Director of Public Prosecutions v Latta

[2022] VCC 694

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised

Not Restricted

Suitable for Publication

Case No.CR-21-02507

DIRECTOR OF PUBLIC PROSECUTIONS

v

KHAN LATTA

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JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Melbourne
DATE OF HEARING:	11 May 2022
DATE OF SENTENCE:	17 May 2022
CASE MAY BE CITED AS:	DPP v Latta
MEDIUM NEUTRAL CITATION:	2022 VCC 694

REASONS FOR SENTENCE

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Legislation Cited:

Cases Cited:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms N. Burnett	Office of Public Prosecutions
For the Accused	Mr L. McPhie	Docherty Legal

HER HONOUR:

1Khan Latta, in December 2020 you were 22 and living in emergency accommodation in Bendigo.  There you met a young girl, who had run away from her home in a town nearby, and befriended her.  You said that you were initially motivated to protect her from an older predatory man.  You let her stay with you for a week before she was picked up by police and returned to her family.  Although you and she maintain she told you she was 16, she was, in fact, as you later discovered, only 14.

2On the application of case workers from the Sexual Exploitation Unit of the Department of Families, Fairness and Housing an interim personal safety intervention order was taken out on the child’s behalf in February of 2021.  By it you were prohibited from having any contact with her.

3The order was served on you on 15 March 2021 and its conditions were explained to you.  Police told you that she was only 14, that she had 'a perfectly good home to go to' and that you were to leave her alone.

4Just over a week after you were served with the personal safety intervention order the child ran away from home again and the following day police located the two of you together in an abandoned house in the town where she lived.  You were arrested and charged with breaching the intervention order and released on bail.  It was a condition of your bail that you not go within 1,000 metres or a kilometre of the town where the child lived.  The intervention order terms were again explained to you.  You were told that you were not allowed to have contact with her, that you were not to respond if she contacted you, and that you were at risk of being charged with a further breach of the intervention order and denied bail if you had further contact with her.

5Six weeks after that you went to the town where the child lived and met up with her.  You booked a room in a hotel in town and she stayed with you there, sharing a bed with you for two nights.   A later examination of her phone showed numerous photos of the two of you taken in bed together over those two days and nights, kissing and cuddling.  In many of the shots she was topless and one video clip showed you touching her bare breast.

6It is that that constitutes Charge 1 of sexual assault of a child under 16, of
Charge 4, related summary offence of contravene a personal safety intervention order, related Summary Offence 5 of committing an indictable offence on bail and related Summary Offence 6 of contravene a conduct condition of bail to which you have pleaded guilty.

7The child’s mother had reported her missing and she was again located by police, after she had spent the two nights with you, and returned home.  She ran away again the day after being returned to her mother's care and only a few days after that you again met up with her again, this time in Bendigo.  You took her to the home of a friend and you stayed with her there for the next two nights.

8Your friend asked how old the child was and you both lied and said that she was 18.  Whilst staying there on one occasion you kissed the child and engaged in a single act of condom protected penile-vaginal penetration with her.

9The day after that act police came to the house and on seeing them approach you and the child jumped the back fence in an attempt to avoid them.  You were both arrested, you for breach of the personal safety intervention order and your bail conditions, she under a safe custody warrant.

10Although the child initially denied engaging in any sexual activity with you she soon told police that she was in a relationship with you and that you had given her a ring some weeks earlier.  She said that you had had sex on a single occasion, using a condom, when staying at the friend’s house.

11When you were interviewed you acknowledged that you had known the child was only 14 from the time that you were served with the personal safety intervention order.  These offences occurred in May of 2021, so you had known her true age for about two months, and you understood that the personal safety intervention order prohibited you from having contact with the child. You denied initiating contact with her, saying that you looked after her because she kept running away and that she kept coming to Bendigo to seek you out. 

