Director of Public Prosecutions v Lyons
[2023] VCC 11
•17 January 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 22-00278
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JARRAD LYONS |
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JUDGE: | HER HONOUR JUDGE SYME |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 October 2022, 7 November 2022 |
DATE OF SENTENCE: | 17 January 2023 |
CASE MAY BE CITED AS: | DPP v Lyons |
MEDIUM NEUTRAL CITATION: | [2023] VCC 11 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Transmission of child abuse material – Possession of child abuse material –
Legislation Cited: Crimes Act 1914 (Cth); Criminal Code Act 1995 (Cth); Sentencing Act 1991 (Vic) & Sex Offender’s Registration Act 2004 (Vic).
Cases Cited: R v Verdins & Ors [2007] VSCA 102; The Crown v Booth [2009] NSWCCA 89; Minehan v The Crown [2010] NSWCCA 140; Muldrock v The Queen [2011] HCA 3 & Bugmy v R (2013) 302 ALR 192.
Sentence: Section 20(1)(b) Recognisance Release Order of 4 years duration in the sum of $500.00.Sex Offender Life Registration.
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APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth Director of Public Prosecutions | Ms. Z. Hough | Office of the Commonwealth Director of Public Prosecutions |
For the Accused | Ms. J. Ball | Mr. B. Campigli |
HER HONOUR:
1Jarrad Lyons, you have firstly pleaded guilty to transmitting child abuse material using a carriage service, or the internet, between 5 February 2021 and 20 May 2021 at Noble Park.
2Secondly, between the same dates, you caused another person, Benjamin Heels, to transmit child abuse material to you using the same internet service.
3Thirdly, on 9 February 2021, you transmitted material using a carriage service and that material was again, child abuse material.
4Fourthly, on 14 September 2021, at Noble Park, you possessed or controlled child abuse material in the form of data being held on a computer, or contained in a data storage, device and you used a carriage service to obtain or access that material.
5All of these offences are contrary to various sections of the Criminal Code Act (Cth) and the maximum penalty for each of these offences is 15 years imprisonment.
6Pursuant to section s 16AAB of the Crimes Act, these charges are also subject to a mandatory minimum penalty of four years on each charge, as a result of these offences being second or subsequent child sexual abuse offences.
7I note that you, Mr Lyons, were born on 28 March 1994, and you were aged 26 or 27 years at the time of the offending.
8You communicated, I am told, extensively with a person by the name of Benjamin Heals, using Kik, Telegram and text messages.
9On 14 September 2021, police attended your address and exercised a search warrant. Two mobile phones belonging to you were seized and you were arrested and interviewed.
10Circumstances of offending
11To summarise the offending, Charges 1 and Charge 2 relate to transmitting child abuse material and causing child abuse material to be transmitted to you. It is noted in the prosecution facts that you sent text messages on Kik and Telegram. In doing so, you transmitted child abuse material to Benjamin Heels. The child abuse material consisted of text messages, images and videos. In total, you transmitted text-based child abuse material, nine images depicting child abuse material and 12 videos depicting child abuse material.
12In relation to Charge 2, using the same applications, you caused Mr Heels to transmit child abuse material to you, again, in the form of text images and videos. In total, there were text-based child abuse materials and 20 files depicting child abuse images.
13Details of those communications and details of those images are as outlined in the prosecution opening. They are not in dispute. In total, you transmitted six images and three videos categorised as child abuse material to Heels. Those images included a compilation of videos depicting children aged between 6 and 16 years of age, some of whom were engaged in sexual acts with themselves or with others, including on adults.
14You also caused Benjamin Heels to transmit 10 child abuse material files to you, using the same applications. Again, those files depicted children aged between approximately four months old and 12 years of age, some of them being penetrated by an adult male or exposing their genitals and anal areas.
15You also solicited child abuse material from Benjamin Heels by making a request that he transmit those images to you through the Kik application. You knew that Mr Heels was involved in teaching young students.
16On 20 May 2021, you used Telegram to transmit three images of nine videos, all of which were categorised as child abuse images, and they included images of pre-pubescent children engaged in single sex or in sex with adult males. They also included pre-pubescent children engaged in sexual activities with other children and pre-pubescent children engaged in sexual activities with adult males.
