Director of Public Prosecutions v Lily Wright

[2017] VCC 607

IN THE COUNTY COURT OF VICTORIA  Revised

Not Restricted Suitable for Publication

AT MELBOURNE CRIMINAL JURISDICTION

CR 17-00165 Ind G12556008

DIRECTOR OF PUBLIC PROSECUTIONS

v

Lily WRIGHT

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JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Melbourne
DATEOF HEARING:	15 May 2017
DATEOF SENTENCE:	17 May 2017
CASE MAY BE CITEDAS:	DPP v Wright
MEDIUMNEUTRAL CITATION:	[2017] VCC 607

REASONS FOR SENTENCE

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Sexual penetration. 13 year old boy. 19 year old female offender:

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APPEARANCES:  Counsel  Solicitors

For the Director of Public Prosecutions

Mr T Hoare  Office of Public Prosecutions

For the Accused  Ms Z Broughton  Victoria Legal Aid

VICTORIAN GOVERNMENT REPORTING SERVICE

7/436 Lonsdale Street, Melbourne - Telephone [phone]

HIS HONOUR:

1Lily Wright, you have pleaded guilty to two charges of sexual penetration of a child under the age of 16. These offences are punishable by a ten year maximum term of imprisonment. The first offence is a specific single sexual act. The second of the charges is laid on a rolled up basis relating to three sexual acts.

2You have no prior criminal history and you have nothing outstanding.

3The details of your offending are set out in Exhibit A, the written summary of prosecution opening that is dated 11 May 2017. I was told by your counsel, Ms Broughton, that this was an agreed statement. So I will incorporate that exhibit into my reasons for sentence. I see no need then to fully restate the facts in this case.  Your offending was serious as your counsel correctly concedes.

4You were a 19 year old woman. Your victim was a 13 year old boy. You had met on a bus and struck up a conversation. He told you he was 13 at the time of that first meeting. You became Facebook friends and some of your communications commented upon the large age gap. You met again in person and for about a month from early December 2015 to early January 2016 you were in an intimate relationship and saw each other on some 15 occasions. There were three acts of penile vaginal intercourse, that is rolled up Charge 2 on the indictment, and one instance of your giving the boy oral sex; that is Charge 1. Clearly enough, the acts occurred in the setting of a relationship and did not involve any aspect of force or coercion. So of course there is no suggestion of lack of apparent consent but you really must understand that it is not mitigatory to say of the complainant that he consented to the act. It is merely an absence of a matter of aggravation. See the case of EJA and also the case of Abad. You had the victim’s apparent or ostensible consent but of course he was too young to consent and you well knew that.

5You knew his age. You knew you were not allowed to have any form of sexual

activity with him.  You chose to and it is a bit hard to know why.  Dr Gee has very many theories on this topic.

6The matter came to light as a result of your attending the police station to report some internet bullying. The terms of the words being deployed against you aroused the interest of the police who asked why people would be saying you were a “pedo”. You told them you had a relationship with a minor and the matter took off from there. You made very full admissions when interviewed by police.

7There are no victim impact statements in this case and despite the presumption of harm which underpins sexual offences committed against children, I am simply unable to reach any conclusion as to the actual impact of these offences.

8Ms Broughton, in an excellent plea conducted on your behalf, raised a number of matters in mitigation. She relied primarily on:

·your early guilty plea,

·your co-operation with the police,

·the presence of remorse,

·your youth and background,

·the report and evidence of the psychologist Dr Gee and the application of some of the principles from the case of R v Verdins,

·the delay which was stressful and which also deprived you of any ability to be sentenced to a youth justice detention order.

9Ms Broughton argued that you had good, if not very good, prospects of rehabilitation. As to the offending, she argued that it should be placed at the lower end of the scale, given the relative closeness of your age to the young boy, your own youth and immaturity, the context of the offending and the absence of any emotional pressure or coercion in this case.  She was arguing

for the imposition of a stand-alone community corrections order.

Prosecution

10Mr Hoare, who appeared on the plea the other day, initially on behalf of the Director of Public Prosecutions, submitted that this offending required a term of imprisonment of a dimension which could not, even as a matter of law, be combined with a CCO. He obtained new instructions in the course of the day to the effect that it would be open to combine a prison sentence with a CCO but that there was a need for you to be sent to prison to give adequate weight to the principle of general deterrence in this case. The fact is of course that the prosecutor really did not take any issue with very many of the mitigatory matters raised on the plea. He did take some slight issue with one of the Verdins submissions, that is the application of the sixth limb of that case, but did not maintain that submission after I raised some matters in the evidence before me.

Background

11I turn only very briefly to your background. Ms Broughton outlined your personal background in some detail to me. There is also some reference to it in the report of Dr Gee, which is Exhibit 2, and some of the documents marked as Exhibit 3. I accept that personal and family background so I do not see the need to descend to the full detail of your background.

12One thing that is very clear is that you are still a young woman, and that is a matter of great importance in this case. You were born on 5 February 1996, so were 19 at the time of the offence, and you have turned 21 only a few months ago. Your 21st birthday has come and gone while the matter has been before the courts. This Court will always accommodate an early plea listing in the setting of an Offender who is about to turn 21. I have no doubt at all that this matter could have been listed for plea in January to avoid the potential loss of the youth Justice sentence disposition.