12You initially acknowledged having had sex with her at your friend’s house and using a condom, but later tried to go back on that acknowledgement.  When police searched you a number of condoms, including a used one, were found on you. It is these events that give rise to Charge 2 of sexual penetration of a child under 16, related Summary Offence 7 of contravene a personal safety intervention order and related Summary Offence 8 of commit an indictable offence on bail to which you have also pleaded guilty.

13Following your arrest and questioning you were remanded in custody and you have remained there ever since.  That means you have been in custody for just days short of a full year.  332 of those days count as pre-sentence detention.  Whilst you were on remand you were sentenced to 30 days' imprisonment for unrelated matters which predated this offending.

14The maximum sentence for sexual assault of a child under 16 is 10 years’ imprisonment.  The maximum sentence for sexual penetration of a child under 16 is 15 years’ imprisonment.  For the five related summary offences the charges of contravene a personal safety intervention order carry a maximum penalty of two years’ imprisonment or a fine, the charges of commit an indictable offence on bail carry a maximum sentence of three months' imprisonment or a fine, and the charge of contravene a conduct condition of bail also carries a three-month term of imprisonment or a fine.

15The maximum sentence prescribed for each offence is one indicator of the seriousness of the offences.

16A further indication of the seriousness with which Parliament and the community regards Charges 1 and 2, the two sexual offences, are that they are standard sentence offences. The standard sentences for offences of sexual penetration and sexual assault of a child under 16 falling within the middle range of seriousness, when taking into account only the objective factors affecting their relative seriousness, are six years and four years' imprisonment respectively. And by s11A (4) (c) of the Sentencing Act when fixing a non-parole period for standard sentence offences, I am required to fix a term of at least 60 per cent of the total effective sentence for all offences for which I sentence you today, unless I consider it is in the interests of justice not to do so.

17The nature of the two sexual offence charges to which you have pleaded guilty also means that the serious sexual offender provisions of the Sentencing Act and the Sex Offenders Registration Act apply.  It follows from conviction for the two indictable offences that a declaration that you are a serious sexual offender must be made on the record.  It also follows that you are to be placed upon the
Sexual Offender Register for life.

18All sexual offences involving children are serious.  Whatever the level of physical maturity a 14 year old may have, and whatever they may think of their capacity to make their own decisions, there are sound reasons why age of consent laws exist and why the law makes it an offence to engage in sexual activity with a child.  It is well understood now that the brain does not fully mature until a person is in their early 20s, generally well after the age of legal majority as well as after the age of consent.  The development of insight, impulse control and consequential thinking lag well behind physical maturity.

19This child was not only immature but she was vulnerable, as you yourself recognised. She had a history of running away from home. 
The Department of Families, Fairness and Housing was, as you were well aware, involved in assisting her and her family.  She may have, as you said, been expressing unhappiness to you with her family and the constraints of living at home, but she had a family and a home, and outside specialist support was being provided for her and her family.

20You said that you were trying to protect her from others who you thought would exploit her or who, in the case of her family, she was trying to get away from, but it was you, in continuing to have contact with her and disobeying the orders designed to keep her safe, and ultimately having sex with her, who took advantage of her youth, immaturity, and vulnerability.

21It is clear, therefore, that the sentencing principles of denunciation, just punishment and deterrence must carry weight in the sentencing mix.

22Having said that, there was, as was noted by Mr McPhie, an absence of aggravating features that are often present in such cases where a child under age has sex with a person older than her.

23You too are young and, as the reports provided to me reveal, yourself immature.  You were 22 at the time and are now 23.  There was no evidence of any predatory, exploitative or grooming behaviour on your part.  There is little evidence of planning. I accept the characterisation that the sexual acts the subject of the charges are properly characterised as spontaneous and unplanned behaviour.  The duration of the offending was brief, only a period of weeks between the first and second charge - or not even that, lesser time than that - and each charge involved a single act. 