17You caused Heels to transmit 10 child abuse material images depicting pre-pubescent children, that is, very young children, between the ages of four and eight years, engaging in sexual acts.
18In relation to Charge 3, on 9 February, you used Kik to transmit a photo of a person who was 16 years of age, but you told Mr Heels that he was aged 14 years.
19In relation to Charge 4, possess child abuse material, you possessed a total of 16 child abuse material files on your mobile phone and these 16 child abuse images consisted of one real child under the age of 13 years, 11 videos depicting a real child under the age of 13, three images depicting other illegal content and a video depicting further illegal content.
20The child abuse material files included depictions and images of adult males orally and anally penetrating young children and infants. The material also included pre-pubescent children between the ages of 13 and 15 years engaging in sexual activity with adults or with each other.
21It can be observed, that in general, each of the images that I have referred to are of a particularly depraved nature. I accept that by your plea, you now accept that.
22After a search warrant was executed, a record of interview was conducted during which time you made some admissions.
Sex offender registration
23Now, in general terms, there are some consequences that I must refer to, and I will refer to those consequences now as part of the sentencing process.
24All of the charges are called Class 2 offences. They are registerable offences. Upon sentence, you will be a registerable offender as defined, and you will be required to comply with reporting obligations. The reporting will be for the rest of your life and I think it has been explained to you what the obligations under those reporting obligations will be, sir. Has it been explained to you what your reporting obligations will be and what you have to do?
25OFFENDER: No, it hasn't.
26HER HONOUR: No, it has not. Yes it has?
27MS BALL: No, I have not done that yet, Your Honour.
28HER HONOUR: Okay, but you will?
29MS BALL: Certainly, or I know that at the time when, especially with somebody who has more experience in terms of helping to explain it to individuals with intellectual disabilities, might be able to assist in me reading in that order.
30HER HONOUR: Well I raise this because I am going to be requiring to sign a document at the conclusion of this. Is there somebody who can explain it to him before he signs it.
31MS BALL: We certainly can, Your Honour.
32HER HONOUR: Can you do that?
33MS BALL: Yes.
34HER HONOUR: That is really important. In general terms Mr Lyons, your reporting obligations will require you to give your personal details to Victoria Police and let them know at all times where you are living, what your contact details are, your phone number, your email address, any internet aliases and any internet service providers you might use from time to time.
35You are also required to tell police who you are living with and where you are living. Any changes have to be advised as soon as possible. There are other details you have to give police and you have to advise them before you change addresses, and you have to advise them before you travel interstate if you ever want to travel interstate.
36If you have a passport, you have to provide police details of all of those things. Now, if you change those details at any time, sir, then those changes have to be advised to police depending on what the changes are. within one day to seven days. The same applies to any change of name, address or internet service providers at any time. It will also mean, Mr Lyons, that you might be subject to police attending and making sure that your details are correct at any time once you are released from custody. Got any questions about that at this stage, sir?
37OFFENDER: No.
38HER HONOUR: Okay, thank you. I will now turn to your own personal circumstances because your personal circumstances are what I also have to take into account when considering what sentence to be imposed.
Personal circumstances
39By way of criminal background, I note that when you were aged 16, you were convicted of one count of sexual penetration of a child under 16. At that time, you were released on a supervised order. This event is the subject of some discussion with psychologist Mr Candlish, who prepared a report for the Court.
40This event is relevant only to the extent of your ability to access some residential services in the future. Your record also shows some violence related offences and some recent damage and assault matters which resulted in very short terms of imprisonment and a supervision order.
41I note you were the subject of a Community Corrections Order (‘CCO’) and that was extended but my understanding is that it was really extended because the sort of supervision you were receiving was not the sort of supervision that was useful for you. However, you were subject to that CCO when you committed these offences.
42Reference is made in the current report to the degree of supervision that was provided and quite frankly, it is my observation that the degree of supervision that was provided was of little use to you. Accordingly, I will not be further punishing you because you were on that CCO when these offences were committed.
43I also see that you were arrested on 14 September, and you were remanded in custody from that date. You have been in custody for well over 400 days and the amount of time you have spent in custody will be calculated at the conclusion of these proceedings, but I will make a direction letting you know exactly when you are going to be released.