13However the fact is you are no longer a young offender in the true legal sense of that phrase as employed in the Sentencing Act, and you are hence no longer eligible for detention in a Youth Justice Centre.

14As to your background, it is plain enough to me that it has been a difficult one and I take into account as far as I am able to; your disadvantaged personal and family background. It would seem a dysfunctional family life with a sense, perhaps, of rejection by your mother and abuse by your father. I am told that you started to self-harm in year 7 and even endeavoured to take your life in 2013. There has been a history of psychological treatment and intervention. I do not simply need to rely upon a consultation with Dr Gee years down the track. You must have some level of resilience as despite these hurdles, you managed to complete year 12 and maintain a job for a number of years, including during year 12 as you had to support yourself. You have no criminal record at all. This is your first appearance before the Courts and there is nothing pending or outstanding. You moved away from your father in June 2015 and were working at Coles and living in rental accommodation in Dallas and that really was the setting for the commission of these offences.

Guilty Plea

15I turn then now to the matters that have been raised in mitigation. Firstly your guilty plea. It has a strong utilitarian value. It was entered at the very earliest opportunity and that is very important. You will be given the appropriate discounts for that earliest of pleas. Witnesses including your victim have been spared the experience of coming to court. That is a very important consideration, given the nature of the matter. It can be embarrassing and or stressful to come to court as a witness giving evidence in this sort of matter.

16The community has been spared the time, cost and the effort of a contested hearing, either up in this court or in the Magistrates' Court. Additionally in your case, you co-operated with the police and made very full admissions, and

indicating by that stance earlier still your intention of pleading guilty to the charges that were ultimately laid.

17Now you brought the matter to the attention of the police but of course you did not do set out to the police station to do that. What do I mean by that? It is not the position that you have gone to the police intending to confess your crime as sometimes happens. You were getting advice as to the misconduct being practised upon you and this regrettably for you opened up your own conduct to scrutiny. It spells out a level of naiveté. A more worldly or streetwise individual would surely have reflected on the danger of such an approach to the police or clammed up once they started asking probing questions but you did not. You were then interviewed and were very frank about your offending. At that stage the police had no information from your victim. No report of any crime having been committed, they were totally ignorant of the events. They had no knowledge of the existence of any crime. It follows then that in the course of that interview, you admitted the various criminal acts which the police were not even aware of, acts that of course now find their way onto the indictment.

18Your fulsome account even goes beyond that which ultimately was provided in the video audio record of evidence conducted with the Victim, including your detailed account as to when you learnt the actual age of the victim. You were not fudging the truth or feigning forgetfulness in that area, as some offenders do.

19I accept your counsel's submissions as to the very significant weight that must be afforded to these matters and the application of the Doran principles in this case. That case has been discussed more recently in the decision of JBM v The Queen 2013 [VSCA] 69.

20So you have in these various ways facilitated the course of justice, and I will pass a significantly lesser penalty because of your guilty plea, the stage it was entered and your very high level of co-operation with the authorities.

Remorse

21I turn now then to the contention that you are remorseful. I say ‘contention’ that really is contended by your counsel and accepted to be the position by the Crown. You have pleaded guilty and at the earliest time and you made the very full admissions I have spoken of. I have no hesitation at all, in your case in finding that you do actually feel remorse for the crimes that you have committed, and I take that into account in mitigation.

Psychological Report

22Ms Broughton relied upon a report from Dr Gee. It spans 25 pages. I was pretty unimpressed by the length of that report and some of the contents within in it and I said as much. It is almost unreadable, replete as it is with jargon and all manner of speculation about so many aspects of your conduct and your make up.  He was also called to give evidence on the plea.

23Your counsel in her written outline had, in the face of that report, possibly sensibly retreated to a pretty general statement that the principles from a case of Verdins were engaged in your case. I pressed her in that regard as it is not my task to trawl my way through the materials to find evidence and those materials included that 25 page report of Dr Gee. What I need to do is to understand which principles are said to be enlivened.

24Ultimately your counsel withdrew the submission that all of the principles applied and she suggested instead that the first, the fifth and sixth limbs of that case had some application. Following on from the evidence led from Dr Gee, she then withdrew her submission as to the first limb having any application at all in this case. So ultimately she was relying upon the fifth and sixth limbs of that case. The material that previously had been relied upon to found the Verdins limb one argument was instead going forward, really, as providing context instead. I accept that you are not an average 19 year old and you had for a variety of reasons a need to feel some level of connection.

25The conditions relied upon were your post-traumatic stress disorder and depression, conditions that clearly existed at time of the conference with Dr Gee but also, clearly enough, would have existed at the time of the offending. Now the conditions were in no way causative but he, Dr Gee, said that they likely contributed to the offending. It was very much a speculative opinion and no doubt that is one of the reasons why Ms Broughton ultimately abandoned the first limb argument.

