Director of Public Prosecutions v May
[2011] VCC 417
•8 April 2011
| IN THE COUNTY COURT OF VICTORIA | Revised Unrestricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-10-01816
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL JAMES MAY |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 March 2011 | |
DATE OF SENTENCE: | 8 April 2011 | |
CASE MAY BE CITED AS: | DPP v May | |
MEDIUM NEUTRAL CITATION: | [2011] VCC 417 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Plea of guilty - Sexual penetration of a child under the age of 16 - Lengthy criminal history of violence, dishonesty and driving offending – Drug and alcohol issues - Withdrawal of submission regarding a mitigating feature - Application to withdraw character reference no longer relied upon - Prospects of rehabilitation
Cases:R v Abbott [2007] VSCA 32; R v Mark & Elmazovski [2006] VSCA 251; R v Verdins 16 VR 269
Sentence:Total Effective Sentence of 24 months’ imprisonment with a non-parole period of 16 months’ imprisonment – 141 days pre-sentence declared as having already been served – s.6AAA Sentencing Act 1991 declaration – Ancillary orders – Sex Offender Registration
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr E Delaney | Mr. C. Hyland, Solicitor for Public Prosecutions |
| For the Accused | Mr C Pearson | James Dowsley & Associates |
The names of the victim and her friends have been anonymized in order to protect their privacy.
HER HONOUR:
1 Michael James May, you have pleaded guilty to two charges of sexual penetration of a child under the age of 16 years, an offence which carries a maximum penalty of ten years’ imprisonment.
2 The Crown opened the plea as follows:
3 At the time of the offences you were 23 years old, having been born on 19 March 1986. The complainant was born on 13 December 1989 and had just turned 14.
4 You met the complainant through her former boyfriend, 17 year old JD. By 5 January 2010 you had met the complainant a few times. Her best friend, MB, who was also 14 years, was always present whenever you and the complainant met. The complainant and MB were still attending school and were in Year 8. You knew that the complainant was only 14 years old as she had told you this on the second occasion that you had met some time in the middle of December 2009, just after she had turned 14. In this regard reference was made to the VATE that the complainant made in relation to this matter at questions and answers 124 through to 126.
5 At about midnight on 5 January 2010 the complainant and MB snuck out of the complainant’s Frankston North house. MB was staying over at the complainant’s house on this night and having left the house, they went to the Seaford train station where they met you and your male friends. You had alcohol with you, which you gave the complainant to drink.
6 After a short while, you, the complainant and her friend walked from the train station, a short distance away, to a bungalow behind a house in Railway Parade, Seaford. A friend of yours, 30 year old RP, lived in the bungalow. Earlier that night, you had met RP at the Seaford train station and asked him whether he could bring two girls over to his bungalow later that night.
7 The bungalow comprised two rooms. At one stage you were kissing the complainant as she sat on your knee on the couch in the back room. Later, you and the complainant moved to the front room of the house and RP provided you and the complainant with a doona and pillow to sleep on.
8 In the front room you and the complainant lay down together and you continued to kiss her. You then pulled her pants down and inserted your penis into her vagina, proceeding to have sexual intercourse with her. This is the basis of Charge 1.
9 Later that morning, after you and the complainant had woken up, the complainant told her friend, MB, that you had had sex with her. The complainant and her friend returned to the complainant’s home before the complainant’s mother woke up.
10 A few days later, late on the evening of 8 January 2010, or in the early morning of 9 January 2010, the complainant and her friend, MB, again snuck out of the house they were in. On this occasion, the complainant was sleeping over at MB house in Chelsea. Again, the two girls met with you and you all went to the beach at Carrum where you met with some of your friends.
11 After attending the beach, the group moved onto Carrum bridge where you and the complainant were seen kissing under the bridge.