24Whilst clearly the victim is, at law, incapable of consenting, and her acquiescence in these acts is no mitigating feature, it is relevant to note that these offences were committed in the context of a friendship, maybe what each of you was calling at that stage a relationship, between two young vulnerable people and the acts were not accompanied by violence, force, or threats. Nor it would appear was the relationship itself.  There is no evidence that the victim was unaware of what was happening or disinhibited by reason of substance impairment.  The acts were not accompanied by behaviour likely to humiliate or debase and the use of a condom for Charge 2 means that you did not expose the child to the risk of pregnancy or a sexually transmitted disease.

25You do not come before the court as a first offender.  You cannot call good character into aid.  Although your prior history looks extensive there are two significant matters to be noted.  First, there are no prior matters, and, indeed, no subsequent or pending matters, for sexual offences and, second, all your prior offending is relatively minor.

26In November 2017 and again in March 2018, when you were first before courts, you received non-conviction adjournments for in one matter dishonesty charges and in the other drug possession.  In December 2018 you were placed on a community correction order, a rehabilitative community correction order, for a number of offences involving dishonesty, property offending, possession of a weapon, drug possession and breach of bail offences.   Since then you have been dealt with at least twice for committing similar offences and you have breached the good behaviour conditions of your two adjourned undertakings and the conditions of the December 2018 community correction order. 

27In fact, you have been dealt with now four times for breaching the CCO.  Three times that constitute prior convictions for this purpose and one final breach being dealt with after you were charged with these offences.  Despite that history you have only twice been sentenced to terms of imprisonment and on each occasion two days’ time served for that subsequent offending.  That means until this remand they were your only times in custody.  Importantly, or significantly, on the first three occasions where you were brought up for breach of your community correction order the CCO was confirmed or extended.

28It is clear just from looking at that record, and the dispositions ordered by the courts, that you have been caught up or had been caught up in a cycle of repeat but minor offending, and that your circumstances had led to courts repeatedly giving you further opportunities to engage with rehabilitative programs to address the underlying cause of your offending.  Whilst those programs have not stopped you committing further like offences it is also notable that they appear, at least, to have been successful in containing and not escalating your behaviour.  However, the history clearly indicates entrenched underlying problems which clearly have tempered punishment with the need for sentences that focus upon rehabilitation

29So, whilst you have no prior convictions for like offences, the number of your previous court appearances, and the repeated breaches of court orders designed to encourage your rehabilitation, indicate that specific deterrence must also carry weight in sentencing you.

30What then are the matters relied upon by Mr McPhie on your part?

31You are young, I have already mentioned that, and you have had an upbringing that was characterised by trauma and abuse and exposure to parental substance abuse.  You began abusing substances yourself when only a child and your life from your early teens has been marred, indeed, controlled by substance abuse.

32You have been assessed, both by the psychologist Ms Carla Lechner and the neuropsychologist Dr Loretta Evans.  To each of them you reported a dysfunctional childhood where you were exposed to drug use and, indeed, drug paraphernalia used by your mother from a very young age.  There was family violence pervading your childhood and you reported witnessing verbal and physical aggression during your childhood, mainly coming from your mother directed towards your father.    

33You are one of five children, the oldest and with four younger sisters.  Your parents had what was described as an on-off relationship, ultimately separating finally when you were aged 14.  You stayed with your mother until you were 16 and were then told to leave.  You describe your relationship with your mother as difficult and although at 16 you then went to live with your father that did not seem to be particularly successful at that time, or assist in controlling your behaviour.  You ended up being effectively adrift ever since.

34Your schooling was poor.  You left school partway through Year 11.  You had some work straight after school, working for a mechanic and then for a fencing company, but it would appear that that employment was not ever formalised.  It is unclear whether you were ever paid for the bits of work you did and you have not had any employment since then.  At the time of the offending you were homeless.  You were either couch surfing with friends or accessing emergency accommodation.