44You pleaded guilty to the charges on the indictment at the third committal mention on 25 February 2022. This is accepted by the prosecution as being a plea at the first available opportunity, and I will take that into account. This entitles you to a 25 percent discount on the sentence that would have otherwise been imposed.
45In addition, it is accepted by the prosecution that you cooperated with the people who were investigating this matter, and you provided passwords and the like. You also made admissions during your initial interview. I accept that considering your cognitive difficulties, the degree of cooperation was all that could have been expected from you at the time.
46Now, this does not reduce the objective seriousness of the offences you have committed but it does alter my sentencing considerations, to a degree. You will therefore be entitled to the benefit of this cooperation with a further reduction of 15 percent against the mandatory minimum requirements.
47This is a total of 40 per cent discount that is available to you as a result of the early plea and cooperation which reduces the minimum required sentence to just under, on my rough calculation, about 29 months.
48There will be ancillary orders made at the conclusion of my sentence and those other ancillary orders will include, as I said, the Sexual Offender Registration and I believe the prosecution are also seeking some forfeiture.
Objective seriousness
49Now, in assessing the objective seriousness of these offences generally, the courts are guided by a number of cases in the past. One of them I have been referred to by counsel is Minehan's case, a 2010 Court of Appeal decision.[1]
[1] See Minehan v The Crown [2010] NSWCCA 140.
50Of relevance to an assessment of the objective seriousness of your offending, it appears that real children were abused in order to create the videos and images that you possessed or that were sent to you. I accept that you were not an abuser of those children sir, but the fact is, real children were abused by somebody else in order to create those images.
51Some of the images depicted adult males penetrating young or very young children and these images are categorised as being of the more serious type of child pornographic images. The number of images that you exchanged or possessed or sent to other people is relatively small when compared to many other matters of this nature.
52The text conversations that you had with Benjamin Heels are of a serious and very explicit nature. It is not suggested that the conversations represent anything but your fantasy or your imagination.
53As a whole, however, the images and conversations represent very serious offending but it is conceded by the prosecution that the offending is less than mid-range for each offence charged.
54As I said, in total the number of images is relatively small and there is no evidence at all that you profited from any exchange, but you expected to receive other images when you exchanged images to Heels. He agreed to send you other images.
55Your purpose in possession was for your own sexual gratification, and sharing in a private chat with others, but again, I acknowledge you were not proximate or responsible for the original abuse of the children depicted.
56The offending occurred over a period of about three and a half months for transmission and receiving documents, one day in relation to Count 3 and the possession offences related to a day in September 2021.
57In referring to the appropriate sentence to be imposed, I have to refer to a number of general sentencing principles. Again, there are many cases about matters such as this that courts have dealt with over the years.
58In 2009, there was a case called R v Booth[2] where a Justice by the name of Justice Simpson outlined, in a readily understandable way, why the possession of child pornography is such a serious offence. Now, I have edited what she said to some extent, but what she meant is that possession, just possession of child pornography, is a callous and predatory crime. That is, it preys on other people, usually young children.
[2]The Crown v Booth [2009] NSWCCA 89.
59Her Honour observed that the material - that is, the images - cannot come into existence without exploitation and abuse of children somewhere in the world. Often, she observed, it is under-developed or disadvantaged countries that lack the resources to provide adequate child protection mechanisms, but that is not always the case.
60'The damage done to children', she said, 'is undoubtedly profound.' That is, it is very serious indeed. She said, 'That those who make use of the product' and that is people in you and Mr Heels' position,
61‘feed on the exploitation and abuse of those children and feed upon the poverty of the children who are the subject of the material.'[3]
[3] Ibid.
62It is not just that it exploits and abuses children, but it is the case that the material is viewed over and over again. Each time, an offender such as you or Mr Heels is reminded of, and confronted with, the obvious pictorial evidence of exploitation and abuse, the degradation that it causes to the young children continues.
63Every occasion on which an internet child pornography site is accessed provides encouragement for the people who make those images to expand their activities. This, in turn, encourages the further abuse of children.
64So, to explain that further, people who view child pornography encourage the people who make the child pornography. Child pornography cannot be made without the abuse and exploitation of very, very young children, who are often cannot protect themselves.
