Director of Public Prosecutions v Mason, Robert
[2013] VCC 737
•2 May 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-12-01503
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROBERT MASON |
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JUDGE: | HIS HONOUR JUDGE McINERNEY | |
WHERE HELD: | Ballarat & Melbourne | |
DATE OF HEARING: | 26 March & 22 April 2013 | |
DATE OF SENTENCE: | 2 May 2013 | |
CASE MAY BE CITED AS: | DPP v Mason, Robert | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 737 | |
REASONS FOR SENTENCE
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Subject: Criminal law – plea – sentence
Catchwords: Possession of child pornography – production of child pornography - procuring a minor for the production of child pornography – using a carriage service for child pornography material – failure to comply with reporting provisions under the Sex Offenders Registration Act 2004 (Vic) – consensual sexual relationship with a female over the age of 16 years but below the age of 18 years – photographs taken – other child pornography material – borderline intellectual functioning – personality disorder – assaulted whilst on remand – Verdins principles applicable – prior criminal convictions
Legislation Cited: s. 70 of the Crimes Act 1958 (Vic) – s. 68(1) of the Crimes Act 1958 (Vic) s.69(1)(b) of the Crimes Act 1958 (Vic) – s.46(1) of the Sex Offenders Registration Act 2004 (Vic) – s.474.19(1) of the Criminal Code Act 1995 (Cth)
Cases Cited:R v Oliver [2003] 1 Cr App R 28 – R v. Coffey (2003) 6 VR 543 – R v. Jongsma (2004) 150 A Crim R 386 – DPP (Cth) v. D'Alessandro [2010] VSCA 60 – DPP v. Groube [2010] VSCA 150 – R v. Verdins (2007) 16 VR 269
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr T. Hoare | Ms J. Devrome (Office of Public Prosecutions) |
| For the Accused | Ms A. Hurst | Ms N. Purcell (Victorian Legal Aid – Ballarat) |
HIS HONOUR:
1 This plea was heard in Ballarat and involved Indictment No. B13557270. Such Indictment contains eight charges, to which Mr Mason pleaded guilty. Mr Hoare appeared for the Director of Public Prosecutions, and Ms Hurst appeared on behalf of Mr Mason.
2 The first three charges are charges under the Crimes Act 1958 (Vic). Charge 1 is an offence against s. 70(1) of the Crimes Act 1958, being possession of child pornography. The maximum penalty prescribed for such an offence is five years gaol. Charge 2 is an offence under s.68(1) of the Crimes Act 1958, of producing child pornography, for which the maximum penalty prescribed is ten years imprisonment. Charge 3 is an offence under s.69(1)(b) of the Crimes Act 1958, of procuring a minor for the production of child pornography, for which a maximum penalty prescribed by the State Parliament is ten years.
3 In addition, Mr Mason also pleaded guilty to Charge 4, an offence under s.474.19(1) of the Criminal Code Act 1995 (Cth), that offence is using a carriage service for child pornography material, in this case over the Internet. The maximum penalty prescribed by Parliament was relatively recently increased, because of its seriousness and the fact that the carriage of this material over the Internet is expanding, to fifteen years imprisonment.
4 I should point out that Mr Mason is already, because of a prior offence heard in this Court before Judge Anderson in 2004, a serious sexual offender. As a result, in so far as these four charges, each is a serious sexual offence as defined, and Mr Mason is to be sentenced as a serious sexual offender for these four charges.
5 The balance of the offences, Charges 5 to 8, relate to your obligations as a registered sex offender emanating out of that plea before Judge Anderson, essentially to matters of failing to comply with your reporting obligations. The maximum penalty for each of these offences prescribed by the Act is five years. Charge 5 involved a failure to comply with your reporting obligation, specifically failing to disclose that you had unsupervised contact with a child. Charge 6 involved again a failure of your reporting obligations, specifically failing to disclose details of your Internet service provider. Charge 7 again was a failure to meet the reporting obligations, and in this case it was failing to specifically declare the user names that you had in the facility that you were using on the Internet, using Air G, and using various user names and you failed to advise the authorities of those user names. Charge 8 again relates to a failure to meet your reporting obligations in that you failed to disclose your Facebook user name, that being Joey Mason.
6 The particular circumstances of those crimes were set out by a lengthy summary of prosecution opening, comprising some fourteen pages, which became Exhibit A. That document contains an agreed summary of each of the offences, in particular, from paragraphs 10 through to 31.
