Director of Public Prosecutions v Massey
[2019] VCC 389
•29 March 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SHANE MASSEY |
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JUDGE: | HIS HONOUR JUDGE D. SEXTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 March 2019 | |
DATE OF SENTENCE: | 29 March 2019 | |
CASE MAY BE CITED AS: | DPP v Massey | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 389 | |
REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited: Crimes Act 1958; Sex Offenders Registration Act 2004
Cases Cited:Verdins [2007] 16VR 269; Bugmy (2013) 87 ALJR 1022; R v Mills (1998) Vol 4 VR 235; DPP v Dalgliesh (a pseudonym) [2017] HCA 41; 91 ALJR 1063
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M. Fisher | OPP |
| For the Accused | Mr R. Bhattacharya | Sullivan Braham |
HIS HONOUR:
1 Shane Massey, you have pleaded guilty to an indictment containing two charges - sexual penetration of a child under the age of 16 contrary to s.45(1) of the Crimes Act 1958, and committing an indecent act in the presence of a child under 16 contrary to s.47(1) of the Crimes Act. The maximum penalty for these charges is ten years' imprisonment. You have also pleaded guilty to a related summary offence of failing without reasonable excuse to answer bail on 16 February 2018. The maximum penalty for that offence is two years' imprisonment.
2 The circumstances of your offending are set out in the summary of prosecution opening for plea dated 9 October 2018, which was tendered on the plea hearing on 12 October 2018 and marked Exhibit A. No issue was taken with that document by your counsel, and accordingly I will treat it as a document containing the agreed facts. I will now set out a brief summary of your offending.
Circumstances of the offending
3 Approximately one week prior to your offending on 11 January 2016, you commenced staying at the family home of a friend of yours, Claudia Esson[1]. You had apparently been a fairly regular visitor to these premises in South Frankston for about four years. You commenced staying at this premises due to some personal issues related to where you had been living.
[1] A pseudonym
4 Amongst the people living at the premises was Madison O’Donnell[2], then aged thirteen. Madison had known you for some time, and considered you "like family to all of us." Through Madison, you met her best friend, Alexia Throsby[3], also then aged 13. Alexia would visit her best friend, Madison, at the premises in South Frankston. On the night of your offending, 10 and 11 January 2016, Alexia was sleeping over at the home of her best friend, Madison O’Donnell, where you were then temporarily residing.
[2] A pseudonym
[3] A pseudonym
5 During the evening, you, Alexia, Madison, and Claudia spent time together in the backyard of the house, drinking Scotch and coke and playing drinking games. In addition to drinking alcohol, you and Madison also consumed cannabis.
6 At around midnight, Claudia Esson retired for the night in the bed in the living room, where it had been arranged that you would be sleeping. Instead, you remained with the other young girls, consuming more shots of alcohol and playing drinking games in the backyard.
7 As the evening progressed, things got "a bit touchy" and "sexual", according to Madison and Alexia. You removed your top but left your jeans on. Alexia, who was affected by alcohol, removed some of her clothing but left her T-shirt and underwear on. She touched you over the front of your jeans, and you touched her bottom and thighs. A little later, Alexia removed your penis from your jeans and masturbated it for ten seconds.
8 At this point, both Alexia and Madison told you that they should stop what they were doing as it was "illegal" because they were 13 years of age. Despite this, you did not stop the activity, and the sexual activity continued.
9 A short time later, Alexia saw you and Madison walking into the bathroom of the house. Shortly afterwards, Alexia entered the bathroom to discover Madison running a bath while you were seated on the floor. You then grabbed Alexia and pulled her down onto the floor, so that she was lying her back, and started to kiss her.
10 Whilst Alexia was in that position on the floor, still affected by alcohol, and Madison was in the bath, you removed Alexia's underwear, groped her breasts, and then put your penis inside Alexia's vagina. You were not then wearing a condom. Whilst this was occurring, Madison was very close by in the bath.
