to fifteen years at the time of the commission of that offence, compared with Charge 1, which was then ten years.
4 You have also pleaded guilty to one charge of using a carriage service to transmit child pornography material on three or more occasions and to two or more people. The maximum penalty applicable is 25 years' imprisonment.
5 You have also pleaded guilty to using a carriage service to transmit an indecent communication to a person under 16. The maximum penalty applicable is seven years' imprisonment.
6 There is no doubt your offending is very serious. In relation to Charge 1, your offending occurred over approximately two and a half years, Charge 2, over approximately five months, Charge 3, over approximately 15 months, Charge 4, approximately 14 months, and Charge 5 approximately 15 months. I have not attempted to be entirely accurate to the day.
7 I note Charges 1 and 3 relate to the same offending which occurred over a total of approximately three years and ten months.
8 I note Charges 2 and 4 related to the same offending over a total of approximately one year and seven months, however I note the difference in the wording of Charge 4 compared with Charge 2 and the increased penalty.
9 Charges 1, 2, 3 and 4 are separately charged as a result of a change in legislation and a change in maximum penalties and wording from 15 April 2010.
10 You have pleaded guilty to these charges. You formally advised the prosecution and this Court of your intention to enter pleas of guilty to the charges on 19 January 2013, your trial being listed to commence at Geelong County Court in the circuit commencing 29 January 2013.
11 You are entitled to have the fact of your plea of guilty taken into account in your favour, and I do so. By your plea of guilty you have saved the time and cost of a trial. The Commonwealth legislation provides that such a plea is a relevant matter when sentencing. I accept your plea of guilty, as previously stated, occurred at an early stage. I accept the contested committal was limited to obtaining plea material. At that hearing the informant conceded that the prosecution could not say your offending was for profit or material benefit.
12 I note you made admissions also to police on 28 September 2011, before and during the record of interview, despite some minimisation of your offending at that time. You did not request legal advice prior to the interview and were co-operative in providing access to your computer. Such is relevant in mitigation of your sentence. I accept your plea of guilty indicates some remorse for your offending. By your pleas of guilty, you have expressed a willingness to facilitate the course of justice.
13 I turn to a summary of your offending behaviour provided in the prosecution opening, Exhibit A, and elaborated upon during the course of your plea hearing. It is not necessary for me to recount in great detail the facts in this matter as they are on transcript. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of the plea hearing. It is sufficient for present purposes to simply say the facts in this case are most serious and disturbing.
14 On 28 September 2011, Australian Federal Police (“AFP”) members executed a search warrant at your home and seized a compact diskette (“the CD”) and a computer.
15 Turning to Charges 1 and 3, a forensic analysis of the CD contained five video files with one classified as containing Category 4 child pornography material. The video was consistent with having been downloaded from a peer to peer file sharing program.
16 Forensic analysis of the computer revealed it contained 1011 child pornography images and 640 child pornography videos, with creation dates from 15 November 2009 to 15 July 2011. The last date the material was accessed was 27 September 2011, that is, the day before the Australian Federal Police attended at your home.
17 The 1651 child pornography images and videos were categorised using the Child Exploitation Tracking System of classification (“CETS”). The majority of the images fell into Categories 1 and 4, although there were seven images of Category 5, which reflected sadism, bestiality or humiliation.
18 Turning to the child pornography videos, the majority were in Category 4, involving penetrative sexual activity between children and adults. There were also 21 videos in Category 5 of sadism, bestiality or humiliation.
19 I viewed a sample of these images and videos. The prosecution opening at paragraphs 13, 14 and 15, provided a detailed description of the contents of the images and videos which I will not repeat, however I incorporate that description within these sentencing remarks. It is perhaps unnecessary/ inappropriate in my opinion to draw attention to the content in detail of the child pornography seized.
20 At the time of examination of your computer, two files with names indicative of child pornography were queued for download. You admitted you had accessed child pornography material via the CABOS, a person-to-person file sharing program.
21 In relation to Charge 1, you accessed a total of 475 images, the majority at Levels 1, 3 or 4, and 417 videos, the majority Category 4.
22 In relation to Charge 3, you accessed 71 images, the majority at Levels 1 and 4, and 113 videos, the majority Levels 2 and 4 between 15 April 2010 and 15 July 2011.
23 In relation to Charges 1 and 3, you downloaded an additional 465 images and an additional 110 videos between 24 September 2007 and 15 July 2011 which were located on your computer, categorised and form part of the total number of images and videos relating to Charges 1 and 3. In Charges 1 and 3, the total images were 1011 and total videos 640.
24 A large number of logs of internet conversations between yourself and other persons, many who identified themselves to you as under the age of 16, were also located on your computer. There was a total of 3432 chat log files saved by you on your computer. Typically, when using the username “a.mat28” you said that you were a 28 year old male and represented you had a young daughter with a profile picture attached of an adult male holding a female child aged around 9 to 12 years of age. That photo was, in fact, not you. I was told by Ms Pillai that photo had previously been received by you, then you used it. When you used the username “anitamat111”, you told interested users you were a young female and the profile picture attached to that username was a child under 12 years of age, again clearly not you. That, to me, reflected some sophistication in your offending.
25 The content of chat logs in the text file “3.txt” was detailed in the prosecution opening in which you told those you were communicating with you liked to take pictures of young girls for modelling. I incorporate paragraph 21 into these sentencing remarks.
26 Turning to Charge 2, examination of the chat logs indicated you transmitted 126 child pornography communications to others between the dates of 21 November 2009 and 13 April 2010.
27 Using the CETS scale of classification, there were 40 instances of child pornography material in the form of 26 chat log texts, eight images and six videos transmitted to 27 different persons who identified themselves as being above the age of 16. Details of those texts were found in the prosecution opening, paragraph 24. The majority fell into Category 4 on the CETS scale.
28 There were 86 instances of child pornography material in the form of 66 chat log texts, 19 images and one video transmitted to 42 different persons who identified themselves as being under the age of 16, and details of that are contained within the prosecution opening, paragraph 25. The majority also fell into the Category 4 of the CETS scale.
29 In relation to Charge 2, in total 126 instances of child pornography material in the form of 92 chat log texts, 27 images and seven videos transmitted to 69 different persons.
30 Turning to Charge 4, examination of the chat logs indicated you transmitted 67 child pornography communications, as referred to in the prosecution opening (see paragraph 29).
31 There were 55 instances of child pornography material, specifically 15 chat log texts, 23 images and 17 videos transmitted to 28 different persons who identified themselves as above the age of 16. Once again, the majority fell into Category 4 of the CETS scale.
32 In total, the 67 child pornography communications comprised 27 chat log texts, 23 images and 17 videos transmitted to 39 different persons.