7 To understand the dimensions of the pornography involved, I was given a sample of such pornography in a file prepared by the informant, that is the matter to which I have already referred and which I will hand back to the prosecution to be returned to the informant.
8 Important to the understanding of that material and of the charges themselves, is a summary prepared by the informant in regard to each charge relevant to such sample material. Without that summary, it would have almost been impossible for me to try to appreciate the material involved. That summary should become part of the materials in this case, Madam Prosecutor, and we will make that Exhibit D.
9 I was also given what is known as the current scale of classification, according to the informant, that is now used, which is the CETS C4P Classification system. I was advised that this was the updated version of the methodology of pornography analysis approved by the Court of Appeal in England in R v Oliver [2003] 1 Cr App R 28, in which the scale known as the COPINE scale was approved and adopted by the Court of Appeal at [11]. The Court of Appeal did not precisely adopt the COPINE scale, it adopted a five level scale, a scale which I have had presented to me in prior cases.
10 The scale relied upon here, I was advised by the prosecution, is an updated COPINE scale where there are some ten categories by way of classification. Six of those appear to be categories which would be described as illegal. Again, to fully understand this material, and if any other Court or any other person wants to peruse this judgment, that classification will be tendered as Exhibit E.
11 With the use of Exhibits D and E and the sample file provided, I was able to peruse and appreciate this pornography. There is an additional factor to be considered in regard to Mr Mason's crimes. The complainant, so-called, who was in fact not a complainant, did make a statement on 8 December 2011.
12 The background to this is that this material had been, or a portion of this material that makes up this case, had been left in a car outside the police station. Materials from that car were stolen and subsequently, and I am not too sure how this happened, but at any rate, a person returned to the police station and advised the police that on the phone that was found was, what he believed to be, child pornography, and as a result an investigation was launched and Mr Mason was ultimately charged.
13 As I say, the complainant, if one reads her statement, clearly was a person who ultimately entered into a consensual sexual relationship with Mr Mason. As part of that sexual relationship, both she and Mr Mason took photos of themselves, in particular of the victim, her body, her genitalia and of both of them involved in sexual activity. In so far as the circumstances of that are involved, it is of interest that in her statement she consented as part of their relationship to such photography.
14 Such issue was referred to in the record of interview by Mr Mason, in particular at Question 551. He was asked by the officers in regard to this process, and at 550, in regard to taking various photos of her breast and vaginal area, he said this, "She gave me consent to do it all". And at 551, "As long as I didn't show no one or give them to anyone". Further, at 580 through to 583, he was asked this question:
"Do you agree you've made or produced child pornography?" He answered, "Yeah, like I said, I thought (well, it is actually not reproduced, but I assume it is something along the lines, I thought they had to be) under the age of 16".
Question 581 & 582: "Under the age of 16 and in relation to you taking images of Ms J or taking photographs of Ms J, and video footage of Ms J, how have you actually gone about doing that?" He answered, "Asked her permission, can I take pictures or videos?” At 583, “Yeah… And she said 'OK, as long as you do not show no one of given 'em to no one'."
Question 584, "And how did you actually take them though?" He said, "With me camera on me phone." And then he went on to describe those matters.
15 There is a slight factual lacuna in this matter because the relationship between the parties was consensual, and the so-called complainant in this matter, Ms J, consented as part of the relationship to their sexual activity being recorded. However, technically, given the definition of child pornography contained in s.67A of the Act, while Ms J could consent, because she is over sixteen, to such sexual activities and the recording of same, when Mr Mason recording the same, he became liable under the provisions of the Act because such is defined as child pornography.
16 These matters were discussed with him at Questions 563 through to 573. He was told essentially that whatever he thought about the child being under the age of sixteen, a child as defined under the Crimes Act 1958 (Vic), is one under the age of eighteen and in regard to pornography offences, if you record such then you are liable. I need only quote his answer. He was told, "Do you understand what that means?" He says, "Yeah." And he then was asked at Question 570, "What do you think that means?" His answer was rather graphic, and his words were, "I'm in deep shit".
17 So as a result, albeit consensual acts and recording from Ms J, as far as I can ascertain, and albeit, as far as I can understand, that such material was never distributed by him insofar as Ms J is concerned, Mr Mason comes before this Court for sentence for offences under ss.68, 69, 70 of the Crimes Act 1958 (Vic), and the Commonwealth offence.