35I am told that you identify as Aboriginal through your mother, but you know nothing of her people.   Your mother has never given any information to you or your siblings or, it would appear, her husband about her indigenous heritage.  You have had no connection with your people, no means of finding out about them or making connection with them, and that clearly adds to the history of significant childhood disadvantage and attempts to establish your identity.

36I accept that the history of significant childhood disadvantage has an ongoing effect.  So does the well documented history of substance abuse and its connection to your childhood trauma

37I have been considerably assisted by the detailed and helpful psychological reports provided by Ms Lechner and Dr Evans and which were tendered on the plea. They detail your background and circumstances, and provide a very powerful context for evaluating your conduct, structuring the sentence and making recommendations for your sentence and rehabilitation.  I draw heavily on those reports and I will not only provide them of course to Corrections, but commend them to them and urge them to study them carefully and to implement the recommendations.

38Ms Lechner concluded this:

'On account of his history of abuse and emotional neglect, coupled with learning difficulties that hampered his progress at school, Mr Latta’s social, vocational and emotional development is delayed. He presents as extremely immature.’

'The learning problems at school were never assessed. To the present time he has difficulties with language-based tasks, strongly suggestive of a language-based learning disability; this further undermining his already low self-esteem.  Mr Latta commenced drug use at an early age, this becoming his way of coping with life, especially when homeless, unmotivated and unqualified to seek employment and battling chronic low-level depression. His adult years have been characterised by periods of homelessness, a transient lifestyle, drug use, offending and a day-to-day existence. He has no goals or aspirations and does not regard himself as having agency over his life.’

‘He impressed as cognitively, socially and emotionally immature, with a limited capacity to engage in reflective and consequential thinking. He tends to be impulsive in nature and to have a low tolerance for frustration.  He also finds it hard to tolerate any form of negative emotion and will block out internal distress with drug use, this inadvertently adding to his depression, anxiety and anger in the longer run. He does not have a range of adaptive and robust coping skills and strategies.'

39Ms Lechner recommended a neuropsychological assessment be conducted because of the history you gave of learning difficulties at school, your long-term substance abuse starting when you were so young, and a number of reported head injuries. A neuropsychological assessment was conducted by
Dr Loretta Evans.  She ultimately concluded on neuropsychological assessment that you did not demonstrate any language deficits or poor expression and that you communicated adequately.  She concluded:

'Mr Latta’s literacy levels are lower than anticipated, yet within functional ranges.'

40And, correspondingly, as she noted, you have now recently converted to Islam and you report spending a lot of your time reading the Koran.  She went on:

'Overall intellect is generally at the lower end of the average range, although specific strengths in various non-verbal domains are declared. Attentional systems are within normal ranges, although processing of information is mildly slowed, more so for verbally presented information. Working memory capacity is within normal parameters, although bilateral memory systems are disrupted and characterised by poor spontaneous retrieval of information, which is also evident when attempting to learn new material.’ 

'Executively, Mr Latta possesses sufficient reasoning, judgment, problem solving and decision-making abilities, as well as the capacity to forward plan, at a day-to-day level. However, he can be impulsive in thought as well as behaviour, and appears somewhat dismissive of his history of alcohol and drug abuse, particularly alcohol.  Nevertheless, Mr Latta's level of insight is considered adequate and he responds in a manner to indicate he appreciates the potential relationship between alcohol, illicit drug abuse and offending, as well as the wrongfulness of his actions.’

'Literacy skills were lower than expected and indicated Mr Latta was likely to struggle to comprehend complicated discussions, sophisticated legal terms or complex written information.  Nevertheless, educational learning was indicated and overall ability was still within functional limits at a day-to-day level.'

41Importantly, she assessed you to be of normal intelligence.  For somebody,
Mr Latta, who understood that he had difficulty at school, was a poor learner and probably had a disability, this is actually very encouraging.  You have got a much greater capacity than perhaps you have given yourself credit for.  Dr Evans went on:

'Mr Latta’s overall cognitive functioning is typically well within normal limits, although literacy skills are slightly lower than expected, but functional at a basic level, and executive skills are broadly preserved.  However, he declares slightly slowed processing of information, as well as bilateral memory and new learning inefficiencies.'