33 Turning to Charge 5, examination of the chat logs located indicated you engaged in 13 online chat communications and transmitted 42 indecent communications to others.
34 The 42 instances of indecent communications were comprised 29 images and 13 videos transmitted to 11 different persons who identified themselves as under the age of 16 years.
35 During the execution of the search warrant on 28 September 2011, you made a number of admissions, and also in the subsequent taped record of interview.
36 Prior to that formal interview, you told police you might have had a little bit of child pornography on your computer because you received “stuff” from other people and never deleted it. You said you had been communicating with a 12 to 13 year old girl asking where she lived and had sent a child pornography image to her as a joke. You said there were about 200 or 300 child pornography images and videos. The document “3.txt” located on your computer was where you saved "the muck around stuff”. You said you had been downloading child pornography for "a couple of years” and had not made the material available to share with others.
37 As I said, you voluntarily provided AFP officers with passwords to your Yahoo account and your AOL account.
38 In the record of interview, which was conducted on that same day, you made further admissions. You said you sent a child pornography image to a 12 or 13 year old girl via an AOL email account. You said you were not specifically looking for young girls to chat to. Your attraction to girls was just a “fantasy thing”, you said. You said your goal or intention in sending a child pornography picture was as a joke. In the chat conversations you mentioned modelling as if it was a fun thing to get the person into. You said you did not send child pornography images to random people you chatted to as you were mainly communicating with males. You said that on Yahoo, some of the guys did role playing, acting like a little girl, and that you would just go along with that. You said you knew they were acting because they would tell their age at the start. You said that when you started a conversation by saying you were a 28 year old male looking for females to model, if they did not say anything, you would think they were real girls and you would leave them alone. If they did talk to you, you thought it was a male “mucking around”.
39 The prosecution submitted in relation to your assertion the chat log text would confirm the recipient at the end of each chat conversation would admit they were adults role playing as children, was in fact not confirmed by the texts.
40 You said that in the chats you were looking for young girls between 10 and 13. You said you never paid for images. You could tell most girls were males role playing. You had never interacted with anyone who said they were a female under 13. In your mind, if they did not want to continue conversations with you, then they were real young girls.
41 You said you were sure you were speaking to adults because at the end of the conversation the person would say they were not really a child. This assertion, I was told by the prosecutor was not supported by the chats in the possession of police.
42 You told police your user email “a.mat28” had been cancelled by Yahoo because Yahoo blocked you because of your “sexualised chats”. I discussed your awareness of this with Ms Pillai, and the transcript will reveal my concerns regarding your awareness and nevertheless continued offending. You said you could not recall the details of the "blocking". You said the account had been blocked approximately six months prior to 28 September 2011. I have no doubt you were well aware of the reason your account was blocked, consistent with your answers in the record of interview and your awareness of the inappropriateness of such "chatting". You also told police you had never shared child pornography and rarely downloaded child pornography.
43 You also said that nine months after you got the internet for the first time, you started downloading child pornography material from the CARBOS program, equating to around 10,000 child pornography images and videos. You had made child pornography material available over Yahoo and AOL you said a couple of times and had “traded with a few guys, but not many". You said one of your external hard drives had contained backup child pornography from your computer.
44 You said you sent child pornography to other Yahoo users, people claiming to be adults and people claiming to be children. You said you had sent children pornography material to children approximately 10 to 15 times and knew it was illegal. You had sent pictures of young naked girls to people you thought were children at their request about four to five times. You denied seeking out children, claiming it was only a joke, that you could never afford financially, as I understood it, to meet them. Your intention however, you stated, was to go online to seek children to get them to go onto their webcam or for them to send explicit images of themselves to you. You said you would download new child pornography every two to three weeks.
45 The prosecution submitted following sentence you would be a registrable offender for the purposes of the Sex Offenders Registration Act 2004 (Vic). Charges 1–3 on the indictment were Class 2 offences as specified within the act and with you being found guilty of three or more Class 2 offences, the reporting period was for life. Ms Pillai confirmed such registration and duration applied to you.
46 As requested by the prosecution, I viewed a sample of the images and videos contained in the material seized. They are, to say the least, disturbing and very sad. Any right minded person looking at them would be disgusted, sickened and saddened by this material. There is no doubt, as the authorities have frequently said, these offences are not victimless crimes. It is clear a number of the images/videos reflect some of the most serious sexual abuse of very young children, including forced penetrations. The prosecution summary details the number of the Category 4 images/videos and those in Category 5. The children in many of them look distressed and one young girl attempts to cover herself up with her leg/knee when she is being ejaculated upon. There are also, as I have said, a number of Category 5 images/videos, also in my opinion disturbing, saddening and disgusting, involving very young children. In making these observations, I am conscious, however, that I must not allow the images/videos to swamp the sentencing process.
47 You have admitted one prior court appearance. On 30 April 2007 at Melbourne County Court you were sentenced on charges of criminal damage by fire (arson), burglary and theft and sentenced to a community based order for twelve months to perform fifty hours of unpaid community work. You were to attend for assessment/treatment for drug/alcohol dependence or psychological/psychiatric assessment/treatment. You were the subject of that community based order at the time of your offending in Charge 1.
48 Whilst of course you are not before me for the breach of that order, it is relevant you were on a court order at the time you committed Charge 1 and this breach is an aggravating feature of your offending.
49 Returning to your other criminal history, the prosecution tendered details of an earlier court appearance in 1993 at the Children’s Court in Ararat where you were dealt with for offences of indecent act with/in the presence of a child under 16. You were then without conviction placed on an accountable undertaking for approximately 12 months.
50 I discussed this with both counsel. That is not a prior conviction for the purposes of sentencing. It does, however, cause me some concern and I note Dr Sullivan also referred to it. I however, take into account that that offending occurred when you were very young and of course you are now 33 years of age at time of sentence before me. I note that whilst Dr Sullivan did not specifically state that that offending increased your risk of committing a relevant (sexual) offence in the future, he suggested a sex offender program may be appropriate. I remain concerned for a number of reasons about your rehabilitation prospects, as I discussed with counsel, and I will refer to that later.
51 Ms Pillai, conceded on your behalf, your offending involved storing, downloading and sharing child pornography images over a significant period of time.
52 She said you commenced offending while playing games on your computer. You said links popped up on the screen that took you to child pornography sites. You knew it was illegal. I have no doubt you did.
53 Ms Pillai submitted you were living an isolated lifestyle and in that context were introduced to the material and engaged in child pornography and also adult pornography.
54 She submitted you did not have a webcam and therefore could not view others or yourself. Ms Palmisano, who appeared for the prosecution, however submitted you did keep photos of children, albeit clothed, sent to you by children who were involved in the chats.