18 Despite the criminality, such relationship and circumstances considerably lessens the culpability of Charges 2 and 3. As I say there is no evidence, of which I am aware, that he breached the arrangement with her and broadcast any material insofar as she was concerned.
19 Coming to the analysis of the sample materials, I was most assisted by the summary prepared by the informant of the materials. Insofar as Charge 1 is concerned, that is the possession of child pornography, there are fifty-eight images and twenty-eight videos. The majority are in Category 1, and Category 1 of the classification essentially is depictions of persons, of their body in a nude state in an explicit manner but with no other sexual activities. However, it should be pointed out that there are samples of Categories 2, 3 and 4 as well.
20 Of the samples given of the videos, of the twelve samples, four concern Ms J. If you go on and look at, with reference to Exhibit 2, for example, of the twelve images taken, the twelve images taken are of Ms J, they were highlighted in red of the forty page report. In Exhibit 2, forty-four were a Level 1, two were Level 2, three were Level 3, four were Level 3, and the great majority were adult pornography, not illegal.
21 Then as to Charge 2, the production of child pornography, this involved twelve images and four videos of child exploitation. The four videos relate predominately to Ms J, and they are Category 4, that is, as Category 4 details, child and adult penetration. Of the other twelve images, they are essentially of Ms J and relate to depictions of Ms J's body. The majority relate to adult pornography of which there are two hundred and seven, not illegal.
22 If one looks at Exhibit 2, which I have, these are randomly produced images, but of those there are forty-four in Category 1, two in Category 2, three in Category 3, two in Category 4, and the great majority, two hundred and seven, are adult, not illegal.
23 There is no analysis in regard to Charge 3. However, there is an analysis in regard to Charge 4, and this relates to the Commonwealth charge of distribution of child pornography upon the Internet, that is that he had transmitted child exploitation material. This charge relates to a ten day period in December 2011.
24 The samples shown to the Court, which the informant provided, make up Deposition Exhibits 20 and 21. It should be pointed out that the motive or the reason why Mr Mason was exchanging these materials is that he was able to manipulate the forwarding of credits to him on the phone for such material.
25 If you look at the material in Exhibit 20, it relates to Image A.JPG and Tilley.JPG. Of the summary of those samples and of those images, four relate to Category 1, that is no sexual activity, and the majority, that is thirty-nine, are adult, being Category 8, not illegal.
26 If one looks at Exhibit 21, which relates to the transmission of the material contained in from boots.3gp, that sample was provided in Exhibit 1. Again, there are two of Category 1, and there are four examples of Category 4. It is difficult for me to be able to precisely understand what various penetrations were being involved, but clearly, there was one sample of adult/child fellatio. But again, the majority of samples were related in that video to adult pornography, being one hundred and four samples of that topic.
27 On analysis, therefore, the number of items which are in the Category 1 to 4 are not great. I say that simply by way of relativity to other cases which this Court has to sentence. It is true to say that even one sample in Category 4 must be seen as a very serious breach. However, insofar as each of the Categories 1, 2 and 3, and which involve the complainant Ms J, I refer to my earlier comments as to culpability.
28 As if to emphasise the point I make, the complainant Ms J appeared at the Ballarat Court when this plea was undertaken. She was present and was exchanging pleasantries with the accused, Mr Mason, in Court, and Mr Mason’s counsel specifically told the Court that she was there to support Mr him.
29 The other matters I think that should be remarked about the pornography charges in this case is that in each case the period in which Mr Mason was so involved was not long. As best as I can see it, insofar as the children were concerned, there were no images of sadism, nor circumstances where any of them were distressed. Equally, the amount of material, as I have said, was not significant by comparison to other cases. For example in the matter of the DPP (Cth) v. Buck, with which I recently dealt, there were twenty thousand images of child pornography.
30 I have already made the point that in regard to the Commonwealth charge of transmission, that was undertaken by Mr Mason for financial gain.
31 Insofar as Exhibit A, the prosecution summary, such details the breaches of the reporting provisions, being Charges 5, 6, 7 and 8. While there is clearly a plea to these charges, and as tendered at this Court were acknowledgements signed by Mr Mason on two occasions in Ballarat, firstly on 20 October 2004, and secondly on 13 October as to his knowledge of those obligations, I think it must be remarked given the evidence as to his intellectual ability, that I intend to refer, Mr Mason’s comprehension as to his obligations under those reporting provisions must at least be brought into question.