42She concluded:

43'Mr Latta does not produce a neuropsychological profile that reflects global cognitive deficits below an IQ of 70 and, therefore, he does not present with an intellectual disability or underlying neurodegenerative process. Based on the scores produced, and his capacity for social interaction, despite a degree of immaturity, Mr Latta’s profile is not consistent with a disorder along the autistic spectrum or a specific learning disability.  Mr Latta does not declare a pattern of ipsilateral deficits consistent with a focal traumatic brain injury.  Mr Latta performed well on tasks sensitive to depressed mood, (attention, concentration and working memory capacity), which was consistent with his self-ratings as well as endorsements on formal measures, and would suggest emotional functioning is relatively stable at this point in time, (possibly as a consequence of the solace associated with his religion as claimed).’ 

'Mr Latta did not demonstrate episodic memory difficulties, or poor attention/concentration, associated with chronic methamphetamine and cannabis abuse respectively.  In contrast, the nature of bilateral retrieval deficits and mildly slowed information processing, as well as impulsive tendencies, is highly consistent with difficulties commonly declared as a consequence of chronic alcohol consumption. Hence, given Mr Latta has been abstinent for the past 13 months and continues to demonstrate such inefficiencies, it is my opinion the pattern of difficulties detected on current testing is most consistent with the subtle alcohol related brain injury that is mild in nature.'

44So whilst there is some concerns in those assessments what is really positive, in my view, both in terms of assisting Mr Latta in building up his self-esteem and his confidence in himself, but also in terms of assessing his prospects for rehabilitation, is his overall capacity is good and his capacity to learn is good, providing he is provided with supports.

45Both your risk of reoffending generally, and your risk of reoffending in relation to sexual offences, has been considered in the reports.  On sexual offending,
Ms Lechner concluded, having applied two well-recognised and credible assessment tools, that you are at 'moderate' risk of sexual re-offending compared with other sex offenders.  Importantly she noted this:

'He does not appear to have problems with sexual deviance as such, however, his social and emotional immaturity, coupled with his tendency to live a day-to-day existence, lends to a disposition such that he may engage in behaviour impulsively, according to his need at the time, without consideration of the longer-term consequences.  In addition, his lack of psychosocial development is likely to lead to him engaging with younger females who better match his level of development.  Hence, whilst he may not specifically seek out younger sexual partners, his lifestyle, if it remains unchanged, may result in association with a younger age cohort and poor choices.  To reduce this risk level Mr Latta requires intensive drug rehabilitation counselling, in addition to psychological supports that assist him in developing vocational and social skills and improved self-esteem.'

46On the more general risk of reoffending, both Ms Lechner and Dr Evans identified your history of substance abuse, the consequences of your traumatic childhood, your youth and your immaturity, as posing the real risks, but your underlying overall intelligence and capacity clearly temper that.

47Both Dr Evans and Ms Lechner noted, and I agree, that the sobering effect of your first real time in custody, the benefits of the 12 months enforced abstinence, and the solace your recent conversion to Islam, seems to have given you, including the incentive that it appears to have given you to lead a different life on your release, are positive factors.

48Both Dr Evans and Ms Lechner recommend programs to reduce reoffending.  I endorse their recommendations and urge Corrections to provide you with access to the recommended programs, both before and after parole.  In particular,
Dr Evans said:

'It is recommended that Mr Latta is referred for participation in an anger management, men's behavioural change program and any available prison based drug and alcohol programs.  In this regard, his cognitive skillset is adequately suited to CBT-based interventions [that is cognitive behavioural based interventions].  Moreover, while Mr Latta presents as immature and was not motivated to engage with services in the past, he currently states his conversion to Islam has prompted a shift in his perspective which may present as a significant opportunity or motivating factor for positive change at the present time.’   