55 Ms Pillai submitted you had no intention of meeting any of the recipients of the communications.
56 Ms Pillai also told me something of your background. You attended up to fifteen different primary schools, and as a result had learning, educational and speech difficulties.
57 At the time of your offending dealt with in 1993 she submitted you were immature, had learning difficulties and ADHD.
58 She submitted you were now fully aware of the serious nature of your offending. Whilst you knew it was wrong at the time, your awareness of the serious nature of it had occurred subsequently. I have no doubt you were aware, as acknowledged by you to police, that it was illegal. It is difficult to conclude after having viewed the images that I was required to do for this hearing that you could be anything other than aware of the seriousness of your offending. Ms Pillai then submitted you were not aware of the full impact of the gravity of it. You were aware however, she acknowledged, that it was illegal, wrong and that the children were in a subordinate position and exploited.
59 You instructed that when you became aware from the "chats" that the person was under 16 you tried to cease communication. You said you never used the CARBOS program to transmit because you did not want children participating in your fantasy. I note, however, you did keep some photos of children, to which I have previously referred, involved in the chats, as stated by Ms Palmisano.
60 There were, I note, a significant number of Category 4 images, videos and chats, with some in Category 5. Ms Pillai said you instructed you only looked at the Category 5 images once. I note your differing account to Dr Sullivan.
61 You were born in 1980. Your father was Koori, your mother not. Your father drank heavily and was physically abusive to you and your mother and domestic arguments were frequent.
62 Your mother has worked at St Vincent De Paul for the past eleven years at the opportunity shop.
63 You described a very close relationship with your mother and I was told that your mother frets over your current custody situation. She visits you despite difficulties she has in getting to prison and is in regular phone contact with you. Further, she sends money to you to help you in prison, despite no doubt having limited resources of her own on a disability pension.
64 You have two half sisters, one lives in Geelong and one in Echuca. I was told you do not have a close relationship with them.
65 Consistent with other material before me, you had predominantly lived with your mother, apart from six months when you lived in a caravan park. You struggled to live independently, so you returned home. Ms Pillai’s instructor, as I understood it, had been attempting to arrange assistance for you upon your release from custody to assist your reintegration into the community, consistent with the recommendation of Dr Sullivan. Following your release from custody, I was advised that should that occur in the near future, Wesley Mission had made arrangements for accommodation for you away from the Geelong area. I interpose and note Ms Pillai made some further submissions in relation to accommodation prior to me handing down sentence today, but as I understand it that offer of Wesley Mission may still be available in the short term.
66 You do not currently have any close friends, preferring your own company.
67 Whilst you did not recall details of any earlier sexual abuse of yourself, I accept your mother’s account that you were sexually abused as a child and received some monetary compensation.
68 Following leaving school you found it difficult to cope with employment. Although recently in prison you had been working until that ceased, apparently as a result of pressure from another prisoner. Whilst in prison I was also told you have been threatened.
69 You have served your 645 days in custody as at 4 July 2013, in the Protection Unit, initially at Melbourne Assessment Prison, then at MRC. I accept there are further restrictions upon your liberty as a result, and that protection is more onerous than being in mainstream prison. Such is relevant when sentencing you. However, consistent with R v Males[1], it is unclear whether you will remain on protection following sentence. I discussed this with Ms Pillai during the course of your plea hearing. No evidence was placed before me and no further submissions made regarding your likely protection status or otherwise. Nevertheless, as I have said, the fact you have been on protection up to sentence today is a relevant sentencing consideration.
[1](2007) VSCA 302
70 In custody you have undertaken courses in OH&S, obtained a white card and participated in a Food Handling course. Certificates from Kangan Institute regarding completion of a Work Safety in the Construction Industry course, a Workplace Hygiene Procedures Course, Certificate II in Hospitality were before me (see Exhibit 5).
71 A number of reports were also provided during your plea hearing. There was a report from Dr Danny Sullivan, Consultant Psychiatrist, dated 20 March 2013. He provided details of your background and history, much of which I was told by Ms Pillai.
72 He further observed that as a result of your changes in primary schools, you continued to require assistance with writing and had difficulty reading. You also attended a number of secondary schools to Year 9, and received some extra education to assist you. You were teased at school as a result of your speech impediment and had subsequently undertaken some speech therapy.
73 After leaving school in 1996 you worked for a very short time in a bakery, then a further couple of weeks in the Melbourne area. Other than that you had not worked. You were in receipt of a Disability Support Pension as a result of your learning difficulties.
74 You said you enjoyed collecting game consoles, playing role-playing games, and had previously also enjoyed rollerblading.
75 Regarding your psychiatric history, you told Dr Sullivan that when you were younger you had seen a psychiatrist for problems with your behaviour. Further reports before me, also made available to Dr Sullivan, confirmed that. You did not relay any history regarding significant depression, psychotic symptoms, self-harm or any other features of mental illness. Dr Sullivan noted that alcohol consumption and/or use of drugs were not issues for you.
76 Turning to your psychosexual and offending history, you told Dr Sullivan you denied paying for internet pornography, and denied looking at images depicting bestiality, fetishism or sadism. In your interview with police you said you had looked at such images, albeit I note relatively few in number fell into Category 5 compared with the other images and videos in the other CETS categories.
77 You told Dr Sullivan you downloaded images and masturbated to some of them, although indicated your preferred images were of adults.
78 In Dr Sullivan’s opinion, you had a basic understanding of the age of consent. You did not think that the other person was being hurt when you were "chatting". This, to me, raises concern regarding your insight. You said you did not have any intention to act upon the suggestions in the chat sessions, as you did not have the ability to travel to meet any of the alleged victims.
79 Dr Sullivan referred to a number of your prior court appearances dealt with in the Children’s Court, which I stress are not part of your "formal" prior criminal history. He referred to your Children’s Court appearance in 1993 for charges involving sexual allegations. While that is concerning I do note you were very young, as I said, at the time and I also note the circumstances in which that occurred, as outlined by Ms Pillai. I also note the very different nature of that offending from that before me. It is however a concerning aspect of your history also considered concerning by Dr Sullivan.
80 Dr Sullivan referred also to a number of other charges apparently dealt with in the Children’s Court, and again I stress not "formal" prior convictions before me. Minimal material was provided in regard to those matters and I disregard them for the purposes of sentencing for the offences before me.
81 Dr Sullivan referred to an earlier report prepared by Dr Grech on 18 November 2004. That report indicated you had a full scale IQ of 91, verbal IQ of 82 and a performance IQ of 106.