32 Insofar as the priors of Mr Mason are concerned, he has a number of prior offences, but most of them are unrelated to any matters concerning sexual activity, except for the offences heard in this Court in May 2004 before my brother, Judge Anderson. That sentence has been tendered as Exhibit C, and is a sentence dated 31 May 2004. It involves serious offences, being sexual assaults being committed upon children of friends of Mr Mason.
33 I point out that Mr Mason is now aged forty-three, having been born on 7 January 1968. The crimes, which Judge Anderson had to deal, to which Mr Mason pleaded guilty were offences which occurred when he was between the years of eighteen years of age and twenty-nine. Specifically insofar as Judge Anderson's sentence, I want to read some excerpts, because despite these serious offences committed upon three young girls, owing to Mr Mason’s poor intellectual functioning, immediate imprisonment was not imposed, and a suspended term was.
34 It is of assistance to understanding fully Mr Mason and his background and the materials that have been here tendered, to which I will refer in due course in the sentence.
35 At Paragraph 19, His Honour said:
"The defendant's family involved some brutality, punishments included, frequent beatings with a stock whip or electric cord and immersion in scalding water. The defendant's mother was slightly intellectually disabled and apparently not close to him. He completed primary school, he helped on the farm, he worked subsequently at a recycling centre. He is in receipt of disability support pension. "
36
In analysis of then psychological reports tendered, His Honour noted that
Mr Mason had limited intellectual capacity, and that Mr Joblin referred to the fact that the defendant's younger brother is also registered. His Honour further said in regard to Mr Mason:
"It is clear that the defendant has limitations in his intellectual functioning.
Mr Joblin expressed the view in all probability he is on the borderline of mental retardation and that his intellectual capacity would have had effect on his perception of the wrongness of his behaviour involving sexual relationships with young persons."
37 His Honour determined because of Mr Mason's intellectual deficits he was not considered an ideal candidate for general deterrence, and as I say, despite the serious nature of those offences, he was given a suspended gaol sentence.
38 Insofar as this sentence is concerned, Mr has been on remand for a period of some five hundred days. As I said, he is to be sentenced as a serious sexual offender on Charges 1 to 4. His reporting provisions are for life. I understand I have already signed a disposal order and the forensic sample order requested is now not sought to be signed by me.
39 Insofar as the relevant authorities are concerned, I want to firstly refer to the fact of the recent increase in sentence, that is for Charge 4, to a maximum penalty of fifteen years. When that was done in 2010, it was remarked in the second reading speech:
"The offending behaviour is becoming increasingly disinhibited. Children, in addition to being victims in the initial abuse required for the production of the material, are exploited on a massive scale through the repeated distribution of the images through international networks".
There is no evidence of this material, limited in time though it was in regard to Charge 4 going to international networks, but of course it could have, and that is the risk. Insofar as sentencing generally, I refer to the determination of the Court of Appeal in R v. Coffey (2003) 6 VR 543, 544, and I make the point that that case involved possession only and not the production offences that we are dealing with in this case. However, in Coffey the Court of Appeal said:
"Child pornography of this kind invokes the corruption and violation of children and the possessions of such pornography creates a market which encourages the further exploitation of children."
40 Such principles were also recognised by Batt JA in R v. Jongsma (2004) 150 A Crim R 386, 395.
41 It is always difficult to classify such material, it does fit into the scales set out, but the majority of the material is not illegal. There are, however, as I have indicated, clearly, examples in each of the illegal categories, 1 through to 4. There is also material that is clearly material of a bestial nature, however, there is no suggestion, as far as I can perceive, that those items involve children.
42 As to sentencing, the paramount factor, given the protective nature of these provisions, must be one of deterrence, as set out in the DPP (Cth) v. D'Alessandro [2010] VSCA 60, at [60]. Further, as was said by the Court of Appeal in the DPP v. Groube [2010] VSCA 150, at [24]:
"Offending of this nature and gravity would ordinarily lead to an immediate custodial sentence".
43 Insofar as the plea of Ms Hurst was concerned she reported, as was true, that this was the first time that Mr Mason has been in custody. Apparently bail was refused. He would otherwise have been living, as he has for some time, at the property at Cape Clear, where he lives with his brother. Apparently insofar as his income, the property involves some fifty-two acres and the brothers, as I understand it, cut firewood to supplement their income.