11 Your conduct with Alexia, in the presence of Madison, forms the basis of Charges 1 and 2 on the indictment.
12 Your offending behaviour was interrupted when Madison's mother, Scarlett O’Donnell[4], having suspected something was wrong, broke open the bathroom door and saw you having sexual intercourse with Alexia. She also saw her daughter, Madison, in the bath at the time.
[4] A pseudonym
13 Observing you get to your feet with an erect penis, you then told Scarlett that you had "fucked up" and that you "deserved to go to gaol", and that you had made the "baddest mistake of your life".
14 Shortly afterwards you left the house.
15 Later that morning, Scarlett O’Donnell rang the Frankston police station to report what had happened.
16 For some months after the incident, you were unable to be located by police. You were ultimately arrested on 4 May 2016, some four months after the incident, and interviewed.
17 During that interview, you referred to in general to having a very limited memory of the incident due to excessive consumption of alcohol on your part. You referred to having consumed two bottles of whiskey on the night of the incident, and you referred to having a drinking problem which affected your memory. At Answer 167, you indicated that you could not remember having sex with Alexia, but it was possible that you did and it probably did happen, so you were not going to deny it but you cannot remember it and you were going to take responsibility for it. At Answer 339, you said that it was the worst day of your life and now you have to deal with the police, and you do not know how to explain the night. At Answer 352, you said that you can remember having sex with Alexia and at Answers 371 to 375 you acknowledged not using a condom.
Victim Impact Statement
18 A Victim Impact Statement from Alexia's mother, Mia Throsby[5], and marked Exhibit B.
[5] A pseudonym
19 In that statement, Ms Throsby expresses fear for the impact your offending had on her daughter. Ms Throsby has observed changes in the way her daughter Alexia behaves. She is more withdrawn, does not socialise very often and is completely dependent on her. Alexia suffers from severe anxiety and panic attacks. Ms Throsby indicated that both her and her daughter regularly attend counselling with a psychologist. Ms Throsby expressed a feeling of failure in relation to her belief that her daughter would be safe when staying with a friend.
20 I have taken into consideration the sentiments of Ms Throsby in constructing an appropriate sentence in this case, in accordance with s.5(2)(daa) of the Sentencing Act 1991.
Procedural chronology
21 As earlier indicated, you were arrested and interviewed on 4 May 2016, some four months after the incident, as police had difficulty locating you. Following your police interview, it appears that police again had difficulty locating you. Charges were ultimately served on you on 27 December 2017.
22 In the course of the proceedings that followed, you were bailed to attend a committal mention at the Melbourne Magistrates' Court on 16 February 2018; however, you failed to appear on that date. Your failure to appear forms the basis of the related summary offence of failing to answer bail, to which you have pleaded guilty. I was informed by your counsel that you had forgotten to appear on this date.
23 You were ultimately arrested on 2 March 2018 and bailed to a further court hearing. You ultimately entered your plea of guilty to the charges at a further committal mention on 29 June 2018.
24 The matter commenced before me on 12 October 2018. On that date I adjourned the matter and ordered a pre-sentence report pursuant to s.8A of the Sentencing Act, and a community correction order assessment report with an indication that I was considering imposing a community correction order possibly in combination with a term of imprisonment.
25 You are now 23 years of age. You were, however, only 20 years of age at the date of your offending. Notwithstanding that some of the delay associated with the final disposition of this matter would appear to be attributable to your whereabouts being unknown, I am satisfied that you indicated from an early stage your intention to plead guilty in relation to this matter. Notwithstanding your flawed memory as articulated by you in your police interview on 4 May 2016, your comments to Scarlett O’Donnell on the night of your offending and your comments in your police interview are consistent in my view with you accepting responsibility for your criminal actions. Those sentiments are consistent with your plea of guilty indicated on 29 June 2018 at the further committal mention.