82 A psychiatric assessment by Dr Lester Walton referred to in his report dated 27 October 2004, referred to your history of significant behavioural disturbance in infancy and later childhood with sexualised behaviour being, I assume, referable to the offending dealt with in 1993.
83 Those latter two reports were somewhat dated, as I discussed with your counsel. They do not refer to your mental health at the time of your offending before me. What is relevant, however, was the assessment by Dr Grech in 2004 of your full scale IQ. Such is in part relevant to submissions made by Ms Pillai on your behalf on the principles in R v Verdins & Ors[2], to which I shall later refer.
[2](2007) 16 VR 269
84 Turning to Dr Sullivan’s opinions and recommendations, your profile suggested a severe language disorder. You were, however, not intellectually disabled, nor did you exhibit autistic features, or present with features of foetal alcohol syndrome.
85 In Dr Sullivan’s opinion you appeared to have an abnormal personality structure with antisocial and avoidant features. You had limited social interactions, were immature and had an impoverished emotional life. He observed there was no history of psychotic symptoms or significant mood disturbance.
86 Whilst he had limited information regarding your earlier offending, he had concerns about “the longstanding presence of behavioural disturbance including earlier sexualised behaviour”. At the time of his assessment you could not provide a clear explanation for your offending behaviour. Dr Sullivan suggested you be assessed for the sex offender program.
87 Your pattern of behaviour suggested to Dr Sullivan that you had sexual arousal to children and he made a provisional diagnosis of Non-Exclusive Paedophilia. He expressed concern that whilst you asserted your behaviour was in jest, it was nevertheless sustained and pre-occupying. This also concerns me. Dr Sullivan expressed concern you had either a primary sexual arousal to children or due to your deficits were drawn to, or identified with, children rather than adults because of your difficulties relating to others. Those conclusions appear to me to be as close as Dr Sullivan gets to assessing your risk of future offending. No specific level of risk was opined. His conclusions, however, concern me when assessing your risk and rehabilitation prospects.
88 According to Dr Sullivan, there was no indication you required treatment with medication, nor any generic psychological assistance. Rather you required a combination of offence specific treatment geared towards sexual offending with assistance in the future to reintegrate into the community.
89 Dr Sullivan further concluded your future needs did not need to be met through a mental health service. You did however require supported integration in the community into the future.
90 In Dr Sullivan’s opinion, at the time of your offending you were able to think clearly and make calm and rational choices, as evidenced by your ability to consider the wrongfulness of your actions and to think about the various degrees of subterfuge involved in false identities, your perception the materials involved fantasy but not reality, and your range of minimisations and distortions about your offending. This assessment by Dr Sullivan is also particularly relevant when assessing the applicability or otherwise of the principle in Verdins. In his opinion, your social skill deficits and emotional problems were likely strongly causally associated with the commission of the offences. He thought your judgment was likely impaired.
91 There was a supplementary report from Dr Sullivan, dated 8 May 2013, in which he addressed a number of matters raised, it seems, in correspondence from your solicitors and I have also read that report.
92 In neither of the reports did Dr Sullivan specifically quantify your risk of future offending, i.e. low, moderate, high or combination of any. He however referred to a number of matters which concern me, relevant both to the applicability or otherwise of the principles in Verdins and also your rehabilitation prospects. You were not intellectually disabled. There is no history of psychotic symptoms or significant mood disturbance. Your IQ was 91. Your offending was sustained and preoccupied. You had a longstanding presence of behavioural disturbance including earlier sexualised behaviour. You had a primary sexual arousal to children. You did not require treatment with medication or generic psychological assistance. Your future needs would not be met through a mental health service. That at the time of your offending you were able, he said, to think clearly and make calm and rational choices such as those identified by Dr Sullivan in his report.
93 Ms Pillai relied upon the reports of Dr Sullivan, in support of her submission that the principle of Verdins would apply when sentencing to reduce your moral culpability for this offending. She submitted there was a "degree of impairment" which would warrant such moderation. She submitted it was open to me based on the reports to give some weight to your level of impairment, “maybe minute”. She referred me to a number of authorities.
94 In R v Marc Hamilton[3], Justice Curtain concluded from the report of Ms Pamela Matthews in that case that the background of Mr Hamilton was relevant to his behaviour in the offending before the court (see paragraph 11). Ms Matthews opined that Mr Hamilton exhibited symptoms of borderline personality disorder.
[3][2011] VSC 77
95 Her Honour in that case concluded the principles in Verdins were to be given very limited application for the reasons stated by her in paragraph 13.
96 In R v Skura[4], Court of Appeal Justice Eames observed that "a disorder falling short of serious psychiatric illness might well be capable of moderating the need for general or specific deterrence”, and this is certainly my understanding of the law. In Skura, Mr Davis, Psychologist, concluded Ms Skura met the diagnostic criteria of severe mixed personality disorder, with narcissistic borderline and antisocial features, adjustment disorder with disturbance of conduct, emotions and pathological gambling (see paragraph 27). Acting Court of Appeal Justice Smith observed it was necessary to analyse the nature, severity and effect of the condition. In Skura the evidence of personality disorder explained the conduct but did not affect the assessment of the moral culpability of the applicant because it was quite clear she knew what she was doing and that it was wrong (see paragraphs 33-34). There is no doubt, according to Dr Sullivan, you knew what you were doing was wrong and illegal.
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97 In DPP v Ison[5], Court of Appeal Justice Mandie referred to sentencing for offences such as those before me, citing JA Nettle in DPP v Smith[6]. Such considerations are relevant in my opinion and have been repeatedly stated (see paragraphs 25 and 26 of Ison).
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98 Ison was a Director’s Appeal and the decision of the court not to return the appellant to custody after commencing and quite successfully started to complete the community-based order yet not returning the appellant to custody does not surprise me on a Director's Appeal (see paragraph 30).
99 Ms Pillai submitted some weight should attach to you in the applications of the Verdins principles relevant to your moral culpability.
100 Ms Palmisano, on behalf of the prosecution, submitted the material before me did not enliven any of the principles in Verdins, relying upon aspects of Dr Sullivan’s report.
101 Ms Palmisano submitted the application of Verdins principles were exceptional, citing Charles v R[7]. I have read that decision and in particular note paragraphs 150-162, which supports that proposition and also refers to assessing moral culpability.
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102 Ms Palmisano submitted that Dr Sullivan concluded your personality disorder did not impair your ability to make calm or rational decisions, also referring me to paragraphs 32, 33 and 41 of his first report and also his supplementary report. She submitted your offending was not causally linked as defined because at best Dr Sullivan could only say “likely”.
103 In reaching my conclusion regarding Verdins principles, I have also considered Latif & Ors v The Queen[8]. The court therein considered "causal link" and in particular I refer to paragraph 81.