65That is the reason why offences such as these are so serious and have such, quite frankly, very large maximum sentences that courts are able to impose. It is for that reason that this crime, in general, is a crime for which general deterrence is a serious consideration.
Sentencing principles
66I now have to refer to some particular sections of the Crimes Act. Section 16A requires the court to take into account a number of principles in the sentencing consideration. Generally, a court must impose a sentence or make an order that is of severity appropriate to all of the circumstances of the offending.
67Section 16A(2) sets out a number of specific considerations that I have to take into account. The first one is your early plea of guilty. As I said before, it entitles you to a reduction of any sentence that might otherwise be imposed and that is to recognise the utilitarian value and administrative benefit of that plea.
68In your case, the early admissions are evidence of some acceptance of responsibility and recognition of the criminality of your behaviour. That is in your favour. The sentence must reflect the need to deter you personally and others, in general, of committing offences like this.
69I acknowledge the principle that imprisonment must be a sentence of last resort for any sentence that any court imposes.
70In some ways that I will refer to later, having read all of the reports about you, you are not a suitable vehicle for general deterrence, but specific deterrence, that is, deterring you specifically from committing an offence like this again, is an important consideration.
71In considering your character, antecedents, age, means and physical or mental condition, and therefore, your prospects of rehabilitation, I have read the materials that have been provided, specifically, the report of Mr Candlish, with great care.
72It is submitted that your mental disorders and reduced intellectual capacity as a result of foetal alcohol syndrome reduce your moral culpability and accordingly, the weight that must be given to general deterrence. I agree. This is the most important sentencing consideration for you and the principles outlined in in the cases of Verdins,[4] Muldrock[5] and Bugmy[6] are all relevant to your position to a greater or lesser extent.
[4]R v Verdins & Ors [2007] VSCA 102.
[5]Muldrock v The Queen [2011] HCA 39.
[6]Bugmy v R (2013) 302 ALR 192.
73Your background, Mr Lyons, as detailed in the report by Mr Candlish was, I accept, of significant deprivation, significant disruption, and significant abuse in your formative years.
74Briefly, and in summary, I note that you were the middle child of five boys. I note that your parents separated when you were about five years old and you were apparently moved between them until you were taken into foster care when you were aged 11. You remained in foster care until you were 18.
75You described a younger childhood marred by your parents' alcoholism and violence. I note that you told Mr Candlish, and I accept, that you suffered sexual abuse by a family friend while you were in their care. You had a better relationship with your foster mother. A friend from those times places some events of your life in further context and there is some important information from her that I have taken into account.
76I note that your education was disjointed. You report being bullied and aggressive at school. At the time, you were assessed as being of low-average intelligence. You report having learning difficulties yourself at school and it is reported that you were cruel to animals if you were annoyed by them.
77Your substance abuse commenced when you were aged only 10 years. You progressed from cannabis to alcohol and then illicit drugs as they were available to you at any time. You used substances to enhance sexual experiences, some of which were probably perpetrated upon you without your consent or understanding. It is noted that some of those experiences were while you, yourself, were underage and occurred in the context of you being preyed on by much older men.
78I accept that your use of substances in order to block out certain things in your life has resulted in you now suffering a substance abuse disorder. This is something that will have to be addressed.
79You also, very hopefully, I think, accept that when you are sober in custody, things are clearer for you. You express appropriate concern at your ability to maintain sobriety when you are released, and again, this is something that is going to be addressed by those who supervise you with your cooperation.
80You reported being in a long-term relationship when you were aged 17 to 22, but this ultimately broke down. The use of illicit substances is reported to be a common feature of your friendships and relationship encounters. This appears to be a pattern which commenced when you were underage and you were convinced to enter into sexual relationships with older men who provided you with substances. This was apparently preferable to your-then homelife and this is a tragic observation that I accept, and acknowledge, as do those who will be supervising and assisting you, sir.
81In relation to your mental health, you reported that you had a history of depression and first engaged in self-harm when you were aged 14. As a young person, you were admitted to psychiatric facilities on several occasions, evidencing a history of acute psychosis. This presentation and concern has continued and is not assisted by your substance abuse in any way.