'Finally, given a history of homelessness, upon his future release an occupational therapy assessment to evaluate Mr Latta's daily living skills and budgeting abilities may be helpful in providing him with a number of additional skills to further support his independent living. In the meantime Mr Latta is encouraged to apply for the various prison-based vocational training programs that best suit his cognitive strengths, that is, hands on perceptual and constructional components, and can provide him with various vocational skills and options needed for future employment.'

49She concluded that, whilst you present with a number of factors that on balance could potentially reduce your risk of reoffending. Given your history and what you said in relation to your offending, your impulsivity and level of minimisation, your immaturity, together with your scores on historical clinical risk management scale, she considers your risk of reoffending is elevated to a moderate degree unless you can demonstrate appreciable benefit and successful completion of targeted programs, and maintain alcohol and drug abstinence into the future,.  She defers to Ms Lechner as the expert in relation to the risk of sexual reoffending. 

50Ms Lechner concludes that you are likely to benefit from neuropsychological evaluation to better understand your cognitive strengths and deficits so a treatment plan can be developed accordingly.  That, therefore, gives even greater force to the recommendations of Dr Evans whose report was commissioned in part as a result of Ms Lechner's recommendation.  Ms Lechner continued:

'He will require drug and alcohol counselling, psychological counselling that assists him in developing alternative coping skills and further education regarding appropriate sexual boundaries.  He would also benefit from social skills training to assist him in developing relationships with age appropriate cohorts.  Developing a vocational pathway for him is also likely to help bolster his self-esteem and increased sense of independence.'

51As I said I accept and adopt all of their recommendations and urge Corrections to act upon them.

52Now, I noted earlier that the two indictable charges are standard sentence offences.  In Brown the Court of Appeal confirmed that a standard sentence is to be treated as a ‘legislative guidepost’, having the same function in that sense as a maximum penalty.  It does not affect the established ‘instinctive synthesis’ approach to sentencing.  It does not permit or require ‘two-stage sentencing' and does not otherwise affect the matters that the court may or must take into account in sentencing.

53Bearing that in mind, and assessing the objective factors affecting the relative seriousness of these offences, I consider that they are at the lower end of the scale.  As I noted earlier, there is no evidence of predatory, exploitative or grooming behaviour.  The act was spontaneous and unplanned.  The offending period was of short duration and each charge each involved a single act.  The acts were not accompanied by violence, force, or threats.  There is no evidence that the victim was unaware of what was happening, or disinhibited by substance impairment, and the acts were not accompanied by behaviour likely to humiliate or debase.  Finally, the use of a condom for Charge 2 means the child was not exposed to the risk of pregnancy or sexually transmitted disease.

54Those are the factors I take into account in making the assessment for the purpose of the standard sentence evaluation, the objective factors.  In addition then, in coming to what I consider to be the appropriate sentence for this offence, I take into account and give full weight to your youth and disadvantaged background.  It is proper having regard to the principles in cases such as Mills and Bugmy that this sentence emphasises and encourages your prospects for rehabilitation.

55I also take into account and give full weight to your guilty plea.  You pleaded guilty early and the early plea deserves weight for all of the purposes that a guilty plea can get weight for, its  utilitarian purpose, for advancing the interests of justice, particularly in these COVID times when court delays are so significant, and significantly, too, you have spared the victim the distress of cross-examination at committal and trial.  

56I also accept that your pleas carry greater weight because of the more onerous conditions of custody as a result of COVID-19 and so the weight to be given to them is significantly increased also by reason of that. The combined effect of a plea of guilty, the time you have spent in custody in COVID lockdown conditions, the recognition of the contribution that the guilty plea makes to the reduction of the court's post lockdown trial backlog, all combine to add significantly to the reduction and the sentence otherwise appropriate for a guilty plea. 