[8](2013) VSCA 51
104 It is clear, however, in your case that Dr Sullivan concluded at the time of your offending your mental state was such that you were able to think clearly and make calm and rational choices relevant to your offending.
105 In my opinion the principles in Verdins are not enlivened in your case, specifically, your moral culpability is not so mitigated, as urged by Ms Pillai.
106 Ms Pillai submitted any further term of imprisonment should be of short duration and any non-parole period should enable your release from custody at the earliest opportunity, specifically less than the two years non-parole urged by the prosecution. She submitted her concern was that you have more support when in the community and I had a brief discussion about that today.
107 Ms Palmisano provided a range considered appropriate for your offending. She submitted Charge 4 was the more serious of Charges 2 and 4. Charge 4, she submitted, could form the base sentence and she submitted concurrency between Charges 2 and 4 would be appropriate.
108 Concerning your rehabilitation prospects, I have guarded optimism given the current concerns being raised by Dr Sullivan. He has recommended you receive counselling/treatment through a sex offender program. Such participation would likely allay some of my concerns. Perhaps your isolated lifestyle should also be addressed. When sentencing you however I must seek to maximise your chances of rehabilitation as they may be.
109 I turn to the legislation relevant to your offending.
110 In the Crimes Legislation Amendment (Sexual Offences Against Children) BilI 2010, the explanatory memorandum provided insight into this legislation and the concerns of Parliament regarding child pornography. Referring to s.474.19 Criminal Code (Cth), the increase in penalty from 10 to 15 years reflected Government concern regarding the internet creating even greater demands for material of “ever greater levels of depravity and conception”.
111 And further:
“(such) offending has become pervasive and widespread”.
112 And further:
“Children, in addition to being victims of the initial abuse required for the production of the material, are exploited on a massive scale through the repeated distribution of the image or images, throughout international networks”.
113 Regarding s.474.24A Criminal Code (Cth), the explanatory memorandum states:
“This item will insert a new aggravated offence criminalising using a carriage service for child pornography material or child abuse material (section 474.24A). The Internet has allowed the development of organised, technologically sophisticated rings of child sexual abusers. This, in turn, has increased levels of harm to children resulting from the demand created by such large-scale networks. The new offence will apply where the existing child pornography or abuse material offences are committed a number of times, as part of a child pornography network. That is, the offence will require proof that the conduct giving rise to the offence occurs on three or more separate occasions, and involves two or more persons. It will carry a maximum penalty of 25 years imprisonment.”
114 This is referrable to Charge 4.
115 Turning to s.474.27A.
“The purpose of this offence is to address situations where the offender sends indecent material to a child with no further intent to groom or procure the child for sexual activity. This penalty (7 years maximum) is consistent with maximum penalties for State and Territory offences for exposing a child to indecent material".
116 The seriousness with which the courts regard child pornography has been repeatedly stated in many cases.
117 Without attempting to mention all of those cases that have dealt with offences involving child pornography, a number of principles applicable to sentencing have been articulated. However, some relevant authorities include R v Gent[9], R v OIiver & Ors[10], 463, DPP v D’Alessandro[11], R v Jongsma[12], R v Fulop[13]. This list is by no means exhaustive.
[9](2005) 162 A Crim R 29
[10](2003) 1 Cr App R 28
[11](2010) VSCA 60
[12](2004) 150 A Crim R 386
[13](2009) VSCA 296
118 I am of course aware of other cases involving similar offending where the numbers have been much greater than involved in your offending and also where the numbers have been much less than those attributed to you.
119 It is difficult comparing cases factually as facts vary enormously case to case, as do matters relevant to each offender in mitigation. Statistics also, whilst relevant, have their limitations. Ultimately, I have to determine the appropriate sentence for your offending, taking into account your offending, all matters in mitigation, as well as established principles relevant to sentencing for these offences, and the maximum penalties applicable.
120 When sentencing you, I must and do take into account s.16A(2) Crimes Act (Cth) as they are known to me. I must also impose a sentence that is "of a severity appropriate in all the circumstances of the offence".
121 Whilst general deterrence is not specifically provided for in s.16A(2), it is nevertheless an important sentencing consideration for this offending, and such has been frequently stated by the courts.
122 Turning to the submissions by the prosecutor, Ms Palmisano submitted regarding your instructions that you did not use the webcam. She submitted whilst you could not see who you were talking to, children at times sent pictures to you, and you were aware they were children.
123 Regarding your instructions to Ms Pillai, that when you were aware you were chatting with a child you immediately stopped, she said this was contradicted, by reference to the depositions. Further, I was told often the age was in the username profile indicating, for example, that a person was a young age.
124 Regarding your submissions you did not transmit through CABOS, in the record of interview she submitted you stated the reason for not sharing through that program was because you had a restriction uploading material. It was not out of recognition, she said, of harm to the child but purely related to your ability to upload/download material.
125 Turning to her sentencing submissions, Ms Palmisano submitted that a community corrections order was outside the range of appropriate dispositions. A recognisance release order could be imposed in addition to a term of imprisonment if I considered such to be appropriate.
126 Turning to relevant sentencing considerations, I was taken to s.16A(2) Crimes Act 1958 (Cth) and, as I say, I have taken into account all such matters as are known to me.
127 I must also consider the factual circumstances of your offending, as outlined in the prosecution opening and I must also take into account the maximum penalties applicable.
128 Ms Palmisano referred to the increase in penalty between Charges 1 and 2 and 3 and 4, in particular the penalty of 25 years maximum applicable to Charge 4 was reflective of how seriously Parliament regarded that offending.
129 Ms Palmisano submitted general deterrence was of paramount consideration for offending such as this. It is. She also referred me to Gent’s case, to which I have previously referred.
130 Ms Palmisano also addressed me on the degree of depravity reflected in the various charges, in particular the categorisation of most as Category 4. She submitted the number of images and videos were not insignificant and that your chats involved communication with a significant number of persons.
131 She submitted your offending was not victimless. That there were children in the photographs, and potential harm to those to whom images were sent.
132 Ms Palmisano submitted the transmission of images was aggravating because it increased the number of people viewing the material. Those submissions are consistent with the authorities.
133 In relation to specific deterrence, she submitted that such was an important sentencing consideration in your case, particularly based on the concerns raised by Dr Sullivan in paragraph 38 that he diagnosed you as “non-exclusive paedophilia”. That whilst you had a prior court appearance (not a prior conviction for the purposes of sentencing) for a sexual offence, it was a concerning matter.
134 In my opinion, specific deterrence is relevant when sentencing you, given your offending occurred over a significant period of time in total involving a not insignificant number of images/videos and a not insignificant number of persons involved in the chats, many who identified themselves as under 16. Also relevant are the concerns raised by Dr Sullivan (see paragraph 38).