12 A number of you then moved on to the pool and spa area of an apartment block on Thompsons Road, Patterson Lakes. You and the complainant, amongst others, got into the spa and pool. Before doing so, the complainant stripped down to her underwear. You were seen kissing and cuddling the complainant as she was in the water and up against the side of the pool. It was during this time that you pulled the complainant’s pants down and inserted your penis into her vagina, having sexual intercourse with her on this second occasion. This is the basis for Charge 2.
13 Meanwhile, MB’s mother discovered that her daughter and the complainant had left her house and alerted the complainant’s mother. Both mothers eventually found their daughters at the house of a friend of yours, JB, later that Saturday afternoon.
14 The complainant’s mother disciplined the complainant and confiscated her mobile phone. At this stage the complainant’s mother had learnt that the complainant had been with a 23 year old male. When the complainant’s mobile phone was in her mother’s possession, you sent text messages to the phone. You also called the phone and the complainant’s mother answered. She asked who the caller was and you said that it was “Michael”. Because of the tone of your voice, the complainant’s mother asked how old you were and you said that you were 16 years old. When she said that you did not sound like you were 16, you replied that you would come over and show her. The complainant’s mother hung the phone up, however you rang again ten minutes later. On this occasion, the complainant’s mother told her daughter to answer the phone and to tell you that she did not want to speak to you and to stop ringing her.
15 The complainant’s mother then turned her daughter’s mobile phone off after it continued to ring. She also sent a text message to you on her mobile phone, telling you that her daughter was only 14 years old and that she would put you in gaol if you ever came near her again. You sent a text message to the complainant’s mother’s phone in reply which read as follows:
“Look, I don’t give a shit; she is like the best girl around here – yer the age is fuck’t but when see how happy she can make me, I don’t care- what’s fkn age anyway- you don’t love someone becoz they are your age -you love them becoz they make your day becoz they make you smile; you can't wait to see them and that’s what Im going to do- to see herr as much as I can- send me to gail -as soon as I’m out I will be rite back becoz I love her …”(sic; and punctuation mine)
16 You sent yet another text message with a similar sentiment 20 minutes later. At that stage, the complainant’s mother spoke to her daughter and told her that she was going to the police. The complainant then admitted that she had had sex with you once but did not tell her mother where this had taken place.
17 Police interviewed you on 18 May 2010. You admitted being at RP’s bungalow with the two girls and some others. You denied ever “hooking up” with the complainant, as you put it, because you said she was JD’s partner at that time and you had a partner as well. You said that you knew that the complainant was young but did not know how young she was. You said that you knew that JD was about 16 and that the complainant was around the same age but you were not 100 per cent sure on her age and had never really asked.
18 You said you were able to remember being with the complainant and her friend and some other people at the pool at flats in Thompsons Road, and that you were talking and relaxing. You denied kissing the complainant or doing anything else of a sexual nature, including sexual intercourse, while you were in the pool or at any other time. You said that at all times, the complainant’s boyfriend, who was your mate, was there and then said “let alone the fact that she is whatever age she is, young”. When asked by police how old the complainant was you said, “At the most, 16 I reckon. I’m not really sure.” When told by police that the complainant was 14 years old you said, “I wouldn’t disagree”. The text message which you wrote to the complainant’s mother was read to you; however, you denied that you wrote this.
19 You entered the plea to these charges on the first day allocated for your trial, being the day before the complainant was to give evidence at a special hearing in this matter. However, I was told at the further plea (in contrast to what I was originally told) that you had indicated an intention to plead guilty to these matters now before me at an earlier stage than this - that is, following the committal hearing, but it was not until the first day of the trial that the Crown accepted this offer. I do note that you had previously faced a charge of rape which was effectively withdrawn by the Director of Public Prosecutions in relation to the incident of 5 January 2010. I take the stage at which you were prepared to plead guilty into account in sentencing you. You have saved the witnesses, especially the complainant, the trauma and trouble of giving evidence and you have saved the community the time, inconvenience and expense in this regard. You are therefore entitled to a substantial discount in the sentence which you would otherwise receive.