26I agree with that approach as I do not think there is any significant reduction in your moral culpability owing to those conditions. It really is no more than guesswork, it seems to me. There is clearly though some allowance to be made for an increased custodial burden and the likelihood of deterioration in your condition in a custodial setting. You are also unlikely to get the treatment that you require if confined to prison. Dr Gee also set out in the report the level of risk in that report, a level which I believe is actually higher than the true risk that you present and is likely a product of the inflexibility of the testing instrument that was employed. As he said in his evidence, that risk profile was more a product of some of the mental health and health issues in your background. Indeed, the very same level of risk of sexual offending would have been produced by someone with those factors even in the absence of any sexual offending. So it was certainly worth his being called on the plea, really, to explain that mater. He concludes that you are not a paedophile and again, that obviously is a matter of some importance.

Youth

27I turn to your youth. Really, one of the key aspects relied upon in mitigation is your youth. You are still a very young woman and one with no history before the courts at all.

28The benchmark for sending a young or youthful offender to prison is a high one indeed and so it should be.  Ordinarily when dealing with a youthful offender,

rehabilitation is very much the principle purpose of sentencing. That is because young people are far more impulsive, they are more prone to errors in judgment than more mature individuals. Their moral culpability is not as high. Young people are prone not to think through the consequences of their actions. I am sure you did not, you were not even thinking through the consequences of going to the police and describing the internet bullying. Dr Gee comments on that aspect of your make up.

29Young offenders also, well, they are young and they are not fixed in their ways as sometimes more mature offenders are. Young offenders can, and do very often, change. We also know as judges that prisons can and do damage the prospects of young offenders. So with youth comes the hope that a young offender can be rehabilitated, there is a much stronger focus on rehabilitation and so there should be. Our hope is that a young person can be led away from crime, and from the courts, and back into the community and back into a productive life in the community. So clearly enough, the community has a very strong vested interest in the rehabilitation of any young offender but more so a youthful first offender which you are. It is for these, and other reasons, that less weight therefore is given to general deterrence and punishment and specific deterrence. More weight is given to rehabilitation. Well, these are common sense matters.

30So I apply the principles applicable to the sentencing of a youthful offender as referred to in the cases that you heard discussed Mills v R, and Azzopardi's case. Your youth is a very significant factor for my consideration. It is not the only matter that I have to consider, but it is of critical importance both in setting this case of sexual penetration apart from many others and in justifying a level of leniency driven by the increased weight to be given to rehabilitation. To confine a person must always be a disposition of last resort. The passage of time has deprived me of any ability to confine you in a youth justice facility. If I head down the route of confinement, confinement could only be in an adult

prison.

Rehabilitation

31I turn then to your prospects of rehabilitation. As to those prospects, I am prepared to accept your counsel's submissions that you have good, if not very good, prospects of rehabilitation. You clearly need counselling, you clearly need treatment and I seriously entertain doubt that you would be adequately treated in a custodial setting.

32You are now 21 years of age, and this offending has to be seen in its true context. You were, as I find on the materials, a relatively immature and troubled 19 year old woman. Immature emotionally so maybe even closer in age to your victim than your chronological age would suggest. You were, as you perceived it, in a girlfriend boyfriend relationship. The texts that are within the depositions confirm that setting and more importantly they confirm the absence of any coercion or great imbalance of power at all.

Purposes

33I have to take into account current sentencing practices, and I do, but this offence covers a multitude of different activities and circumstances and a range of differing offenders. It can cover an offender relatively close in age to the victim's age, right up to people very many years senior, decades senior and in positions of great power and advantage over a victim.

34Well I have to pass an appropriate sentence in your case.

35I have taken into account the submissions made and the exhibits that have been tendered by your counsel.

36There are, as I am sure you appreciate, a large range of matters that I have to take into account. Sentencing is always a reasonably complex exercise. It is more complex still when dealing with a youthful first offender.  I have to take

into account the maximum penalty which is, as you know, ten years. I have to pay regard to current sentencing practices and to the impact of your crime.  As I have said, on that score though the offence is based on a presumption of harm, there was just no material before me at all detailing any impacts and I am not free just to speculate and dream some up.

37There are a host of other matters that I have to have regard to.

38Whilst your prospects of rehabilitation are a highly relevant purpose, as I have said, they are not the only matter that I must consider. You must be punished for your crimes, though justly and proportionately. I must denounce your conduct. You really should be ashamed of yourself, and I think you probably are. Community protection is something a court often has to have serious regard to in relation to sexual crimes committed upon children, but it is not a matter I pay any great regard to here, given the nature of the offending and my findings as to your good prospects of rehabilitation.

39The court must at least consider the need for specific deterrence. That is, the need to deter you from offending in the future. I have considered that purpose of sentencing. Again though, given your level of remorse and the conclusions that I have reached as to your having good prospects of rehabilitation, if not very good, I believe that little weight needs to be given to that sentencing purpose. The low-moderate risk spoken of by Dr Gee is, it would seem, artificially heightened in your case as he detailed in his evidence. I suspect your risk of reoffending in the similar way is in fact low.

40I believe that specific deterrence has been achieved already in your case, to a large degree by the process of investigation, being charged and being brought before the court with all the uncertainties of outcome in your life that have existed over a significant period of time since you were interviewed by the police. I am sure those things have weighed heavily on you. As I have said, I think you are a low risk of re-offending in this way again.