135 Ms Palmisano submitted protection of the community and general deterrence necessitated stern punishment.
136 Ms Palmisano submitted you required offence-specific treatment and your rehabilitation prospects were of concern, also your lack of insight. As I previously stated, I have ongoing concerns regarding your prospects of rehabilitation.
137 Ms Palmisano further submitted when sentencing for these offences, it was relevant that such were difficult to detect and onerous to investigate, again consistent with the authorities.
138 Further, she submitted relevant when sentencing you was the need to protect the community, given the conclusions of Dr Sullivan.
139 I am also called upon by the Crimes Act (Cth) to manifest the community’s denunciation of your conduct and generally to impose a just punishment, but when sentencing you I have also taken into account principles of totality and proportionality.
140 Having considered all sentencing options, I have ultimately concluded it is appropriate to impose a term of imprisonment with a non-parole period being fixed, rather than incorporate also a recognisance release order. In part, I so conclude based upon the significant amount of time you have spent in custody to date. In my opinion, to add to that significant term by placing you when you are released on parole also on a recognisance release order of the duration that I would apparently need to impose to ensure you complete the sex offender program would arguably make your sentence manifestly excessive.
141 So I intend to sentence you as follows. Before I do that, you can stay seated because what I propose to do now is I am going to hand the barristers a copy of what I intend to sentence you to. Ms Pillai is not going to run back and tell you because she cannot, I am not going to let her do that. It is very important you understand when I am sentencing on Commonwealth matters, all I can say to you is it is not easy. The structure, the dates you have got to find, it is just not easy, and I want both counsel to assist in that regard. So it is very important you understand I am not negotiating with the prosecution. You know, we are not having a chat about figures. I have already decided your sentence. As I sit here now, I have made up my mind. I know what it is. I just want it worded correctly. I know that perhaps will not mean a lot to you. Ms Pillai will perhaps later on explain it to you. So do not be concerned about this discussion, it is purely for structure. I am not negotiating.
142 HER HONOUR: What I am going to do is hand to both counsel my proposed sentence and you can have a look at it, then I will explain it to you and then we will see how we go this time. Ms Pillai, you just have to keep it to yourself for the moment.
143 MS PILLAI: Yes, Your Honour.
144 HER HONOUR: Have a look at it and it is the dates I think I need some help with. I will explain it all later but I just want you to have a look at it. I think the Commonwealth is on to it and you might want to have a chat eventually to the prosecutor Ms Pillai about it.
145 MS PILLAI: Yes.
146 HER HONOUR: It is the setting because you have to set a date, or if you cannot set a date, word it another way for any periods of cumulation.
147 MS PILLAI: Yes.
148 HER HONOUR: Hopefully it will become clear. Then I will explain it to your client. Maybe the wording is wrong when I say commencement after, that may not be right. We may need to reword it. The sentence will not change, Mr Kendrick, do not worry, it is the wording. It may not be correct, particularly the way I have worded paragraphs 152 and following. So if it is wrong, we need to change it.
149 HER HONOUR: Do not be afraid to change the wording, so long as the sentence remains as I want it to be. Have a chat. Do not mind me. Now, is that correct wording or not, madam prosecutor? I do not mind if you change it but so that you understand, I have given the set sentence on Charges 1 to 5. I have stated the amount. Then I have turned to concurrency and cumulation.
150 MS PALMISANO: But your effect is essentially to have a total effective sentence of - - -
151 HER HONOUR: Yes, that is correct, that is not to change. But when I ordered the cumulation, five months on Charge 1 to go on top of the base, then I have ordered Charge 2 concurrent so it starts today. Four months of three is on top again and three months of five is on top again. Does that make - - -
152 MS PALMISANO: Give me a moment, Your Honour.
153 HER HONOUR: No that is all right, if you want to make phone calls, feel free. Join in, Ms Pillai.
154 MS PILLAI: Yes, thank you.
155 HER HONOUR: Now, I can hear that there is some questions happening so there, so what I am going to do - - -
156 MS PILLAI: I'm guided by the Commonwealth, Your Honour.
157 HER HONOUR: No, that is all right. What I am going to do is I am going to leave the Bench for a while and if you want to make a phone call, feel free. I do not mind how it is done, so long as when I leave this room at the end of the sentencing remarks, it is right.
158 MS PALMISANO: Yes, Your Honour.
159 HER HONOUR: Okay?
160 MS PILLAI: Yes.
161 HER HONOUR: I do not care how long you take, I do not care how many phone calls you make, I do not care how many discussions you have, all I am saying - the sentence I think is pretty clear.
162 MS PILLAI: Yes, it is.
163 HER HONOUR: And it just needs to be worded correctly. That is the key here. So before you go and before I leave the Bench, I am going to have Mr Kendrick leave while I am gone and when you are sorting this out, then he will come back and we will continue on when I come back again. Is there anything that is perhaps unclear? Is there anything you do not understand? Not suggesting you do not. No? Is it pretty clear what I am intending to do?
164 MS PALMISANO: It is, Your Honour.
165 HER HONOUR: You are sure? Well, I can come back and help if it is not, but it is the wording of paragraphs 152 through to 155. I assume your numbers are the same? The last - - -
166 MS PILLAI: (Indistinct).
167 HER HONOUR: Oh they are not? Well, where it has got the blank marks - - -
168 MS PILLAI: It is paragraphs 8 to 11, Your Honour.
169 HER HONOUR: Where it has the blank marks.
170 MS PILLAI: Yes.
171 HER HONOUR: If that is the wrong wording, change it, so long as it reflects what I want to do. Does that make sense?
172 MS PALMISANO: Yes, Your Honour.
173 HER HONOUR: All right. So Mr Kendrick, this is part of the course with Commonwealth sentencing. I am going to leave the Bench, while I do that, you will just pop out the back there while counsel try and work all this out.
174 OFFENDER: Could I ask my barrister one thing?
175 HER HONOUR: Pardon?
176 OFFENDER: Could I ask my barrister one thing?
177 MS PILLAI: Yes and if Your Honour is leaving the Bench, is it permissible for me to indicate what Your Honour's ultimate - - -
178 HER HONOUR: No.
179 OFFENDER: No, I want to ask something else completely different.
180 MS PILLAI: And I will not - - -
181 HER HONOUR: No.
182 MS PILLAI: Yes, I understand that.
183 HER HONOUR: All right. So I will leave everyone, I will leave you while you have a look at that and, as I say, just let my associate or my tipstaff know. Okay?