20 As the complainant had only just turned 14 years and you were 23, nearly 24 years old when the offending took place, you were a good deal older than the complainant, although you professed to the police not to have known exactly how old she was. On your behalf, Mr Pearson accepted that you did know that the complainant was under age or that at least you accepted that a jury would be so satisfied. Part of the summary of facts which was not formally contested by you was that the complainant had told you precisely how old she was the second time that you and she met, which was before the offences were committed. I have regard to these matters when assessing the seriousness of your offending.
21 In your own inappropriate way, it would appear that you had some genuine feelings for the complainant, but you must have known that what you were doing was very wrong. You, as the adult, ought to have exercised good judgment and restraint, even if it be that the complainant showed some attraction towards you. Indeed, if this was the case, it is all the more reason why you ought to have behaved responsibly towards her. The fact of the matter is that she was only a child, and it is clear from the Victim Impact Statement that she has made that she has suffered a good deal because of the offending against her.
22 The facts which were opened and accepted by you indicate that it was you who initiated sexual intercourse on both occasions. I accept that there was no grooming involved and that the provision of alcohol was not for the purposes of ensuring the complainant’s compliance with your wishes. However, it was in the setting of your awareness that this young girl had consumed alcohol that you chose to engage in sexual intercourse with her on each occasion. Your behaviour was not predatory but appeared to be linked with some sort of infatuation which you had for the complainant. It would appear that you were somewhat immature, as at least some of the males with whom you were mixing were closer to the complainant’s age than to yours.
23 I was told that you were affected by alcohol on each occasion of the offending and that you are a binge drinker, which has had a good deal of connection with your offending in the past. I note, with some concern that you did not present to Dr Cunningham, psychologist, with insight into the significance of your substance abuse. You should be perfectly aware by now, that if you consume alcohol excessively, you are more than likely to commit criminal offences. If you choose to conduct yourself in this way in the future, then you are now on notice that your excessive drinking may well be regarded as an aggravating feature of any future offending. I do not make such a finding on this occasion but I do take into account the fact that there is a link between substance abuse, including alcohol abuse and your offending and your lack of insight in this regard. I also take this into account, when assessing your prospects of rehabilitation and giving appropriate weight to the need to protect the community from you.
24 Of concern was the fact that you chose to engage in unprotected sexual intercourse with the complainant, subjecting her to the risk of pregnancy and/or sexually transmitted diseases. The authorities are clear that this can be an aggravating feature in offending of this type (see R v Khem [2008] VSCA 136, R v Magner [2004] VSCA 202 and R v MMK [2005] NSWCCA 369). It appears that neither of these consequences – that is, disease or pregnancy have eventuated, but the fact that you chose to take such risks with this young girl heightens your moral culpability and aggravates the seriousness of your offending.
25 You have a lengthy criminal history; however, none of these are for sexual offences. Whilst your earlier offending largely comprises dishonesty and traffic matters, your more recent history involves violent offending. I raised with counsel a matter which turned out to be a subsequent offence concerning a former de facto partner who you assaulted in a most appalling fashion. In relation to this matter, I was told that you committed this offence in November 2009 and on 16 June 2010 you were sentenced to six months’ imprisonment, to be served concurrently with other sentences. I have regard to the subsequent offending as well as your prior convictions when determining the weight I give to protection of the community, and assessing your prospects of rehabilitation.
26 I also take into account the Victim Impact Statements, which indicate that the complainant in this matter has suffered a good deal since the offences. She has had to endure being tested for sexually transmitted diseases and pregnancy and reports that she is finding it hard to cope on a daily basis. Her mother has had to take time off work and she has lost her job. The complainant is unable to go to school and so is having to be schooled from home, which has had a negative impact upon her mother’s ability to work. She says that she hates herself for what has happened and hates what she has become. She feels that her life has been destroyed and does not know if or when she will ever get over this.