82You have occasionally engaged in psychological support when you were an adolescent. I do not know if you found it useful, but it is something I am going to recommend again in the future.
83You have a diagnosed history of bipolar disorder. You have previously been prescribed medication for this diagnosis. I do not know if it has been taken frequently.
84Other historical psychological observations include various personality disorders, on top of recurrent depression and anxiety, on top of, again, the consequences of your foetal alcohol spectrum disorder and symptoms related to current alcohol abuse.
85The diagnostic impressions as noted by Mr Candlish includes that you might meet the criteria for a persistent depressive disorder of moderate severity. He noted personality impairment in areas of self-direction and inter-personal functioning. You are considered to have a moderate personality disorder with a borderline pattern, including prominent traits of detachment and negativity.
86Your sexual deviance is noted in that you meet the criteria for paedophilic disorder but in a non-exclusive variety. This observation suggests that there may be a possibility of reinforcing health rather than distorted sexual interests.
87Based on a neuro-psychological report which was prepared in May 2022, hospital reports in 2013 and 2014 revealed that you disclosed chronic paedophilic thoughts. You further reported that you had never had any unsupervised contact with children, and you had never engaged in any contact sexual offending against a child or had any interest in this since you were an adult.
88Mr Candlish suggested that the prior observed bipolar disorder is not confirmed but may be the result of substance abuse. He suggested that more investigation is required, and again, this is something that is going to be recommended.
89You clearly have an established diagnosis of foetal alcohol spectrum disorder from different assessors. This may be relevant to an observed attention deficit hyperactivity disorder, ADHD. It may be relevant to mood disorders and to other oppositional defiant disorders.
90You obviously meet the criteria for stimulant use disorder and that was severe, but in your controlled environment, is in early remission and the stimulant use as I understand it, was probably methamphetamine.
91You have other substance abuse disorders that would include alcohol and other substances that you were taking, again, in early remission in your controlled environment.
92It is observed that you do present as being vulnerable to relapse or developing other substance abuse disorders and this is something that you must remain aware of and something that I will be recommending you receive significant help for. I understand that at the moment you are willing to take that help sir, is that correct?
93OFFENDER: That's correct, yes.
94HER HONOUR: Now is a good time to do it, sir. I just have to refer again to some other formal things that I need to take into account.
95In the Verdins decision, the Court of Appeal identified six ways that mental impairment may be relevant to sentencing. Those relevant to you are, that it may have a bearing on the kind of sentence that is imposed and the conditions under which it should be served. Secondly, general deterrence may be moderated or eliminated as a consideration, and I have already referred to that. Lastly, depending on the nature and severity of your symptoms, the effect of the impairment at the time of offending or sentence or both, and in your case, it is both.
96I also take into account that if there is a serious risk of imprisonment, that will have a significantly adverse impact on your mental health. This will be a mitigating factor and it is a factor I take into account, especially considering the amount of time that you have spent in custody so far.
97And finally, it may well reduce your moral culpability and so effect what is considered to be a just punishment and lessen the need for denunciation. Again, this is a finding that is available for you based on the myriad of intellectual and mental health difficulties that you present with. I also find that your moral culpability is reduced because of your lack of understanding as to why looking at child pornography is such a serious offence.
98In your case, considering your significantly deprived background which appears to be related to your offending in several ways, your moral culpability is reduced. Therefore, the need for general deterrence is reduced.
99However, it is noted that specific deterrence is still an important feature for this sentence. You understand what you have involved yourself in is seriously wrong. There are several ways that your risk of reoffending as assessed may be relevant to the sentence that is imposed.
100As I have said, there are features of your background which require the court to consider not only those principles, but also the observations in Bugmy’s case and Muldrock’s case. These cases make it clear that the effects of childhood disadvantage, disruption and abuse are often life long and must be taken into account in any sentencing exercise. There are many consequences of a deprived childhood, and those consequences do not diminish with maturity.
101Those sentencing must take this into account and accept that, as such, not only is general deterrence not a primary consideration, but also that rehabilitation is often a protracted or life-long process if it is to be achieved at any level.
102The corollary is that the protection of the community and specific deterrence might be of general relevance. It must also be stated that the protection of the community can be best served if you were supervised and assisted to live within the community in the best way possible.