41This court must also seek to deter others who might be minded to commit this type of offence. That is the principle that us lawyers refer to as general deterrence. It is a matter I must have regard to. It is very often a dominant purpose of sentencing in this class of case but I think that consideration can be significantly moderated in this case given your age, your immaturity, and the true context of the offending that is before me

42I have to pay regard to the gravity of the offence before the court. Well, you obviously felt attracted to your victim and thought he was attracted to you and it would appear that he was. However you were fixed from the very outset with actual knowledge of his age and the penile vaginal acts are laid on a rolled up basis. It is not some error of judgement on one occasion and not then repeated. You knew what you were doing was wrong, you knew that it was illegal. You commented correctly on the age disparity.

43However I find that you were not in a position of any great superiority over the young boy at all. As I say, you knew it was wrong, you knew it should not have happened, but you were engaged in what you took to be mutual consensual acts in a relationship. Now as I said at the outset of these reasons, apparent consent cannot be mitigatory given the age of your victim. But I am certainly satisfied that you were not grooming him or taking advantage of any greatly superior position over him or acting in a predatory fashion at all.  You were, as I have said, at least reasonably close in age with only 6 years separating you and significantly you were still very young yourself.

44Not just young but more importantly, quite immature emotionally. You were pretty mixed up. You were craving affection in the setting that you found yourself and connection with other people. So I do think that your moral culpability in this case is relatively low. I accept that this offending was falling towards the lower end of offence seriousness though by no means is it at the lowest levels. You were not acting as a predator; still you were 19 years of age and the law says, as you know and knew at the time, that you the adult were not allowed to

engage in the sexual acts with a child of that age.

45There is an absolute prohibition on sexual activity with a child and as I have said, that is founded on a presumption of harm. Children of his age are too young to know their own mind, or to give meaningful consent to an adult. See again the case of EJA. Now there was some reference in your counsel’s oral and written submissions to the attitude and physical presentation of your victim. There is reference to him bragging about the events. Well, he may have bragged about the events. Who cares? This has nothing to do with your decision to commit this crime. His attitude and demeanour cannot impact upon your moral culpability and really has virtually nothing to do with my task.

46It is clear from that case of EJA, and from others including the case of Abad, that I must have regard to the circumstances in which the acts took place. There is clearly a world of difference between the context of these acts committed by you with this boy and those for instance of a much older man or woman in a supervisory capacity, say a teacher setting out to have sex with one of his or her students. Or a family friend or an employer or a carer. Someone using a position of trust, or a position of power, or a position of superiority to engage in sexual acts with a minor. That is not what happened here. Here there was no great power imbalance at all. You met on a bus, you became Facebook friends and then friends and it progressed to a sexual relationship. You knew it was against the law but you were not using your position to any advantage or exerting any pressure direct or indirect to bring about these acts. There was no coercion that I can find. You were for whatever reason prepared to wave away the illegality and persist in the conduct. Well, you were young yourself. Young people can make very bad judgments. You are still young but you were not acting in a predatory way and you were, I find, pretty mixed up at the time.

47Sending a person to prison must always be a matter of last resort for a court. I have had you assessed for your suitability for a community corrections order and you have been assessed as suitable and that is entirely unsurprising. Your

counsel argues that it is open for me to release you on such an order without sending you to prison at all. The prosecution said the other day, and say again today, that it is not so open and that I must send you to prison in combination with a community corrections order. Well, I do not ignore the submission made on the behalf of the Director, indeed I have considered all of the materials over the last couple of days and have considered that submission as well. I just don’t agree with it.

48I believe it is open to admit you to a stand-alone community corrections order.

Prison is a disposition of last resort; they are not just words, that is the reality. Sending you to prison would, I believe, likely damage an already damaged individual and this would in no way benefit either you or the community. To do so to in the name of general deterrence makes little sense to me. I must be able, as a judge, to adapt the weight to give to general deterrence to the facts of the given case and the given offender.  Not every case is the same.

49You are a youthful first offender. I accept that ordinarily general deterrence is a very significant purpose of sentencing for most sexual offences committed against children. There is very good reason for that. The Courts have a strong role in discouraging those who are minded to exploit children. However this is a quite unusual case with many factors which in my view should lead to some significant moderation of that sentencing purpose. I am not speaking in a Verdins sense, but I doubt that you really are an appropriate vehicle for full weight to be given to general deterrence given your age, the nature and context of the offending, the other mitigatory considerations in play here and the sizable risk that prison will itself produce a level of damage to you. I believe that the order I am going to impose can pay adequate weight to the various purposes of sentencing and as that is so, then it is not open to me to confine you.

50Perhaps it might be suggested that I am placing too much emphasis on mitigatory matters and your rehabilitation and not enough emphasis on the nature  and  gravity  of  the  crimes  and  purposes  of  sentencing  other  than

rehabilitation. Well, I have considered all of these matters, as I hope my reasons might attest. I have endeavoured to place appropriate weight on appropriate factors and purposes. In the time that I have presided as a Judge, there has hardly been a flood of complaints to the Court of Appeal as to the leniency of my sentences. Nor even a trickle of such cases actually. Indeed at last count there had been none. The complaint levelled invariably is as to excess. There surely must be some room for leniency in the exercise of the sentencing discretion and I believe this case spells out the dangers of an inflexible and uniform approach. I have considered whether a short sharp prison sentence in combination with such an order is required in the sound exercise of my sentencing discretion. It occurs to me though that such a disposition might very well defeat the very purpose that I judge to be a major consideration in your case - that is your rehabilitation.