27 The complainant’s mother also made a Victim Impact Statement. She had to take so many days off due to the complainant’s emotional state after the offences were committed that she was asked to leave her fulltime employment. She now struggles financially as she is no longer able to work due to what has happened to her daughter. She says that because there was a period when you had not been arrested, every day was a struggle as the complainant kept thinking that you would show up. She reports that she feels that she has failed as a mother to protect her daughter and struggles daily just to get out of bed as she suffers from depression. She says that her daughter had been a happy girl but was now bitter and angry. She says that your offending has impacted on her entire family.
28 Whilst it may well be the case that the complainant consented to your conduct towards her, the fact of the matter was that she was at such a tender age when she did so; this is fully reflected in the impact that she and her family now suffers. You must realise that these are the very consequences of your actions towards the complainant.
29 Upon the original plea hearing, Mr Pearson submitted that your plea to these charges was indicative of remorse, and that you were genuinely remorseful for your actions. As against this, there are the text messages that you sent to the complainant’s mother shortly after your offending, which manifests a defiance and a determination to maintain a relationship with her daughter even if incarcerated. You lied to the police in your record of interview: denying any sexual contact with the complainant and you ran a contested committal hearing before offering to plead guilty to these charges. Also, your letter to me dated 1 February 2011 makes no mention of remorse whatsoever, but is taken up with your own situation. This is not to say that I have not taken a number of the matters in your letter into account, insofar as they may relate to your prospects of rehabilitation and in a more general sense in arriving at an appropriate sentence in your case. However, in view of all of these aspects that I have just referred to, insofar as remorse is concerned, I am afraid that I can find none and I am not satisfied that your pleas of guilty manifest any. In making this finding, I make it clear that in no way have I been influenced by the withdrawal of reliance on submissions made in respect of your relationship with Ms Tauraan-Young, nor any matters put in respect of the character reference which was initially said to have been provided by her, and which is no longer relied upon by you.
Background
30 Your background was referred to in the course of submissions made by Mr Pearson and is also contained in the report of Dr Cunningham dated 11 March 2011. Dr Cunningham assessed you at Port Phillip Prison on 17 February 2011. The matter had been adjourned for further plea pending the receipt of his report and a report of a triage assessment performed at my request involving an appraisal of the degree of risk that you presented in terms of sexual re-offending.
31 You were born in Queensland and you and your family moved to Tootgarook when you were two years old. Your father had consumed a good deal of alcohol prior to his death. You said to Dr Cunningham that sometimes your father would, to quote you, “do his job and discipline mum” which involved the use of physical violence. In this regard, I do hope that you do not seriously regard your father’s actions towards your mother as some performance of duty on his part to be violent towards her. As the present offences do not involve gratuitous violence, I make a passing reference to this matter, but I want to make it clear to you that if you were serious in this attitude, you ought rid yourself of it immediately.
32 Your mother and father raised you for a time, along with two younger brothers and two younger sisters. When you were aged nine years, your parents separated. According to what you told Dr Cunningham, your mother was unable to cope with looking after her children and placed you in temporary care with the Department of Human Services. At about this time, your father committed suicide at the family home. I was informed that you were taken to a room by Department of Human Services workers, where, surrounded by people from that department, you were met with the sight of a phone in the middle of the floor; on the other end of the line was your mother, who informed you that your father had committed suicide. Obviously, this is a dreadfully sad and tragic memory for you to have, which, no doubt, has affected you greatly, as has being without the comfort and support of your mother and father for crucial periods of your childhood. You were kept in government care between the ages of ten and 16 years. During this time, you lived in residential units, secure welfare and you also lived with one foster care family. On several occasions, you ran away to live at your mother’s house. However, you told Dr Cunningham that the police would always take you back to government care. You also reported periods of detention in Parkville Youth Justice Centre and Malmsbury Youth Justice Centre, which is in accordance with your criminal history.
33 At the age of 16, you were no longer obliged to live in government care and commenced a relationship with a Tanya Hume, living with her father in Chelsea for one year. You then lived across different friends’ houses before beginning a relationship with a Teagan Nicholls. You then had a four year relationship with a Nicky Boise. You then resumed your relationship with Ms Hume and then embarked on various other relationships before meeting with the complainant. You reported to Dr Cunningham that there was physical violence in your relationships with a Ms Jacobsen and Ms Hume.