Personal circumstances
Background
26 I turn now to your background and personal circumstances. In gaining an understanding of your personal background, I have taken into consideration your counsel's submissions, together with the information contained in the psychiatric report of Dr Leon Turnbull dated 21 September 2018 tendered on your plea hearing and marked Exhibit 2, together with the psychological report of Dr Simon Vincenzi dated 15 March 2019. As indicated during the course of your plea hearing, the report of Dr Turnbull was of limited assistance to the Court. Accordingly I have relied significantly on the report of Dr Vincenzi.
27 You are now 23 years of age. You were born in Adelaide but grew up in Sale where you currently reside.
28 It is clear that your upbringing has been an impoverished one. Your father, a man with a criminal history, was abusive towards both your mother and yourself in your early years and used cannabis and heroin in your presence. You have reported that your father's abuse was both physical and emotional in nature, extending to both physical abuse and verbal degradation. You were ultimately taken into Department of Health and Human Services care between the ages of 13 and 18 years.
29 You have two younger brothers and one older sister and you have reported that your younger brothers were also abusive towards you. You also reported a significant history of bullying throughout your schooling. That bullying on all accounts was extensive and traumatic. Perhaps unsurprisingly, you struggled with the content of schooling and never received extra assistance that you needed. You ceased attending school three months into Year 9 and have had no real employment history since this time.
30 You reported to Dr Vincenzi first using illicit substances at the age of 12, when you smoked cannabis. I note that you have reported to your counsel that you are still a regular cannabis user. You recalled smoking cannabis or drinking alcohol every day after leaving school. At the age of 18, you commenced using methylamphetamine and heroin.
31 Your criminal history is in my view reflective of both your impoverished background and resulting instability. Your first appearance in court was in the Children's Court in October 2010, when you were 15 years of age. You have had a total of five court appearances excluding this current matter, predominantly for dishonesty and driving-related offending. You have received dispositions ranging from a good behaviour bond to a community correction order in February 2015 for offending which included failing to answer bail. I understand that notwithstanding a breach initiated due to non-compliance with that community correction order, you have now completed all aspects of this order. Significantly, you do not have a relevant criminal history for sexual offending.
32 You have had two major intimate relationships throughout your life. The first commenced when you were approximately 17 years of age and your partner was a year older. You had a planned child when you were 18 years of age, reporting to Dr Vincenzi that you had always wanted to be a father. You had another child with your partner when you were 19 years of age; however, the relationship ended before the birth of this child. You subsequently formed a relationship with another woman which lasted some nine months and resulted in your third child. Your three children are now aged four, three and two years of age, and you reported Dr Vincenzi that you had not seen them in 12 months. I was informed by your counsel, however, that, notwithstanding lack of physical contact, you remain on good terms with the children's mothers, and have regular phone contact with the children.
33 Over the years you have had multiple hospital admissions regarding mental health issues, generally following incidents of intentional self-harm. You reported to Dr Vincenzi having multiple scars on your right arm from cuts and burns, reporting that you had commenced self-harming behaviours from the age of 11 or 12 years in response to distress felt regarding bullying and loneliness. Your last hospital admission occurred at the age of 16 years. You reported to Dr Vincenzi having ceased engaging in non-lethal harm since the age of 17, though reported making subsequent suicide attempts, the most recent in February of this year.
34 Dr Vincenzi opined at paragraph 35 of his report as follows:
"From a young age, Mr Massey was exposed to abuse on multiple fronts and taken into DHHS care for most of his adolescence. Due to the pervasive nature of the abuse (i.e., from his father, brothers, and school peers), there was no consistent or predictable respite for him. Consequently, it seems likely that his body's natural threat response was overly active during his developmental years. This can be disruptive to the brain's natural development, which can lead to depression, anxiety, low self-confidence, increases in fear responses, and substance use later in life. Consequently, Mr Massey has experienced long-standing difficulties forming friendships and intimate relationships."
35 I accept that your background is one of considerable deprivation and impoverishment. From a young age, you have been exposed to criminal (including drug taking) behaviour, you have been a victim of child abuse, and you have experienced a pervasive cycle of abuse from multiple sources. Unsurprisingly, this has impacted upon your general development and has been reflected in your prior criminality, polysubstance abuse and associated behavioural problems.