44 Ms Hurst submitted, that to the extent that Mr Mason is able, clearly, when you read the record of interview, made full admissions to all matters put to him. Reports were then tendered insofar as his medical condition was concerned, and they were the neuropsychological report of Ms Jane Lofthouse of 19 September 2012, Exhibit 1. Secondly, the psychological report of Mr David Ball, dated 1 November 2012, Exhibit 2, and a further report of Mr Ball, dated 8 February 2013, Exhibit 3.
45 If I come firstly to the report of Ms Lofthouse, Exhibit 1, who as I said, is a neuropsychologist, she notes at page 3 that the normal intellectual assessment which show that his figure was at seventy-eight, being within the borderline stage. It is to be noted, especially in regard to the record of interview, that Mr Mason’s verbal skills were significantly below his non-verbal skills. I make the point also, in regard to his ability to comply with the reporting requirements, his full scale intelligent quote, and taking into account all factors, was seventy-four, which falls within the borderline range. Mr Mason was also found by Ms Lofthouse to be socially immature and with limitations in his overall understanding of his current situations.
46 With such a basis, Ms Lofthouse was unable to precisely determine the aetiology of his intellectual impairment, describing on page 10 that such was very difficult to determine.
47 In the report of Mr Ball of November 2012, it is noted that Mr Mason presents as a dull and childlike middle aged man with obvious intellectual impairment and social awkwardness, at page 2. There was, however, no frank illness, or mental illness such as any psychotic symptoms or hallucinations. Mr Ball provided a full family history and confirmed the diagnosis that I have already referred to. His diagnosis conforms with a diagnosis of personality disorder. Mr Ball was of the view that he did not satisfy the criteria for paedophilia and that he presents as markedly dull, low functioning and socially isolated, middle aged man, living on the fringes of the community.
48 Mr Ball considered, insofar as to future risk, that there would be a moderate risk as to recidivism. He was concerned, apparently, that Mr Mason was still of the belief that there was a maintaining relationship with Ms J. It would appear, clearly, that that is not so despite Ms J coming to Court to support him, and I am told by his counsel now, that Mr Mason fully understands there is no future relationship.
49 Ms Hurst took me to those reports, stressed the matters that I have already referred to as the relationship with Ms J and the fact that the actual sexual activities were consensual, stressed that at no stage was there any intent to hurt her, put to me that Mr Mason had endured particular hardships while in gaol, had apparently been sexually assaulted at the Melbourne Remand Centre. Also I am advised that Mr Mason has been physically assaulted, and again sexually assaulted, at the Port Phillip Prison by being forced to be involved in an act of fellatio, and as a result of that was moved to a protected unit.
50 Given the time that he has been in gaol he is concerned about his brother, the property, and as to the progress and future of the property.
51 Ms Hurst referred to this being a difficult sentence insofar as the matters set out in R v. Verdins (2007) 16 VR 269, 275. In particular, it seems to me that is appropriate given the background and I have already indicated, the relationship factors between Ms J and the prisoner which, in my view, reduce the culpability of Charges 2 and 3. However, there are other illegal images involved in his pleas of guilty to each of Charges 1, 2 and 4, that relate and impact in this sentencing process, and no doubt are why the plea was made.
52 However, as the Court said in Verdins, insofar as issues of general deterrence and specific punishment are concerned, the Court must take into account a persons impaired mental functioning at the time of the offending insofar as such reduces an offender's moral culpability where it may:
(a) impair an offender's ability to exercise appropriate judgment; or
(b) impair an offender's ability to make calm and rational choices and think clearly; or
(d) impair an offender's ability to appreciate the wrongfulness of his conduct; and
(e) obscure the intent to commit the offence.
53 There is a lot of truth in the answers given in his record of interview that Mr Mason, insofar as Ms J was concerned, was unaware that indulging in sexual activity with her would lead to a situation where, albeit he could not be prosecuted for the actual activity, he could be prosecuted for the first three charges of pornography emanating out of his relationship with her. That is the law. It is designed to protect young women and designed, I suppose in this case, to protect a young woman from the broadcasting of that material. However, it is a matter that has to be taken into account. Insofar as Charge 4 is concerned, as I have said, it was for a limited time, and there was limited material involved.
54 The essential submission of Ms Hurst was that the Court should balance all of the factors that I have referred in determining sentence, and she requested the Court consider the issue of a long parole in this matter.