34 You also indicated to Dr Cunningham that at present – that is as at 17 February 2011, you were engaged to a Mahala Tauraan-Young. You had been together since February 2010. You have one son together: Jai Alexander, born on 2 January 2011. You had not yet seen your son due to your incarceration, but indicated to Dr Cunningham, and it was initially put on your plea, that your intention was to reunite with Ms Tauraan-Young upon your release. To that end, a character reference, said to be prepared by your fiancée, was tendered on your behalf. However, when the prosecution indicated that the informant challenged that you were still in a relationship with Ms Tauraan-Young, the matter was adjourned for a contest on the facts concerning this aspect of your plea. On 31 March this year, upon the further plea, I was advised by your counsel that you no longer wished to rely on the character reference which was Exhibit 2 on the further plea, and that you did not rely on any assertion that you were still in a relationship with her or that you intended to resume a relationship with her when you were released, nor should I take into account any of the plans which were said to involve this young woman. Also, in this regard, one of the matters referred to by Dr Cunningham was that you had presented with protective factors that might reduce your risk of re-offending as you were in a stable relationship and were engaged to be married. Dr Cunningham had regarded the relationship’s stability and your status as a father as a “pro-social motivating factor”.
35 You apparently attended several different primary and secondary schools, completing Year 10 equivalent whilst in youth detention. You then had several short-term labouring jobs of various different kinds. Since 2005 you have apparently worked intermittently as a disc jockey and have expressed the wish to complete business training in order to assist in such a career.
36 In sentencing you, I take into account your background and all of the matters upon which you rely in that regard; save that, I put to one side the character reference which was sought to be withdrawn upon the further hearing of this matter; and I also factor into your prospects of rehabilitation that you will not have a stable relationship to return to, such that, although you have the status of a father, there will not be the degree of protection from further offending that a stable relationship may have otherwise offered.
37 The Court ordered a triage assessment of you. That assessment rated your risk of sexual re-offending as being moderate to high. However, the assessment made by Dr Cunningham rated you as being at low to moderate risk of sexual re-offending. I must say, it is difficult to know the degree to which, if any, the stable relationship which you reported factored into Dr Cunningham’s assessment. However, in view of the fact that you have a number of prior convictions, none of which involved sexual offences, and you have engaged in a number of relationships with other adults in the past and due to Dr Cunningham’s opinion that your risk of re-offending is not related to a sexual deviance or paraphilia, I am prepared to accept Dr Cunningham’s assessment that you present as a low to moderate risk of sexual re-offending. Of course, my assessment of the risk of you re-offending in general, is a different matter.
38 It is obvious that you come from a very sad, dysfunctional background and it would appear that you involve yourself in binge drinking on occasion. On the occasion of these offences, it would appear that your ingestion of alcohol has had a disinhibiting effect and you would be well advised to reduce your intake, if not abstain from drinking altogether in order to reduce the likelihood of you re-offending in the future.
39 In the opinion of Dr Cunningham, you are still struggling with grief which you experienced in relation to your father’s death.
40 You reported to Dr Cunningham that you have tried every drug but do not use illicit substances regularly. You reported using ecstasy and amphetamines in the context of your disc jockey work. Although you binge drink, you reported that alcohol is not a major problem. You have engaged in ice binges and, of course, in relation to these offences you had imbibed alcohol to the point of intoxication at the time each was committed – this is reflected in what you told Dr Cunningham (p.2 of his report). Of concern was that you did not seem to exhibit sufficient insight into the significance of substance abuse and, as I have previously said, you would be well advised to attend to restraint in this regard if you are to reduce your chances of re-offending in the future.
41 In terms of your mental state assessment, although you have had difficulties with controlling anger and lowered mood, you did not meet the criteria for any major mental illness. Dr Cunningham was of the view that your difficulties with anger control may relate to the dysfunction in your childhood as a result of your upbringing in Government care. He recommends that you receive treatment in this regard to increase your insight into your anger and learn some new coping strategies.