Recent circumstances
36 On 12 October 2018, I adjourned this matter to enable the provision of a pre-sentence report (the Vincenzi report) and a community correction order assessment report. That assessment by Corrections ultimately found you to be suitable for a community correction order.
37 When the matter returned before me on 19 March 2019, I was told something of your recent progress.
38 I understand that you had formed a relationship with a woman in the intervening period, but that relationship broke down in February of this year. You had been residing with your partner, and the impact of the relationship breakdown led to a return of instability in your life. You increased your alcohol consumption and I was told that in February this year you were charged with offending which included drink-driving, unlicensed driving and driving an unregistered vehicle. Subsequent to appearing before me on 19 March 2019 I have been informed by the prosecution with the consent of defence that you have been involved in two driving-related incidents that have brought you to the attention of police on 24 February and 26 February 2019.
39 Charges emanating or likely to emanate from those incidents include unlicensed driving, driving an unregistered vehicle, drink-driving essentially and driving an unroadworthy vehicle. Whilst it is of note that this would seem to be your first offending since the offending for which you now fall to be sentenced, this recent offending is reflective in my view of your problematic, unstable and somewhat chaotic background.
40 I understand that you are currently residing with a friend in Sale. You are not engaged in any employment or employment-related programs, you are still using cannabis regularly and you are not engaged in any other prosocial activities.
41 As I indicated on 19 March 2019, I remain concerned in relation to your fragile mental health, given the sentiments expressed by Dr Vincenzi in relation to episodes of self-harm. I turn now to sentencing factors.
Sentencing factors
42 Section 5(2) of the Sentencing Act 1991 sets out a series of factors to which a Court must have regard in sentencing an offender.
43 The legislation does not state that any factor has dominance over another. Indeed, it is well understood that the weight and emphasis given to any one factor by a court will vary according to the facts and circumstances of each case.
Maximum penalty
44 Pursuant to s.5(2)(a) of the Act, I must have regard to the maximum penalties for the offences to which you have pleaded guilty. As earlier indicated, both charges on the indictment carry maximum penalties of ten years' imprisonment, reflecting the seriousness of your offending. Failing to answer bail carries a maximum penalty of two years' imprisonment. I have taken into consideration the maximum penalties for the offences to which you have pleaded guilty in constructing an appropriate sentence in your case.
Nature and gravity of your offending
45 Pursuant to s.5(2)(c) of the Act, I must have regard to the nature and gravity of the offence.
46 The offences on the indictment to which you have pleaded guilty are serious offences. The law exists to protect children from sexual abuse by adults. The law is designed to protect children against exploitation by others and also against their own bad decisions.[6] There is a considerable age difference between you and your victims. You were then aged 20 and they were then aged thirteen. There is in my view a considerable difference between the ages of 13 and 20. I accept that the age difference is not a great age difference, but nevertheless it is in my view a significant age difference. You were certainly old enough to know that your conduct was both legally and morally wrong. The age disparity is not the only relevant factor in relation to the issue of age. In your case, both victims were just aged 13. In my view this made them both particularly vulnerable to your offending, and any penalty should reflect the need for the law to protect such victims.
[6]DPP v Dylan Solomon-Davidson [2017] VCC 107, per Judge Patrick at paragraph 29.
47 Once the physical interactions between yourself and the victims had become somewhat sexual, with mutual exposure and touching, your victims informed you that the conduct was illegal due to their age and should stop. Nevertheless, you continued with your actions. I agree with the prosecution submission that this is a significant aggravating factor in relation to your offending.
48 You did not use protection whilst engaging in sexual intercourse with Alexia. That exposed her to the risk or fear of sexually transmitted diseases or potentially pregnancy. I agree with the prosecution submission that this is also an aggravating factor to your offending.
49 Your counsel submitted that the absence of force or duress, and the "active involvement by complainants" were matters tending towards your offending being placed at the lower end of the spectrum. I regard these factors as constituting an absence of circumstances of aggravation, rather than as mitigatory factors. As I have stated, the law in this area serves to protect victims, including protecting them from themselves. Whether or not these 13-year-old girls were willing and active participants in your criminality does not in and of itself mitigate your offending.