55 Insofar as the prosecution was concerned, it is not my usual practice to seek a range. However, because of the peculiarities in this case Mr Hoare did put a range. He submitted that taking account of all of the factors, the range at the top should be somewhere between three and four and a half years and at the bottom, somewhere between two and three years. As will be seen from the sentence I am about to pronounce, my view is not necessarily really inconsistent with that in the sense that the sentence I am to impose is very much at the bottom of such range.
56 It is a most difficult task in a case such as this. One has to balance the seriousness of these crimes, the factors that I have read from the various cases and Parliament as to the intent of both Parliament and the Courts to protect children, to protect the victims of pornography from material such as this being sent over the internet. Clearly, Charge 4 is the most serious count, such relates to material unrelated to the issues insofar as Ms J is concerned.
Sentence
57 Doing as best as I can, and Mr Mason, I will ask you to stand, I have determined to sentence you as follows.
58 I point out that the sentence involved in each of the four charges must be a sentence in which the provisions of the serious sexual offender legislation apply. Each of these offences are serious sexual offences as set out in clause 1 of Schedule 1 of the Sentencing Act 1991. There was no submission of the prosecution that I should impose a sentence which in any way is not reflective of the criminality in this matter, albeit that I must impose sentences which predominantly take into account that it is the protection of the public which is the major factor.
59 Equally, I am required by the serious sex offender legislation to cumulate the sentences, while I in no way seek to resile from that intent expressed by Parliament, as will be evident from my sentence, upon the principle of totality I have cumulated as much as I deem appropriate, taking into account that principle.
60 Mr Mason, you are sentenced:
On Charge 1, to a period of imprisonment of two years.
On Charge 2, to a period of imprisonment of six months.
On Charge 3, to a period of imprisonment of three months.
On Charge 4, the Commonwealth charge, to a period of imprisonment of two years.
On each of Charges 5, 6, 7 and 8, failure to comply with the obligations under your reporting provisions, to a period of four months imprisonment. That is for each offence.
61 Had these been a case uncomplicated by the Commonwealth legislation and, indeed, I point out that in determining the sentence under the Commonwealth provision of Charge 4 I have taken into account in particular, ss.16A(1) & (2) and 17A under the Crimes Act 1914 (Cth).
62 Had it not had such complications of that, what I would have done was having Charge 4 as the head count, I would have added by way of cumulation, nine months on Charge 1, four months on Charge 2, one month on Charge 5, one month on Charge 6, one month on Charge 7 and one month on Charge 8.
63 Essentially, the intent I have is that the period of imprisonment that should be served as a maximum by Mr Mason is three years and two months, with a minimum period of two years before Mr Mason is eligible for parole or recognisance release.
64 To achieve that I have had to order as follows (and to assist counsel I have given a copy of the draft orders that I will be making):
Insofar as Charge 2, the sentence of six months, that sentence commences on 2 May 2013, that is today.
In regard to Charge 3, a sentence of three months, that begins on 2 November 2013.
In regard to Charge 5, a sentence of two months, that commences on 2 February 2014.
In regard to Charge 6, a sentence of two months, that starts on 2 April 2014.
In regard to Charge 7, a sentence of two months, that starts on 2 April 2014.
In regard to Charge 8, a sentence of two months, that begins on 2 May 2014.
In regard to Charge 1, that is the possession of child pornography, as I have said, Mr Mason is sentenced to a period of two years gaol. Such sentence begins on 2 July 2014, and I order that Mr Mason is not be eligible for parole until he has served ten months of such sentence, or such ten months being served by 2 May 2015.
In regard to Charge 4, the Commonwealth charge of using a carriage service for the child pornography, equally, that sentence of two years begins on 2 July 2014, and I order that Mr Mason can be released on recognisance release order after a period of ten months, such period being effective from 2 May 2015.
65 The total effect of that complicated sentence is to impose an aggregate period of imprisonment being from today's date, 2 May 2013 ,of three years and two months through to the date, 2 July 2016. That is three years and two months.
66 The minimum period to be served before Mr Mason can be eligible for parole and/or released on a recognisance release order, is a period of two years, being from today's date to 2 May 2015. That has been achieved by the various computations that I have detailed.
67 I also declare for both purposes, State and Commonwealth sentence, that the period as agreed between counsel, five hundred days, is deemed to be a period of service under this sentence, and I declare, pursuant to both Acts, that such declaration is to be recorded in the records of this Court.