103In assessing your risk for sexual offending, Mr Candlish carefully canvasses the various risk profiles and assessments. He has taken into account the various assessment tools, your history as outlined to him, and all of the factors mentioned above.
104On balance, at paragraph 126 of his report, he suggests:
That if you decide to reoffend in a sexual manner, it is likely to be an engagement in online communications with another user who has similar deviant interests.
105Mr Candlish further observes:
That with the exception of childhood sexual offending, there is no other suggestion of any involvement in contact sexual offending as an adult.
106His opinion based on that is:
That a contact sexual offence against a child is possible, although considered to be much less likely compared to online, that is, non-contact offending.
107He then outlines a useful case formulation for future supervision, both in custody, and on release. Unsurprisingly, it is observed that your risk for sexual reoffending in any way is increased by any relapse into chronic substance abuse, and you have poor coping skills, and you have, from time-to-time, especially when using substances, inadequate self-control, and ineffective management of your interests, especially, online sexual interests.
108Dr Candlish observes:
That you appear to be aware of the seriousness of your actions and you acknowledge the link between substance abuse and your offending of this nature.
109And that, I observe, is a very good start, sir. He recommends that treatment include, as I said before, psychological intervention, substance abuse therapy including more intensive drug and alcohol rehabilitation. He recommends, if possible, that you be admitted to a residential clinic upon your release alongside an exploration of pharmacological intervention that might reduce your anxiety and/or your need for other substances.
110He also recommends that you require significant case management intervention to address all of the above.
111Obviously, those who are tasked with assisting you, whether they're allied health professionals or otherwise, must be given the information contained in Mr Candlish's report, and the reason, Mr Lyons, that this sentence has been delayed until today, is so that all of those people who will be supervising you can have access to his report, and can have access to each other’s reports, so a proper plan can be set out for you.
112I also note that you have recently become eligible for NDIS support and again, I read that most recent report. No doubt, some further assessment may have to be undertaken but this is a positive step for you and the community. It will enable you to have some much-needed assistance, I think.
113In general terms, there is no doubt that imprisonment sentences are required for each of the offences. The degree of accumulation that must be imposed will be, in your case, notional, taking into account the limited nature of the offending and the discrete times in which offending occurred.
114Your need for supervision in the community will be taken into account as will the very appropriate suggestion that your return to the community be part of a regular supervision program. Preferably, one that includes residential rehabilitation if possible.
115Now, in relation to that sir, I understand that at this stage, probably because of the time of the year, no residential placement has been identified, but I think you should nag those who are going to be supervising you to find you a proper residential rehabilitation place to live. I think if you let everybody know that that is what you want to do, and it is up to them to find you somewhere to go,, you will be more likely to get something out of it, sir.
116OFFENDER: Yes.
117HER HONOUR: Are you able to nag them, do you think, about residential rehabilitation?
118OFFENDER: Yes.
119HER HONOUR: I reckon you can, okay, very good. I am now going to impose all of the sentences that need to be imposed sir. Again, this is a formal part of the process. I am going to set out the terms of imprisonment which I have to impose for each of the sentences and then set out the total. I will then set out that you will be released on a recognisance to be of good behaviour and then I will explain it. So, first of all, the formal words as are follows:
Sentence
120Counts 1 and 2, I sentence you to a term of imprisonment of 30 months each; each of those sentences are to commence as at the date of sentence.
121Count 3, an imprisonment term of 29 months, to commence one month from the date of sentence.
122Count 4, an imprisonment term of 30 months, to commence two months from today, the date of sentence.
123That is a total term, taking into account, all of those sentences altogether, 32 months imprisonment.
124I am going to order that you be released forthwith, that is, today, as soon as you sign the documents which will be sent out to you, on a recognisance release order for a period of four years with a period of supervision specified of two years. The recognisance release order will be, as I said, for four years in an amount of $500 and it will require that you do certain things and not do certain things. The most important thing that you have to do is be of good behaviour and that is not commit any further offences and that is obvious.
125As well as that, I am going to set out conditions that are part of what is called a Justice Plan. In general terms, you must attend for drug and alcohol abuse counselling as directed.