184 MS PILLAI: Yes, Your Honour.
185 MS PALMISANO: Thank you, Your Honour.
186 HER HONOUR: All right, thank you. Thanks very much
187 (Short adjournment.)
188 HER HONOUR: All right, have a seat Mr Kendrick. Just so you know, I came onto the Bench, you were not here. I have not been discussing anything with counsel in your absence, all right?
189 OFFENDER: Yes.
190 HER HONOUR: Okay. Now, back to you?
191 MS PALMISANO: Your Honour, the issue is the cumulation on Charge 4. So we've provided Your Honour with two options. The first one is just cumulation on cumulation and I will go through it.
192 HER HONOUR: The second option starting with the four being the base sentence?
193 MS PALMISANO: Oh sorry. Sorry, so your - yes I have got it. So your second option is the cumulation on cumulation, but whereas the first option is us trying to give effect to what Your Honour was minded to do, being cumulation on Charge 4. So what it would be is you would have cumulation at the start, Charge 4 would be in the middle and then you would have cumulation tacked on the end of Charge 4.
194 HER HONOUR: I do not understand that. Why?
195 MS PALMISANO: But apart from - the effect of Charge 5 means that cumulation would be on Charge 1. The preferred option would be the second option.
196 HER HONOUR: Well, I agree, it makes more sense to me I must confess.
197 MS PALMISANO: But we were just trying to give effect to Your Honour's - that you were minded to have cumulation more on Charge 4. You can't have cumulation in relation to all counts on Charge 4, it just doesn't work out that way, but we were able to give effect to, as much as we could, having Charge 4 in the middle, but for the fact that Charge 5 would be cumulated on Charge 1.
198 HER HONOUR: So the second option seems to me to be the appropriate one.
199 MS PALMISANO: Correct.
200 HER HONOUR: Now, Ms Pillai, did you have a view on that for a start?
201 MS PILLAI: Your Honour, I have just been handed this document so it has just taken a bit of time - - -
202 HER HONOUR: Well, let us work through it..
203 MS PILLAI: That's right, I'd be grateful.
204 HER HONOUR: Well, what I propose to do is we will come back to - I want this explained in a minute but I need to I think explain a bit more now to Mr Kendrick before we get the formal orders in place. You can stay seated for this but this is the sentence I am imposing.
205 Charge 1, convicted and sentenced to 12 months' imprisonment.
206 Charge 2, convicted and sentenced to 12 months' imprisonment.
207 Charge 3, convicted and sentenced to 10 months' imprisonment.
208 Charge 4, convicted and sentenced to 2 years' imprisonment.
209 Charge 5, convicted and sentenced to 6 months' imprisonment.
210 Now, they are the sentences, but then I am making orders for some cumulation on top. My plan is that the two years is effectively a base sentence. There will be some cumulation on top of that. You end up with a head sentence of three years and a non-parole period of two years, which in simple language means that you have got about a month and a half - do not quote me on that - before you are on parole.
211 Now, do not worry about all of that just yet. I am trying to make sure that the orders I have made for cumulation are reflected, so we get to the three years with the two years. Does that all make sense?
212 OFFENDER: Yep.
213 HER HONOUR: So do not worry, Ms Pillai is here looking after your best interests and that is the sentence I have imposed. It is a total effective sentence of three years with a non-parole period of two and I have ordered some cumulation. So what I am accumulating, if you like, five months of Charge 1. So I gave you 12 for that but five months of that is added on. In relation to the sentence on Charge 2, totally concurrent. Runs at the same time as the two years, so that 12 months and two years runs at the same time. I then intend to cumulate four months of Charge 3, so it becomes the two years plus the five months, plus the four months. Are you with me?
214 OFFENDER: Yep.
215 HER HONOUR: And then I want to cumulate three months of Charge 5 on top of that. So that becomes two years plus five months plus four months plus three months. If you add all that together, that is your three years at the top.
216 OFFENDER: Yep.
217 HER HONOUR: Yes? Now, we are just trying to work that out in a correct wording. That will not change, it is just the wording. So can you just explain that to me? So formally that would mean that Charge 4 has to commence on today's date, being 12 July 2013, correct? Yes?
218 MS PALMISANO: Charge 4, correct. Today.
219 HER HONOUR: Yes. Charge 2, because it is concurrent with Charge 4, also commences today. Runs at the same time. So Charge 2 and 4 run at the same time, starting today. Charge 1 commences 17 months after the commencement of the sentence in Charge 4. So 17 months after today, Charge 1 starts. Charge 3 then commences six months after the commencement of the sentence in Charge 1. Charge 5 commences seven months after the commencement of the sentence in Charge 3. Now, I need to be assured that that is correct.
220 MS PALMISANO: I have start dates and end dates, Your Honour, if that would make that easier? It is Your Honour that wants to double-check the calculations?
221 HER HONOUR: I want to make sure that this is right. So if it needs clarification, we all know when Charge 4 and Charge 2 commence, that is easy. But Charge 1 commences 17 months after the commencement of the sentence in Charge 4, which means it commences on what date?
222 MS PALMISANO: 12 December 2014.
223 HER HONOUR: 12 December 2014. Charge 3 commences six months after the commencement of the sentence in Charge 1.
224 MS PALMISANO: Which would be 12 June 2015.
225 HER HONOUR: June 2015?
226 MS PALMISANO: Correct.
227 HER HONOUR: So it commences on that date? Are you making a note of it, Ms Pillai?
228 MS PILLAI: Yes.
229 HER HONOUR: Charge 5 commences seven months after the commencement of the sentence in Charge 3, which means it commences on?
230 MS PALMISANO: 12 January 2016.
231 HER HONOUR: Now, it is my understanding that there could well be slight changes due to administrative matters?
232 MS PALMISANO: Correct, that's why I'm just giving you those dates for your purposes.
233 HER HONOUR: Yes, my benefit?
234 MS PALMISANO: Exactly, so for the terminology for the sentence, it is best to be exactly how it's been articulated in the written document.
235 HER HONOUR: Yes. In case, Ms Pillai, there are administrative days, lockdowns, that sort of thing, which come off.
236 MS PILLAI: Yes.
237 HER HONOUR: So they are the dates we had worked out. All right. Yes, all right. Now, that is clear. Got that.
238 So the formal order is, as I have already sentenced individually, Charge 4 commences today 12 July. Charge 2 commences today 12 July 2013. The formal order is Charge 1 commences 17 months after the commencement of the sentence in Charge 4. Charge 3 commences six months after the commencement of the sentence in Charge 1 and Charge 5 commences seven months after the commencement of the sentence in Charge 3.