50 I am of the view that your offending could not be described as predatory but was rather opportunistic. You were clearly under the influence of excessive amounts of alcohol. Whilst this of course does not in any way excuse your behaviour, it serves to explain to a degree your conduct. I accept, as your counsel submitted, that this was an unplanned offence and there are no indicia of predatory behaviour on your part. In relation to your offending, Dr Vincenzi opined as follows:
"Around the time of the index offending, he had recently experienced violence from individuals who he believed were acting on behalf of his former partner. This event further contributed toward his view of himself as powerless and victimised. Within that context, it seems likely that the victims of the index offending appeared to represent a less threatening or intimidating opportunity for intimacy, given their young age and apparent interest in him. Additionally, his offending behaviour was facilitated by a large quantity of alcohol and cannabis, which would have reduced inhibitory cognitions and his ability to engage in consequential thinking. Within this context, and given that Mr Massey has no prior history of similar offending, it would appear that the offending was opportunistic and that there is no apparent evidence that Mr Massey has deviant sexual interests."
51 For the reasons that I have outlined, whilst I do not regard your offending to represent offending at the lower end of the spectrum for offences of this type, I do not regard your offending as falling at the upper end of that spectrum.
Your culpability and degree of responsibility for the offending
52 Pursuant to s.5(2)(d) of the Act, I must take into account your culpability and degree of responsibility for the offending.
53 In my view, your moral culpability for the offending is not reduced by virtue of the relevant Verdins principles. However, in my view it would be unrealistic and unfair to completely ignore your most difficult background and likely triggers for your offending behaviour as outlined by Dr Vincenzi at paragraph 35 of his psychological report. As the High Court affirmed in the decision of Bugmy [2013] 87 ALJR 1022 at paragraph 40:[7]
"The circumstances that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way."
[7]Bugmy (2013) 87 ALJR 1022, [40].
54 Whilst these sentiments were expressed in the context of deprivation in the context of an Aboriginal offender, in my view the principle has application in your case. In my view, your background and associated difficulties, linked to your offending in the view of Dr Vincenzi at paragraph 35 of his report, inform the underpinnings of your offending behaviour, and I have taken into consideration in a general sense those matters in making an assessment of your culpability for your offending.
Plea of guilty and remorse
55 Pursuant to s.5(2)(e) of the Act, I must also take into consideration your plea of guilty, and the stage in the proceedings at which you did so.
56 As earlier indicated, I am satisfied that your plea of guilty was entered at an early stage in proceedings and that it is consistent with your comments shortly after your offending, where you admitted responsibility for your actions. Furthermore, I am satisfied that your plea of guilty is reflective of genuine remorse. I note in that regard Dr Vincenzi stated at paragraph 9 of his report:
"He expressed what appeared to be genuine regret and took responsibility for his actions."
57 In accordance with the relevant authorities, your plea of guilty coupled with genuine remorse warrants a significant sentencing discount. Your plea of guilty has facilitated the course of justice, and spared the victims and witnesses the trauma of cross-examination. Particularly in relation to sexual offences, there is a need to encourage other offenders to plead guilty where appropriate. Your plea of guilty in these circumstances ameliorates the need to impose a penalty which reflects the sentencing purpose of specific deterrence and is also relevant to your prospects of rehabilitation.
Youth
58 You were 20 years of age at the time of your offending. You are now 23 years of age, and therefore fall to be sentenced as a youthful offender. In considering an appropriate sentence in your case, I have taken into consideration the relevant principles applicable to sentencing of youthful offenders, in particular the decision of R v Mills (1998)[8]. In relation to the sentencing of youthful offenders, rehabilitation assumes a significant role.
[8]R v Mills (1998) Vol 4 VR 235.