126I am not going to direct where exactly you have to go. They are places that will be found. The same may be said for attending residential rehabilitation, if such a place is identified quickly.
127You also have to attend mental health assessment and treatment as you are directed by either Corrections Victoria or more likely, the Forensic Disability Clinical Services. In conjunction with the NDIS. You are obviously to be of good behaviour for four years, that is, you must not commit any offences.
128You are to attend for assessment and appropriate treatment at an appropriately identified Sex Offender Treatment Program. Now, the aim of that program is to reduce your risk of reoffending and to go over, in detail, all of the things that I have gone over with you today. This is intended to help you understand your position regarding sexual activity; to help you understand what you are allowed to do and what you are not allowed to do.
129As part of that, you are to be under the supervision of Community Corrections Sex Offender Management for a minimum of 18 months, or such time as they direct.
130You will have to report to and receive visits form Community Corrections. They will schedule visits depending on what your other obligations are. You are to notify any officer at any service of any change of address or any employment within two days of doing so. You have to do that in any event under your sex offender registration reporting obligations to the police.
131You are not to leave Victoria without the permission of an officer, but of course, if you have good reason for leaving, they will facilitate that usually by arranging supervision in a place that you might be going to, but you have to clear it with them first.
132You are to attend any programs or directions. Now importantly, you are not to associate with Mr Benjamin Heels or Mr Tristan Cullinan-Smayle, I do not know if you were ever in contact with Mr Cullinan-Smayle, but these are offenders who were associated with your offending. For your information, sir, they are in custody.
133You must comply with the conditions of the Justice Plan which will be given to you to understand. You must engage with the Disability Services Coordinator, and you must participate in a referral with the forensic disability team with any assessment that they require.
134Now, for the information of counsel, I also note that one of the conditions that was recommended was Judicial Supervision. I have considered that, but it seems to me that Mr Lyons has many things that he has to comply with. I do not believe that Judicial Supervision is going to be helpful in those circumstances.
135But I would say to you, Mr Lyons, that if you breach any of the orders as part of the Recognisance, it is likely that any breach will come back before this Court. If it does, it is likely that it is going to come back before me, so I will be taking a personal interest in that way. okay, all right. You are looking nervous. What have I forgotten?
136MS HOUGH: Your Honour, I just note in terms of practicality, Mr Lyons was sentenced on 11 November to a term of imprisonment for three months, so I am not sure how that interacts with
137HER HONOUR: Somewhere else?
138MS HOUGH: In the Magistrates' Court, Your Honour.
139HER HONOUR: Did not know that. Okay. What was that for?
140MS BALL: I believe it was - I do not have any instructions in relation to the exact offences. I was aware of it, but - so it was a breach of two court orders. So one of them was a Community Corrections Order as well as an intervention order, but that has been
141HER HONOUR: That is unfortunate.
142MS BALL: It is, and there is also a prohibited firearm as well, in front of an apartment that he was at, and so that was, I believe from some time ago, but nevertheless, that has already
143HER HONOUR: They have got to be really old; he's been in custody since September 2021.
144MS BALL: That's right, and so that has already been dealt with and served. He is not in custody in relation to those matters, any further, it's only in relation to this one.
145HER HONOUR: Only in relation to this one, so forget what she said?
146MS BALL: It is basically
147MS HOUGH: Yes.
148MS BALL: Yes. No, that is basically, yes.
149MS HOUGH: Your Honour, just out of, I guess, an abundance of caution perhaps, with the Commonwealth legislation. The legislation states that an offender can only be released forthwith in the event that there are exceptional circumstances.
150HER HONOUR: I will make a finding of exceptional circumstances and the exceptional circumstances are: (1) As I detailed, his mental health and intellectual difficulties; (2) The amount of time he's been in custody and (3) the extended time that it took to get all of these reports ready, and I do not criticise anybody that it has taken a great deal of time. The reports are comprehensive, which is a good thing.
151So yes, exceptional circumstances forthwith, but of course, there is paperwork to do first sir, and I am quite sure that your solicitor and Ms Ball will contact those who are going to be supervising you immediately to make sure that there is provision made for someone, somehow, to collect him from where he is going to be released. That is important.