42 It would appear from what your mother told Dr Cunningham, that you were diagnosed with Attention Deficit Disorder when in primary school and you were administered medication for this. It would appear from what your mother and you have said, that you had a dreadful time whilst in Government care and it would be in your interests and in the interests of the community if you were able to explore these issues further with the help of a professional counsellor.
43 Dr Cunningham concludes that on the occasion of the offences for which I now sentence you, your specific risk factor was your overuse of alcohol, which may have led to an increase in disinhibition and impaired your judgment. He is of the opinion that you would benefit from ongoing drug and alcohol counselling, and it is to be hoped that you take advantage of any course offered to you whilst in custody or on parole. You also have offence-related risk factors associated with anger control problems, perhaps stemming from your childhood and your father’s suicide. Such problems may well have been exacerbated by your exposure to domestic violence at home and bullying behaviour when you were in residential care. Dr Cunningham was of the view that you have unresolved grief relating to the death of your father and would benefit, as I have said, from engagement with counselling to address your mood management.
44 I take into account the letter that you wrote addressed to me dated 1 February 2011 in relation to your ambitions for the future, although, in this regard, I note that some of these matters are not relied upon any more, due to the fact that it would appear that you are not in a relationship with the mother of your child and have not been for some time. I also take into account the two certificates concerning courses which you have completed in prison relating to asset maintenance and textiles, clothing and footwear. In respect of the latter course, a Hilton Bourke makes the comment that you have been a model student, taking a keen interest in your studies. He indicates that you are also studying a small business course with a colleague and that you are progressing extremely well. I am not sure that I have seen any documentation in relation to this course. However, I do note that you have some rather entrepreneurial ambitions in relation to a shuttle bus service in Tasmania and your pursuit of a business as a disc jockey.
45 Whilst I sincerely wish that you do pursue your ambitions and that you do not re-offend, when I take into account your prior convictions, the subsequent matter to which I have previously referred, the lack of a stable relationship to return to and the circumstances in which you offended on the occasions before me, as well as your lack of insight in relation to substance abuse and the part it plays in your offending, I am afraid that I can only find your prospects of rehabilitation as being quite poor.
46 I make it very clear that in sentencing you I have put to one side matters which are perhaps to be the subject of further investigation concerning the provision of Exhibit 2, said to be authored by your former girlfriend, or fiancée, and now sought to be withdrawn. The only relevance of this matter for the purposes of my task is in assessing your prospects of rehabilitation.
47 In your case, I must also give significant weight to specific deterrence and general deterrence. Notwithstanding that you are at a low to moderate risk of re-offending in terms of sexual re-offending, your risk of committing further offences is quite high.
48 Whilst these are serious offences, I do not take the view that they are the worst examples that this court has seen. However, your offending is serious enough and warrants just punishment and denunciation.
49 Whilst there is no suggestion of Verdins’ considerations in your case, so as to warrant a lessening of your moral culpability or moderation of the weight that I would otherwise attach to specific and general deterrence, I do take into account the matters raised by Dr Cunningham concerning your mental state in a general sense.
50 The prosecution submitted that a sentencing range in the order of three to four years head sentence with a non-parole period of two to three years was appropriate in your case. It was put that this was in line with current sentencing practice.