239 MS PALMISANO: Correct.
240 HER HONOUR: All right. Now, that results in a total effective sentence of three years imprisonment.
241 Pursuant to s.19 - do you agree with that, Ms Pillai?
242 MS PILLAI: I'm trying to get there, Your Honour.
243 HER HONOUR: Well, you will have time. Pursuant to s.19AB Crimes Act 1914, I direct you serve a period of two years before you are eligible for parole.
244 The purpose of that parole period is to potentially permit your release back into the community under supervision. That is what parole is about. I hope that you get as much assistance as you can with the issues you have in that 12 months period, i.e. you are out after two years, three years is the sentence. You follow? 12 months.
245 OFFENDER: Yes.
246 HER HONOUR: Now, just so that counsel are aware of this, whilst I am very much aware that the material suggests a sex offender program, I am also aware such a program is at least 18 months and it seems to me that given he has spent two years in protection, that to then add a recognisance release order of something like 18 months to two years is arguably manifestly excessively. Basically, if he had been dealt with and sentenced before he spent as many days as he has in custody now - if you had been in for a year it might have been easier and more appropriate to accommodate him on a recognisance release order for a lengthy period of time such as 18 months to two years. So I am concerned that he may not do the sex offender program. That is not ideal. In fact, it is disappointing, but I do not believe I should sentence simply to accommodate a program if I believe the sentence would arguably be manifestly excessive. The big problem here is he has spent nearly two years in gaol. Now, I hope that provides a little more clarification for the reason for not imposing a recognisance release order when such might well have been helpful to him and the community.
247 MS PALMISANO: Yes, Your Honour.
248 HER HONOUR: I hope that makes sense.
249 Pursuant to s18(4) Sentencing Act, I declare you spent 651 days in custody, up to and including yesterday which was 11 July, by way of pre-sentence detention and I direct that this be entered into the records of the court. Do you agree with 651, Ms Pillai? PSD?
250 MS PILLAI: If that is from - if I could just clarify with the prosecutor.
251 HER HONOUR: Up to yesterday and including yesterday 11 July, 651, did you get that? We are just working out the number of days you spent in custody, so it is to your advantage we get it right.
252 OFFENDER: (indistinct.)
253 HER HONOUR: Not yet.
254 MS PILLAI: May I approach my client, Your Honour?
255 HER HONOUR: Yes.
256 MS PILLAI: Sorry. 651 not including today, Your Honour.
257 HER HONOUR: Well, that is what I had. Up until and including yesterday.
258 MS PILLAI: Yes, there was just a discrepancy. They thought it was 650 because - - -
259 HER HONOUR: Well, is everyone in heated agreement?
260 MS PILLAI: Yes.
261 HER HONOUR: Every day counts when you are in.
262 MS PILLAI: Yes, that's right.
263 HER HONOUR: 651 days in custody, up to and including yesterday, which was 11 July 2013. I declare that pursuant to s.18(4) as pre-sentence detention and direct that this be entered into the records of the court.
264 Pursuant to s.6AAA Sentencing Act 1991, Mr Kendrick, had you been found guilty of these charges after a jury verdict - in other words if you had pleaded not guilty and been found guilty, I would have sentenced you to four years gaol and set a non-parole period of three years.
265 As previously stated, you are required to be registered pursuant to the sex offenders registration for life and I make that order. At the end of these sentencing remarks, my associate Ms Jackson will approach you and ask you to sign, simply acknowledging receipt of the paperwork. You are not being asked if you want to be on the register, I have already made that order and you are. You are simply being asked to acknowledge receipt of the documents that tell you a bit about it.
266 The prosecution also made application for a forfeiture order. This was consented to by counsel on your behalf and I make the order in the terms sought.
267 All right, now Ms Pillai, do you want to have a look at all of that? The sentence?
268 MS PILLAI: Yes, Your Honour.
269 HER HONOUR: Yes, that is fine. In the meantime, I will sign this and go back to your client. This is the sex offender register simply acknowledging receipt of the paperwork. I have also signed the forfeiture order, okay?
270 MS PILLAI: Yes, Your Honour.
271 HER HONOUR: So if you can have him - if he refuses to sign, that is a matter for him, but he is only being asked to sign receipt of it. I have made the order.
272 MS PILLAI: Yes, thank you, Your Honour.
273 HER HONOUR: So if you want to do that first of all in my presence.
274 MS PILLAI: Yes.
275 MS PALMISANO: I should say thank you for the time before, Your Honour.
276 HER HONOUR: That is all right.
277 MS PALMISANO: It was a difficult sentencing exercise.
278 HER HONOUR: We do try to get them right. Right, Ms Pillai?.
279 MS PILLAI: Yes.
280 HER HONOUR: You can wait, Mr Kendrick. If you have any questions, ask later, okay? Now, I am going to leave the Bench again, Mr Kendrick is going to go out. You have a look at them and make sure you are satisfied that it works out, then I will come back. So I will come back as soon as you work it out - - -
281 MS PILLAI: Yes, I'll be able to - - -
282 HER HONOUR: Talk to the prosecutor so that you understand.
283 MS PILLAI: Thank you, Your Honour.
284 HER HONOUR: Parties talk, okay?
285 MS PILLAI: Yes, I've just got some - I need clarification for the commencement of dates.
286 HER HONOUR: Sorry, can Mr Kendrick go outside again briefly and - Mr Kendrick, we will just - stage two, okay?
287 OFFENDER: Yes.
288 HER HONOUR: Right, I will leave as well.
289 (Short adjournment.)
290 HER HONOUR: Have a seat, Mr Kendrick. I just arrived, all right?
291 MS PILLAI: Thank you for that time.
292 HER HONOUR: Now, have you had a chance to look at it?
293 MS PILLAI: Yes, Your Honour, and I have checked those commencement dates and I'm grateful to my learned friends and it appears to be correct.
294 HER HONOUR: So you agree that the order that I have made is accurate and does end up in a three year head sentence with a non-parole period of two?
295 MS PILLAI: Yes, Your Honour.
296 HER HONOUR: All right, well that is that. I think I have covered everything else in relation to sentence. Again thank you for your assistance, Madam Prosecutor.
297 MS PALMISANO: Thank you, Your Honour.
298 HER HONOUR: And no doubt your instructor as well. And Ms Pillai, you understand that and - Mr Kendrick, just stand for the moment. You are going to be out reasonably soon. Do not quote me on days, okay? It is going to be to your advantage to take every opportunity offered to you by the Parole Board. You have real issues, in my opinion. You have real problems and if you do not address them, you are going to be back, and if the last two years or whatever it is has not taught you anything about not wanting to go back to gaol, you will be going back time and time again and the sentences get longer and longer and longer.
299 OFFENDER: Yes.
300 HER HONOUR: All right, thank you.
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