51So I am going to convict you and release you on a CCO if you consent to being so released and as I understand it, you do. You need to listen carefully to the proposed orders, and I will ask you if you consent to being released on such an order in a moment. Ms Broughton, what address will I put on the document? So where will she be tonight? I know it is not easy but we - I have got to have some address to put on it and she has got to be notifying of any change of address which is problematic.

52MS BROUGHTON: Yes.  Yes, I will - - -

53HIS HONOUR: Go and find out if you can, what I should be putting document please?

54MS BROUGHTON: 91 Pearcedale Parade, Broadmeadows.

55HIS HONOUR: 91 Pearcedale Parade, Broadmeadows. So is that where she is - is that where she has been couch surfing or is it - - -

56MS BROUGHTON: She has been, yes.

57HIS HONOUR: Yes. Well, anyway, as we all hope - we hope that she can find some more stable accommodation but I just need to have an address for the order and she needs to understand her obligations to - I am not so much concerned as to community corrections, though she needs to advise of changes of address there, but there might be a level of inflexibility in terms of those who administer the Sex Offender Registration Act Provisions and she will need to be careful about her position there.

58MS BROUGHTON: I will explain the matters to Ms Wright and I think you leave a message when you first report so I will have her do that and I will also do that as well.

59HIS HONOUR: Yes, all right. Well, I will have that order just printed and yes, I will get you at some stage to go down but not just yet.

60MS BROUGHTON: As Your Honour pleases.

61HIS HONOUR: Is it P-E-A-R-C-E?

62MS BROUGHTON: Yes.

63HIS HONOUR: Pearcedale Parade, Broadmeadows.

64MS BROUGHTON: There is the appointment with Headspace on the 23rd so hopefully all those things go to assist.

65HIS HONOUR: Yes, all right. I better add the community corrections order assessment as an Exhibit. I know it is not a Crown Exhibit but I will have it marked as Exhibit B.

66MS BROUGHTON: As Your Honour

67HIS HONOUR: All right. So I will just have you remained seated down there, Ms Wright, and I as I say I will give you a chance to speak to Ms Broughton once I have explained the nature of the order, all right?

68On the two charges of sexual penetration, I intend to convict and sentence you to a community corrections order for a period of two years from today. I know the nature of the order has been explained to you by the assessment officer. There is a document in assessment report where you have signed indicating that you consent to it being made, and that you understand it. But I still need to explain it and satisfy myself that do you understand.

69So the order commences today and it runs for a two year period and ends on 16 May 2019. You will get a copy of this, by the way. So a two year order. You will need to attend at the Broadmeadows Community Correctional Services at 25 to 27 Dimboola Road in Broadmeadows; again, the document has got the address and the phone number but you have got to turn up there within two working days. You get down there today or tomorrow, all right?

70Now, you have never been before a court before. You have never had one of these orders before. Even if you had had ten of them before, I would have to explain to it to you but you have had none. So I am going to spend a bit of time explaining it to you and so that there is no doubt as to what it involves. These orders, I know they have been explained, but they have mandatory terms that apply to every person who is put on an order, all right? And you are being put on an order so of course they apply to you. The mandatory terms are on the order itself. It is not a memory test but the first of those is that you must not commit another offence for which you could be imprisoned during the time that the order is in force.

71So in the next two years, if you commit any offence that could be punished by a term of imprisonment and almost every offence could be so punished, then you breach this order. So you have got to stay out of trouble. Well, that really should not be a problem for you. You have stayed out trouble your whole life other than for these matters. But if you went out and committed any sort of offence in the next two years, one that is punishable by imprisonment, you will find yourself back in breach of the order.

72And it does not have to be a similar style of offence, it could be any offence that could be punished by a term of imprisonment. Just to illustrate that further, I am not suggesting you are going to do it but if you went and you a copy of the Herald Sun from a newsagent or a Freddo Frog or whatever, some tiny little item, a charge of theft might be levelled at you. I do not think any Magistrate in their right mind is going to send a person off to prison for theft of a copy of a newspaper or a Freddo Frog but the charge of theft is punishable by imprisonment and it would be breach this order. So any offence punishable by imprisonment committed by you in the next two years will bring you into strife in terms of this order. You have just got to stay out of trouble. Should not be a problem for you.

73I do not work out the wording of this order.  It spits it out and I have no control.

There is another condition that says you must comply with any obligation under regulation 17 of the Sentencing Regulations. What does all that mean? You have got to turn up on time for any attendance under this order and you have go to turn totally unaffected by alcohol and totally unaffected by drugs. You turn up affected in any way and you'll be in breach. They also want a photo, I think, for record keeping purposes. You must report to and receive visits from, the document says, secretary but there will be a community corrections officer and you report to them and receive visits from your community corrections officer. You have got to and must report to the community corrections centre within two clear working as I have told you but you must let them know within two clear working days of any change of address or job. So bear that in mind, it is the sort of condition that you could easily fall foul of and I hope you do not. And you must not leave Victoria without first getting permission to do so from your community corrections officer. Finally, you obey all of their lawful instructions.