51 In response, your barrister: Mr Pearson, relying on a number of matters, including the stability of the relationship you were supposed to be continuing with the mother of your child, submitted that a sentence of this magnitude was too high and he submitted that a term that did not far exceed the term of imprisonment that you had already served would be appropriate in your case. He submitted that a non-parole period of 24 months would be excessive. In the course of his original submissions, Mr Pearson took me to the decisions of R v Abbott [2007] VSCA 32 and R v Mark & Elmazovski [2006] VSCA 251. However, insofar as this latter decision dealt with an appeal against sentence, the sole ground which was brought by Elmazovski concerned parity. Mr Pearson referred to the total effective sentence for Mark which was 20 months' gaol, of which he was to serve 8 months; and for Elmazovski, who was sentenced to 18 months’ imprisonment, of which he was ordered to serve 6 months. Whilst I take those sentences into account when considering the current sentencing practice, I must also have regard to other sentences which have been imposed in cases of this nature. I also take into account the sentence imposed in R v Abbott [2007] VSCA 32 as part of this task- the sentence imposed in that case being two years’ imprisonment with a non-parole period of 12 months. In that case, it was said the sentence was within the range, although it was said by the learned president of the Court of Appeal that it might be properly be regarded as a stern sentence in the circumstances of that particular case; however, the offending on that occasion was a single instance and although drink was involved, it was not apparent that the appellant was at risk of further offending because of a propensity for binge drinking. Also, in that case, the Appellant had shown genuine remorse and contrition for his offending and made full and frank admissions to the police, and from what I can gather, his criminal history was not as lengthy as yours.
52 I also have regard to the other cases referred to in R v Abbott and the analysis of them, including Mark & Elmazovski. I note, further, that in your case, it is not a situation where the complainant actively sought sexual intercourse with you, as was said to be the case in Mark & Elmazovski.
53 I also have regard to the sentencing snapshot concerning this offence in determining current sentencing practice. Of course, current sentencing practice is only one of the matters to which I must have regard in arriving at an appropriate sentence.
54 Could you please stand up Mr May?
55 In relation to Charges 1 and 2, you are convicted of these offences and by virtue of them you are to be recorded as a registered sex offender for life; that is, because of these offences being class 1 offences under the relevant legislation (they occurring on separate occasions) you are to be recorded for life as a registered sex offender. You must report your personal details to the Chief Commissioner of Police annually for the rest of your life. You must first do so – that is report, after your release from custody. Details in writing of these reporting conditions will be served shortly upon you by my associate. I will ask your counsel to attend to an acknowledgment of that notice and have you sign it.
56 You have agreed to a forensic sample retention order being made. I am satisfied that in light of the seriousness of your offending; the prior convictions which you have, the fact that the order sought by the prosecution is consented to, and that the granting of the order is in the public interest, that I should make the order sought.
57 Accordingly, pursuant to s.464ZFB(1) of the Crimes Act 1958, the forensic sample and any related material and information already obtained pursuant to the informed consent given by you to police, will be retained for placement on the relevant database.
58 I have signed the order which has been provided by the prosecution to me.
59 I have taken into account that you have been in gaol since your arrest on 18 May 2010. Whilst seven months of this time relates to other offences, I take this period into account, which is over and above the period I take into account and will declare by way of pre-sentence detention, and I take this other period into account in accordance with the principle of totality.
60 In relation to Charge 1, you are convicted and sentenced to 18 months’ imprisonment.
61 In relation to Charge 2, you are convicted and sentenced to 18 months’ imprisonment.
62 I order that six months of the sentence from Charge 1 be served cumulatively on the sentence for Charge 2. This makes a total effective sentence of 24 months’ imprisonment. I order that you serve 16 months before becoming eligible for parole. I declare that you have already served 141 days by way of pre-sentence detention.
63 If not for your plea of guilty to each of these matters, I would have sentenced you to a total effective sentence of three years’ imprisonment with a non-parole period of two years. You may be seated.
64 HER HONOUR: Are there any other matters, counsel?
65 MR DELANEY: No, Your Honour.
66 HER HONOUR: Yes, thank you.
67 MISS HARDY: Your Honour, I'd simply seek at this point to tender signed copy of the reference provided by Ms Renetta Wornard.
68 HER HONOUR: Yes.
69 MISS HARDY: The copy tendered at an earlier stage - - -
70 HER HONOUR: Was not signed.
71 MISS HARDY: - - -was not signed.
72 HER HONOUR: Thank you, yes. We'll substitute that for the unsigned copy.
73 MISS HARDY: Thank you.
74 HER HONOUR: Yes, thank you. You may remove the offender.
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