68 Mr Mason, as best I can explain it to you, for all these offences you have been sentenced to a period of three years and two months, all right? Before you can get parole or be eligible for what is called a recognisance release under the Commonwealth jurisdiction you have to serve a period of two years. You have served five hundred days already, so what have we got approximately to go? You have about two hundred and thirty days roughly to go. I cannot tell you precisely what it is because the authorities will work that all out and you also might be out a bit earlier because of if you have been behaving well, all right.
69 OFFENDER: Yes, Your Honour.
70 HIS HONOUR: But essentially you have got two years of which you have certainly served well over one and a quarter years, okay, so you have got about two hundred and thirty days to go.
71 Pursuant to s.6AAA of the Sentencing Act 1991, had Mr Mason not pleaded guilty I would have given him an aggregate sentence of four years with a minimum period of two years and eight months.
72 Just to try and explain, if there is any confusion, it seemed to me the best way to comply with the legislation was to put straight sentences for Charges 2, 3, 5, 6, 7 and 8, for which I did not have to set a minimum, that then took me up to two, seven, fourteen, and then for both the period of two years under the State sentence, for which a minimum must be set, and for the recognisance release, I took them both from two, seven, fourteen, which then affected the period of totality that I wanted to set, of three years and two months, and also provided for the minimum of two years. I think you will find the maths comes out but they, unfortunately, if this sentence was not complicated enough, it is complicated by the fact of the two jurisdictions.
73 MS NORTON: Yes, Your Honour. Your Honour, may I just raise something. I perhaps misunderstood, but for charges 5, 6, 7 and 8 I thought you said two months.
74 MS KEATING: The note I had for that, 5, 6, 7 and 8, was four months on each offence, Your Honour.
75 HIS HONOUR: Yes, that is right. I think I might have mentioned two months as the beginning. It is four for each of them. I think I did mistakenly read out, when I was working out the calculations, two. I do apologise. In the end they are simply consumed within the times. Yes, you are quite correct about that. I am sorry about that. It might have been an earlier version that confused me.
76 I think you will see in the draft that on each of those charges that the four months is set out, which was the sentence I have pronounced, but when I was talking about the dates there to start, and explaining it, I think I might have said two months, yes. Any other matters? The final matter that we will have to get is the Commonwealth - but you are probably not in a position to produce that, are you, or are you?
77 MS KEATING: No, Your Honour, I am not in a position to produce it.
78 HIS HONOUR: How does he sign the Commonwealth recognisance then?
79 MS KEATING: I would have thought there is a template on the system.
80 HIS HONOUR: There is but normally someone from the Commonwealth is here to do it. Anyway, we have got one. We will sign it up and we can send it.
81 Again, Ms Norton, you will have to explain this to your client if you would not mind.
82 MS NORTON: I will, Your Honour.
83 HIS HONOUR: The recognisance release, I do not think I actually announced it, did I?
84 MS NORTON: No, Your Honour.
85 HIS HONOUR: The good behaviour bond is on recognisance of $1000 for a period of - what did I put? Two years. Ms Norton, I do not mind if you explain that to him while we are here. If there are any concerns we can go through them while I am still here.
86 MS NORTON: Yes, Your Honour.
87 HIS HONOUR: If you want to explain the sentence to him now and then we will bring this up when it is ready. I do not know whether Mr Mason's brother will help in any way, will he? We will give you the recognisance release order. Madam Prosecutor, perhaps it would be a good idea to keep that file, I do not know, rather than send it back there. I do not know, what is safest? Maybe to await the appeal period and then send it back but, anyway, your office can work that out.
88 MS KEATING: Thank you, Your Honour.
89 HIS HONOUR: Are you satisfied your client understands that?
90 MS NORTON: Yes, Your Honour.
91 HIS HONOUR: All right. So, Mr Mason, as best I can work it out, you have another two hundred and thirty days less time off for good behaviour.
92 OFFENDER: Yes.
93 HIS HONOUR: All right, and when you get out no more sending any materials at all, all right?
94 OFFENDER: Yes.
95 HIS HONOUR: And no more seeing girls that are under the age of eighteen. It seems to me the safest steps for you, all right?
96 OFFENDER: Yes, Your Honour.
97 HIS HONOUR: And I would think no downloading any material from the internet of a pornographic nature, because next time it will be a stronger penalty. You understand?
98 OFFENDER: Yes, Your Honour.
99 HIS HONOUR: All right, good luck.
100 OFFENDER: Thanks very much.
101 HIS HONOUR: Okay, yes. Yes, you can take Mr Mason down.
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