74So they are the mandatory terms. So they apply, they apply to every person who gets one of these orders. You breach any of those, you breach the order. Then there are the tailored or special conditions, that I tailor to your particular

needs and the needs of sentencing, of course because some of these are punitive, there is no question about that. So what are the conditions in your case?

75You are going to need to do some unpaid work. So you must perform unpaid work, I am going to keep the number of hours down to a manageable level and it will hopefully, no doubt the corrections crowd will get a copy of my sentencing remarks so they will be reading what I am saying now, but it will hopefully give them the ability to do what Dr Gee suggests and that is perhaps focus initially on some of the mental health issues and then graduate to the work and so I am selecting a number of hours that is manageable and I am spreading it out over the two year period of the order so it will give them that ability to be flexible, I think.

76So you must perform 200 hours of unpaid community work over the two year period of the order. Again, there is a condition I do not like on this order. It might lead you into thinking that if you do not turn up for unpaid work not much is going happen. It says if you fail to comply with this, the Secretary to the Department of Justice may give a direction to perform additional hours of unpaid community work in accordance with some provision of Sentencing Act. There is that power but do not work on that theory. If you do not turn up for unpaid work, expect that you will be breached on the order. All right? That is the safer option because it is the option that they generally exercise.

77What are the other conditions? Well, you are going to be under supervision of a community corrections officer for two years and there are also some treatment and rehabilitation conditions. It is a bit of a mouthful here, I will rattle them off. They are on the document. But you must undergo assessment and treatment including testing for drug abuse or dependency as directed by the regional manager. You must undergo any mental health assessment and treatment and that may include all manner of things including psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility

as directed by the regional manager and you must participate in programs and or courses that address factors relating to the offending as directed by the regional manager, which may include assessment and participation, if suitable, in a sex offenders advice and treatment services program.

78Now, all right, there is a fair bit in all of that. They are the special or tailored conditions. Now we know about the unpaid work. You will be receiving directions to attend to unpaid work. Just abide by the directions and attend. It is not that difficult. In terms of supervision, you will be getting requests to attend for supervision; again, there is nothing too difficult to understand there. When they tell you to turn up, you turn up. And do not think, by the way, that your community corrections officer - he is a not a member of the police sitting on your shoulder. You have got to have the right attitude towards this community corrections officer and I hope you have a strong relationship with that person, whoever it is, and I have seen strong relationships forged between offenders and their community corrections officer.

79Indeed, I have seen people who have been given great assistance, practical assistance in issues such as housing and employment by their community corrections officer so do not think that they are there to police you. They will police you if you muck around on the order, it is part of their job but - their major interest is to have you succeed on this order. I want that to happen. They will be disappointed if it does not. So do not muck around with them

80In terms of the treatment and the rehabilitation, I have got no idea what they are going to be making suggestions of in terms of assessment or treatment or testing for drug abuse but whatever they say, goes. Likewise, in terms of mental health assessment and there are obviously some pretty significant issues in your life. You need to deal with them. It is the best way ahead for you and they will give you directions and, again, you just abide by those directions.

81As to the last of those conditions, that you must participate in programs and or

courses addressing factors relating to the offending as directed by the regional manager. I have gone on and included "which may include assessment and participation in the sex offenders advice and treatment services". I probably did not even need to put that on the order. They would have the ability to give that direction anyway and I do not know if they will. If they do, if they want you to engage in an assessment, then you have got to engage. If you are assessed as being suitable and if they then tell you to engage in a sex offenders program then you must. But I am not sure if they will do that, there are some pretty strong comments in the report of Dr Gee about his concerns about the lack of suitability of that sort of program for someone in your position and I can well understand that. So as I say, the corrections crowd will get a copy of my reasons for sentence and they will see what I am saying now and they will have also have a copy of Dr Gee's report.

82But they are the full suite of terms and conditions that apply. Now, do you understand the effect of those conditions?

83OFFENDER: Yes.

84HIS HONOUR: All right. Now I have been sitting as a judge now for a number of years, for seven years. I have seen people breach these order in almost every manner. Nothing would ever surprise me. I have seen people even not turn up for the induction within two days of the order being imposed. As I say, your corrections officer is not going to be silly, they are not going to be punitive either. I have seen people duck and weave away from drug testing, for instance, as though that is the better course. I can tell you it is not. It is much better, even if you believe there is going to be a dirty sample, you are much better to actually go ahead and provide it and then you will have the corrections crowd actually making judgments about the sort of treatment that you might need.

85But as I say, I think I have seen almost every matter of breach under the sun.

It is amazing the way that people who consent to these orders find a way of breaching them. All right, well, do not put yourself into that category.

86If you have got a good reason not to be able to turn up for unpaid work, let them know. A lot of people come back and breach because they just don't turn up. Then they turn up and they say "Well, I had a good reason" but it is never documented, it will never pass muster or they do not turn up for supervision, or they move address or they could not be bothered doing the unpaid work. As I say, I have seen almost every manner of breach available.

87What I have not told you is what happens if you breach this order, although I am pretty sure you have had that conveyed broadly by the assessment officer. If you breach this order, and you will breach it by breaching any of those mandatory terms, or any of those conditions, that itself is a criminal offence. It is an offence of contravening an order, all right? Now, that is an offence which is punishable itself by a significant penalty of up to three months' imprisonment. But that is not the real sting. The sting to it would be this. You breach this order, you will be brought back to this court. Not the Magistrates' Court, but this court. Not any judge in this court but in front of me. So you would see me again and I really do not want to see you again and I suspect that the feeling is mutual.