152MS BALL: Yes, they have already been in discussions this morning just making sure, 'Tell us when, tell us when?'
153HER HONOUR: Excellent. NDIS perhaps or?
154MS BALL: It is NDIS, yes. So, someone basically waiting in the wings just for the go-ahead.
155HER HONOUR: That is very, very good. Okay. Now a 6AAA? Want me to do one of those or not?
156MS HOUGH: A 6AAA yes please, Your Honour.
157HER HONOUR: Okay. So, s 6AAA, I have already noted that had it not been for a plea of guilty sir, the sentence would have been much longer and I have already said that a couple of times, and I have given some percentages.
158Because of the way Commonwealth sentencing laws are, it would have been a different sentence entirely. It would have been a term of imprisonment of at least four and a half years in total with a non-parole period of at least two and a half years in total. But this, I think, is a better sentence because it gives you a lot more supervision and a lot more assistance in the future. What else have I forgotten?
159MS HOUGH: Your Honour, the Commonwealth is just making an application under s23ZD for forfeiture of two mobile phones that the offender used to transmit the relevant material. A draft order has been prepared and sent.
160HER HONOUR: No objection to that?
161MS BALL: No objection to that.
162HER HONOUR: All right. I am also going to sign sir, the Sex Offender Registration papers, that will be forwarded to you and somebody is going to explain to you in more detail than I have, what your obligations under the Recognisance are, and what the obligations under the Sex Offender Register are.
163I have explained them to you a bit, but I have been doing this for a little while and I am sort of aware that when you are sitting there and I am sitting here, and I am talking a lot, it is really hard to concentrate, and that is not just you sir, that goes for anybody. It is very hard to concentrate when somebody's just talking at you all the time, so somebody is going to explain it to you in detail. Do you have any questions now, sir?
164OFFENDER: Ah, just one question to my barrister.
165HER HONOUR: Sorry, sorry.
166OFFENDER: Just one question, am I being picked up? Has that been arranged?
167MS BALL: Yes, and I can let Mr Lyons know, just as we were discussing, that NDIS has arranged for someone to pick him up so when all the paperwork has been signed, everything is ready to go, someone will be waiting for Mr Lyons.
168HER HONOUR: So
169OFFENDER: That's good.
170HER HONOUR: So, let me explain what happens now.
171OFFENDER: Yes.
172HER HONOUR: We are going to send a whole lot of documents to where you are for you to - how is your reading sir?
173OFFENDER: Um, the reading's fine.
174HER HONOUR: Good - for you to read it and to sign it if you understand it. If you do not understand it, ask questions of whoever is there with you. Now, because we had a lot of trouble getting connections to you today, I do not know what is going on, but that is going to take a while because we have to send documents. Somebody where you are being held has to print them out and find you. Do not be anxious. It will happen today, but it is not going to be before lunch, okay?
175OFFENDER: Yes.
176HER HONOUR: It will be the other end of the day somewhere. Ms Ball is going to communicate with somebody at the NDIS who will be there to help you as soon as you are released. So, we do not want you to be by yourself. We will communicate with your prison that you should not be released by yourself, you should not be released until you have signed documents, and somebody will be there.
177OFFENDER: Okay, thank you.
178HER HONOUR: Anything else?
179OFFENDER: That's it, thank you.
180HER HONOUR: Okay. Can I thank everybody for their patience, that took a while.
181HER HONOUR: Do you consent to being placed on the Sex Offenders Register, sir?
182OFFENDER: Yes, I do.
183HER HONOUR: You agree to it? Yes, he does.
184OFFENDER: Yes, I agree, Your Honour.
185HER HONOUR: Let me sign that. That is, the Sex Offenders Registration. Also, the Recognisance for four years, to be of good behaviour and to do other things. I have signed that. That will be coming to you. The forfeiture order. Found it. Is there anything else, counsel?
186MS HOUGH: No, Your Honour.
187MS BALL: Nothing further, Your Honour.
188HER HONOUR: Can I thank you both for your assistance. Thank you very much Mr Lyons. I will leave you to just to wait for things to happen. Now do not be anxious, it will take a while.
189OFFENDER: Thank you.
190HER HONOUR: Thank you sir. We will adjourn now.
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