57All of these matters combine to temper the weight to be given to general deterrence, denunciation and just punishment. They must be tempered by compassion, by giving proper allowance for your youth and for the disadvantage that I have detailed, and combined to impose a sentence structured to encourage your rehabilitation and to give proper weight to that guilty plea and the effect of COVID hardship.

58If was the defence submission that the non-parole period should be no greater than the time already served.  The prosecution disagreed with that.  I too disagree.  In my view, although I place this offending at the lower end of the scale, both in objective terms for the purpose of standard sentencing regime, but also more generally because of the other factors personal to you that I can take into account in a more general sense, there is still a requirement, in my view, for a sentence that, while structured to encourage your rehabilitation, requires more than a non-parole period of less than 12 months.

59Having said that, the sentence that I have arrived at, having done my best to synthesise all of these matters and to give proper weight to the principle of parsimony, is one that will give you time and incentive to work from now on towards demonstrating that you are ready for parole by the time you become eligible for it, time to access services and programs in custody that will give you a much better chance when released into the community of being able to maintain a substance free-lifestyle, to be able to mix with people who do not commit offences and to be able to embark upon a vocational path.

60To throw you out now without any supports around you would be setting you up to fail.  So I want you to see this sentence, Mr Latta, as one that is designed to give you a real incentive to work from now on to demonstrate you are ready for parole and that you can build up the resources that you need in yourself to better prepare you to deal with the challenges of life outside, but to understand and to take into account the significant factors that I have identified that should temper the harshness of the sentence. 

61So I come now to sentence.  On all charges to which you have pleaded guilty you are convicted.  On Charge 1, of sexual assault of a child under 16, you are sentenced to be imprisoned for a period of six months.  On Charge 2, of sexual penetration of a child under 16, you are sentenced to be imprisoned for a period of two years.  On the first charge of contravene a personal safety intervention order you are sentenced to be imprisoned for a period of three months.  On the charge of committing an indictable offence on bail related to that to a sentence of one month and to a charge of contravene a conduct condition of bail related to that to a sentence of one month.

62On the second related summary offence of contravene a personal safety intervention order relating to the second indictable charge you are sentenced to be imprisoned for a period of six months, and on the second charge of commit an indictable offence on bail related to that second sexual charge you are sentenced to be imprisoned for a period of one month.

63I declare that the sentence on Charge 2 is the base sentence and I direct that three months of the sentence on Charge 1, and one month of the sentences on related Summary Offence 4 and  related Summary Offence 7, be served cumulatively upon each other and upon that base sentence.  That makes a total effective sentence of two years and five months and I fix the time at which you are eligible for parole to be one year and five months.  Now, that arithmetically may be just slightly over the 60 per cent, but I have fixed upon that non-parole period having regard to what I consider is the appropriate time, not only having regard to the time spent in custody to date but the appropriate time for a non-parole period, and the appropriate time between the non-parole period and the ultimate sentence, to encourage the participation in programs and the release in a better state to be able to stay offence free upon release.  

64So, in my view, the interests of justice indicate that, having regard to the amount of time that you have spent in custody already and your needs, and the nature of the offending, that a 12-month gap between the head sentence and the non-parole period is the appropriate time.

65I declare that you have spent 332 days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served.  I make the serious sexual offender declaration as a result of convictions on and sentences on Charge 1 and 2. 

66I declare pursuant to s6AAA of the Sentencing Act that but for your pleas of guilty I would have sentenced you to a term of imprisonment of five years and fixed a non-parole period of three years and six months. Pursuant to the
Sex Offenders Registration Act you are subject to that Act and its conditions and placed on the register for life, and I make the forfeiture and disposal orders sought. 

67As I indicated I will have provided a copy of these conditions to you, Mr McPhie, and to your instructing solicitor and note on the record of the court that they were unable to be provided personally to Mr Latta because this hearing is being conducted remotely.