Hardship in custody
59 Given your personal difficulties and mood disturbances, I raised with counsel the issue of any term of imprisonment adversely impacting upon your mental health. According to Dr Vincenzi at paragraph 37 of his report:
"It seems unlikely that these mood problems would contribute toward a period of incarceration weighing more heavily on him than on an individual without these problems. While a prison sentence would undoubtedly contribute toward his low mood, the stability afforded by prison may counteract this effect in the long term. It is noted, however, that his mood should be monitored throughout such a transition, given his history of suicide attempts."
60 The prosecution submitted that in light of Dr Vincenzi's opinion, neither the fifth nor sixth Verdins principles were enlivened to mitigate punishment. I accept that submission. However, it would in my view be unrealistic and unfair to completely ignore your personal difficulties and your recent mental health fragility as noted by Dr Vincenzi, in making an assessment of the circumstances in which you would likely experience a term of imprisonment. At the very least, I am satisfied that due to your personal difficulties, a term of imprisonment would weigh heavily upon you, and I have taken that into account in the exercise of mercy in your case.
Current sentencing practices
61 Pursuant to s.5(2)(b) of the Act, I must have regard to current sentencing practices. In that regard, your counsel referred me to a number of recent decisions of this court and I have considered each of those carefully. Whilst it is clear that some of those decisions have resulted in either community correction orders or combined imprisonment and community correction orders, other decisions involving offending of this type have resulted in terms of imprisonment being imposed. Clearly, each case should be determined in accordance with the specific circumstances that apply to it. I also note the High Court in DPP v Dalgliesh confirmed that sentencing practices are but one of many sentencing factors to be taken into account in sentencing, and should not predominate.
Sentencing purposes
62 Section 5(1) of the Act provides that the only purposes for which a sentence may be imposed are general deterrence, specific deterrence, denunciation, protection of the community, just punishment and rehabilitation. In cases involving sexual offences against children, it is often said that the primary sentencing considerations are general and specific deterrence, denunciation of the serious nature of the crime and protection of the community. In imposing a sentence on you, I must denounce your offending as unacceptable within our community. Other individuals must be deterred from engaging in such behaviour. Given your lack of relevant criminal history, coupled with your acceptance of responsibility and plea of guilty, I am satisfied that specific deterrence has a lesser role to play in sentencing in your case.
63 I now turn to the issue of your rehabilitative prospects. Dr Vincenzi conducted a risk assessment in relation to the risk of further sexual offending, utilising the widely respected risk assessment tools. He concluded at paragraph 33 that you represent a moderate risk of sexual recidivism. Significantly, there is no apparent evidence of any underlying deviant sexual interests.
64 It is in my view difficult to assess your rehabilitative prospects. You clearly have experienced a most difficult upbringing and have multiple challenges ahead of you. You appear to have ongoing issues in relation to drug and alcohol use. Your personal circumstances, including accommodation and supports, remain unstable. Whilst you have no employment history of note, I acknowledge that you have plans to tackle the issue of literacy skills as a precursor to employment programs and ultimately employment. You have three young children with whom you have ongoing phone contact, who presumably are a significant motivating force for your future endeavours. According to Dr Vincenzi, you are in need of offence-specific treatment, together with more generalised psychological treatment given your personal history. For these reasons, I am somewhat guarded in relation to your rehabilitative prospects. However, it is in my view imperative that any sentencing disposition facilitates your rehabilitative prospects, given that you are still only 23 years of age.
Submissions regarding penalty
65 Your counsel submitted that in all of the circumstances, you should be sentenced to a community correction order rather than a term of imprisonment. The prosecution submitted initially that a combination sentence (incorporating a term of imprisonment and then a community correction order) was within the range. Upon receipt of the report from Dr Vincenzi and the community correction order assessment report, the prosecution obtained updated and confirmatory sentencing instructions. On 19 March 2019, the prosecution submitted that the objective gravity of the offending and the need to give significant weight to principles of general deterrence and denunciation demands some custody in this case, particularly given the absence of any reduction in your moral culpability.