88If you come back to this Court on a breach of this order, I cannot tell you now what I would do because I would need to listen to anything that was said on your behalf on that occasion and make an assessment of the breach. Was it a breach by offence? Was it a breach by non-compliance? What was the nature of the compliance? Had you tried, had you just never tried? I’d have to work out those sort of things and I cannot forecast that now. I hope it never happens. But you have got to understand this:

89You have been brought before me in relation to two offences that are very often punished by a significant term of imprisonment. The Crown was calling for a term of imprisonment in this case as you heard.  And you are of an age now

where you cannot be sent to a youth justice facility by a court because of your age; you are over 21. The disposition that I have selected, well, it offers you the opportunity of avoiding any further interaction with this court. It offers you the opportunity of avoiding any further penalty, of avoiding imprisonment.

90But if you breach this order, as I say, you will see me again. I do hope that I do not see you again and I mean that when I say it. And I will not if you comply with the order. But if you breach it, you get brought back before me and, really, you need to think about that very seriously. I know once I have left the bench and you will be heading out the door, I have seen people in your setting breathe a sigh of relief, get out into the world and then lose their sense of having to perform on the order. It is as though the case is finished. Well, it is not. It is not finished. It will be finished in two years from now. But it is amazing that people who consent to orders, they are greatly relieved to consent to order. They get out of the court, they get into the community and then unpaid work? No, there is something else they want to do. They have got a job or they have got some meeting or something - they are going out to do this, that or the other and they do not give the priority to these orders that must be given. Well if you put yourself in that position, you will breach this order.

91If you breach it, you will come back before me. I suspect you had a sense of fear the other day and probably today. An uncertainty in your mind as to what would be happening to you. You must have, you would not have known what would happen to you. Would you be going home? Would you be going to prison? What would that be like? Well, you have had those questions answered here today in my sentencing remarks; you are not going to prison today. You are going back out in to the community on this order. But if you are foolish enough to breach this order, you will be put back in that same sense of unease and uncertainty as to the outcome. In fact, it is probably not the same position when you think about it because you would have actually breached the order that I had given you to avoid a term of imprisonment. An order that

avoided a more dire outcome.

92So if you come back on breach, what you need to understand is one of the most common orders of a court upon a breach is to cancel the order and if the order is cancelled, the Judge then has to resentence on the same offences but in a setting where a community corrections order has been tried and has failed. And that, I think you probably would understand, would carry with it a very significant risk of my sending you to prison and not just for months. So you work on that theory that if you breach this order, you are likely to be having the order cancelled and sent to prison.

93All right. Ms Broughton, do you want to just go down and have a quick word to your client please?

94MS BROUGHTON: Yes, Your Honour.

95HIS HONOUR: Is she going to consent to the order?

96MS BROUGHTON: Yes, Your Honour, yes.

97HIS HONOUR: You do not need any further time? I mean, I have explained in pretty significant detail.

98MS BROUGHTON: You have.

99HIS HONOUR: And - yes, all right. All right, Ms Wright, I will have you come out of the dock then, all right? You can come out of the dock now? Come out. Just come and sit in the row behind Ms Broughton, just the front row here. I will just have you remain seated then, Ms Wright, but look do you understand the order that I have explained to you?

100OFFENDER: Yes.

101HIS HONOUR: And do you understand the implications if you breach it, what might happen if you breach it?

102OFFENDER: Yes, Your Honour.

103HIS HONOUR: All right. And are you consenting then to being placed on this order?

104OFFENDER: Yes, Your Honour.

105HIS HONOUR: All right. Well, I will have that order come down. Let me just - look, just cast your eyes over it, each of you at the Bar table? Make sure it fits the bill, would you?

106MS BROUGHTON: Yes, thank you, Your Honour.

107MS CARINS:  Yes, Your Honour.

108HIS HONOUR: All right, look I will just have my associate - maybe just come forward to the bar table Ms Wright and just sign that order if you would? Grab a seat again then. All right, I will get a copy of that.

109Application has been made for an order under s.464ZF to have Ms Wright undergo forensic procedure for the taking of a scraping from her mouth under the provisions of the Crimes Act. I have considered whether such an order should be made. I know there is no opposition to it. My judgment is that in the circumstances of this case, that the order is not justified. That I ought not make the order. I do not judge it to be in the public interest so I decline to make the 464ZF order.

110MS BROUGHTON: As Your Honour pleases

111MS CARINS:  As Your Honour pleases.

112HIS HONOUR: The final order relates to the provisions of the Sex Offenders Registration Act and it is not a case where there is any discretion at all regrettably. I have got serious reservations about the suitability of such an order as this for one such as you given your age, and the nature and context of this

offending and your expressed interest in working in the future with children. I simply do not believe the Act is targeting people such as you and yet you are caught by it. That is because you have been sentenced in relation to registrable offences under the Sex Offenders Registration Act of 2004.