68Now, are there any further orders that are required to be made and have I pronounced the orders correctly?  Do they reflect what I said I intended to do?  First of all you, Ms Burnett.

69MS BURNETT:  Your Honour, just in relation to Charges 1 and 2, the offender is not to be sentenced as a serious sexual offender.

70HER HONOUR:  No.  No, I'm not sentencing him as a serious sexual offender, but I must make a declaration now as a result of the convictions and sentences for those two charges on the record that he is a serious sexual offender. 

71MS BURNETT:  Yes.

72HER HONOUR:  That's my understanding, Ms Burnett.

73MS BURNETT:  Yes, thank you, Your Honour.  I just wished to clarify that.

74HER HONOUR:  Yes.  Yes, thank you for that clarification or for that checking.

75MR McPHIE: And, sorry, Your Honour, on that issue can I confirm that's a declaration under the Sexual Offenders Registration Act not the Sentencing Act then; is that correct?

76HER HONOUR: No, no. You still have to make a declaration under the Sentencing Act that a person is not sentenced as a serious sexual offender, but once you've been convicted of two sexual offences - - -

77MR McPHIE:  Two or more sexual offences.

78HER HONOUR:  Two prescribed sexual offences and been sentenced to a term of imprisonment the record must state that you are a serious sexual offender.

79MR McPHIE:  Thank you for that clarification.

80HER HONOUR:  I mean, were he to be sentenced for any subsequent sexual offending he is sentenced as a serious sexual offender because of these two and the declaration must be there on the record as I understand it.  Is that your understanding, Mr McPhie?

81MR McPHIE: Your Honour, looking at what is in Part A of the - or Part 6B of the Sentencing Act that, I think, does adequately reflect what Your Honour is required to do. So in the future if there is any further finding of guilt then he's - as we discussed last time, for a third or further offence, he - - -

82HER HONOUR:  Yes.  So I'm not sentencing him for these two offences as a serious sexual offender.

83MR McPHIE:  As a serious - no.  I appreciate that, yes.

84HER HONOUR:  The Act does not require it or mandate it.  Do you agree with that analysis, Ms Burnett?

85MS BURNETT:  Yes.  Thank you, Your Honour.

86HER HONOUR:  Yes, thank you.  And orders otherwise as they should be?

87MS BURNETT:  Yes.  Thank you, Your Honour.

88HER HONOUR:  All right.  Can I thank you both, Ms Burnett and Mr McPhie, for your assistance.  Mr Latta, this has been a really confronting time for you and your life has not been easy to date.  You've clearly in more recent times taken time to reflect and, clearly, have a better sense of having a future ahead of you than you had, it would appear, at the time of the offending and even at the time you were assessed by Ms Lechner.  I hope that this path that you've set yourself on is one that continues to give you solace and strength, and that you will be able to understand that at 22 or 23 your life is not behind you, it's ahead of you.  That you've got much greater strength and capacities than you might have given yourself credit for to date and there are supports there and will be offered to you from now on that can assist you. 

89So you should be accepting and welcoming of them so they can assist you to have a better, happier future so you can turn around in a few years and say, 'I had a rough childhood and upbringing and I made mistakes when I was young', but you can learn from that and get over it and have a happy and fulfilling life.  You've got the capacity to do that and I hope you do.  So I hope you don't come before a court again.  I hope I don't have to see you again unless you're coming in to provide support to some other young person who's lost their way and who you're encouraging to find a better way for the future, showing that it can be done.

90I'll leave the link on for a short time, Mr McPhie, so you can speak to Mr Latta just briefly and explain what's happened before you - - -

91MR McPHIE:  Thank you, Your Honour.  I appreciate that.

92HER HONOUR:  But understanding that it's on our court system, it's recorded, so it doesn't have the protection of a confidential communication.

93MR McPHIE:  Yes, Your Honour.  Thank you.

94HER HONOUR:  Thank you.  Thank you, I'll adjourn.

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