66 Mr Massey, would you please stand.
Conclusion and sentence
67 Weighing as best I can the various competing considerations in your case, I have come to the view that the gravity of your conduct, and the need for a penalty to reflect the principles of denunciation, general deterrence, just punishment and protection of the community call for a term of imprisonment in your case, albeit of short duration, prior to the imposition of a community correction order.
68 Pursuant to s.9 of the Act, I intend to impose an aggregate sentence of imprisonment in relation to Charges 1 and 2 on the indictment. In my view those charges are founded on the same facts, arising out of the same incident. On Charges 1 and 2 you are convicted and sentenced to a term of imprisonment of three months. Pursuant to s,44 of the Act, in addition to this sentence of imprisonment, you are ordered to undertake and complete a community correction order. That order will operate for a period of two years, and will commence on your release from imprisonment in three months' time.
69 In addition to the mandatory conditions attaching to the community correction order pursuant to the Act, I order that you comply with the following conditions:
(1) that you perform 200 hours of unpaid community work during the duration of the order;
(2) that you be supervised, monitored and managed as directed by the Secretary;
(3) that you undergo treatment and rehabilitation programs in regards to drug and alcohol use;
(4) that you undergo treatment and rehabilitation in relation to mental health; and
(5) that you undergo treatment and rehabilitation in relation to any programs that address the factors related to your offending behaviour.
70 In relation to the related summary offence of failing to answer bail, you are convicted and sentenced to a term of imprisonment of seven days. I order that that sentence be served concurrently with the three-months sentence imposed in relation to the other offending.
Section 6AAA declaration
71 Pursuant to s.6AAA of the Act, I declare that but for your plea of guilty I would have imposed a total effective sentence of 12 months' imprisonment, with a non-parole period of six months.
Sex Offenders Registration Act 2004
72 Upon conviction in relation to Charges 1 and 2 on the indictment, you become a registrable offender under the Sex Offenders Registration Act, and the period of reporting is for life.
73 Take a seat, Mr Massey. Before the appropriate documentation is generated, any issues, Mr Fisher, firstly?
74 MR FISHER: No, thanks, Your Honour.
75 HIS HONOUR: Right, yes. No, Mr Bhattarcharya?
76 MR BHATTARCHARYA: No issues, Your Honour.
77 HIS HONOUR: Yes, thank you. All right. Whilst that documentation is being prepared, Mr Massey, if you wouldn't mind standing again, please, sir. I need to ensure that you understand firstly the sentence that I have imposed, that is the three-month sentence of imprisonment followed by a two-year community correction order.
78 Documentation will generate shortly which you will need to sign indicating that you consent to the community correction order. I cannot impose that order unless you consent to it, but before you sign the order I need to ensure that you understand what it means. There are a number of mandatory conditions that you will need to comply with, Mr Massey, during the duration of the order in addition to the program and drug and alcohol treatment conditions that I have set, as well as the 200 hours of unpaid community work. Do you understand that if you do not comply with those conditions you can be brought back before me for breaching that community correction order and, if the breach is occasioned by criminal offending, you can be sentenced on the criminal offending together with the breach? So there are consequences for breaching the order; do you understand that?
79 OFFENDER: Yes, sir.
80 HIS HONOUR: And having understood that do you consent to a community correction order being imposed in these terms?
81 OFFENDER: Yes, sir.
82 HIS HONOUR: Yes, all right. Thank you. Mr Bhattacharya, I wonder if you would go down to the back of the court with my associate and assist in the community correction order being signed, together with the Sex Offenders Registration Act documentation.
83 Mr Bhattacharya, you will no doubt ensure that your client understands each and every condition on the community correction order as well as the obligations under the Sex Offenders Registration Act, in particular the consequences for any non-compliance.
84 MR BHATTARCHARYA: Yes, Your Honour.
85 HIS HONOUR: Thank you very much. Yes, thank you, you can remove Mr Massey, please. I thank counsel for your assistance in relation to this matter and I will temporarily stand down.
86 MR FISHER: Thanks, Your Honour.
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