113Each of the offences are Class 1 offences and pursuant to the provisions within that Act, s.34 dictates that I have no discretion in this setting; you must comply and continue to comply with your reporting obligations imposed under that Act for life. I will have handed to you shortly a document that will explain to you the many requirements imposed upon you by that Act. You will note from the document that this Act imposes various other prohibitions and requirements upon you in the future. One of those is a prohibition upon your gaining any employment in any child related activity and that is a very widely defined under the Act. So to do that would constitute a serious criminal offence, as indeed would virtually any breach of any of your obligations under this Act. You need to make yourself familiar with the terms imposed by this order, because as I say these are continuing obligations that will never go away and you will see when you receive it that you must report to the Victoria Police within seven days of the date of your sentence.

114As to the continuing obligations, for instance I had a fellow that I dealt with a couple of years ago who was brought back before me for breaching the conditions of the Act. What he had done is he failed to inform the police in the required time frame, I think it was seven days, of getting a tattoo of his new daughters name on his arm. That is how strict these things can be taken. So the point I am making is you have really got to familiarise yourself with your obligations under this Act, all right? It is a long document that is coming to you and I am not suggesting you sit there now and read it and digest it; you will not. You will be asked to sign an acknowledgement of your receipt of the notification of these obligations. You will get a copy of all of this, you need to study it pretty closely and you need to discuss these matters Ms Broughton because I do not

want you falling foul of these obligations and breaching them because if you do, a breach of those obligations in the next two years would be a breach of my order.

115Again, I make plain that I do not have any discretion in this case. If I did, I would not make this order. It is as simple as that. I have set out and I am setting out my disquiet as there are some amendments in the pipeline at the moment that are before Parliament but it is in Bill form at the moment, the Sex Offenders Registration Amendment Miscellaneous Bill of 2017. I do not know the stage at which that Bill is at currently but clearly there are some amendments in the pipeline and it occurs to me that it may be of some assistance if my concerns about lifetime registration in your case are at least disclosed in my sentencing remarks.

116It is too early for me to know precisely what the amendments will cover but they may allow some people to apply to be exempted from or to remove or to suspend reporting obligations under the Act. I do not know what ultimately will be enacted. But in the event that there were to be changes in the future, I think it is appropriate that I at least mark out in the course of my sentencing remarks that had I been vested with any discretion, I would not have required that you report in the way that I have described. I just do not think this really is the sort of case that was contemplated when this Act came into force.

117Anyway, let me deal with the corrections order then. Have I got that back in front of me? All right. Again, just remain seated then, Ms Wright. You have signed this community corrections order; is that so?

118OFFENDER: Yes, Your Honour.

119HIS HONOUR: All right. And you have signed it below the words "I understand the effect and the conditions of this order, and I consent to it being made"; is that so?

120OFFENDER: Yes, Your Honour.

121HIS HONOUR: All right and what do you believe is potentially going to happen if you breach this order and come back to this court?

122OFFENDER: Imprisonment.

123HIS HONOUR: It is a real risk for you, all right? All right. Well, I then pronounce that order then. I do not need to go back through all the reasons but that is the order that I will impose. The conviction and the two years community corrections order on those two offences. Let us deal with the notice of reporting obligations. I will have that come down and - again, Ms Broughton, she is going to need to go through this in detail

124MS BROUGHTON: Yes.

125HIS HONOUR: But she is just signing the notice of being served with the reporting obligations, all right.

126MS BROUGHTON: I will do that.

127HIS HONOUR:  I will have that come down now, as well.

128MS BROUGHTON: Yes, Your Honour.

129HIS HONOUR: I do not believe I am required to make s.6AAA declaration in this case because I am imposing a community corrections order. I am not going to pronounce that a s.6AAA declaration but I will say that had you had you been found guilty after pleading not guilty at a trial I would certainly have sent you to prison in such a setting.

130So you need take the opportunity you have been given here. You do not want to breach this order. If you breach it, you come back before me and I do not want to see you again. I am not just saying. If I do not, I will judge this to have been very much the correct sentence to have imposed upon you.  It would be

a great success for you and for the community if you comply with this order and I do not think you will breach it. Hopefully you will get on with your life, you will make something of it, you will deal with some of these issues that have caused you concern and you will put this chapter of your life behind you but not before complying with this order for the next two years.

131As I said, a lot of people think that the court is over when they leave court but it is not. You have got this order for the next two years and you will really have to work hard to comply with it. Well, if you comply with this order, if you stay out of trouble, you do not break the law, you perform all the conditions, that will be the end of it. You will not come back to court, you will not see me again, you get on with your life. That is what I am hoping is going to happen. I think it is in your and the community's interest that you succeed on this order and I hope you take this opportunity that you have been given but, as I say, if you do not then you will have the misfortune of seeing me again on a different date, all right?

132You should not work on the theory that you will be given a second chance, all right?  You understand?

133OFFENDER: Yes, Your Honour.

134HIS HONOUR: All right. So you should be treating this as your one and only chance. All right, now has the sex offenders material gone down or not? Yes. All right. Well, do you acknowledge also that you have received the notification of the reporting obligations under the Sex Offenders Registration Act?

135OFFENDER: Yes, Your Honour.

136HIS HONOUR: Let me just see if there are any matters. Grab a seat. Any other matters that I need to deal with or any matters that I have overlooked?

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